Director of Public Prosecutions v Pettina

[2020] VCC 1378

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00710

DIRECTOR OF PUBLIC PROSECUTIONS

v

PACEY PETTINA

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 September 2020
CASE MAY BE CITED AS:	DPP v Pettina
MEDIUM NEUTRAL CITATION:	[2020] VCC 1378

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	Geelong Lawyers, Barristers and Solicitors

HIS HONOUR:

1Pacey Pettina, you have pleaded guilty to eight charges on an indictment A12521380 and a further six summary offences that are related to those charges on indictment.  Most of those charges arise from your appalling and highly dangerous driving on the 25th and the early hours of 26 September 2019.

2You, at the time, had just turned 19.  You have a long and concerning criminal record, which I will refer to again at a later point.  I refer to that issue now because at the time of these offences you had only recently been released from prison for relevant offences – that is, released in early August 2019.

3From September 2019 the police in Geelong detected an increase in burglaries involving stolen cars.  Resources were gathered to establish a taskforce to target this offending.

4On 25 September 2019 two police officers; Leading Senior Constable Steven Harper and Senior Constable Rob Nuske, who were both members of the taskforce, detected you driving in a stolen car along the Bellarine Highway.  You were driving at the dangerous speed of 150 kilometres an hour, or thereabouts.  The car had been stolen a few days before and, as is now common, stolen number plates were attached to this stolen car.

5It should be noted that although you were driving at that enormous speed, and despite you having many prior driving offences, you have never held a driving licence at all.  You had no right to be driving on the road, let alone in the dangerous ways that you did.

6In the early hours of 26 September 2019 you were driving with your girlfriend, Paris Laski, who was in the passenger seat.  You were filling up with petrol at a service station in South Geelong when another police vehicle approached.  You took off, stealing the petrol.  You drove in an evasive way through the streets of Geelong and West Geelong.  You were then seen by the police officers Harper and Nuske, who had earlier seen you speeding along the Bellarine Highway.  You were driving along the Melbourne Road in North Geelong at a speed estimated at 150 kilometres an hour.  Police lost sight of you before seeing you again in a service station on the Melbourne Road.  You again saw the police approaching and took off.

7This next episode of driving was simply outrageous.  You took off and drove along the Melbourne Road - which is the main thoroughfare in and out of Geelong- you drove straight through a red light at a significant intersection then you drove onto the wrong side of the road not once, but twice; the second time after turning off your headlights.  You then drove onto a smaller road to avoid the police.  When the police came to that smaller road you then drove straight at their police car at a fast rate of speed, causing the police driver, Mr Nuske, to take emergency evasive action.

8All this conduct, from the time that you drove through the red light until the police had to take emergency evasive action, was charged as a single offence of reckless conduct endangering serious injury.  It is a serious example of that offence. 

9Around this time the police airwing was able to locate and film your driving.  I have watched the relevant parts of the video and again what is depicted is horrendously dangerous behaviour.

10In order to lose the police what you did was drive to a small street in Bell Park and park hard up against another vehicle, in what seemed to be an attempt to hide.  You remained in the car and so did your girlfriend, Ms Laski.  The airwing guided police to where you had parked.  The first police vehicle on the scene was that of Harper and Nuske.  Another police divisional van arrived shortly after their car arrived.  These police cars endeavoured to box you in.  Your first response was to try and squeeze out by driving and hitting the divisional van and the other parked car.  Given the tight circumstances it was not a heavy collision with the divisional van, but you are charged with and have pleaded guilty to the new and serious charge of aggravated intentional exposure of emergency workers to risk to their safety by driving.  This offence carries a maximum term of 20 years.  It is a Category 2 offence, thus you must be sentenced to a term of imprisonment unless certain criteria are made out.  None of those criteria are present in this case.

11The next part of what happened, all happened rapidly. At the point that the police vehicle came to a stop – that is, the vehicle with Mr Nuske and Mr Harper,  Harper got out of the passenger seat of his vehicle and headed to the passenger side of your car in order to arrest and extract your passenger, Ms Paris Laski.  You still had the car engine running and Harper told you to stop.  He deployed OC spray to disable you. 
Mr Harper, with great skill, was able to safely extract Laski from the car and was restraining her on the footpath and endeavouring to get handcuffs on her.  Police from the divisional van were also trying to disable you with OC spray in order that you would stop behaving so dangerously.

