Director of Public Prosecutions v Petrie

[2021] VCC 731

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00977

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA PETRIE

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2021
DATE OF SENTENCE:	3 June 2021
CASE MAY BE CITED AS:	DPP v Petrie
MEDIUM NEUTRAL CITATION:	[2021] VCC 731

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Dangerous driving while pursued by police – Addicted or afflicted by drugs – Family history of substance abuse – Acknowledge the seriousness of the offending

Legislation Cited: s. 319AA(1), s.317AF(1)(b) Crimes Act 1958

Cases Cited:  Bourke [2020] VSC 130 - DPP v Nelson  [2020] VSCA

Sentence:Total effective sentence of 2 years and 6 months imprisonment with a non-parole period of 18 months imprisonment, 267 days declared as pre-sentence detention. Order to pay compensation and the Accused’s licence be cancelled and disqualified for 24 months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines and Polites Law

HIS HONOUR:

1In this matter, Mr Joshua Petrie pleaded guilty to the two charges in Indictment no.L10648922.1 at today's hearing, being the third day of June 2021.  Mr Petrie is now aged 31, he was 29 at the time of this offending, being the thirteenth day of March 2020.

2As I said, there are two charges in the Indictment. The first, Charge 1, being an aggravated offence of recklessly exposing emergency workers to the risk of driving, contrary to s.317AF(1)(b) of the Crimes Act 1958.  The emergency workers in this instance were First Constable Olney, and Senior Constable Aidan Dodson.  This is a category two offence, and was passed into the Crimes Act as a result of concerns expressed by Parliament, as to the risks police officers are exposed to in carrying out their duties.

3In Exhibit B, the learned Prosecutor referred me to the references from the Minister of Police, at the time of the new offences being introduced, and I refer in particular to paragraph 4 of Exhibit B.  I take those principles and purposes into account. 

4Insofar as that charge is concerned, being a category two offence, s.5(2)(H) of the Sentencing Act applies, unless there is a special reason, which was not submitted in this case,  a sentence of gaol must be imposed in regard to this offence.  I should point out that the aggravating offence was specified as the offence under s.317AG, that is the crime of damage an emergency vehicle.

5Further in regard to this offence, s.16(3D) of the Sentencing Act applies which indicates the Parliamentary intent that the sentence for this crime must be served cumulatively with any other sentence now being served and/or as a result of any sentence imposed this day.

6The second charge, to which Mr Petrie has pleaded guilty to is one of dangerous driving contrary to s.319AA(1) of the Crimes Act.  It is not only dangerous driving, but in particular, pursuant to that section, dangerous driving while being pursued by police, having been given a direction to stop, pursuant to the amendment made to this charge this day.

7I should have said in regard to Charge 1, the maximum penalty prescribed by Parliament is one of 10 years,  indicative of its inherent seriousness.  Insofar as Charge 2 is concerned, the maximum penalty prescribed is one of three years imprisonment.  Clearly, an indication again, of Parliament's view that such is a serious offence, albeit not so serious as the offence committed in regard to Charge 1.

8It should also be noted that as a result of the plea by Mr Petrie, the summary offences that he had been charged with were withdrawn subject, to a plea to a charge under the Road Safety Act under s.18(1)(a) of driving without a license, for which the maximum penalty under that Act is one of six months' gaol and/or 60 penalty units.

9Insofar as the crimes are concerned, if I could adopt Mr Nikakis' phrase, the circumstances are somewhat amazing, and when you read the details set out in Exhibit A of the prosecution opening, there is only one explanation demonstrated in Exhibit 2, being the longstanding impact of the addiction to drugs upon Mr Petrie.

10Mr Petrie has been addicted, or afflicted by drugs, I think is the correct way to put it, since mid-youth.  He comes from a family which has also had a history of substance abuse. Despite numerous attempts to assist him by way of Community Correction orders, he has not been able to overcome the affliction.  There is no doubt, in my mind, that the analysis of these crimes as being amazing on this night, comes about from him being afflicted by drugs.  Indeed, as we understand the position, as admitted to Ms Flemming, he was partaking in methamphetamine at the very time of this offending. 

11As I have said to Mr Petrie, and I will repeat at the end of this sentence, he is at a vital time in his life.  Given his background, his priors are not all that dramatic.  I say that obviously, by way of reflection of a number of years, looking at persons who come from such backgrounds and with far more serious offences.  That is not to underestimate the numbers of charges he has, of driving dangerously, recklessly causing injury, potentially damage property, and indeed, the most recent offences for which he was sentenced on 22 June 2020. Importantly, they are offences which are post-offence and not therefore priors. But they relate to the issue of his rehabilitation.

12I make the point, however, that the maximum sentence Mr Petrie has had during that period of nine years of offending, that is, as an adult, occurred in 2009 for a charge of reckless cause injury, for which he was given a five month period of imprisonment with an Intensive Correction Order, to be served as an Intensive Correction Order.  Subsequently, at 18 he had received a 180-day period of imprisonment, and a community correction order, and then a further 180 days, not as a prior, but as a post-conviction.

