Director of Public Prosecutions v Pira-Scott
[2019] VCC 1662
•11 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BODYE PIRA-SCOTT |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 October 2019 |
| DATE OF SENTENCE: | 11 October 2019 |
| CASE MAY BE CITED AS: | DPP v Pira-Scott |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1662 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Theft – Robbery – Carjacking (Use Force Steal Vehicle) – Conduct place another in danger of death – Intentionally expose emergency worker at risk driving aggravated – Assault emergency worker on duty – Young offender.
Cases Cited:DPP v Jaeger [2019] VCC 526, Bugmy v The Queen [2013] HCA 37.
Sentence:Convicted and sentenced to three years and six months imprisonment with a non-parole period of two years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. Y. Giannopoulos | Office of Public Prosecutions |
| For the Accused | Mr. W. Barker | Emma Turnbull Lawyers |
HIS HONOUR:
1Bodye Pira-Scott, on 10 October 2019, you pleaded guilty to nine charges on Indictment No. K10407771:
Charge 1, theft of a Makita tool set. This charge has a maximum penalty of ten years' imprisonment.
Charge 2, robbery. This charge has a maximum penalty of 15 years' imprisonment.
Charge 3, carjacking, this charge has a maximum penalty of 15 years' imprisonment.
Charge 4, conduct placing another in danger of death, this charge has a maximum penalty of ten years' imprisonment.
Charge 5, exposing an emergency worker to risk of safety and injury, this charge has a maximum penalty of 20 years' imprisonment.
Charge 6 is an assault on an emergency worker, this charge has a maximum penalty of five years' imprisonment.
Charge 7, possession of drug of dependence which was methyl amphetamine. This charge has a maximum penalty of one year imprisonment.
Charge 8, possession of drug of dependence, GHB, this charge has a maximum penalty of one year imprisonment and;
Charge 9, utter counterfeit money, this charge has a maximum penalty of 12 years' imprisonment, and that was the Commonwealth charge.
2Pursuant to s.145 of the Criminal Procedure Act, you consented to a total of five related summary charges being heard at the time of this plea. You pleaded guilty to each of the summary charges. They were, as follows:
Summary Charge 11 was fail to stop after an accident. This charge has a maximum penalty of 14 days' imprisonment.
Summary Charge 12, failing to stop a vehicle on police direction. This charge has a maximum penalty of six months' imprisonment.
Summary Charge 17, unlicensed driving. This charge has a maximum penalty of six months' imprisonment.
Summary Charge 25, failing to appear. This charge has a maximum penalty of two years imprisonment and;
Summary charge 39 which was driving whilst exceeding the prescribed drug levels as 12 penalty units.
The circumstances of your offending
3The prosecution tendered an amended agreed summary of prosecution opening dated 9 October 2019. This was Exhibit “A” on the plea.
4The prosecutor also showed a DVD of selected CCTV footage for 13 February 2019 offending. This was Exhibit “B”, and the final prosecution exhibit was a bundle of photographs which showed the damage to the police vehicle as a result of a minor collision between the vehicle driven by you and the police vehicle.
5The damage shows a glancing blow to the right front of the police vehicle with a scraping of the concrete wall for the opposite direction of traffic. The photograph shows that you drove through the gap between the police vehicle trying to block your path and the concrete wall on your left. Those photographs were Exhibit “C”.
6The facts that support the admission to the theft charge, which is Charge 1, are as follows: On 23 November 2018, you stole a Makita tool set, valued at $380 from Timber and Hardware store in Traralgon. You told police that you had sold that item for $200.
7Charge 2: You committed a robbery on Roberto Jacobs, a person known to you. Mr Jacobs was in his room at a boarding house in Traralgon on 24 January 2019. You entered his room and demanded, 'Give me all your stuff or I'll get you.' Mr Jacobs stated, 'I'm poor, I've got nothin' else.' In total, you took six dollars in coins from him, a backpack with Mr Jacobs’s medication in it, and the shoes that he was wearing, which he had recently obtained from an Op Shop. Your victim was poor and vulnerable.
8Charge 3: On 11 February 2019, you attended at the Mid-Valley Shopping Centre in Morwell. You met Luke Ravenhorst, a person you knew through a mutual friend. You asked Ravenhorst to give you a ride home. When you arrived at 11 Alamein Street in Morwell, you got out of the car, and went around to the driver's side, lent into the driver's window and took the keys from the ignition. You told Ravenhorst to, 'Get the fuck out of the car.' You then walked towards the house and Ravenhorst got out of the car and followed you. You picked up a scooter and held it above your head and charged at Ravenhorst. You then got in the car, registered number UAH 007 and drove it away, stealing it. The car was owned by Ravenhorst's mother and was worth approximately $20,000.
