Director of Public Prosecutions v Pratt

[2020] VCC 222

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE PRATT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	5 March 2020
DATE OF SENTENCE:	6 March 2020
CASE MAY BE CITED AS:	DPP v Pratt
MEDIUM NEUTRAL CITATION:	[2020] VCC 222

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Ms K Mildenhall	Victoria Legal Aid

HIS HONOUR:

1Jesse James Pratt, you have pleaded guilty to one charge of reckless conduct endangering life, one charge of aggravated recklessly exposing emergency worker to risk, recklessly exposing emergency worker to risk, criminal damage, resist emergency worker on duty and possess a drug of dependence.

2Those crimes carry maximum penalties of 10 years, 10 years, 10 years,
10 years.  I think the resist emergency worker is five, is it?  I am making it concurrent so it does not matter.  But possess a drug of dependence, which in these circumstances carries a maximum penalty of one year.

3You are now 30 years of age and you pleaded guilty at a reasonably early opportunity.  You have endeavoured through your counsel, at least, to express remorse.  Though I would have thought that was somewhat problematic.

4You must of course get the utilitarian benefit of the plea of guilty, that is in terms of furthering the course of justice and saving the community the cost of a trial.

5I am aware that you were on bail at certain times and not on bail at other times and there is a whole raft of reverse onus situations, insofar as concurrency and cumulation is concerned.  What I am simply going to do here is express the matters in terms of concurrency and cumulation and simply leave it at that.  For reasons of totality, I am not going to try and differentiate between different charges in those, effectively those matters.  There are no exceptional circumstances required and I will not be doing that.

6The summary matters, there are a lot of them.  I will mention them as I go through the Crown opening, and I am simply going to in those circumstances make them all concurrent for, as I say, reasons of totality.  Why there need to be that many that is not known to me.

7In any event, you were born on 7 August 1989 and you were 29 years old when you committed the first charge on the indictment.  The history of this is important.

8One of the major factors in your sentencing situation is that of community protection, as well as protection of members of the police force just simply going about their duties.

9But in any event, you have, prior to that day a significant criminal history.  By my calculation you have been gaoled something in the order of 10 times for all sorts of offences, involving dishonesty and drugs, threats to kill, assault police; all sorts of matters over an extended period of time.

10On 25 October 2016, at the Dandenong Magistrates' Court you were convicted of a number of offences, including reckless conduct endangering life and theft of a motor car.  I am now in possession of the LEAP report for that reckless conduct and it involves a police chase.  The total effective sentence on that day was 12 months.  The magistrate clearly endeavoured to give you some sort of a chance by giving you a non-parole period of three months.  That parole was no granted, in fact, until 19 April 2017, by which you had done something in the order of eight months as I calculated.  But in any event, you were paroled.  The conditions required you to wear a GPS ankle bracelet and to be at home at Mathew Court, Drouin, between the hours of 11 pm and 6 am.

11On 17 July 2017, a Darcy Savile and Victoria Moore were visiting you at your home in Drouin.  In the evening you drove your friends in a green Ford Falcon sedan to your girlfriend's place in Morwell.  At about 10.40 pm, you told them that they had to go because you had a curfew and had to be home by 11 pm.  According to them you appeared to be panicking about being in breach of your curfew.

12For part of the journey home you drove along the Princes Freeway back towards Drouin.  This is obviously from Morwell.  At 10.54 pm, as you were driving through Yarragon you activated a speed camera operated by VicRoads, which monitors truck driver's fatigue and speed.  Your speed was detected at 176.77 kph.  Between 10.46 and 10.56, on the Princes Freeway between Nilma and Darnum you were travelling at 178 kph.  That period of time included 60 and 80 kph speed zones.  Those speeds, I am now informed, had been obtained from your GPS ankle bracelet.

13You exited the Princes Highway at the Warragul Korumburra Road exit and continued to travel along back roads.  A witness, Moore, describes the speed at which you were going as being pretty fast and your driving around corners as being reckless.  According to Savile you were driving the car at its maximum speed, which he estimated at 180 kph.  At one stage you went straight through a give way sign at an intersection.  He described your driving as reckless, dangerous and careless to say the least.

