Director of Public Prosecutions v Proctor
[2019] VCC 130
•13 February 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-18-02250
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE PROCTOR |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 22 January 2019 |
| DATE OF SENTENCE: | 13 February 2019 |
| CASE MAY BE CITED AS: | DPP v Proctor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 130 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Theft – burglary - attempted obtain property by deception - attempted carjacking - attempted theft - aggravated carjacking - conduct endangering life - dangerous driving whilst pursued by police - intentionally damage property - drive whilst disqualified - drive in a manner dangerous - carry dangerous article - trespass
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 7 years’ imprisonment, 4 years’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr A. Cecil Ms J. Warren | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms T. Theocharous Mr J. Cameron | Kurnai Legal Practice |
HIS HONOUR:
1Jesse Proctor, you have pleaded guilty to the following charges on Indictment No. J10916552:
- nine charges of theft,
- one charge of burglary,
- one charge of attempted obtain property by deception,
- one charge of attempted carjacking,
- one charge of attempted theft,
- one charge of aggravated carjacking,
- one charge of conduct endangering life,
- one charge of dangerous driving whilst pursued by police,
- three charges of intentionally damage property.2You have also pleaded guilty to 11 transferred related summary charges:
- five charges of drive whilst disqualified,
- two charges of drive in a manner dangerous,
- one charge of carry dangerous article,
- three charges of trespass.3The maximum penalties for these offences are as follows:
§ Aggravated carjacking carries a maximum penalty of 25 years' imprisonment with the additional stipulation that s.10AD(1) of the Sentencing Act 1991 requires that a term of imprisonment be imposed for this offence and that a non-parole period of not less than three years be fixed under s.11 of that Act unless the court finds that a “special reason” exists (pursuant to s.10A).
§ Each of theft, burglary, attempted carjacking, conduct endangering life and intentionally damage property carries a maximum penalty of 10 years' imprisonment.
§ Each of attempted obtain property by deception and attempted theft carries a maximum penalty of 5 years' imprisonment.
§ Dangerous driving while pursued by police carries a maximum penalty of 3 years' imprisonment.
§ Drive whilst disqualified carries a maximum penalty of 24 months' imprisonment or 240 penalty units or both (for a subsequent offence).
§ Drive in a manner dangerous carries a maximum penalty of 24 months' imprisonment or 240 penalty units or both (for a subsequent offence).
§ Trespass carries a maximum penalty of 6 months' imprisonment or 25 penalty units or both.
§ Control or use of a dangerous article carries a maximum penalty of 6 months' imprisonment or 60 penalty units or both.
4You were born on 19 March 1997 and are now 21 years old. You were aged between 20 and 21 during the offending period of March and April last year.
5You have an extensive criminal record for one so young, about which I will go into more detail later.
6By way of background, on 2 March 2018 you were disqualified from driving for a period of three months at the Latrobe Valley Magistrates' Court. So, at the time of the driving offences to which you have pleaded guilty you were a disqualified driver.
7The circumstances of your offending are as follows.
8Between 14 March 2018 and 9 April 2018, you essentially went on a crime spree throughout the Latrobe Valley with several co-offenders.
9I note that two of the co-offenders, Daniel Harrison and Emma Raines, have been sentenced for several charges, some of which are common or related to you. The seriousness of their offending is, however, very distinguishable from yours and there is no issue as to parity.
10As to Charge 1 of theft of a motor vehicle: between Wednesday 14 March 2018, and Thursday 15 March 2018, victim Volodymyr Sopylyuk had his Nissan sedan parked at his address in Warragul. During this time you attended at the address and stole the vehicle.
11As to Charge 2 of theft of petrol: you then drove the stolen Nissan to Moe. You obtained petrol and drove off without making any attempt to pay. The amount of petrol stolen was $33.93.
12On 17 March 2018, the vehicle was located by police in a paddock near Watsons Road, Moe.
13As to Charge 3 of theft of a motor vehicle and Summary Charge 6 of drive whilst disqualified: at approximately 4.30 am on 15 March 2018, victim Carl Koegel had his white 2003 Holden Commodore parked in a driveway in Newark Avenue, Newborough. This vehicle contained various tools, valued at approximately $1,000, under its canopy. During this time, you gained entry to the victim's vehicle and drove off. The victim woke when he heard his car being started.
14As to Charge 4 of burglary: between 9 am and 11.30 am on 15 March 2018, you attended North Canal Road in Trafalgar East, the residence of victim Graham Gaul. Mr Gaul had a caravan on the property which had been entered and ransacked by you. A Gecko folding camp chair was stolen from the caravan.