9Charge 4: On 13 February 2019, you were driving Ravenhorst's car along Flinders Street, Melbourne in a westerly direction. You were observed by police who noted the car was stolen. The police activated the flashing lights on their vehicle and you sped away in an attempt to evade interception. You turned left and then travelled south along Clarendon Street. You then indicated and did a sharp U-turn across the raised tram tracks, and travelled north in Clarendon Street. You went through red lights, narrowly missing pedestrians and a cyclist. Police ceased the pursuit due to the danger. This is also captured on CCTV which was Exhibit “B”.
10Charge 5, and summary charge 12: On that same day, 13 February 2019, a short time after the events in Charge 4, your vehicle was observed by police McMahon and Montgomery. You were travelling south into Wurundjeri Way, toward the Westgate Freeway near the Montague Street interchange. The police activated lights and sirens. They were approximately 100 metres behind you on the ramp entrance to the Western Freeway.
11You then executed a U-turn and travelled back in the direction of the police vehicle and collided with it, in an attempt to go between the van and the concrete barrier on your left, as I described earlier. The police van received minor damage.
12Summary Charge 11: In an attempt to evade the police, you travelled up the Kingsway ramp to CityLink and collided with five separate cars in the process. No civilian drivers were hurt. You abandoned your car and passenger Katie Hogard, and ran up the embankment to get away from the car. You yelled at the police that you were armed with a knife and ran across multiple lanes of the freeway. This is also captured on CCTV footage in Exhibit “B”. Constable Mackin chased you across the freeway. You dropped your black backpack on the road.
13Charge 6: Mr Mackin caught up with you, and in an automotive business, you picked up a mop and swung it at him. You threw the mop at him and it struck him in the chest. You ran, but Mr Mackin tackled you and with the help of other police you were restrained.
14Summary Charge 39: When you were tested, you were found to have methylamphetamine in your blood that exceeded the prescribed level of drugs.
15Charges 7, 8 and 9: A search of your backpack that you had dropped was conducted and inside that backpack police located two counterfeit one hundred dollar note, a health care card in the name of Luke Ravenhorst and a clear Ziploc bag containing methylamphetamine, an ice pipe and a clear bottle containing GHB.
16For summary Charge 17: You have never held a licence to drive a motor vehicle in Victoria and were obviously driving on these days.
17On 11 November 2018, you were placed on bail at the Melbourne West Police Station to appear at Latrobe Magistrates' Court on 17 December 2018. You did not appear at the Latrobe Valley Court on that day. That is summary Charge 25. All of your offending was committed whilst you were on bail.
18After your arrest, you were initially taken under police guard for medical treatment at The Alfred Hospital. On 14 February 2019, you were then interviewed by the police.
19You stated the following things, and I am quoting from the summary handed up by the prosecutor:
·His mate Luke 'gave him the car keys.’
·You 'did not remember getting in the car.'
·You 'consumed GHB for the first time and started getting hot.'
·You were 'blacking out.'
·You remembered, 'Seeing the cop car' and you 'turned around to oncoming traffic and was trying to get past it' and 'it tried to stop you' and 'it hit you.'
·'I just remember going forward and then stopping with the traffic, then looking in my rear view and seeing lights, Bro, then quickly reversing, turning around, then just trying to go forward and then bang, getting hit from a van, and then I blacked out again.'
·You denied deliberately hitting the police car. 'They hit me.'
·You were 'freaking out because it was peak hour traffic.'
·You asked the police if you, 'had hit someone' - that is, a person.
·You remembered jumping out of the car.
·You remembered trying to get away because you 'had GHB on you.'
·The drugs that you had were for your 'personal use,' that you 'denied the robbery at the boarding house' and that you 'admitted the theft of the Makita kit' and as I said earlier, you had sold it for $200.
Personal circumstances
20You are now 21 years old. At the time of the offences, you were 20. You have spent 239 days pre-sentence detention in an adult prison. You are currently at Port Phillip Prison.
21You are an unlawful non-citizen who has been advised by Australian Border Force, that upon the completion of your prison sentence, you will be deported to your home country, New Zealand. That was Exhibit “2”.