13While those matters are concerning for the particular crimes that I am considering, and clearly show an exacerbation of criminality, I make the point that at 31 and with his background, the priors are not as dramatic as one has seen in this Court.

Circumstances of the Offending

14Coming back then to the circumstances, clearly, driving a car even a Patrol wagon with a trailer on it, which has a blown left rear tyre and sparks coming from it, is an open invitation to being apprehended.  It is no doubt, why that police car initiated an attempted interception with their lights and sirens.

15What is amazing, is that thereafter for approximately 20 minutes, the offender continued to drive, in circumstances where Charge 2 was effected; that is, travelling at a speed at times between 70 and 80 kilometres, overtaking vehicles in Morris Road.  At the same time, emitting a large amount of smoke, travelling through intersections, at times against red signals, travelling over the top of nature strips and traffic islands, and at times, this is a further aspect of the dangerous driving aspect, shedding from the trailer equipment, which forced the pursuing police to take action to avoid.

16It is very difficult to understand, there is no explanation, but for someone totally out of control, because of the impact of drugs.  That then led to the circumstances of Charge 1.  There was a combined chase, so to speak, or pursuit.  There was finally a decision, these things are conducted as I understand by seeking advice from above, and paragraph 9 would indicate that given the driving which makes up Charge 2, a determination was made and advice given over police radio, that the car needed to be stopped due to its manner of driving and the risk to the public.

17Thereafter, other vehicles were involved, and that leads us to Charge 1 whereby Senior Constables Dodson and Olney parked their car where they had hoped to stop the driving of the offender’s car.  It was positioned at the top of the floodway in Ballan Road, at the top of the embankment.  I am not sure whether they did not have time to get out, but clearly, not only was it dangerous for them to be in, but I do not know, maybe in the circumstances given that the car was impacted at the rear, it may well have been safer for them to be in the car than out.  I do not know.

18But obviously, this is a serious offence.  Not only because of its inherent seriousness as a result of these provisions brought in by Parliament to protect emergency officers, indicated by the maximum penalty of 10 years imprisonment being imposed.

19It is, in this sentence, despite the intent of Parliament that sentences be cumulated, necessary to ensure that the offending is not conflagrated between both offences.  It seems to me there is an easy way to discriminate it, and the offending in regard to Charge 2 is the offending right up to the time of Charge 1 concerning Dodson and Olney, and those circumstances are confined to the risks brought about to Dodson and Olney.  That is, the reckless exposing of both of them to the risk of injury by the impact.

20I think it is necessary, however, given that this is a most serious charge with a high maximum penalty, to note that there was no injury caused, not that there has to be for this charge to be impacted. The damage to the car, clearly as shown in paragraph 13, of Exhibit A, is relatively minimal.  This is demonstrated by the fact that the order which I intend to make insofar as compensation to the police force, concerns the rear of the police wagon, and the total cost of those repairs was $2,041.49.

21All the officers felt as a result of this collision was a hard impact.  I stress again, however, that this charge does not require as an element, that injury be caused. It is established, and has been pleaded to, accordingly on the issue of recklessness and the circumstances that took place because of the risk to safety of these emergency officers brought about the damage effected on this emergency vehicle in the manner as described. 

22Coming then to the other factors put to me by the learned prosecutor by way of opening.  I note the maximum penalties.  I note the history.  I do not intend to analyse the prior history of Mr Petrie any further than I have.  I also note that there has been pre-sentence detention, it is agreed that the figure is
267 days.

23However, I must note the fact that Mr Petrie has been in gaol since the 13th day of March 2020.  That is a period of 447 days, and during that time, he served the sentence that I have referred to, pronounced upon him in June 2020 of 180 days.  As such, we have the pre-sentence detention figure of 267 days, which I have to take into account.  But I of course have taken into account the totality of the time that he has been in prison, and I will come to that when I come to the matters put to me by Mr Nikakis.

24I note the mandatory custodial sentence provisions which I have already indicated and the operation of s.16 as to cumulation.  I also note the need for the cancellation and disqualification, insofar as the motor licenses are concerned. I will make the order as to compensation, when that matter is served or given to the Court, no doubt, also given what we have heard from
Mr Nikakis, he will be sent a copy of the order.

Plea of Mr Joshua Petrie

25Coming then to the plea put on behalf of Mr Petrie, Mr Nikakis tendered Exhibit 1, being his written submissions and spoke to same. Mr Nikakis also tendered Exhibit 2, the psychological report of Laura Flemming dated 1 March 2021.  It seems to me that when parole is granted in this case, that report may be of great assistance to the Parole Board.

26As I have said in analysing these crimes, it is necessary to assess the criminality.  As I have indicated to Mr Nikakis, I accept in the circumstances of this case, specifically where there is no injury, that Charge 1 is of lower order by way of culpability.  With the only explanation being for not only Charge 1 but Charge 2, a person who was unable to control himself that day, and indeed, was out of control due to the impact of drugs.  As I have said, as confirmed to the psychologist Flemming, was partaking of drugs during the very driving.