15You forced entry to Mr Gaul's home by damaging the rear door. When inside, you opened numerous cupboard doors and items were strewn around the home. Mr Gaul's safe had also been tipped over. The following items were stolen from the home:
- 1 set of keys belonging to the residence and a vehicle
- 1 blood pressure monitor
- 1 diamond yellow and white gold engagement ring
- 1 18 ct gold bracelet
- 1 Tissot watch
- Assorted dress jewellery
- 1 crocodile skin handbag.
16You also forced entry to Mr Gaul's garage and stole:
- 1 Stihl NS461 chainsaw
- 1 Rockwell chainsaw
- 1 Generator in box
- Approximately 1000 rounds of 12g shotgun ammunition
- Approximately 300 rounds of various rifle ammunition
- Various hand tools.
17Forensic evidence at the scene identified you, your DNA being matched to a can of Schweppes that was left in the garage. None of that property has been recovered.
18As to Summary Charge 93 of trespass: at around 2 pm on 15 March 2018, you and co-offender Daniel Harrison attended premises on the Warragul-Leongatha Road, Ellinbank. The property belonged to victim Megan Asling and was in the process of being sold.
19You were observed by Sergeant Robert Bartorelli, "squeezing between the front gates of the address".
20Co-offender Harrison was observed in a green Toyota Camry parked in the driveway of the property. He pleaded guilty to a charge of trespass as part of a consolidated plea on 3 September 2018 at the Latrobe Valley Magistrates' Court. He was sentenced to 141 days' imprisonment and an 18-month community correction order.
21As to Summary Charge 94 of trespass: at approximately 1.40 pm on 16 March 2018, you attended at an address at Sullivans Track, Newborough, the home of victims Denise McKenna and Karen Bayes. Ms Bayes saw a white Holden – in fact the stolen Commodore referred to in Charge 3 - parking near the twin shed on the property. Ms Bayes then went outside to investigate and observed you in the shed. She asked what you were doing. You then ran back and entered the Holden. You and the vehicle then exited the property. Ms Bayes noticed that items from her 2002 Mazda sedan had been rummaged through; however, nothing was stolen.
22On 22 March 2018 the Holden Commodore was driven by Izzick Brooks. It was used to ram a police vehicle and then set alight by an unknown offender. Upon recovery, the Holden had stolen number plate TIW628 affixed on the front and number plate ZTD512 affixed on the rear. Mr Brooks pleaded guilty on 15 May 2018 at the Latrobe Valley Magistrates' Court to charges of theft and conduct endangering life in relation to a vehicle as part of a consolidated plea. He was sentenced to 180 days' imprisonment.
23As to Charge 5 of attempt to obtain property by deception: sometime between 12.07 am and 6.20 am on 17 March 2018, unknown offenders entered the home of victims Travis Rossidis and Sarah Moyes in Penny Court, Traralgon. Two sets of car keys and Ms Moyes' handbag was stolen from inside the home. Travis Rossidis' 2006 BMW sedan was parked in the garage of the property next to Ms Moyes' 2013 red Subaru sedan. Both of these vehicles were stolen during this time.
24At approximately 7.48 am on 17 March 2018, you were a passenger in the stolen Subaru. This vehicle entered the United service station in Trafalgar, where you attempted to use Ms Moyes' bank card (this card had in fact been in Ms Moyes' stolen handbag) to purchase items from the store.
25The BMW was recovered by police on 17 March 2018. It had been in a single vehicle collision and had significant damage to its front end. Forensic evidence linked offender Izzick Brooks to the vehicle. Mr Brooks later pleaded guilty to theft of the BMW as part of a consolidated plea.
26As to Charge 6 of theft of a motor vehicle: between 6.29 am and 6.54 am on 20 March 2018, Joanne Kennedy observed Ms Moyes' Subaru on Western Avenue in Newborough. It was parked on the wrong side of the road. Ms Kennedy walked out to the Subaru and saw that there was no one in it.
27At around 6.54 am, Ms Kennedy contacted 000 to advise the police about the vehicle. She then observed two people in the Subaru, walked up to the vehicle and saw you sitting in the driver's seat. Another person was in the passenger seat. Ms Kennedy asked you what you were doing. You replied that you had run out of petrol and were waiting for a friend to return.
28At approximately 7.10 am, Ms Kennedy called 000 again and explained what you had told her and when asked if she wanted to cancel the job she said, "I guess so".
29A short time later, police then attended upon Ms Kennedy's address and she explained what had happened. You were no longer in the car and had left the area.
30Police recovered the vehicle. The Subaru was displaying stolen number plates.
31At approximately 9.30 am on 20 March 2018 a photo board was conducted with Ms Kennedy at the Moe police station and she identified you.
32As to Charge 7 of theft of numberplates: between 6 pm and 6.10 pm, on 27 March 2018, victim Ashley Hotchkin had his blue Holden Astra parked in the Drouin train station carpark. During this time you stole his numberplates.
