Director of Public Prosecutions v Rae

[2021] VCC 1815

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00045

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN RAE

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 OCTOBER 2021
DATE OF SENTENCE:	15 NOVEMBER 2021
CASE MAY BE CITED AS:	DPP v Rae
MEDIUM NEUTRAL CITATION:	[2021] VCC 1815

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Theft- dangerous driving while pursued by police- recklessly exposing an emergency worker to risk by driving- damaging property- possessing a false document- handling stole goods-possession of a drug of dependence

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Hutchison v The Queen [2021] VSCA 235; Kehayias v The Queen [2021] VSCA 261

Sentence:                  Convicted and sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two years and three months.

Section 6AAA declaration: Conviction and total effective sentence of 6 years imprisonment with a non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Malik (Plea) Mr E. Dober (Sentence)	Office of Public Prosecutions
For the Accused	Mr D. Sala	Giorgianni & Liang Lawyers

HER HONOUR:

1Adrian Rae, you have pleaded guilty to eight offences committed by you on 19 April 2020.  The prosecution filed a detailed summary of the facts alleged, which was tendered as an exhibit on your plea.[1]  I will take into account all the matters in that document, although the summary I will now provide in these reasons for sentence is shorter.

[1]Exhibit P1, Summary of Prosecution Opening upon Plea dated 29 July 2021

2At around 12.27 am on 19 April 2020 you were noticed by police when you were driving a Jeep Cherokee which you knew to be stolen (Charge 1 Theft). You had a passenger in the car with you, who was your partner at that time.  The police officers, McKinnis and Weakley, took notice of your car as you ran a red light in front of them, in Werribee, and then were swerving in an out of lanes of traffic. 

3McKinnis and Weakley, who were driving in an unmarked police vehicle, followed you.  You decreased speed dramatically, almost stopping, and then took off at a fast rate.  McKinnis and Weakley continued to observe your car, and contacted police communications.  From this point Charge 7 Dangerous Driving while Pursued by Police commences.  Whilst under observation by these two officers you drove on the wrong side of the road to overtake other traffic, and you ran a red light. 

4The driving which followed was captured on video footage from the police helicopter, which is 50 minutes long, commencing at 12.32 am and ending upon your arrest, which was shortly after 1.10 am.

5You drove through the Wyndham area, onto the Princes Freeway and then on the Western Ring Road.  At 12.35 am a police officer in a marked divisional van attempted to intercept you, but you avoided him by swerving back onto the Ring Road.  A second divisional van continued to follow you on the Ring Road with its lights and sirens activated.  You did not pull over, and this van ceased to follow you as the police helicopter was able to do so.

6You pulled into a service station in Keilor Downs and put $15 of fuel in the Jeep.  As you were leaving another police vehicle arrived at the service station, following your vehicle.  You were driving on Keilor Park Drive at approximately 130kph.  You did not slow down for any intersection, and maintained a fast rate of travel during this pursuit, as well as driving on the wrong side of the road. 

7You drove into a no-through road, and police officers prepared to stop your vehicle by deploying a tyre deflation device.  You drove back to the intersection and swerved towards one of the police officers.  Another officer moved his vehicle to protect that officer from your Jeep.  The stop-sticks were ineffective, and you drove away, pursued by a police patrol car.

8You drove down another dead end road, slowed slightly then drove through a wire fence and across a paddock. 

9You then entered the Tullamarine Freeway, driving towards the city at speeds of 170kph.  At one point a police radar device captured the speed of travel of your Jeep as 196 kph in a 100 kph zone. 

10Two Critical Incident Response Team members Senior Constable Sloane and Senior Constable Pang had been monitoring the incident on the police radio. They were in an unmarked police vehicle and took up a static position on Boundary Road in North Melbourne in the event that the black Jeep entered that area.

11At around 1.08 am you drove towards these two officers at a fast rate, on the wrong side of the road, with the lights of the Jeep off.  You turned into Alfred Street, North Melbourne and stopped in front of the commission flats.  You got out of the Jeep and did something at the front of that vehicle.  Your passenger also got out of the Jeep.

12Officers Sloane and Pang parked their vehicle behind the Jeep.  You were wearing a balaclava, and crawled out from under the front of the Jeep, then ran to the driver’s seat.  Senior Constable Sloane called out “Police, don’t move”.  Your passenger ran back to the Jeep and got into the passenger seat.

13Senior Constable Pang approached the passenger door and attempted to arrest the passenger. He repeatedly directed you and your passenger to get out of the car, but neither of you did so.  You were trying to operate the steering and transmission of the Jeep.  Senior Constable Pang was concerned he might be seriously injured and so deployed his Taser in an attempt to stop you, but this was unsuccessful.

