Director of Public Prosecutions v Pritchett
[2023] VCC 1518
•28 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-23-00345
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN PRITCHETT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2023 | |
DATE OF SENTENCE: | 28 August 2023 | |
CASE MAY BE CITED AS: | DPP v Pritchett | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1518 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Conduct endangering persons - aggravated intentional exposure of an emergency worker to risk by driving - fail to stop vehicle after accident - assault emergency worker - resist emergency worker - exceed prescribed concentration of alcohol - drive in breach of licence condition - breach alcohol interlock condition
Legislation Cited:
Cases Cited:R v Verdins (2007) 16 VR 269, Bugmy v The Queen [2013] HCA 37,
Marrah v The Queen [2014] VSCA 119,
Worboyes v The Queen [2021] VSCA 169
Jaeger v The Queen [2020] VSCA 116,
Smith v The Queen [2022] VSCA 148Sentence:5 years and 11 months' imprisonment, 3 years and 7 months non-parole, $2,500 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Hamnett | Office of Public Prosecutions |
| For the Accused | Ms N. Freijah | Emma Turnbull Lawyers |
HIS HONOUR:
1 Brendan Pritchett, you have pleaded guilty to two charges on the indictment: Charge 1 of conduct endangering persons, for which the maximum penalty is imprisonment for five years; and Charge 2 of aggravated intentional exposure of an emergency worker to risk by driving, for which the maximum penalty is imprisonment for 20 years.
2 You have also pleaded guilty to a number of related summary offences:
- Summary Charge 6 of failing to stop a vehicle after an accident, for which the maximum penalty is 14 days' imprisonment or a fine;
- Summary Charge 8 of assaulting an emergency worker, for which the maximum penalty is a fine of 60 penalty units or imprisonment for six months;
- Summary Charge 10 of resisting an emergency worker, for which the maximum penalty is a fine of 60 penalty units or imprisonment for six months;
- Summary Charge 13 of exceeding the prescribed concentration of alcohol within three hours of driving, and this being your third or subsequent offence, the maximum penalty is a fine of 120 penalty units or imprisonment for 12 months;
- Summary Charge 15 of driving in breach of a licence condition requiring a zero‑alcohol period, for which the maximum penalty is a fine of 20 penalty units; and
- Summary Charge 16 of breach of an alcohol interlock condition, for which the maximum penalty is a fine of 240 penalty units or imprisonment for two years.
3 You have also admitted a prior criminal history which contains, amongst other offences, two other offences of exceeding the prescribed concentration of alcohol whilst driving a vehicle, one of failing to stop a vehicle on police direction and other driving offences, including driving in a manner dangerous, careless driving, driving at a speed dangerous, unlicensed driving, and another offence of resisting police back in 2003.
4 You also have convictions for offences of violence: recklessly causing injury in 2011, and intentionally causing serious injury in 2008 for which you received a total effective sentence of two years and six months imprisonment.
5 The prosecution tendered and relied upon a summary of prosecution opening for plea which describes the offending conduct in detail. I will summarise their description now.
6 On 13 May 2022 at about 10.44 pm, you were driving a white Suzuki van on the Midland Highway in Mooroopna. The van belonged to your mother. An unidentified witness observed damage to your vehicle and contacted a local panel works. Two employees of that panel works, a Lee Hitchcock and a Melinda Kelly, left the panel works and travelled to the location where your vehicle was.
7 At about 10.46 pm, those two people observed your vehicle travelling west on the Midland Highway. They noticed that it had damage to the front left bumper and that the front left headlight was not working, but because you were able to drive they did not stop to assist you at that stage. However, when Hitchcock turned the tow truck around and headed back towards the panel shop, he and his colleague then saw what turned out be your girlfriend walking along the side of the road towards Mooroopna. They also noticed you stationary in your vehicle facing west on the Midland Highway. The hazard lights of your vehicle were activated. They then stopped to render assistance and parked their tow truck behind your vehicle.