27Insofar as the matters put to me, firstly, it was put by Mr Nikakis that by the plea of guilty, Mr Petrie has acknowledged in these circumstances the seriousness of the offending and has recognised that matter.  Insofar as Mr Petrie’s rehabilitation, he has indicated in the submissions that his intent now is to move to Queensland to try to effect such, where he can be with his mother.  As I have earlier said, let us hope that takes place, that he can get a job, and change his life because unless he does, he is going to be simply in prison for the rest of it.

28As I say, remarkably, Mr Petrie has had only nine years of offending, despite the length of his drug addiction.  It is very important, given his age of 31, that he does something about it.  I am not being naïve; I accept totally the guarded opinion of Ms Flemming as to his rehabilitation.  It is clear that he does present with a high risk of recidivism, and the only way, Mr Petrie, you are going to get over that, is if you take the opportunity given to you and which you have not previously, and ensure that there is no more drugs in your life.  Otherwise, you will simply be back in front of these courts.

29I also accept that during the time of which I have to take into account, that is, the 267 days, but I also take into account the fact that he has been in gaol since this offending, he has been subject to the COVID-19 lockdown, the restrictions therein, by way of lockdown in the gaol itself, the reduced capacity to have visitors of any type, and the inability to be engaged in any services.  I take all those matters into account.

30I also take into account the matters as set out by the Supreme Court in Bourke [2020] VSC 130, [32], which refers to the issues that the Court is having in listing matters, and the plea must be taken as a clear assistance to justice, that this plea has been entered into in such circumstances.

31I also take into account the submissions in regard to sentencing set out by the learned Prosecutor, although as I have indicated, I think there is a discrimination to be made against the circumstances set out in DPP v Nelson  [2020] VSCA 219, but in regard to the background of Nelson in making this assessment.  Although of course, it is appropriate for counsel, and I appreciate guideposts being given to the Court for consideration.

32However, as I have indicated, I put certainly Charge 1 at clearly a lower level.  In regard to Charge 2, I put that probably at mid-level, considering the number of factors that make up the dangerous driving, and the pursuit lasting for the period it did, and the driving that takes place during that period.

33Having taken into account all of those matters, I come to sentence you, Mr Petrie, and I propose to sentence you as follows.  It seems to me that it is appropriate to sentence you in a reverse order to that set out in the indictment, because it follows the temporal commission of your offences.

Sentence

34In regard to the charge of dangerous driving, while being pursued by police, Charge 2, which has a maximum penalty of three years, I consider that the assessment of culpability and the circumstances are such that an appropriate prison sentence is required.  I have determined that the sentence that should be imposed for Charge 2 is one of 12 months' gaol.

35Coming then to Charge 1, that of aggravated offence of recklessly exposing emergency workers to the risk of injury, in this case, the two police officers which I have nominated.  I accept the assessment of this charge put by
Mr Nikakis, and I have explained why I accept that.  Despite the dangers to which the two officers were exposed the impact was minimal.  There was no injury ultimately caused, but that is not in any way to take away from the fact of the risk to officers who are carrying out their duty.  Indeed, as I have remarked, this was the very reason why Parliament decided that this offence should be included in the statute, and indeed, that such a high maximum penalty should be imposed.

36In the circumstances, I sentence you to a period of imprisonment of two years for Charge 1.

37Despite the provisions of s.16(3D) which call for total cumulation of the sentence imposed in Charge 1, I have determined that totality is such that it is not appropriate, nor would it be just to apply total cumulation. I order that six months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1 making a total effective sentence of two and a half years.

38I have determined that the appropriate period to be served of that sentence before you are eligible for parole is a period of 18 months.

39I declare that the pre-sentence detention agreed today at 267 days be seen as service of this sentence and such declaration be recorded in the records of this court.

40As to the summary offence, I impose a sentence of seven days in regard to such offence.  Such offence will be served concurrently. 

41In regard to both Charges 1 and 2, either pursuant to s.317F or 28(1)(b) of the Road Safety Act or s.89(3) of the Crimes Act I determine that your license should be cancelled, and that you should not be able to obtain a further license for a period of 24 months, which is the minimum period upon conviction of Charge 1.  Such cancellation is to date from 13 March 2020.

42In regard to s.6AAA of the Sentencing Act, the requirement upon the Court having pronounced such sentence, that is, the total effective sentence of two and a half years, with a non-parole period of 18 months, is to explain to you, the impact of you pleading guilty.  It is difficult when one is faced with a number of charges, to give that indication, Mr Petrie.  But doing as best I can to comply with the wish of Parliament, can I indicate to you that had you not pleaded guilty, the sentence I would have imposed would have been a sentence of three years total effective sentence, not two and a half, with a minimum period before you can get parole of two years.

43I make the compensation order sought of $2041.49. 

44It is difficult for me to be quite sure, Mr Nikakis.  You are probably better at it than me.

45MR NIKAKIS:  It should have been nine months ‑ ‑ ‑

46HIS HONOUR:  That is what I was going to say.  You have got to serve nine months to get out on parole. 

47HIS HONOUR:  Right.  Yes, Mr Tipstaff.  Good luck, Mr Petrie, and get rid of those drugs.  All right.

48ACCUSED:  Thank you.

---