14You then drove backwards at a fast rate, with the passenger door still open.  Senior Constables Pang and Sloane were standing close by, and Pang was at risk of being struck by the Jeep.  This driving gives rise to Charge 2 –Recklessly exposing an emergency worker to risk by driving.

15The Jeep then mounted the kerb, and the open passenger door impacted the police vehicle, causing damage to the mirror, tail light and side panel.  This gives rise to Charge 3, Damaging Property.

16You drove away at a fast rate, along Racecourse road, and failed to stop at a red traffic light at the intersection of Boundary and Flemington Road.  You were observed driving at around 150 kph in a 60 kph zone. You then drove north along Mount Alexander Road at a fast rate.  A tyre deflation device was deployed outside Moonee Ponds Police Station which impaired the Jeep, but you then drove approximately another kilometre, before coming to a halt.  You and your passenger ran from the car.  You were chased on foot and finally arrested near the intersection of Mount Alexander Road and Marco Polo Street, Essendon.

17When you were searched you had in your possession identification documents with your photograph but with a different name.  Possession of these items founds Charge 4, possession of a false document.  A bag which had been dropped by you in the chase was located, containing housebreaking implements, which gives rise to the summary charge of possession of housebreaking implements.

18The registration plates on the Jeep had been stolen from another vehicle some days before.  Inside the Jeep were three other stolen licence plates.  Together, possession of those plates forms Charge 5, handling stolen goods.  You were also found to have a bag containing around 1 gram of methylamphetamine in your pocket which founds Charge 6, possession of a drug of dependence.

19The prosecution summarised the driving which founded Charge 7 as involving:

(i)driving at speeds of up to 196km/h;

(ii)failing to observe traffic signals;

(iii)mounting kerbs;

(iv)driving off-road; and

(v)driving on the wrong side of the road.

20You told the psychologist who prepared a report for this plea hearing that you had been awake for three days, under the influence of methylamphetamine, and that you thought you had taken up to 5 grams of that drug. You could not explain why you drove pursued by police.  You accepted that you had behaved inappropriately and did not seek to justify your behaviour.[2]

[2]Exhibit D2, Report of Warren Simmons dated 5 October 2021, [24], [31]

Personal Circumstances

21Your family of origin and your life up until your late 20’s was respectable and pro-social.  You were raised in Melbourne, with one older and one younger sister, with loving parents. The family was comfortable financially and you had holidays in Australia and overseas, together. You were social and liked sport, which your parents supported.  Your mother looked after the family in what is generally described as “home duties” and your father worked in managerial roles in a number of companies before setting up and running a spring water supply business. 

22It appears that in your early teens you were feeling rebellious and disinterested in school. You left school when you were 14 and worked in your father’s business, mainly as a jockey in the delivery of water.  When you were 16 you re-engaged in education and obtained your Year 10 equivalency, before returning to work with your father.  You were not academically inclined and preferred to work.

23Your father passed away when you were 19, and for a time you continued working in the spring water business he had established.  You worked as a Foxtel installer between the ages of 22 to 25, before returning to the family busines.  This was sold around 2 years later, which correlates in time to you starting to use drugs.

24You have had several relationships with women, each lasting in the range of 2 to 3 years.  At the time of the offending for which you are now to be sentenced, you were in a relationship with the woman who was in the Jeep with you. You indicated that you are no longer in a relationship with her.  Not long before this offending you discovered you have a son, who is around 5 years old now.

25According to the report from Mr Simmons you regularly used small amounts of amphetamine and MDMA in your early 20’s then ceased for a year when you were 25.  Regrettably you gradually resumed using amphetamine, with increasing levels of use so that by the time you were 26 and a half you were using daily. You transitioned to using methylamphetamine. This is reflected in your criminal record.  There have been periods where you have been able to stay clear of drugs, but relapses have then occurred.

26One such period was when you were around 33, when you moved to New South Wales for a time, to the Hunter Valley.  You had work and for a time you kept clear of drugs, but found that your mental health was problematic.  You returned to Melbourne, and then fell back into the abuse of drugs, with gradually increasing usage, peaking at 1.5 grams a day before these offences.

27You have also from time to time consumed alcohol in an excessive manner, and tried other drugs.