33On 29 March 2018, police attended the address of your co-accused, Emma Raines and recovered the stolen number plates. On 11 May 2018 at the Latrobe Valley Magistrates' Court Ms Raines pleaded guilty to a charge of dishonestly receive stolen goods as part of a consolidated plea. Ms Raines was sentenced to an 18-month community correction order.
34As to Charge 8 of theft of petrol and Summary Charge 34 of drive whilst disqualified: on 27 March 2018 at approximately 7.40 am, Raymond Ellen parked his vehicle, a grey 2007 Ford Territory registration 1GH4EY, at the FoodWorks store in Traralgon. His vehicle was stolen from this location by an unknown offender.
35Between 5.30 pm and 9.30 pm on 28 March 2018, Michelle Christodoulou's black Ford Territory, registration TSX508 was parked at the Warragul hospital. During this time, the number plates to the vehicle were stolen by an unknown offender.
36At around 11.10 pm on 28 March 2018, vehicle 1GH4EY attended the BP service station in Morwell. The vehicle was displaying registration plates TSX508. The driver of the vehicle - who was you - got out and filled up petrol to the value of $77.12. You were with co-accused Raines. You got back into the vehicle and proceeded to drive off without making any attempt to pay. Closed-circuit television obtained by police depicts you and forensic evidence links you to the vehicle.
37On 30 March 2018, vehicle 1GH4EY was located in Aberdeen Street in Warragul. Emma Raines pleaded guilty to theft of petrol as part of a consolidated plea and received a community correction order.
38As to Charge 9 of theft of petrol and Summary Charge 38 of drive whilst disqualified: at about 4 pm on 3 April 2018, Harry Friend's vehicle, a grey 2011 Holden Berlina station wagon, registration 1BZ1FT, was stolen by unknown offenders.
39At approximately 8.15 pm on 3 April 2018, you drove the Berlina 1BZ1FT to the BP West-Side service station in Leongatha. You obtained petrol to the value of $81.90 and drove off without making any attempt to pay.
40You were captured on CCTV footage obtained by police.
41On 7 April 2018, vehicle 1BZ1FT was located in the Bunyip River in Longwarry North underneath the Princes Freeway Bridge - the windscreen was smashed.
42As to Summary Charge 44 of drive whilst disqualified: on 5 April at approximately 4.30 pm, Detective Senior Constable Justin Prestidge observed you driving a white Kluger SUV along Gary Avenue, Drouin. That vehicle was not stolen.
43As to Charge 10 of theft of petrol: between 8 am and 10 am on 5 April 2018, Alex Storch's Toyota Landcruiser, registration CP11DY, was stolen by Bradley Proctor and Tory Wyntjes.
44At around 7 pm on 7 April 2018, you attended the BP Gunns Gully service station in Newborough. The numberplate had been modified from CP11DY to CR11DY.
45You were a passenger in this vehicle. You got out and filled up petrol to the value of $80.34. You then got back in the vehicle and exited the station without making any attempt to pay. The CCTV footage obtained by police depicts you. On 13 April 2018, the Toyota Landcruiser was located in Alexander Street, Warragul. Stolen number plates AIT308 and OSU783 were located on the vehicle.
46Bradley Proctor pleaded guilty to a charge of theft of a motor vehicle as part of a consolidated plea on a later date and received a six-month term of imprisonment. On 14 August 2018 Tory Wyntjes pleaded guilty to a charge of theft of a motor vehicle as part of a consolidated plea and received a 10-month community correction order.
47As to Summary Charge 95 of drive in a manner dangerous: between 5.45 am and 8.30 am on 8 April 2018, Janine Sharman had her vehicle, a 2007 white Holden Captiva, registration 1FF2YF stolen from Morrisons Road, Longwarry by an unknown offender.
48Between approximately 9.30 am and 10 am on 8 April 2018, Bree Wood had her black Holden Captiva, registration XIP370, parked in the Drouin station carpark. During this time an unknown offender stole Ms Wood's numberplates.
49At 8.40 am on Monday, 9 April 2018, Detective Senior Constable Justin Prestidge was on patrol with Detectives Shaddock and Miller in the Warragul North area. Detective Senior Constable Prestidge was seated in the passenger seat during this patrol. At approximately 8.45 am, he observed you in a white Holden in a driveway in Brandy Creek Road, Warragul North. The vehicle had the numberplate from Ms Wood's vehicle, XIP370, displayed on the front.
50The police patrol entered the premises and drove towards the Holden. Detective Prestidge observed that you were driving the vehicle and made eye contact with you. The Holden then drove across the front yard at a fast speed and turned left into Brandy Creek Road. Detective Prestidge's vehicle followed behind the Holden and the police lights and siren were activated. Detective Prestidge's vehicle was travelling at a speed of approximately 110 kilometres per hour in pursuit. The speed zone of Brandy Creek Road is 60 kilometres per hour. You were travelling at at least 110 kilometres per hour.