14You continued to travel at a fast rate of speed and just after 11 pm, as you were approaching a left hand bend in Lardner Road, Warragul West, you lost control of the car.  After losing control of the car, it mounted an embankment and rolled about five times before coming to rest on its roof.  You crawled out of the car and absconded.  You left Victoria Moore dangling upside down from her seat belt.

15That driving gives rise to Charge 1, of reckless conduct endangering life and also summary Charge 11, fail to report an accident to police where a person was injured.

16She managed to unclip her seatbelt and her and Savile got out of the car, they could not find you.  They went back to the car and police had already arrived.

17Police then attended at Mathew Court in Drouin at about 1.20 am.  You complained of being in pain, were taken to hospital where some abrasions and bruising were found, but not serious injury.

18On 13 September, police endeavoured to interview you at Dhurringile and during that interview you denied driving on the night and that you agree that when you were arrested at home you told the police that you had woken in a paddock.  You denied having any memory of driving earlier in the night.  The vehicle you were driving belonged to one of your friends and was unregistered.  At the time it was displaying false plates.

19You have never had a driver's licence, I am told.  You are charged with breaching parole by not being home by 11 o'clock for the curfew.  I would have thought you had breached parole already by driving the car without a licence and all sorts of other matters, but that is a matter for others.

20I understand, I seem to being told from the Bar table that this was all brought about through a panic to get back before your parole conditions were in fact breached.  I am not sure whether I am being told that you were affected by drugs on this particular night.  I only sentence on the basis that it was a conscious decision for you, with a long criminal history and being on parole for very similar offending to drive in an absolutely outrageous manner.

21This is not a matter of panic and you in some a bizarre way trying to do the right thing.  You not only endangered the two occupants of your motor vehicle, but at that time of night, that is around about 10.45 to 11 o'clock you went through Yarragon.  You went through Trafalgar, where you would have had to go past where the hotel would have just been emptying out at around about that time and clearly you put a lot of people in potential danger.  At least that is the charge of endangering not them, but it obviously gives rise to matters which I take into account in determining the gravity of this particular act.

22In my view it is a very serious example reckless endangerment and was carried out by a person who knows what the consequences could have been and knows what the consequences are going to be when ultimately apprehended.

23In any event, again, as I understand the situation, your parole was cancelled.  You were released after serving the further 118 days of your parole on 11 November 2017.  So having been charged with this matter you were then imprisoned for a significant period of time and were released back into the community.

24I do not know what occurred in the meantime, but on 17 May 2018 you were in a motor vehicle and two police officers Trapnell and Wyatt were performing divisional van duties in the Baw Baw area.  At the time you had an outstanding warrant for your arrest. I do not know what for.  Amongst other duties, the two officers were given the task of trying to locate you.  At 5.30 am, while they were patrolling the Longwarry area, they observed a Ford Falcon sedan parked 100 metres west of Sands Road.  They believed that you may have been driving the vehicle, so they drove up to it and stopped the divisional van immediately in front of it, so the front grills of the two vehicles were almost touching.  They observed you seated in the driver's seat of the Ford Falcon, with a female seated in the front.  They were both aware - you do not get sentenced for this,  but certainly as to their apprehension that you had warning flags for carrying a firearm.

25Both of them got out of the divisional van and approached.  Constable Wyatt unholstered his firearm, understandably and instructed you to show your hands.  You refused to show your hands and instead started the engine of the car and reversed about 30 to 40 metres.  Senior Constable Trapnell believed that you were going to drive at the divisional van so he got back into the passenger seated.

26You then accelerated heavily, driving straight toward Senior Constable Wyatt and the divisional van.  When you were about 10 metres from the front of the van you swerved to your right and appeared to deliberately side swipe the passenger side of the divisional van, causing extensive damage.  You were travelling about 40 to 50 kph when you hit the van and left the scene, leaving the divisional van to be towed away.  That gives rise to aggravated recklessly exposing an emergency worker to risk by driving.  The aggravated aspect is the damage to the car.

27It was put during the course of the plea that somehow or other this was an act of panic.  In my view, if you were using drugs it was not such thing.  It was a deliberate attempt by you to avoid apprehension by the police and you rammed the police car in that process, in all probability to endeavour to disable it.  Whatever occurred with all that you were successful.