28Mr Simmons says that you reported an episode of drug induced psychosis when you were 25, but no other significant mental health problems.  This is contradicted by the history you provided of being suicidal whilst living in NSW, and on other occasions in Victoria.  He suggested that you seek an assessment as to whether you suffer from Attention Deficit Disorder.[3] It does appear to me that you have some longstanding psychological issues to address, but in view of the impact of the drugs you were taking at the time of these offences, and that you are coping reasonably well in prison, your counsel did not rely on any of the principles in Verdins.

[3]Exhibit D2, Report of Warren Simmons dated 5 October 2021,  [32]

29You did try taking dexamphetamine when you were around 30, with some benefit to your ability to concentrate and focus, but you were not ever formally prescribed this medication and were inconsistent in taking it. 

30You have tried different avenues to deal with your addiction.  In 2008, preceding your court appearances, you attended counselling provided by Mr Lamberti.  While in NSW you attempted to attend NA meetings, but this was hampered by the low number of people involved in those meetings. You have been directed to engage with treatment for drug abuse under the community based orders imposed in the past.  Certificates provided on the plea indicate that you have had 3 clear drug screens whilst in custody, and that in January this year you completed the ICE and ME program whilst on remand.

31Also, whilst on remand you completed 3 units related to work skills.

Criminal Record

32You have a relevant and significant criminal history.  You first came before the Courts in 2009, when you were 31 years old, on charges related to trafficking, use and possession of drugs, possession of weapons and dealing with property suspected of being the proceeds of crime.  It is striking that you were trafficking and possessing multiple types of drugs.  You received a sentence of 5 months to be served by way of an ICO.  You received another 5 month ICO for drug and weapons offences at the end of 2009.

33There is then a gap in your court history until 2014.  For some of that time you were in New South Wales.  In October 2014 on charges of trafficking amphetamine and dealing with the proceeds of crime you received a sentence of 3 months imprisonment and a CCO, which included requirements that you undergo assessment and treatment for your mental health and drug abuse.

34Following that, there was a gap in appearances, with your next appearance being at the County Court on a charge of assault, for which you received a sentence of 9 months, followed by a CCO, in May 2017.  Shortly after that you were sentenced in the Magistrates Court for violent and dishonesty offences. A month later you were sentenced to a total of 115 days, which was time served, for dishonesty matters, and possession of drugs. 

35In February 2019 you were again sentenced to time served, this time 216 days, for dishonesty offences, and possession of drugs, including methylamphetamine.  You were also dealt with for breaching two CCOs which had been imposed in May 2017.

36Your driving history is replete with charges of exceeding the speed limit by a significant amount, and you have a prior for failing to stop your vehicle having been directed to do so by police.

Procedural History

37A committal hearing took place on 13 January 2021.  The two police officers involved in the events near the commission flats in North Melbourne were cross examined.  The issue was whether your driving placed Senior Constable Pang at risk.  After you were committed for trial a case conference was held before me in June 2021, with the matter resolving to pleas of guilty in July 2021.

Matters Raised in Mitigation

38Your counsel submitted that in view of your regular life up until your late 20’s and in view of the periods of drug free life since, demonstrates that your drug taking and criminal activities are aberrations in an otherwise normal life.  He submitted that the long period on remand has given you the opportunity to really get clean and to become determined to stick to your rehabilitation, upon release. 

39Whilst he accepted that specific deterrence and protection of the community had a role in the sentencing exercise, he argued that these had a lesser role to play, in view of your history. 

40I accept that your life up until your late 20s provides a foundation of work and normal life that is a positive factor in considering your prospects for rehabilitation.  That being said, it is of concern that you were clearly entrenched in a drug seeking lifestyle for much of your 30s, and that your efforts at rehabilitation in that time were without long-term success.  Mr Simmons reported that you had not in the past really been interested in changing your lifestyle, and that on release from your time in custody before these offences you had no intention of remaining drug free.  He reports that you now wish to make significant changes in your lifestyle, due to the long period on remand and the hope of being part of your son’s life.[4]

[4]Exhibit D2, Report of Warren Simmons dated 5 October 2021, [34]

41Your ability to stay out of trouble with the law is almost wholly dependent upon you staying drug free.  I accept that you are presently motivated in that regard, but as you have learnt, staying away from the associates and activities associated with drugs, as well as addressing your reasons for abusing drugs, are critical to your rehabilitation.  My concerns about your rehabilitation relate to your ability to stick to that path, and so I give a moderate degree of weight to the principle of specific deterrence.

42As was urged by your counsel, I will set a non-parole period which gives you sufficient opportunity for supervised release to assist you in breaking free from your negative life choices.