51Detective Senior Constable Prestidge observed that the Holden drove on the wrong side of the road and overtook another vehicle on the vehicle's inside passenger side. He also observed that the Holden's rear wheels lost traction near the intersection of O'Dowds Road. The pursuit was terminated for safety reasons.
52Detective Prestidge observed that the Holden mounted the edge of a roundabout at Sutton Street and the wheels momentarily became airborne. The Holden was last seen by Detective Prestidge travelling on the wrong side of the road down Victoria Street in Warragul North.
53As to Summary Charge 54 of drive in a manner dangerous: at approximately 10.25 am on 9 April 2018, you were driving vehicle 1FF2YF south-bound on McCartin Street in Leongatha (this was Janine Sharman's Holden). The Holden was displaying the numberplates XIP370.
54You drove the Holden into the driver's side mirror of a Ford Territory owned by Sushil McPharlane. The mirror was destroyed.
55You continued to drive the Holden down McCartin Street for approximately 20 metres. The vehicle collided with a parked 2003 Holden Commodore owned by Shanyn Armstrong. The Holden Commodore was forced into the vehicle parked in front of it, a 2012 Kia belonging to Debra Bullock. Both cars were legally parked on the side of the road outside Woorayl Lodge (an aged care facility on McCartin Street). Fortunately there were no passengers in any of the cars.
56At the scene of the collision, vehicle 1FF2YF caught fire. The fire spread and all three vehicles were engulfed in flames and burnt beyond repair.
57At this time, Phillip Beggs was riding his bike along McCartin Street and heard the collision. He was approximately 50 metres away when he saw you exit from the driver's door of the burning vehicle, 1FF2YF. Mr Beggs attempted to assist you. You wanted to get back into the vehicle to retrieve your phone and said to Mr Beggs, "my phone, my phone - I've got to get my phone".
58Mr Beggs managed to pull you away from the burning vehicles. You then decamped. Mr Beggs last saw you at the corner of McCartin Street and Gray Street.
59Mr Beggs contacted 000 and warned people to get back from the fire
60As to Charge 11 of attempted carjacking and Charge 12 of attempted theft: you then ran across the road to the south-bound side of McCartin Street. The victim Gabrielle Smetham was driving her vehicle, a white Saab, along McCartin Street south towards Leongatha.
61Ms Smetham describes what occurred as follows:
“As I was approaching Leongatha I saw a plume of black smoke… I could see there were cars on fire… I slowed right down and I saw a young man running towards my car hands up. I thought he was trying to stop traffic… I stopped the car. I went to wind down the window but he had jumped in the passenger’s side. He yelled, ‘drive, drive, drive.’ I said, ‘calm down.’ He said, ‘I’ll kill you. I’ll kill you.’ … I was scared. I didn’t know if I should get out of the car or not. He was continuously yelling at me. He then tried to climb over me and push me out of the car. Whilst he was doing this, he said ‘I’ll drive.’”
62At this point, Ms Smetham asked to be let out. You demanded that she tell you where the car key was. Ms Smetham grabbed the car key and her handbag and exited the Saab through the driver side door.
63You also exited the Saab and ran after Ms Smetham. You were repeatedly shouting, "Where's the key, I'll kill you". You grabbed Ms Smetham's bag from her and threw various items out of it onto the street. You then went back to the Saab. Ms Smetham hid behind a car on the other side of the road. You then moved on from the Saab. Ms Smetham observed you proceed to a white ute that was passing and attempt to gain access to it.
64You then ran further south down McCartin Street towards Young Street.
65As to Charge 13 of aggravated carjacking: victim Ebony Creed was approaching Leongatha from Inverloch along the Bass Highway before it turns into McCartin Street. Ms Creed was driving her vehicle, a Volkswagen Touareg, with her two children aged four and one. They were both in the back seat of the vehicle.
66Ms Creed observed that cars on the other side of the road were on fire. She saw you running towards her car. Ms Creed thought that you may have been involved in the accident so she wound down the passenger window to check if you were all right.
67You jumped through the passenger-side window of the Touareg and onto the passenger seat. You said to Ms Creed, "Just drive. Get me out of here. I was in the burning car". Ms Creed drove her car down Young Street and pulled over about half way down. Her children were hysterical in the back seat. You yelled at Ms Creed to keep going and said, "Hurry up or I'm going to stab you".
68Ms Creed described what occurred as follows:
“As I drove up and around the left hand corner I was pleading with him, saying you can take the car just let me and the kids go. I pulled over and he was in a hurry to get moving. I turned around to get the kids out. I knew the car back doors had child locks and I didn’t want to get out of the car in case he drove off with the kids in the back. At this point he was starting to push me out of the car. I started resisting because I wanted to get [the children] out of the car. Then he started to punch me. He punched me maybe five to six times. The punches were all around the left side of my head and to the left side of my face. He was yelling. I was yelling that I’m not getting out of the car without the kids.