22A short time after your birth, you were adopted by Brenda Crean and William Scott. You regard this couple as your parents. You have never met your biological mother and have only met your biological father on one occasion in your late teens. Your biological father is, I was told, a notorious criminal in New Zealand, and you were bullied at school for being his son.
23You enjoyed a good relationship with your adoptive father. Your parents had five other children of their own. You have three older siblings and two younger siblings. You were told you were an adopted child at a young age.
24You struggled to understand and deal with your sense of abandonment and rejection by your biological mother. Your adoptive mother, Brenda Crean, was an alcoholic.
25On occasions, she would physically abuse you. She told you as a child that she regretted adopting you as her child. You felt a sense of further rejection and abandonment by your adoptive mother.
26She kicked you out of the family home on a number of occasions and by the age of 11, you were sent to live in a Boy's Home for approximately six months.
27Your education is limited and ceased altogether when you were 13 years old. You were expelled from school. You have limited literacy skills.
28Upon leaving school you immediately started paid employment. Initially as a 13 year old, you did forestry work for approximately one year. This work entailed pruning and arborist-type activities.
29At 14 years of age you trained to work on fishing trawlers for a year. You worked as a deck hand on fishing trawlers. You worked six weeks at a time at sea. All up, you stayed in the fishing industry for a three year period.
30By the time you were 17 years old your father got you a job at the sawmill as a machine operator. You worked at the same sawmill with your father for about two years.
31When you were 19 years old your sister's partner died in New Zealand. You were upset by this death and decided to move to Australia in July 2017, so that you could have a fresh start.
32Prior to moving to Australia, you had arranged to have employment with LB Concrete Solutions here in Melbourne. Your sister also lived in Melbourne. You had somewhere to live and work when you came to Australia.
33Prior to coming to Australia, you did use cannabis and drank alcohol. By May 2018, you had commenced using ice here. By November 2018, your ice addiction was out of control. You lost your job and your sister excluded you from her home where she had her children.
34You had also taken up attending the Pokie venues here in Melbourne. Your counsel submitted that gambling addiction was the main problem for you. Your instructions are that you spent every dollar you could get on the pokies because of the happiness you experienced whilst you were there.
35In summary, you are a young man with no prior convictions, and facing deportation to New Zealand after completing a term of imprisonment in an adult gaol in Australia.
Sentencing Considerations
36The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
37I am also required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and re-integrated into society. In this case, that will be in New Zealand.
38I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time. I have considered the statistics and the current sentencing practices, such as they are, mindful that each case must be considered in the light of their own particular circumstances, and many of the cases are different from yours as they are from one another.
39In respect of Charge 5 in particular, this is a relatively new charge on the statute books and current sentencing practices are still evolving and developing. The learned prosecutor referred to me to a decision of Judge Hannan of this Court, in DPP v Jaeger [2019] VCC 526. The facts of that case relating to this specific offence are far more serious than the facts of your case. I assess the offending by you in respect to Charge 5 is at the lower end of the offending for that category of offence.
40You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and affective administration of justice; there is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
41Your plea is also a clear acknowledgement by you that you accept your responsibility for the criminal behaviour on these occasions. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your behalf.
42Your plea also obviates the need for the police and civilian witnesses to relive the frightening events by giving evidence in this trial. I note that witnesses declined the opportunity to make victim impact statements in this case.
43Your offending is serious offending. The overall picture is that your offending in Traralgon and Morwell was of dishonesty overlaid with direct one-to-one personal violence or threat of personal violence.
44The Melbourne offending is centred around the illegal use of a motor car, exposing members of the police force and civilians to physical danger and injury. Due to good luck, no person was seriously injured as a result of your criminal behaviour.
45You have been charged with many individual indictable and summary charges. The offending, however, is best described as a continuum of criminality that was drug-fuelled and directionless. The principle of totality has application in your case when I consider the cumulation of sentences of individual charges. I have to avoid imposing a crushing sentence on you.
46I take into account your personal circumstances and upbringing. Your counsel submitted Bugmy's case supported the proposition that your moral culpability for this offending is moderated due to your background. I accept that you have a justifiable grievance and sense of rejection and of abandonment, first by your birth mother and secondly, by your adoptive mother. However, you have had a supportive adoptive father and siblings. You have managed to obtain and retain paid employment between the ages of 13 and 20 years old. It was the ice addiction that broke your excellent work history.