12Your response displayed utter contempt or disdain for the safety of anyone as you then quickly put the stolen car into reverse and accelerated, turning the steering wheel as hard as you could.  This movement of the car had the effect of the still open passenger door hitting Harper and Laski, knocking them onto the ground, and then dragging them under the wheel of your car.  You kept going, driving over Leading Senior Constable Harper's ankles and over
Ms Laski's abdomen.  Only by sheer good fortune was it that Leading Senior Constable Harper was not severely injured, and Ms Laski was not killed.

13Ms Laski did suffer serious internal and skeletal injuries, being a perforated bowel and fractures to her pelvis and femur.  She was ultimately in the ICU for three days in a coma, and then was wheelchair bound for 12 weeks.  As she has not further co-operated with police it is unknown if there are any ongoing health problems.

14Mr Harper suffered ankle ligament damage and his rehabilitation and recovery have been difficult.  I will expand upon this when I turn to his victim impact statement. 

15The offence you have pleaded guilty to in respect of that conduct is the aggravated form of recklessly exposing an emergency worker to risk to their safety by driving; the aggravation being the car was stolen and you knew it was.  This is also a Category 2 offence and thus imprisonment must be imposed.

16To return to the narrative of what you did.  You showed, as I have said, no concern for your girlfriend or the injured policeman, but having reversed over them you then did a further dangerous manoeuvre - being a U-turn across the footpath - and then you sped off on the small road.  The police had deployed stop sticks further up the road, which partially immobilised you as you turned, first, into the Anakie Road and then onto the Ballarat Road.  You eventually drove on the wrong side of the road to escape pursuing police.

17As the police went to corral your car you drove into the police car and the driver was in fear of what you may do to him and to other road users.  He then had to manoeuvre his car, effectively ramming your car, causing you to finally come to a halt.  As the police came to arrest you a knife was noticed on your seat.  You further resisted arrest.

18Within the stolen car was stolen identification and credit cards from seven different people.

19After your arrest your blood was taken at the Geelong Hospital, revealing you had methamphetamines in your system.

20A search of your premises found multiple stolen number plates and car keys.

21As I said, this whole dreadful episode led to a total of 14 criminal charges, but far and away the most serious were those crimes that caused injury to
Mr Harper and to Ms Laski, as well as the surrounding endangerment offences arising from your appalling driving conduct as you endeavoured to outrun and escape police.

22In assessing the gravity of your conduct in driving over Leading Senior Constable Harper and your girlfriend - plainly in the circumstances where she had just been pulled from the car by Harper – the risk of driving off in those circumstances was enormous and obvious.

23The gravity of these types of offences involves assessment of the risk and the level of recklessness together with the injuries that were caused.  Though, with respect to Harper, the offence of aggravated reckless exposure of an emergency worker to risk to his safety does not require any injury to be caused, nonetheless injury was caused.  It is, in that case, the exposure to the risk to safety that is the mischief the offence is directed at.

24The serious injuries caused to Laski were considerable and you have pleaded guilty to the crime of recklessly causing serious injury.  This reckless conduct of reversing and then driving off with the door open in all the circumstances was a very grave example of both the offences involved in this piece of behaviour.  It is obvious that a car can be lethal.  With the people around and the police trying to get you to stop, your driving was at the higher end of offending of this kind.

25The earlier ramming of the divisional van and the later dangerous driving while being pursued in and around the streets of Bell Park are themselves also serious crimes, however the earlier driving conduct on the Melbourne Road again reveals your reckless disregard for the safety of others.  As I have said in respect of this offence, the reckless conduct endangering serious injury was a serious example of that offence.  I also add, so too is your speeding on two occasions at twice the speed limit on main roads in Geelong, and all the while under the influence of methylamphetamines.

26Endeavouring to outrun or avoid police apprehension by dangerous driving is a scourge.  So many are put at risk – particularly police officers who bravely try to keep the community safe by apprehending drivers like you.  The bravery and professionalism of Leading Senior Constable Harper was there for everyone to see.  He did not hesitate in doing his duty and for that you drove over him and your own girlfriend for your own selfish ends of trying to escape responsibility for your multiple earlier crimes, including driving in someone else's car that you simply stole or drove for your own pleasures.