28As I said to your counsel, it was a deliberate, conscious act which obviously endangered two police officers who had taken every precaution.  That vehicle, as seems to be your forte, had the wrong number plates on it and you did not hold a driver's licence.

29The next charges arise from matters that occurred on 17 July 2018.  What that involved was you being with a female passenger in a Commodore vehicle in the Crinigan Road Bush Reserve car park.  You parked your utility on a maintenance track, facing a heavy duty steel gate, which was locked to prevent vehicles travelling down the track.  The front of your vehicle was about a metre from the steel gate.

30At about 7.30 pm, Constables O'Brian and Thomas were patrolling the Reserve in a divisional van when they observed the Commodore again revealed the wrong number plates.  False number plates on it.  They parked the divisional van about 3 metres behind you.  Because of the remote location they called for backup.

31As they approached you they could hear you attempting to start the engine.  Constable O'Brian returned to the divisional van and activated the blue and red emergency lights to alert you that you were being intercepted.  Constable Thomas approached the passenger side seat and observed a female sitting in the passenger seat.  He approached your side and observed you sitting in the driver's seat.  You were still trying to start the car.  He warned you that if you continued trying to start the car he would break the window.  You stopped trying to start the car and he told you to open the door.  You then told him that you and your passenger were naked and wanted time to get dressed.  Police officers agreed to give that time and then moved back from the car.

32Shortly after that First Constable Vy and Constable Carter arrived at the Reserve.  You again attempted to start the car and Constable Thomas approached the driver's side door and told you he would smash the window if you kept going.

33When you again attempted to start the car he hit the driver's side window with his baton and it did not break.  He then struck the window two or three times and it did break.  At that stage the female passenger jumped out of the car and you had sufficient wherewithal to lean over and lock the passenger door behind her.

34Constable Thomas then attempted to open the driver's side door but you swiped his hand away and you were then hit with a conductive energy device.  Sorry, a conductive energy device was at that stage pointed at you.  You were told they were police, and they were all in uniform and you told the officers that you wanted proof that they were police officers, so clearly you knew they were.  In any event, you seemed to comply with police demands, removed your hands from the steering column and the conductive energy device was returned to its holster.

35Police then continued to negotiate with you to get you out of the car.  When you again tried to start the car Constable Carter deployed a small can of OC foam into your face.  Constable Thomas reached into the car and opened the driver's door.  You then managed to start the car and reversed into the front of the divisional van.  Constable Thomas quickly stepped back from the driver's door and Constables O'Brian, Vy and Carter and all jumped back away from the utility.  That is Charge 3 of recklessly exposing emergency worker to risk by driving and Charge of criminal damage.

36You then drove forward into the lock steel gate.  The driver's door was still open the police tried to pull you out of the car.  You reversed it again and again police had to jump out of the way to safety.  You again drove forward, smashing into the steel gate and the wheels were spinning.  Whilst it was stationary Constable Thomas deployed CED towards you, two probs connected with your chest.  Your body apparently stiffened, but you turned towards the police and pulled the wires out.  A second cartridge was deployed, on that occasion the probes connected with your torso.

37You were then approached and police endeavoured to arrest you and you punched out.  Actually, a baton was used to cause you to desist.  You were at that stage naked and again, continued to swing your arms about.  You were thrashing about until you were in handcuffs.  That is Charge 5 of resisting an emergency worker on duty.

38Once you were handcuffed you gave a false name, that is a summary offence.  And again, it is the same process, unregistered vehicle, unlicensed driving.  When they searched the vehicle they found two, as I understand it, small quantities of drugs and also a dangerous article and they have been made the subject of summary matters which are also before me.  The damage to the police cars was very significant.  In fact, as I understand, that was in the order of $2,045.

39When police interviewed you about the events you simply answered, 'No comment', when the allegations were put.

40Back in November 2017 you failed to appear on bail and I am going to impose a concurrent sentence for that.

41That detail is probably not necessary but it displays the utter disregard for the police that you had during the course of all of this offending.  Particularly the last one, where you were charged with reckless endangering and resisting arrest.  It is important, I think, for any reader of this to understand the situation which the police had been put by your conduct and their endeavours to resolve the matter in a peaceful manner.  You clearly had no intention of doing that and to reverse back towards the police on two occasions is a serious example of that particular crime.