8 You got out of your vehicle and yelled abuse at them before returning to your vehicle and accelerating in a westerly direction on the Midland Highway. You travelled a short distance before, as it is described, erratically reversing, swerving in and out of westbound lanes back towards the tow truck operated by Hitchcock and Kelly. You then did a U‑turn and drove directly towards Hitchcock and Kelly and their tow truck before crashing into a guard rail in front of them. That is part of the conduct relied upon in support of Charge 1 on the indictment. This was observed by an employee of Shepparton Towing who pulled his tow truck out next to your vehicle.
9 Two police officers, Jamie England and Jason Williams, were travelling east on the Midland Highway and also witnessed what I have just described. Officer Williams activated the unmarked police vehicle's lights and sirens, and the vehicle then stopped directly behind your vehicle. Your vehicle was by then confined by the two tow trucks and the police vehicle. You then revved the engine of your vehicle, creating smoke in the air. The two police officers exited their vehicle and approached you. Officer Williams approached the driver's side and Officer England approached the rear passenger side of your vehicle. As Officer Williams approached, he yelled at you to stop your vehicle. You then yelled something back, which was unintelligible, and accelerated heavily, reversing into the police vehicle and colliding with it at high speed and with full force. Officer England jumped towards the metal safety barrier to avoid being struck by your vehicle. You then manoeuvred your vehicle and heavily accelerated out of the confined area. You drove directly towards Officer Williams, who drew his firearm and demanded that you stop. He did not discharge his firearm but was forced to jump out of the way of your vehicle which continued in his direction. You then drove past Officer Williams and sped away. The conduct that I have just described is the basis for the offence of aggravated intentional exposure of those two officers to risk by driving that is the subject of Charge 2 on the indictment.
10 You then drove west on the Midland Highway towards Mooroopna. Police located you and observed you turn right and travel north on Echuca Road and then leave and travel west on the Lancaster‑Mooroopna Road before turning left and travelling south on Starritt Road, Undera. Two other police officers, a Senior Constable Bingham and Senior Constable Roberts, entered Starritt Road travelling south and observed you making a U‑turn to face north. Officers Roberts and Bingham stopped their unmarked vehicle on the eastern shoulder of Starritt Road near a channel which was covered by two to three feet of grass. The vehicle that they were in had its headlights on. You completed a U‑turn and proceeded to travel north on the western side of Starritt Road. As you approached Officers Bingham and Roberts, you started to cross over onto the far eastern side of the road and accelerated directly at those two officers. The two officers left their vehicle and hid in a vacant paddock nearby. You then returned to the western side of the road and continued north. That conduct is part of the conduct relied upon in support of Charge 1.
11 You then approached the intersection of Starritt Road and Lancaster‑Mooroopna Road. Leading Senior Constable Fitzgerald and Constable Brady were stationary on Lancaster Road facing west. You crossed onto the eastern side of the road and accelerated towards Officers Fitzgerald and Brady. Your vehicle was then immobilised by a concealed table drain situated between you and the unmarked police vehicle to which I have just referred. That too is relied upon as part of the conduct supporting Charge 1 on the indictment.
12 Police then approached you and demanded that you get out of the vehicle. You refused. You accelerated heavily and attempted to steer your vehicle out of the table drain. Police again demanded that you stop and leave your vehicle. You resisted and attempted to punch Officer Brady several times. Officers Roberts and Brady then grabbed you by the right arm and told you to get out of the vehicle numerous times. Officer Roberts used her police‑issued extendable baton on your left arm about three times in order to prevent you from driving the vehicle and to effect your arrest. Another police officer, Lindsay, attended the driver's side with Roberts and Brady and pulled you out of the driver's seat onto the grass. You were told multiple times to place your hands behind your back, and you refused to comply. That conduct that I have just described supports Summary Charges 8 ‑ that is, assaulting Officer Brady ‑ and Summary Charge 10, resisting police, Officers Roberts and Lindsay.