27Your moral culpability for all this offending is very high, notwithstanding your relative youth.  I say that because the prior offending that I spoke of, which saw you released from prison on 5 August 2019, also involved a police chase.  Of course, that very relevant prior matter - and your many others for theft of cars - mean that I must give emphasise to deterrence to you and to be very cautious of your prospects of rehabilitation.  The like offending in recent times to this offending makes your moral culpability that much higher.  So, like the gravity of all this offending, your moral culpability is at the higher end.

28The impact of crimes on the victims is a matter I must and will take into account.  I do note that Leading Senior Constable Harper spoke of the secondary trauma on his own family when these matters are publicly spoken of.  I will keep that in mind, but it is important to understand the full impact on police officers and their families of these offences where cars are used in such a dangerous way.

29The impact of your offending on Leading Senior Constable Harper has been very significant.  I will outline that very shortly, but I also add that there was no doubt a very sickening effect on all his colleagues who saw and heard what was happening.  The voices of the police heard on the airwing footage was chilling.

30Leading Senior Constable Harper captured what probably lingers in the mind of many police officers, especially those dealing with young men like you, who drive with no concern for others.  He commenced his victim impact statement in this way:

'I have been a police officer for 19 years and I have never been a victim of a significant crime until the early hours of that morning.  I am both a police officer and a family man with three children.  I have always known that when I go to work that I go with the knowledge that the work I perform comes with inherent natural risks and dangers associated with it, however I never used to go to work with the mentality that I wouldn't come home, or I would be injured in the course of my duties.  That has now changed since this incident.'

31He points out that at first he tried to brush off the emotional impact.  He tried to suppress what had happened to him.  He calls it 'mens' or 'police mentality', running with the philosophy that 'it will all be okay'.  He says that his generation was programmed to 'not let it affect us'.

'We wouldn't let it affect us, otherwise lives would be put at risk.  We're the ones who are meant to wear the Superman suits.  In parts this worked, however when I sit down and really think about the incident it all comes flooding back to me'.

32He said that he had seen the extreme risk-taking of your driving earlier, when he and his colleague came around the corner in a marked police patrol car and boxed your car in.  He says, and it is obvious:

'I didn't think twice.  I got out of the passenger side door and I ran straight to the car.  I did my job.  I was prepared to do whatever it took within the power of my role as a police officer to stop whoever was in that car.  The next minute all I remember was hearing the car take off, the excruciating pain running through my legs.  Almost seconds later, after feeling the pain, I remember the headlights coming straight for me.  I thought for sure I was going to be run over for a second time.  I thought I was being targeted'.

33He says that was the scariest moment in his 19 year career and he is grateful that his colleague dragged him away from the nature strip, otherwise he thinks he would have been run over for a second time.

34Mr Harper himself spoke of the distress caused to his children, something he had worked very hard to protect them from.  He says when they found out they were distressed, upset and visibly shaken by what had happened to their father.  Mr Harper's injuries meant that he could not take up a much desired promotion that was awaiting him.  He says when he returned to work, he was apprehensive.  He did not have professional help, but things were difficult for him.  His job pertains purely to motor vehicles, and interception of motor vehicles, and he found himself second guessing when he would get out of a car to do his job.  He then, with great generosity, thought of the injured Ms Laski.  He says:

'I still carry a lot of 'what ifs' from that night.  I feel responsible for the injuries sustained to Laski.  If I hadn't dragged her out Pettina wouldn't have driven over her.  I feel guilty for that and I shouldn't.  I was doing my job.  I was trying to apprehend offenders but as a result people got hurt.  This is probably one of the biggest things that has stuck with me and I shouldn't feel bad.'

35I interpose, Mr Pettina,  Leading Senior Constable Harper should not be made to feel any guilt.  It was your fault, and yours alone that Ms Laski was injured as well as Mr Harper.

36He says about the physical impact that he has nerve damage to both his ankles and has undergone a significant period of physiotherapy and rehabilitation.  It affected his capacity to enjoy the sport that he likes playing and that had to be curtailed.

37He points out, as I mentioned, that his family are still haunted by the CCTV footage when it was shown to the general public and he hopes that they do not suffer secondary trauma.

38As to your own personal circumstances, what I have spoken of already is your concerning, if not entrenched criminal history at the age of just 19.