42Indeed, with the first three charges.  That is the reckless endangerments, I think they are all serious examples of it.  You have done it before and you have done it again and one can only have a great fear that you might well still do it again.

43The crimes are, obviously as I just said, serious.  They call for the application of general and specific deterrence, denunciation, appropriate punishment and community protection plays a significant part in this sentencing process.

44I have read the victim impact statements by two at least of the police officers.  Your counsel endeavoured to tender a letter of apology or whatever it was, I did not read it, from you.  As I indicated at the time, I did not want to see that.  I was not interested.  It would have been much more interesting to see you write a letter of apology to the police to whom you absolutely needlessly placed in this situation of danger.

45As I said to somebody that I sentenced for this a while ago, Mr Pratt, police do not have to put up with this rubbish and the community does not expect them to have to put up with it.

46A submission was put that a combination sentence would be appropriate.  In my view, there is no materials that would justify me going outside the provisions of the legislation which says it has to be gaol.  It is my view also, having reflected over and gone through the matters last night, that a combination sentence, even if I had made the findings necessary, would have been, in my view, grossly insufficient for this particular offending.

47I then, in terms of determining that sentence look to your personal situation.  The first matter, and judges have to be careful of this, is that - I am certainly not going to give you a community corrections order and I am aware that because of your previous offending and because of the fact that you were on bail, which was revoked, at the time of the first of this offending that your chances of getting parole would be very low indeed.  I do not take that into account in determining a head sentence.  I always have to, because of the legislation, sentence on the basis that you will undergo the entire sentence.  But yours, rather than theory, I think will be a reality.

48What I am going to do, after having heard your counsel's submissions, is given an opportunity for parole.  It will be a little earlier than I might otherwise have given, because of the risk of you being institutionalised if you are not already.  And because I think because of matters put before me, being in custody may be more difficult for you than it would for others prisoners, and that giving rise to the last couple of elements of Verdins.

49I do not think your personal conditions reduce moral culpability and I am not going to go into a great detailed analysis of all that.  It is clear from the material that has been placed before me that you have had a very rough upbringing.  Your mother was a drug user and your father raised you.  You parents reunited occasionally and you were brought up in the housing commission flats in Cranbourne.

50You were sexually abused over a period of years by a family friend between the ages of around 10 and 13.  In Year 7 you went to South Australia, you started using drugs, self-harming and accept have attempted suicide at the age of 13.  You disclosed the sexual abuse but were unable to cope emotionally.  From the age of 13 on you have lived transiently.

51At one stage as a young teenager you went to Swan Hill police station to complain about the sexual abuse but left before making the complaint.  At that stage police were looking for you and DHHS had issued safe custody warrants.

52As a teenager you started selling drugs, such as GHB, amphetamines and ecstasy.  You completed a Year 10 equivalent at Tafe and since then you have had a number of labouring jobs on farms and the like.

53You were in a long term relationship which resulted in three children.  That relationship was based on drug use and as I understand it, all those children are in the care of DHHS.  One of those children passed away very young.  Sorry, another child, as I understand it, passed away when very young.

54Your father passed away in April 2018 and that had a very negative impact upon on you and you again relapsed into heavy drug use.

55There is then explanations given by your counsel as to the nature of all this offending.  I think this is not about panicking or anything else, I think it was determination on your part to avoid apprehension.  Whether it be from parole being breached or whether it being from police endeavouring to arrest you.  It seems to be being put to me that each of these occasions you were under the influence of drugs and that may very well be.  You have offended many times in the past because of the influence of drugs, including violence, assault police and the like.  You know when you use those substances what you are capable of and in no way, in my view, mitigate the circumstances.

56When you have spoken to Dr Calvin and Dr Evans, specialists who have examined you, you attributed your actions to GHB intoxication, acknowledged the wrongfulness of your behaviour.  Again, as so often the situation here, it is not accepting responsibility for having done it yourself it is blaming it on the drugs that were used, which you take by choice.

57You have now been in custody for some 444 days.  Your counsel argue that the parole period that you served of 118 days should be taken into account, so far as totality is concerned.  That completely ignores the proposition that once you had been released from that 118 days you committed the same sort of offending twice more.