“I grabbed the keys out of the ignition and threw them onto the road. This was so I would have a chance to get the kids out before he drove off in the car. I was concerned he was about to overpower me and get me out of the car.”
69After Ms Creed threw the car keys onto the road both she and you exited the vehicle. Ms Creed was standing just behind the rear door of the driver's side of the Touareg. You grabbed her by the left shoulder, turned her around to face you and asked, "Where are the keys?".
70You then put your hand down the top of Ms Creed's dress and were searching with that hand around her breasts. She stated that, "He seemed to be looking for the keys". Ms Creed yelled at you that the keys were in the middle of the road several times. You then stopped searching her and ran to the middle of Young Street to look for the keys.
71Ms Creed was then able to get her children out of the vehicle. She ran to the footpath with them and waved down a vehicle being driven by Scott George. Mr George assisted Ms Creed and her children and contacted 000.
72You retrieved the keys to the Touareg from the middle of the road, got in and drove off.
73Ms Creed suffered bruising and swelling to her left eye, pain to her jaw and neck, a scratch and bruise to her left shoulder and bruising to her left forearm. She was treated by an ambulance at the scene and taken to Leongatha hospital.
74A number of police units from Latrobe, Baw Baw and Bass Coast were involved in attempting to locate and arrest you and the Police Air Wing unit was mobilised.
75As to Charge 14 of conduct endangering life and Summary Charge 67 of drive whilst disqualified: at approximately 11.24 am on 9 April 2018, the Touareg was detected by the Air Wing unit travelling east on the Fish Creek-Foster Road towards Foster. The Air Wing footage captures you driving the Touareg for approximately 25 minutes. The vehicle can be seen frequently driving erratically, overtaking vehicles at a high speed and driving on the wrong side of the road. It is estimated to be driving at speeds in excess of 200 kilometres per hour.
76On 9 April 2018, at approximately 11.32 am, victim Thelma Woods was driving her blue Toyota Corolla on Promontory Road towards the Fish Creek-Foster Road. Ms Woods observed a small white car come out of the Fish Creek-Foster Road on the left travelling at a high speed. Ms Woods described the driving as follows:
“He travelled straight at me on my side of the road which seemed like a fair while and I thought he was going to have a head on crash with me… I went totally off the road on the left, onto the grass to avoid a collision because I thought he was going to hit me. I estimate that he missed me by about 20 feet.”
77Between approximately 11.33 am and 11.34 am, the Touareg drove through the town of Foster. At approximately 11.34 am, you drove the Touareg down the wrong side of the Fish Creek-Foster Road towards the exit ramp of the South Gippsland Highway. The Touareg was observed driving down the wrong side of the exit ramp. The Touareg was travelling in an easterly direction towards Toora.
78At around 11.34 am that same morning, victim Keran Corcoran was driving her silver Astra on the South Gippsland Highway. She had just left Foster and turned right into the South Gippsland Highway from Toora road. She then heard a loud roaring noise and saw a white vehicle overtake her on the right over the double lines just before Amey’s Track.
79Ms Corcoran observed the vehicle to be driving at a very high speed. She describes the driving as follows:
“He kept travelling east on the wrong side of the road and near the centre line and he looked unstable as he was travelling… I watched this car appear to go around the bend on the wrong side of the road and out of sight… I felt sick at what I had just seen, so I pulled over into Charity Lane just to compose myself… I rang 000 and reported what had happened. I sat there for a few minutes to get my thoughts together and then drove home the back road. The reason that I did this was I didn’t want to come across what I thought would be a terrible accident where in my opinion there would have been people killed.”
80On 9 April 2018 at approximately 11.39 am, victim Bruce Best was driving his Nissan Patrol ute on the South Gippsland Highway, west toward Toora. He was driving in a 60-kilometre per hour zone and there were loose stones on the road surface. Mr Best observed a small white car overtaking another car about 300 - 400 metres ahead. Mr Best describes the driving as follows:
“When he overtook the first car there was another car about 200 metres in front of that one, also going towards me. He caught that up pretty rapidly and I thought he was going to slow down behind that car but he didn’t and just pulled out and passed him. I was about 25 metres away when he did this and he was clearly going quicker than the other cars and when he overtook, I thought that he was going to have a head on crash with me. The car he overtook went to the left and I swerved quickly to my left and he was basically travelling down the middle of the road and we were virtually three abreast, but it happened so quickly… I felt shaken up thinking about what could have happened.”.