39Your offending commenced at the age of 14 with serious offending such as aggravated burglaries.  You have committed this particular offence of aggravated burglary up to six or more times, as well as many, many other offences of violence, endangerment, ordinary burglaries, thefts, thefts of cars, driving offences and property damage.  The array and regularity of your offending is very troubling.  You were given many, many opportunities, as is proper, by the Children's Court, with rehabilitative orders which you quickly breached by further offending.  Ultimately the Children's Court sentenced you on a number of occasions – a significant number of occasions – to detention in the Youth Justice Centre.  None of this, nor the term of imprisonment in the adult gaol that I have referred to, has deterred you.

40You were raised in Geelong.  Your parents separated when you were young.  You live with your mother, who still stands by you.  She ran her own hairdressing business in Geelong but moved to Portland about two years ago, with one of her purposes being to get you away from Geelong and association with other young criminal peers, and get you away from your entrenched criminal activities, but you did not take up that opportunity and rather remained in Geelong with your grandparents.

41Your mother worked hard and enrolled you at St Joseph's College but you drifted away from school partway through Year 9.  You have achieved a VCAL level of education while you were in the Youth Justice Centre.

42You have had two periods of employment; one as a diesel mechanic and one in a roof plumbing business, but they were relatively short stints.

43You have, while on remand, done what vocational courses and rehabilitation programs that you could, especially prior to the restrictions being imposed due to the COVID-19 pandemic.  You have worked and achieved positions of responsibility within the prison.  You have come to see that steady employment is the best way forward for you.  All of this is to your credit.

44You have been troubled by drug use and you have recognised you must put drugs behind you on release.  That too is to your credit.

45Your counsel put much store on your letter addressed to the court.  In that letter you speak of how it has taken your horrific crimes on this occasion to wake you up.  You express shame and sorrow to the victims.  You believe on your release you will start a new life with a different attitude.  Of course, time will tell, and in the end it will be up to you, Mr Pettina.

46Because of your youth I must keep to the fore the need to facilitate your rehabilitation.  If you are reformed in the end it is the community that is that much safer.

47I have carefully considered the principles of sentencing young offenders as expressed by the Court of Appeal in Azzopardi v The Queen and Mills.  As was made clear with young offenders with long criminal histories who commit very serious crimes, the weight to be given to rehabilitation must yield the need for proper denunciation and deterrence; both generally and to offenders like you.  Also, given the type of offending and your history there has to be a role for protection of the community from your criminal ways.

48Your counsel urged that you be given an opportunity for lengthy parole that will provide support and supervision once you are returned to the community.  There is, for a young but serious offender like you, a role for a long period of parole.  I point out I only set the period of potential parole.  When and if you get parole is for others, not the courts.  I sentence you on the basis that you may have to do every day of the head sentence that I impose.

49Your plea of guilty is important and your sentence will be less because of your early plea.  Your plea of guilty is an expression of your remorse and, as I said, you wrote of your shame in your letter.

50Prison is, at the moment, much harder because of the COVID-19 restrictions, and you wrote of that as well in your letter.  I have factored that into the sentencing equation.

51Your plea of guilty, your expression of remorse, your youth and the current conditions in prison are all mitigatory matters that I have given due weight, but in the end the gravity of your crimes, the dreadful impact on the victims and the need for condemnation and deterrence for you and others, given your bad criminal history - these are the weighty sentencing considerations and this means that I have no other option but to impose a very stern sentence of years of imprisonment on a young man.

52Different crimes in the different circumstances must be acknowledged with sentences that involve a proper measure of cumulation.  The presumption of concurrency is displaced for Charges 4 and 6, as Parliament has made clear that sentences of imprisonment are required for Charges 4 and 6 – being the aggravated reckless and intentional exposure of risk to the emergency workers.  These are Category 2 offences, as I have outlined, but the sentences of imprisonment that I impose must be cumulative on other sentences unless I otherwise order.  I cannot ignore Parliament's intent.  I have applied the principles as articulated in respect of this provision by the High Court in R V McL and the Court of Appeal in Gregory v The Queen.