13 You were then handcuffed, placed under arrest and transported to Shepparton Police Station. Enquiries were made of VicRoads, and you were identified as the subject of a zero blood alcohol restriction and alcohol interlock condition. Your driving was in breach of those requirements and gave rise to the summary charges to which I have referred.
14 On May 14, that is, in the early hours of the following morning, a breath test was conducted and showed a breath alcohol concentration at that time of .107 grams of alcohol, and that of course is substantially higher than the legal limit of .05 grams. This is the subject matter of Summary Charge 13, to which you have pleaded guilty.
15 You were interviewed later that day. You described how you had been out with your then partner, the lady who was seen walking along the road close to where your car had been parked at the beginning of the incident. You explained that you had drunk most of a ten-pack of Jack Daniel's and Coke during the afternoon and at the time of the incidents were 'a little bit drunk'. You indicated you just remembered having a few drinks on the previous night. You had had an argument with your partner, and you 'sort of remember' crashing the car and trying to get out of the ditch. You told police 'I don't even remember crashing the car' and 'I just remember trying to get the car going out of the ditch'. You were asked whether you had a reason why you did not listen to police when they required you to get out of the car, and you gave the following reasons: ‘stupidity’, 'fuckin’ intoxicated', and 'probably blacked out'. In response to the question 'Would you say it was dangerous driving?' you said 'Fucking oath. It's stupid' and secondly 'If any people that felt threatened I was gunna run 'em over, I'm sorry about that, but - it was ‑ I don't think I would have - done that'.
16 No victim impact statements are relied upon.
17 Your counsel provided me with a document headed 'Plea submissions on behalf of the accused' dated 10 August 2023, which is Exhibit 1; a psychological report by Simon Candlish, consultant psychologist, dated 1 August 2023, and that is Exhibit 2; Exhibit 3 is a letter of reference from your cousin Rebecca Griffin; Exhibit 4 is a series of certificates which show that you made considerable efforts to pursue such rehabilitative programs as have been available to you during your lengthy period on remand. Exhibit 5 is a letter written by you to this court essentially urging me not to impose a crushing sentence. I have indicated that I give very little weight to letters of that kind, and this is no exception. However, as will become apparent from what I say in a few minutes, I do accept that after the event you have become remorseful for your actions. Exhibit 6 is a letter from your mother, in which she is imploring me to accept that you are determined upon rehabilitation and that I should extend leniency accordingly.
18 The report of Mr Candlish and your counsel's submissions indicate that you have had a difficult upbringing. You are now 36 years of age. You have a younger brother with whom you maintain a positive relationship. Your parents separated when you were 13 years of age, and you have lived between houses since their separation. You spent a significant amount of time on the streets over the years due to conflict at home between your mother and various partners, and between various partners and yourself. You were exposed to, and were the victim of, family violence perpetrated by your father. You also witnessed family violence inflicted upon your mother. You grew up around heavy alcohol consumption and began using alcohol at a young age. You experienced behavioural issues as a child and engaged in problematic behaviours which are said to be the result of instability, transiency, homelessness and illicit substance use. It is also said you experienced sexual abuse at a young age. You completed Year 9 at school and left in the context of behavioural and concentrational difficulties. You have had various jobs and had been generally working in the gaps in your offending history. You have had alcohol dependency for a number of years and, it seems, have dabbled in various other forms of illicit substances, including methylamphetamine, GHB and ketamine, from the age of about 17 years.
19 It is said that you injured your leg following your arrest for this offending and had been prescribed pain medication in custody to alleviate the pain. It was suggested that that is some form of extra‑curial punishment that I should take into account in your favour. It is not something that I would give a great deal of credit for even if I was persuaded that it was a proper matter in mitigation of sentence. It seems to me that if you resist police and assault police when they are going about their lawful business and suffer an injury in the process the court should not exercise a significant degree of mercy arising from the pain that that has caused.