81You continued to drive on the South Gippsland Highway at speeds estimated to be as high as 203 kilometres per hour. At approximately 11.45 am you drove down Hodgson and Birds Road. You made your way back on the South Gippsland Highway at approximately 11.47 am and narrowly missed a collision.
82Senior Constable Scott Beekman had deployed stop sticks on the South Gippsland Highway in an attempt to stop you. At around 11.48 you drove the Touareg over the stop sticks at approximately 157 kilometres an hour. The front passenger tyre of your vehicle was badly damaged by the stop sticks.
83You continued to drive the Touareg with the damaged tyre on the South Gippsland Highway. The car was estimated to be travelling at speeds up to 200 kilometres per hour.
84As to Charge 15 of theft of a motor vehicle: at approximately 11.49 am on 9 April the Touareg crashed into the front fence of a property on the South Gippsland Highway, Hedley. The property is the home of victims Kylie and Jake Beaumont. You abandoned the Touareg there. The vehicle was damaged beyond repair.
85After the collision you ran up the driveway of the property. Kylie Beaumont had her vehicle, a 1998 Nissan Patrol DX, parked in her driveway and the keys were in the vehicle.
86Ms Beaumont heard the police helicopter outside and saw you running down her driveway waving your arms in the air. She ran outside and observed you in the Nissan. You were yelling "Help me, help me" and other things. You then drove off.
87As to Charge 16 of dangerous driving whilst pursued by police and Charges 17, 18 and 19 of intentionally damage property: you reversed the Nissan down the driveway for a small distance. You then put the vehicle into drive and crashed through the Beaumonts’ boundary fence. The Nissan continued to drive through paddocks on the property and damage several fences.
88The Nissan crossed the South Gippsland Highway and made no attempt to give way to approaching vehicles.
89The Nissan then crashed through a fence and entered a paddock at 65 Lanes Road, Gelliondale, the property of Margaret and Mark Hoban.
90Ms Hoban heard a helicopter overhead and went out to the back garden where she observed the Nissan driving through the paddocks. She described what she saw as follows:
“…the 4WD careering down the paddock, he came through eight fences, crashing right through them at a very high speed. He got up to just near the railway line, turned left and went through the paddocks again. I saw him crash through another two fences and gate.”
91This damage caused significant disruptions to the livestock on the Hobans’ farm.
92The Nissan then entered the property of Trevor Venning and damaged fences and gates on it.
93You drove the Nissan into the West Alberton State Forest, and drove around the tracks and bushland in the area. The Air Wing unit lost sight of you.
94The police set up a cordon around the area.
95You abandoned the Nissan in the forest and got out on foot. The Nissan was recovered in dense undergrowth several hundred metres from the near boundary of another property in Hedley Range Road. Fencing wire was wrapped around the vehicle and it was “sitting precariously on the edge of the hill of a dry river bed”. The vehicle was ultimately towed out of the location: two tractors provided by a local farmer were needed to extract the vehicle.
96As to Summary Charge 96 of trespass: between approximately 12.30 pm and 12.54 pm on 9 April, you attended at an address in Hedley which was the home of victims Wayne and Anne Tyndall. Ms Tyndall had left her house at approximately 11 am on that day and returned there at approximately 3.10 pm. Upon her return she observed a corded drill, a wire brush, a double-sided egg cup and a small cigarette lighter on the floor. The glass to her kitchen glass door was also broken. All of the items except the cigarette lighter belonged to the Tyndalls.
97At approximately 12.54 pm police were on patrol. They entered the driveway of the Tyndalls’ home. Police officers got out of the police vehicle and walked towards the house. A sound like breaking glass was heard. You were observed standing inside the kitchen and you were arrested.
98As to Summary Charge 74 of carry a dangerous article: you were searched and found to have modified the handle to a pair of scissors on you.
99You told the police that you would assist with their enquiries and then burst into tears.
100You were conveyed to the Morwell police station to be interviewed. You made a “no comment” interview and were remanded into custody. You have been on remand since 9 April 2018.
101Your criminal conduct resulted in there being a considerable number of victims who have had their lives seriously damaged by the impact of your appalling acts. They have had possessions stolen, suffered expensive damage to vehicles and property and have experienced fear, anxiety and associated trauma.
102One of your victims, Ms Creed, the victim of the carjacking, has sworn to a formal Victim Impact Statement which gives eloquent expression to the impact of her experience.
103Ms Creed, who had her two young children with her and resisted you in order to protect her children, was assaulted by you in the process. She has subsequently experienced protracted emotional reactions such as anxiety, hyper-vigilance, sleeplessness, fear and loss of trust as well as the physical injury.
104I now turn to your personal circumstances.
105As I noted earlier, you are presently 21 years of age as so you turned when this offending occurred in March and April last year and you do have an extensive criminal record.