47I assess your prospects of rehabilitation as fair to good. You have a good work history. Your drug use of ice is relatively short-lived, and you have a chance to beat that addiction. Your gambling addiction is an ongoing risk for further dishonesty offending, as you have yet to address that problem. When in New Zealand, you had not frequented pokies venues, and you had not used ice. When you return to New Zealand hopefully you will resume your previous methods of living.
48I accept your counsel's submission that the certainty of your deportation to New Zealand at the completion of your sentence affects you in two ways that bears upon this sentencing process. The first issue is that you will suffer hardship and anxiety whilst serving your sentence, knowing you will be deported to New Zealand at the completion of the total sentence. Secondly, you have lost the opportunity to settle in Australia which was your original purpose for coming here from New Zealand.
49I take into account you are a young offender being under the age of 21 years old at the time of offending. You are now over 21 at the time of the sentence, and are not eligible for any consideration of a Youth Justice Centre disposition. I also take into account that a lengthy period in an adult prison could be counter-productive to your prospects of rehabilitation. In sentencing young offenders such as yourself, rehabilitation has a more important role.
50The sentencing principles of general and specific deterrence, just punishment and protection of the community dictate that the only just sentence is a period of imprisonment with a non-parole period fixed.
51Would you stand please?
52In respect of Charge 1, which is the charge of theft, you are convicted and sentenced to one month imprisonment;
53In respect of Charge 2, which is the charge of robbery, you are convicted and sentenced to 12 months imprisonment;
54In respect of Charge 3, which is the carjacking charge, you are convicted and sentenced to 12 months' imprisonment;
55In respect of reckless conduct endangering life, you are convicted and sentenced to nine months' imprisonment;
56In respect of Charge 5, expose emergency worker to risk of injury, you are convicted and sentenced to 24 months' imprisonment.
57In respect of Charge 6, that is assault of an emergency worker, you are convicted and sentenced to three months' imprisonment;
58In respect of Charges 7 and 8, for each of them, of possession of a drug of dependence you are convicted and sentenced to one month imprisonment;
59In respect of Charge 9, you are convicted and fined, that is the utter counterfeit money, you are convicted and fined $200;
60Summary Charge 11, failing to stop, you are convicted and sentenced to seven days' imprisonment;
61Charge 12, failing to stop at police direction, you are convicted and sentenced to seven days' imprisonment;
62Charge 17, which is the charge of unlicensed driving, you are convicted and sentenced to two months' imprisonment;
63In respect of Charge 25, failing to answer bail, you are convicted and sentenced to two months imprisonment; and driving whilst exceeding the prescribed drug limit, you are convicted and fined $300.
64In terms of cumulation, they are as follows: Four months of the sentence in Charge 3, three months of the sentence in Charge 4, one month of the sentence in Charge 6, one month in the sentence of summary Charge 17, and one month in the summary Charge 25 are all to be served cumulatively upon the base sentence in Charge 5 which is 24 months.
65So that is a total effective sentence of three years and two months' imprisonment. I fix a two-year non-parole period. But for your plea of guilty, I would have sentenced you to a total of five years with a three and a half year non-parole period.
66I declare that you have served 239 days pre-sentence detention. Is that the right number - 239?
67MS GIANNOPOULOS: That's correct, Your Honour.
68HIS HONOUR: Thank you. On the Indictment charges No.3, 4 and 5 and summary Charges 11, 12, 17 and 39, all licence are cancelled and you are disqualified for a period of two years from this date.
69Pursuant to s.464ZF of the Crimes Act I order that a forensic sample be taken. Now I will just explain that to you, Mr Pira-Scott. The authorities - I do not know whether they have taken one yet, but the authorities can take a swab from inside your mouth, and if you do not agree to that, then they can reasonable force to obtain one. Do you understand, and I have signed the forfeiture order and disposal order that were sought. Is there anything further?
70MR BARKER: I missed the non-parole period.
71HIS HONOUR: Sorry. It is two years. Do you want me to go over the cumulations again, or have you got them?
72MR BARKER: I got them and I will receive the orders as well, but I have got them.
73HIS HONOUR: Yes, okay, thanks. So Mr Pira-Scott, what that all means is you have been sentenced to three years and two months' imprisonment. That is a head sentence, at the top, as you know it to be, and your non-parole period is two years. I have declared you have done 239 days of it. All right, okay. Thanks.
74MR BARKER: As Your Honour pleases.
75HIS HONOUR: Good luck when you get back to New Zealand, and stay off the ice. You can remove the prisoner. Thanks. Thanks counsel for your assistance.
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