20 You have a history of anxiety and depression, and in the past you have experienced suicidal ideations. When you are released from custody, you plan to reside with your mother and her partner, and although you have not lived with your mother for four to five years you maintain a positive relationship with her and speak frequently. Indeed I note that she has visited you on a number of occasions despite the extreme inconvenience to her in doing so. You have work available to you, it is said, upon your release from custody, and eventually you plan to relocate to Western Australia where you have relatives, and to obtain work in the mining industry.
21 Your counsel has conceded that the offending is serious and must attract a custodial sentence in some form. She mentions the absence of various matters that might have aggravated the offence. She acknowledges that you have relevant criminal prior convictions. She also submits that your background history supports the application of principles that have been enunciated in the well‑known cases of Verdins[1] and Bugmy[2] and applied in this State in the case of Marrah[3].
[1] R v Verdins (2007) 16 VR 269
[2] Bugmy v The Queen [2013] HCA 37.
[3] Marrah v The Queen [2014] VSCA 119
22 As to the application of Verdins principles, Mr Candlish opines that you have a personality impairment of moderate severity, that you have ‑ and have had ‑ a persistent depressive disorder and substance abuse disorders, all of which were affecting you at the time of the offending. Although of course it is conceded that you were heavily intoxicated at the time. It was submitted on your behalf that Verdins principles apply in your case. It seems to me that no causal connection has been identified which would properly link the offending conduct with your mental impairments so as to reduce moral culpability, nor does it seem to me the report of Mr Candlish supports the application of either Verdins principles 5 or 6.
23 The prosecution in their submissions submit that although all of these matters to do with your mental health and your background are matters that are properly to be taken into account in the instinctive synthesis of factors relevant to sentence, the principles in Bugmy and Marrah and in the case of Verdins do not have application in themselves to this case.
24 Your counsel relied upon the fact that you have pleaded guilty. You made an offer to resolve the matter back in January of this year, which was substantially similar to the ultimate resolution of the matter. It is not suggested that I should not give you full credit for your plea and an early indication of your pleas of guilty, and I propose to do so. There was no doubt, as your counsel points out, that the matters referred to in Worboyes v The Queen[4] are relevant. There is still a backlog of cases in this court, and your pleas of guilty have considerable utilitarian value as well as being consistent with remorse, and I note that the 472 days that you have been in custody to date have been during the very restrictive period when the Corrections system was beset with the COVID pandemic and of necessity imposed considerable restrictions on visiting and contact between family and friends and those people who were confined within the prison system. That will have made your time on remand considerably more onerous than it would in other times. The effects of the pandemic linger to this day and are still to be taken into account, although perhaps to a reduced extent, in the impact that they have upon those serving a sentence.
[4] Worboyes v The Queen [2021] VSCA 169
25 Despite the restrictions within the prison system during your period on remand, you have undoubtedly done what you can to demonstrate that you have every intention of pursuing rehabilitation. The programs that you have completed show that you have consistently followed that course. You have also been a billet within your correctional centre, and it seems that your conduct is consistent with the proposition that you are doing everything you can to promote your rehabilitation and to underscore the claims of remorse that you have put forward and which are repeated in the letters of reference to which I have referred.
26 I might say that it is difficult with your criminal record to be optimistic about your prospects of rehabilitation at this stage, but I accept entirely that you are showing strong signs of wishing to put all this behind you and lead a more productive life free from drugs and alcohol and to rehabilitate yourself. I think the prosecution are right in their submission that your prospects of rehabilitation still have to be regarded as guarded and they will very much depend upon your capacity at the end of your sentence to continue with your rehabilitation and keep away from alcohol and illicit substances. However, I am impressed by what you have done, and I take that into account in determining an appropriate non‑parole period.
27 Quite apart from rehabilitation, I take into account the important sentencing considerations of denunciation, just punishment, community protection and, very importantly, general deterrence. You have prior convictions. Individual deterrence is a significant factor in your case, particularly given that your driving record, as exposed by your criminal record to which I have referred, is significant.