43You have pleaded guilty to these offences, which has significant utilitarian benefit to the courts, the witnesses and the prosecuting authorities.  The prosecution accepted that you offered to plead guilty to all the charges, except Charge 2, at the earliest opportunity.  Regarding Charge 2, you did have a contested committal, although of limited scope, and so the utilitarian value of the guilty plea you eventually gave is somewhat less. Your counsel also submitted that your plea reflected a small degree of remorse, and I take that into account also.

44Bearing in mind the additional utilitarian value of a plea of guilty and the facilitation of the administration of justice in the context of the COVID-19 pandemic, I will give you a significant discount in your sentences.[5]

[5]Worboyes v The Queen [2021] VSCA 169, [34]-[39]

45You have been on remand since your arrest on 19 April 2020.  I accept also that being in custody during the pandemic has negatively impacted that time, in a number of respects.[6]

[6]Ibid.

46I was referred to two cases where people were sentenced for the offence of recklessly exposing an emergency worker to risk by driving.[7]  Neither, as was acknowledged by counsel, involved facts very similar to your case, and whilst they do provide some assistance as to the sentencing practice, two cases cannot establish the range of appropriate sentences. 

[7]Hutchison v The Queen [2021] VSCA 235; Kehayias v The Queen [2021] VSCA 261

47I consider that your conduct which is the subject of Charge 7, dangerous driving whilst pursued by police, was serious.  Your driving continued for nearly 40 minutes, and involved high speeds, driving on the wrong side of the road, and running red lights.  The orders for cumulation are arrived at by bearing in mind the separate criminality which needs to be reflected not only in the individual sentences, but also in the total effective sentence.  At the same time, I have moderated or not imposed cumulation for some charges in order to arrive at a sentence which reflects the totality of your offending, as well as the matters in mitigation.

48The sentences are: 

Charge	Maximum penalty	Sentence	Cumulation
1 - Theft contrary to s74(1) of the Crimes Act 1958	Level 5 imprisonment (10 years maximum)	9 months	1 m
2 - Recklessly Exposing an Emergency Worker to Risk by Driving contrary to s317AE(1) of the Crimes Act 1958	Level 5 imprisonment (10 years maximum)	2 years 9 months	Base
3 - Damaging property contrary to s197(1) of the Crimes Act 1958	Level 5 imprisonment (10 years maximum)	3 months	1 m
4 - Possessing a False Document contrary to s83A(5) of the Crimes Act 1958	Level 5 imprisonment (10 years maximum)	3 months	-
5 - Handling Stolen Goods contrary to s88 of the Crimes Act 1958	Level 4 imprisonment (15 years)	6 months	1 m
6 - Possession of a Drug of Dependence contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981	Court satisfied not related to trafficking purpose 1 year imprisonment or 30 PU	Proved and dismissed pursuant to s76 of the Sentencing Act
7 - Dangerous Driving While Pursued by Police contrary to s319AA(1) of the Crimes Act 1958	3 years’ imprisonment	2 years	12 months
Summary Charge 16 – Possess Housebreaking Implements contrary to s49D(1) of the Summary Offences Act 1966	2 years’ imprisonment	3 months	-

49This results in a total effective sentence of 4 years imprisonment.  I will set a non-parole period of 2 years and 3 months. 

50Pursuant to s6AAA, but for the plea of guilty I would have imposed a total effective sentence of 6 years with a non-parole period of 4 years.  

Other Orders

51Pursuant to s16(3D) of the Sentencing Act, any sentence of imprisonment imposed for the offence of recklessly exposing an emergency worker on duty to a risk by driving is to be served cumulatively upon the other sentences imposed, unless otherwise ordered.  As with similar provision under s16, I understand this to be read in conjunction with the principle of totality and I have taken both into account in arriving at the orders for cumulation.

52Charge 2 is a “serious motor vehicle offence” pursuant to s87P of the Act, and so pursuant to s89 I am required to cancel your licence if you have one and disqualify you from driving or obtaining a licence for a period not less than 12 months. Other sections of the Act make similar orders in respect to Charges 1 and 7.

53I am informed that you do not presently have a driver’s licence and so I will make the following orders, to commence today,

(a)   On Charge 2 – pursuant to s89(1)(c) you are disqualified from obtaining a licence for 24 months from today

(b)   On Charge 7 – pursuant to s89(3)(c) you are disqualified from obtaining a licence for 12 months from today; and

(c)   On Charge 1 pursuant to s89(4)(c) you are disqualified from obtaining a licence for 3 months from today.

54I will make the orders for disposal of the methylamphetamine and forfeiture of the false documents, housebreaking implements and the balaclava you were wearing.