53As stated with respect to concurrency and cumulation, you must be sentenced differently to ordinary accused's who are not governed by the provisions of s.16(3D) of the Sentencing Act.  But all that said, the principles of totality are not completely abandoned.  In this case, because of the number of offences and your youth, and because to order complete cumulation would create an outrider of a sentence compared to other like sentences, I will order some cumulation, and thus some concurrency, and I do so because I will have to otherwise order.

54This all applies only to Charge 6 in respect of s.16(3D), as Charge 4 will be the base sentence. With respect to the other offences I have applied the principles of totality and then revisited the whole sentence to ensure it meets the totality of your offending, no more and no less.

55The maximum terms for Charges 3, 4 and 5 are very considerable at 15 years.  As I have mentioned, for Charge 6 it is 20 years.  I have taken into account these long maximum terms – indeed, all the maximum terms for all the offences as fixed by Parliament.

56Doing the best I can for the reasons that I have set out, I sentence you as follows.

57In respect of Charge 1, the theft of the motor vehicle, you are sentenced to one year imprisonment;

58In respect of Charge 2, the theft of the petrol, you are sentenced to one month imprisonment;

59In respect of Charge 3, the reckless conduct endangering persons, you are sentenced to two years and six months' imprisonment;

60In respect of Charge 4, the aggravated reckless exposure of an emergency worker to risk by driving, you are sentenced to four years and three months' imprisonment;

61For the offence of recklessly causing serious injury you are sentenced to four years imprisonment;

62For the offence of aggravated intentional exposure of an emergency worker to the risk to their safety by driving you are sentenced to one year and six months' imprisonment;

63For the offence of dangerous driving while being pursued by police you are sentenced to one year imprisonment, and;

64For the crime of handling stolen goods, being the credit cards and other items, you are sentenced to nine months' imprisonment.

65In respect of the summary offences, for the offence of unlicensed driving you are sentenced to one month imprisonment;

66For the first charge of driving at a speed dangerous, one month imprisonment;

67For the second offence of driving at a speed dangerous, one month imprisonment;

68For driving with drugs in your blood you are convicted and fined $300;

69For the crime of resisting arrest you are sentenced to one month imprisonment, and;

70For the offence of possession of a controlled weapon you are sentenced to one month imprisonment.

71The base sentence in all these offences is Charge 4 on the indictment, which is four years and three months.

72I make the following orders in respect of cumulation.

73Charge 1, one month is cumulative;

74On Charge 3, six months is cumulative;

75One year and three months on Charge 5; six months on Charge 6; one month on Charge 7 and one month on Charge 8 are all cumulative upon each other and cumulative upon the base sentence.

76All summary offence of imprisonment that have been imposed are to run concurrently.  The cumulated period of time is calculated by me at two years and six months, to be added to the four years and three months as the base sentence.

77This gives a total effective sentence of six years and nine months and I order that you serve four years and three months before being eligible for parole.

78You have already served 342 days in custody on remand.  This figure having been reckoned I declare that it is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court.

79Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of eight years and six months with a non-parole period of six years and six months.

80There will be disposal and forfeiture orders that are sought.  They will be granted.

81As to licence calculation, the aggravated offences of placing an emergency worker at risk is defined in the Sentencing Act as a serious motor vehicle offence and a minimum mandatory period of two years applies to each of these offences.  There are other minimum terms for licence calculation for driving at a speed dangerous, for drug driving and driving while being pursued.  I have a discretion I exercise, mindful that licence cancellation is a punishment, however your driving record and these serious driving offences requires a significant period when the public is entitled to feel protected by you not having a lawful reason to drive.

82Your licence is cancelled and you are disqualified from driving for four years.

83Is there anything further required, Mr Moore?

84MR MOORE:  No, Your Honour.

85HIS HONOUR:  Are the calculations in respect of cumulation accurate?

86MR MOORE:  On my quick calculation they are, Your Honour.

87HIS HONOUR:  Likewise?

88MR SULLIVAN:  Yes, Your Honour.

89HIS HONOUR:  Thank you.  If there's anything that'll need to be fixed up, it will.  I thank counsel for their assistance in this regard.  Mr Sullivan, what will occur is that I'll ask my staff to manage everyone coming away from this meeting, save for you and your instructor, and you can have a discussion with Mr Pettina following us leaving the meeting.

90MR SULLIVAN:  Yes, Your Honour.

91HIS HONOUR:  Thank you.

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