28 I also need to consider the totality principle to ensure that the ultimate sentence that I impose upon you is not too severe, and I need to impose a sentence that is no more severe than is warranted by all of the factors that relate to the offending conduct as well those factors that are personal to you. I regard the offence subject of Charge 2 on the indictment as a serious example of that offence, and I also regard the conduct the subject of Charge 1 on the indictment as a serious example of that offence although, of course, the maximum sentence is five years rather than the 20 years which applies to Charge 2.
29 I have been assisted by counsel in identifying current sentencing practice for offending of this kind and have been referred specifically to the sentencing outcomes in the higher courts from July 2016 to 30 June 2021 and to cases that have come before the Court of Appeal in this State: Jaeger v The Queen [2020] VSCA 116 and Smith v The Queen [2022] VSCA 148. Dealing with the offending in the case of Jaeger v The Queen, the Court of Appeal said this towards the end of their judgment dismissing the appeal in that case:[5]
'The message needs to be sent clearly and unequivocally to like‑minded individuals that conduct such as the applicant's simply cannot ‑ and will not ‑ be tolerated. We regard the applicant's as being a serious example of a serious offence, warranting stern punishment'.
[5] At [36].
30 Similar views were spelt out in the judgment of the Court of Appeal in Smith v The Queen.
31 During the course of the plea hearing, I was urged to consider some way in which I could impose a sentence which combined a sentence of imprisonment with formal rehabilitational orders available under a community correction order. Whilst in your case, and with your history of drug abuse and alcohol abuse, it seemed to me that there was some utility in promoting not just your rehabilitation but the protection of the community through your long‑term rehabilitation by examining that possibility. To that end I ordered a community correction assessment report and a Forensicare report, both of which have supported the proposition that you would be suitable for such an order. I think I said at the previous hearing that you should not get your hopes up despite the fact that I took that course. I hope you have not done so because it seems to me that the sentencing considerations, particularly of denunciation, just punishment and general deterrence, require me to impose a sentence that is not available as a combination sentence with a community correction order.
32 MS HAMNETT: Your Honour, if I may, before Your Honour proceeds to sentence ‑ ‑ ‑
33 HIS HONOUR: Yes.
34 MS HAMNETT: ‑ ‑ ‑ if this is a convenient moment, I will just indicate to the court that I have located the Road Safety or the VicRoads priors ‑ ‑ ‑
35 HIS HONOUR: Yes.
36 MS HAMNETT: ‑ ‑ ‑ and a copy has been provided to defence and to the court, although it will need to be eLodged, but, in fairness to Mr Pritchett and appreciating the late stage at which it was identified between counsel, that there was some clarification required in relation to the penalty, the prosecution position being that this is the fifth ‘exceed PCA’, and my friend being under a different understanding, it may be that she would need to seek instructions just in relation to that.
37 HIS HONOUR: All right. First of all, Ms Freijah, do you have any objection to that being tendered at this late stage of the process?
38 MS FREIJAH: Well ‑ ‑ ‑
39 HIS HONOUR: I know it's not the best time to do it, but ‑ ‑ ‑
40 MS FREIJAH: No, Your Honour, and respectfully, Your Honour did ask if the prosecution needed some time to consider VicRoads priors and have a moment before Your Honour proceeded to sentence, and it was, as I understood, indicated that Your Honour could proceed on the basis that it was the third offence and that will determine the sentence, so in my submission it is far too late to start reopening the plea and tendering material and asking Your Honour to take into account material that hasn't previously been served or considered. Submissions haven't been made with respect to those matters. Of course they're prior matters and I would obviously need to seek instructions before admitting them on behalf of Mr Pritchett. If Your Honour is going to take those prior matters into account at this late stage, then I would of course seek the opportunity to do that, but my position is ‑ ‑ ‑