58What I do take into account is that you did have - and I am not going to go into the gruesome details of it any more than I have - a very difficult childhood.  I am well aware of the principles in Bugmy.  You have Aboriginal heritage, but do not seem to be connected with the culture from where I can see.  Well aware of the principles in Muldrock.

59In terms of intellectual disability is concerned, I am aware that there have been suggestions of it.  But the neuropsychologist who examined you, Ms Evans, says it - in answer to the question, 'Does Mr Pratt have an intellectual disability or other neurodevelopmental disorder?'  She said,

'Mr Pratt does not produce a neuropsychological profile or diagnostic criteria required for a diagnosis of intellectual disability, particularly given improvement to a number of cognitive domains since last assessed'.

60It is clear that certainly at one stage with Dr Bourke it may have been a mental impairment.  But it seems to me to be the overall view of these people that a lot of these difficulties that you had are simply the result of drug use and not some inherent mental instability.

61There comes a time when no matter how bad somebody's background is that a community is entitled to be protected from them.  I have as a judge, and a barrister represented many, many people in your circumstances, have enormous sympathy for the difficulties that are involved and trying to get on with your life when you started from such an atrocious childhood.  As I think I said the other day, children who are abused like that very rarely make healthy or friendly adults.  Girls with backgrounds like that tend to hurt themselves, boys tends to hurt others.  It is clear from your early days of attempted suicide at 13 and subsequently that you would appear to have had a go at both.  Accordingly, I do make it clear that I do have sympathy for you.

62I also make it clear that in this particular situation I think totality plays an important issue.  It is mentioned in the medical material that you are either at risk of or are already institutionalised, and I take that into account.  That is to be avoided if possible. You have done courses in gaol and worked as a billet.

63I have to balance all those circumstances in your favour against the seriousness of what you did and as I have said, the need for general deterrence and community protection.

64In those circumstances I can only impose the sentence that I consider appropriate.  The risk of rehabilitation is very problematic and the risk of your reoffending if you get out and use is almost a certainty.

65However, having taken all those matters into account:  on Charge 1, three years; on Charge 2, two and a half years; on Charge 3, two and a half years; Charge 4, six months, concurrent; Charge 5, six months, concurrent; Charge 6, three months, concurrent and; Charge 7, three months, concurrent.  I do that for reasons of totality and really no other reason.

66Insofar as the summary matters are concerned, again the same problem.  I do not quite understand why I had to deal with some many of them.  But totality demands that the sentencing, in my view, be concurrent.  I am not going to impose fines on a person who is undergoing a gaol sentence, so your sentence on those is follow:  use unregistered vehicle, convict and discharge; fail to report accident, seven days; breach prescribed term condition of parole, seven days; use vehicle display or wrong number plates, is what it really is, convict and discharge; fraudulent use of a number plate, convict and discharge; unlicensed driving, seven days; fraudulent use of a registration label, convict and discharge; use unregistered motor vehicle, convict and discharge; unlicensed driving, seven days; state false name, seven days; possess dangerous article, seven days; fail to answer bail, seven days.

67All those convict and discharges relate to matters that only carry monetary penalties.  All the gaol sentences there are to be served concurrently with the total effective sentence that I am about to impose on the indictment.

68In these circumstances, I direct you serve a minimum term of three years before becoming eligible for parole.  I have already made comments about what effect that might have.

69Just so you understand the benefit of having pleaded guilty to these matters and resolve so many of them, I say to you that but for your plea of guilty, had you run this as a trial and been convicted of these matters, I would have sentenced you to be imprisoned for a period of seven and a half years, with a minimum term of five.

70I direct that 444 days be reckoned as having been served under this sentence.

71Are there any other orders I have to make?

72I direct that - I did it again.  Four-hundred and forty-four days PSD, yes.

73MS MACDOUGALL:  Your Honour, there were some disposal and ‑ ‑ ‑

74HIS HONOUR:  I have done all those.  I signed those in chambers.

75MS MACDOUGALL:  Forfeiture, disposal and compensation.

76HIS HONOUR:  They are all signed in chambers, yes.

77MS MACDOUGALL:  Thank you, Your Honour.

78HIS HONOUR:  Right.  Nothing else I need to do?  No.  Thanks for that.  Yes, you can take him now, thanks.

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