106Your criminal record commences with an appearance at the Latrobe Valley Children's Court in August 2009 when, at the age of 12, for numerous violence and dishonesty offences you were put on a good behaviour bond for ten months. After breaching this bond you were put on a year’s probation.
107One year later you were placed on probation for a further eight months for breaching the first order, and also put on a Youth Supervision Order for 12 months for further dishonesty and driving offences.
108After breaching that order you were put on a Youth Attendance Order for 12 months, and for further offending you were sentenced to 32 days' detention in a Youth Justice Centre, which you duly served. At that stage you were 16 years old.
109Your first appearance in an adult court was three years later when, in June 2016 at the age of 19, you were put on an 18-month Community Correction Order in the Latrobe Valley Magistrates' Court for reckless conduct endangering life, burglary and various violence and dishonesty offences.
110I note that you also appeared in the Children's Court on the same day, receiving a 12-month Good Behaviour Bond for driving and dishonesty offences.
111Nine months later, in March 2017, you were back in court and received your first prison term - 16 months - in an adult prison for violence, dishonesty and driving offences, as well as a re-sentence of two months' concurrent imprisonment for breaching the Community Correction Order.
112On appeal to the County Court in April 2017 the overall 16-month sentence imposed by the magistrate was reduced to an overall 10-month sentence.
113Less than a year later, on 2 March 2018, you were back in the Latrobe Valley Magistrates' Court where, for aggravated burglary and other violence, dishonesty and drug offences you were sentenced to time served - being 95 days - and a 13-month community correction order.
114Twelve days later you went on the four-week crime spree which is the subject of this sentence.
115As to your background: your home life was unsettled. Your parents separated when you were two. You were witness to family violence on the part of your step-father in your early years and your birth father was in and out of gaol. You were intermittently cared for by your grandmother, with whom you were close. Your first step-father subsequently died and your mother remarried and had another child. You do not see much of your mother and do not speak to her husband. Your grandmother died when you were 15 and you lost what stability you had in your life. You have said that when she died you, "went off the rails".
116You grew up in Gippsland and attended three primary schools. You were always in trouble and struggled to learn. You maintain that you were diagnosed with Attention-Deficit Hyperactive Disorder and a learning disorder when you were aged 12 to 13. You described having been “in and out of high school” and believe you possibly completed year 12.
117You have barely worked and been unemployed for the past six years and cite the Newstart Allowance as your main source of income.
118You have a chronic drug history, beginning with smoking cannabis at ages 9 to 10, graduating to ice at ages 12 to 13. You have continued this habit with intravenous use. You also regularly take MDMA. Whilst in custody you have been prescribed methadone as this stops you from using other drugs in prison.
119A psychological report from Ms Carla Lechner was tendered on your plea. According to Ms Lechner you present with symptoms of stimulant use disorder and adult attention-deficit hyperactive disorder. In summary, Ms Lechner opines that your long prior history of offending has arisen in the setting of a longstanding and chronic drug addiction problem coupled with mental health issues and poor familial and social support networks. In addition your early drug use has undermined your subsequent neurocognitive, social, emotional and vocational development.
120Ms Lechner also diagnosed what she thought might be a physiological condition of Acquired Brain Injury and recommended neurological examination. As a result of this, you were referred to Dr Loretta Evans, consultant and clinical neuropsychologist.
121A report from Dr Evans was also tendered on your plea. Dr Evans reports that an extensive history was obtained from a 2016 Forensicare report as well as Ms Lechner's report. Dr Evans also administered various neurological function tests.
122Whilst Dr Evans did not consider that you suffer from a clinical intellectual disability, she confirmed a diagnosis of ADHD against a background of generally low executive function. Organisation and planning skills were considered a cognitive weakness. Furthermore, Dr Evans did confirm a diagnosis of mild acquired brain injury, primarily impacting on memory functions. In her opinion it is likely that the onset of illicit substance abuse during critical periods of brain maturation, along with significant poly-substance use, together with subsequent neurological events such as falls, head trauma, seizures, losses of consciousness, concussive episodes, ADHD and underlying mood state, are considered likely to have had a cumulative and detrimental effect on an already fragile and vulnerable brain.
123It is perhaps trite to observe that your conduct represented by the charges was appalling. It amounted to sustained and concentrated offending, including multiple thefts, burglary, property damage, aggravated carjacking, attempted carjacking, trespass, conduct endangering life and dangerous driving whilst being pursued by police. Members of the community were deprived of their property, terrified by the carjacking incidents and faced possible death or serious injury by your driving. The offending occurred in the context of your long history of past offending and the fact that this offending commenced within two weeks of you having been released from gaol after serving a previous sentence and practically immediately after you had been sentenced to a 13-month community correction order.
124In light of this and the very serious circumstance of this offending, mitigating features such as your youth and your personal circumstances, including your mental health, must give way, on balance, to principles of denunciation, punishment and specific as well as general deterrence.