41 HIS HONOUR: I would certainly do that.
42 MS FREIJAH: Yes, of course.
43 HIS HONOUR: I think that it is late in the day and I'm not inclined to allow this matter to be reopened. I've got to the stage of the sentencing process. I might say I'm not sure it would make any difference to what I'm going to do. So to that extent the prosecution has some comfort from that and perhaps you do too. The fact that it’s the third or subsequent occasion upon which he has fallen foul of the breathalyser law, if I can use the shorthand, seems to me to be a sufficient basis upon which to found the sentence that I have in mind, and to the extent that I might have been intent upon increasing that aspect of the sentence, I think it would have been small, if any, and probably would not have made much difference, if any, to the cumulation of sentences that I would have to consider in determining the total effective sentence. So I think, Ms Hamnett, you probably missed the boat there.
44 MS HAMNETT: Thank you, Your Honour. It's unfortunate that it wasn't filed and that Your Honour and Ms Freijah didn't have notice of it, though it did arise from the conversation here at the Bar table about the appropriate penalty and it is there in the opening that there are those four priors at footnote 4.
45 HIS HONOUR: Well there might be, but ‑ ‑ ‑
46 MS HAMNETT: But I appreciate what Your Honour is saying ‑ ‑ ‑
47 HIS HONOUR: And I'm not going to take them into account now because ‑ ‑ ‑
48 MS HAMNETT: ‑ ‑ ‑ and I hear ‑ ‑ ‑
49 HIS HONOUR: Yes.
50 MS HAMNETT: ‑ ‑ ‑ what Your Honour has said, and I'm happy to accept that that is ‑ ‑ ‑
51 HIS HONOUR: Yes, all right.
52 MS HAMNETT: ‑ ‑ ‑ the end of the matter. Thank you, Your Honour.
53 HIS HONOUR: Thank you.
54 Brendan Pritchett, for the offence of conduct endangering persons, the subject of Charge 1 on the indictment, you are convicted and sentenced to imprisonment for a period of 18 months.
55 On Charge 2 of aggravated intentional exposure of an emergency worker to risk by driving, you are convicted and sentenced to imprisonment for a period of five years, and I also disqualify you from obtaining or holding a driver's licence for a period of four years from today.
56 As far as the related summary offences are concerned:
- on Summary Charge 6, you are convicted and fined $500;
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on Summary Charge 8 of assault on police, you are convicted and sentenced to imprisonment for a period of two months;
- on Summary Charge 10 of resisting police, you are convicted and sentenced to imprisonment for a period of one month;
- on Summary Charge 13 of exceeding the prescribed concentration of alcohol in your blood, you are convicted and sentenced to imprisonment for a period of three months and disqualified for a period of three years from today's date - that disqualification will run concurrently with the disqualification on Charge 2 on the indictment;
- on Summary Charge 15 of breaching the condition of your licence, you are convicted and fined $2,000;
- on Summary Charge 16 of breaching an interlock condition in relation to your driving, you are convicted and sentenced to imprisonment for a period of two months.
57 I order that the sentence of five years on Charge 2 on the indictment be regarded as the base sentence, and I make the following orders concerning cumulation: in relation to Charge 1 on the indictment, a period of eight months will be cumulated on the sentence of five years along with one month in relation to Summary Charge 8, one month in relation to Summary Charge 13, and one month in relation to Summary Charge 16.
58 That makes a total effective sentence of 5 years and 11 months' imprisonment.
59 I fix a non‑parole period of 3 years and 7 months before you are eligible for parole.
60 I declare pre‑sentence detention of 472 days as time to be reckoned as served on the sentence that I have imposed.
61 But for your pleas of guilty, I would have sentenced you to imprisonment for a period of eight years with a non‑parole period of five years and four months.
62 I make the forfeiture order in the terms of the draft save that the reference to the motor vehicle ‑ that is, your mother's motor vehicle ‑ will not be included. Therefore that order relates solely to the tailgate fragments that are set out in the schedule.
63 Are there any other matters that I need to take into account?
64 MS HAMNETT: Nothing further, Your Honour.
65 MS FREIJAH: No, Your Honour.
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