125As to the offence of carjacking, in the circumstances it was not submitted that there were special reasons existing for s.10A of the Sentencing Act to apply and I am not satisfied that there are substantial and compelling circumstances that justify a finding that a special reason exists. In particular, I am not satisfied on the balance of probabilities that the evidence of any impaired mental function is causally linked to the commission of the offences and substantially reduces your culpability.
126That being said, mitigating features are not extinguished and I take into account the matters submitted by your counsel and in particular:
· your youthfulness,
· your disadvantaged early life,
· your chronic drug history and daily dependence on illicit drugs,
· your psychological disorders and mild acquired brain injury,
· your capacity for insight, regret and remorse, whilst and when not adversely affected by drugs - this became particularly evident by the way in which you positively engaged in the conversation with the elders and me at the Koori Court hearing,
· your plea of guilty and the early time at which it was entered,
· your prospects of rehabilitation - whilst quite rationally they remain bleak, they are not without a basis for hope: you are likely to be accepted for assistance within the National Disability Insurance Scheme which will give you access to services previously unavailable to you such as continuing psychological and medical assistance, as well as future housing opportunities; you have shown commendable acts towards rehabilitation whilst in custody following your arrest and there is evidence that you do actually want to be reformed,
· the support you have from your mother.
127Mr Proctor could you please now stand?
128On Charges 1, 3, 6 and 15 on the indictment of theft of a motor car, you are convicted and sentenced to an aggregate sentence of two years' imprisonment.
129On Charge 12 of attempted theft of a motor car, you are convicted and sentenced to six months' imprisonment.
130On Charges 2, 7, 8, 9 and 10 of theft of petrol and a numberplate, you are convicted and sentenced to an aggregate sentence of 12 months' imprisonment.
131On Charge 4 of burglary, you are convicted and sentenced to 12 months' imprisonment.
132On Charge 5 of attempt to obtain property by deception, you are convicted and sentenced to six months' imprisonment.
133On Charge 14 of conduct endangering life you are convicted and sentenced to three years' imprisonment.
134On Charge 11 of attempted carjacking, you are convicted and sentenced to two years' imprisonment.
135On Charge 13 of aggravated carjacking you are convicted and sentenced to three years' imprisonment.
136On Charge 16 of dangerous driving whilst pursued by police, you are convicted and sentenced to six months' imprisonment.
137On Charges 17, 18 and 19 of intentionally damage property, you are convicted and sentenced to an aggregate sentence of 12 months' imprisonment.
138On each of Summary Charges 93, 94 and 96 of trespass, you are convicted and sentenced to two months' imprisonment.
139On Summary Charges 6, 34, 38, 44 and 67 of drive whilst disqualified, you are convicted and sentenced to an aggregate sentence of 12 months' imprisonment.
140On Summary Charge 95 of drive in a manner dangerous, you are convicted and sentenced to six months' imprisonment.
141On Summary Charge 54 of drive in a manner dangerous, you are convicted and sentenced to six months' imprisonment.
142On Summary Charge 74 of carrying a dangerous article, you are convicted and sentenced to one month's imprisonment.
143Charge 13 is the base sentence.
144I direct that six months of the aggregate sentence imposed on Charges 1, 3, 6 and 15, three months of the sentence imposed on Charge 12, three months of the aggregate sentence imposed on Charges 2, 7, 8, 9 and 10, three months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 11, 12 months of the sentence imposed on Charge 14, three months of the sentence imposed on Charge 16, six months of the aggregate sentence imposed on Charges 17, 18 and 19 and three months of each of the sentences imposed on Summary Charges 54 and 95 be served cumulatively on the sentence imposed on Charge 13 and upon each other. The sentences are otherwise concurrent.
145The total effective sentence is seven years' imprisonment.
146I direct you serve a minimum period of four years before being eligible for parole.
147The sentence starts today.
148Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 310 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
149Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed over all the charges is nine years' imprisonment with a period of six years to be served before eligibility for parole.
150I note that your theft Charges 1, 3, 6 and 15 and attempted theft on Charge 12 involve a motor vehicle and this has enlivened s.89(4) of the Sentencing Act. Upon conviction on Charge 16, dangerous driving when pursued by police, I am also required, pursuant to s.89(3) of the Sentencing Act, to cancel any licence and disqualify you from obtaining a further one for a period of not less than 12 months.
151Pursuant to those sections, on each of those charges I further order that any drivers licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of six years effective from today. Those cancellation orders are concurrent.
152At the plea hearing the prosecution indicated that there also may be a disposal order which has in fact now been drafted. This is consented to and I make that order also today. Just take a seat for a moment please. Is there anything else from either counsel?
153MS WARREN: No, Your Honour.
154MR CAMERON: No, Your Honour.
155HIS HONOUR: Thank you.
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