Director of Public Prosecutions v Richards

[2021] VCC 657

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-20-01586

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY JAMES RICHARDS

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021
DATE OF SENTENCE:	19 May 2021
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2021] VCC 657

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW -- Sentence

Catchwords:             Plea of Guilty -- Burglary -- Aggravated offence of recklessly exposing an emergency worker to risk by driving -- Dangerous Driving --  Category 2 offences -- Difficult and chaotic childhood -- Drug usage -- Acquired Brain Injury -- Totality

Legislation Cited:     Sentencing Act1991

Cases Cited:R v Whyte [2002] 55 NSWLR 252 -- DPP v Johnstone [2006] 16 VR 75 -- Bugmy v R (2013) 302 ALR 192 -- R v Verdins (2007) 16 VR 269 -- Nelson v R [2020] VSCA 219

Sentence:Total Effective Sentence - five years and ten months imprisonment -- Non-Parole Period - four years and three months

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr B. Nankin	Office of Public Prosecutions
For the Accused	Mr M. Nicolosi	Marshall Jovanovska Ralph

HER HONOUR:

1On the morning of 29 June 2020, you Timothy Richards were released from custody on a 12-month Community Corrections Order at the Sunshine Magistrates’ Court.  The offending, the subject of your plea, on this indictment commenced that evening at about 6.40 pm and ended upon your arrest at around 2 am on 2 July 2020.

2At approximately 6.30pm on 29 June 2020, you and an unknown co-accused attended The Tyre Factory in Ballarat Road, Braybrook.  The manager of the premises Lakhwinder Singh was present, however, the shop was closed and lights were off.  The co-accused prized open a roller door of the premises with a long metal bar and you entered the workshop area.  You approached a white Hino truck and tried to open its door.  Mr Singh heard noise and yelled out to you both and you decamped.

3In the early hours of the following morning, at 1.18 am on 1 July 2020, you and an unknown co-offender attended KM Car Sales in Koroit Creek Road, Williamstown North.  You and the co-accused used a pair of bolt cutters to cut the padlock on the front gate, gaining entry to the yard at that address where four vehicles were parked against the roller door of the main building.  You and the co-accused gained access to the adjoining office building by smashing the glass door, which then gave you access to the inside of the garage where other vehicles were parked. 

4The vehicles inside the garage had the keys inside, however, the vehicles outside in the yard had the keys locked inside a safe.  You and the co-accused opened the roller door electronically from inside the garage, then drove vehicles from inside the garage into the vehicles parked in the yard, forcing them out of the way and onto the street.  You and your co-offender left the premises driving off in two vehicles you stole from within the garage area.  You stole a grey 2009 Toyota Prado wagon.

5At 4.27 am on 1 July 2020, you attended Hairco Hair and Beauty Supplies at
457 Ballarat Road, Sunshine, driving the stolen vehicle.  You reversed into the front window of the shop in an attempt to gain entry into the store, damaging the glass in the process.  The impact immediately activated an audible security alarm and you fled the scene in the stolen vehicle.

6At 5.28 am you were observed by Acting Sergeant Emily Dawson and Constable Zachary Phillips driving the stolen vehicle in Braybrook.  They followed you at a distance as you drove at a fast rate of speed through Braybrook and Sunshine areas.  As you turned right onto Devonshire Road, Sunshine from Duke Street, Constable Phillips activated the unmarked police vehicle's lights and sirens in an attempt to intercept you.  At this point, you turned your headlights off and conducted a U-turn.  As soon as you completed the U-turn, you crossed to the wrong side of the road and drove directly at Acting Sergeant Dawson and Phillips' vehicle.  Acting Sergeant Dawson took evasive action to avoid a head-on collision.

7You continued driving east on Devonshire Road and Churchill Avenue before turning left onto Darnley Street and stopping approximately 60 metres up from the intersection.  Acting Sergeant Dawson and Constable Phillips followed, saw the stolen vehicle with its reverse lights on.  After they stopped behind you, you then reversed towards the police vehicle at a fast rate of speed, again requiring Acting Sergeant Dawson to take evasive action to avoid a collision by accelerating into a nearby driveway.  You narrowly missed the police vehicle before leaving the area.  Police were unable to locate you again at that time.

8At 2.12 am on 2 July 2020, you were spotted by Acting Sergeant Travis Gray and Senior Constable Arthur Ufnalski driving the stolen vehicle in West Footscray without any lights on.  Police followed you as you drove at 60-80 kph through high density residential and commercial streets without any lights on, running several red lights.  You  entered Princes Highway, travelling westbound, driving at 100 kph without any lights on and continuing to run red lights. 

9At 2.18 am, you drove northbound on Millers Road, Brooklyn before turning right onto Geelong Road around a marked divisional van that was stationary at the intersection containing First Constable Maddie Sullivan and Constable Albert Borzini.  You drove onto the wrong side of Geelong Road before mounting the median strip and continuing to drive eastbound on the right side of the road.  First Constable Sullivan activated her lights and sirens in an attempt to intercept you, however, you failed to stop and continued driving eastbound on Geelong Road.  Police vehicles gave chase.

10The Police Air Wing became involved, monitoring you as you drove in an erratic manner through the Braybrook and Sunshine areas.  At 2.46 am, you were travelling west on Devonshire Road with Senior Constable Brendan Williams in pursuit in an unmarked vehicle.  In the vicinity of the intersection with Brislington Street, you stopped before reversing a short distance towards Senior Constable Williams' vehicle.  In response he reversed into Gertrude Street.  As the airwing had observation of you at that point, Senior Constable Williams ceased pursuit.

11You continued driving west along Devonshire Road, turning off at one point to loop around to re-join Devonshire Road.  Detective Senior Constable Graeme Rayner and Senior Constable Alexander Gemin were driving slowly eastbound along Devonshire Road in an unmarked vehicle when you swerved onto the wrong side of the road, driving directly towards them.  Detective Senior Constable Rayner swerved to the left in order to avoid a collision.  You immediately performed a
U-turn and proceeded to drive east.  Detective Senior Constable Rayner and Senior Constable Gemin also turned around and were driving slowly, keeping observations on your vehicle.  You crossed towards the wrong side of the road, driving directly towards their vehicle, again requiring Detective Senior Constable Rayner to reverse behind the cover of several parked vehicles to avoid a collision. 

12You continued to drive through the Sunshine, Braybrook and Brooklyn areas under the observation of the Police Air Wing.  At 3.13 am, you attempted to park the vehicle out the front of 3 Bryan Avenue, Altona North and got out of the vehicle.   You left it in drive, causing it to collide with the rear of another car.

13You left the scene, jumping a fence and going to an address of an associate.  The police pursuit lasted for approximately one hour, involving both marked and unmarked police.  There was very little traffic on the road due to the time of day.  During the course of the pursuit, you made a phone call to your friend Kristy Priest and told her you were being chased by police.  At the time of driving you were disqualified from holding a Victorian driver's licence.  On 29 June 2020, your licence was cancelled for a period of 12 months by the Sunshine Magistrates' Court for the offence of theft of a motor vehicle.

Gravity of Offending

14The maximum penalties for these offences are set out in the prosecution opening. 

15This is serious offending.  The burglaries of the Tyre Factory and KM Car Sales are unsophisticated, however, were obviously planned at least to the extent that you had tools with you to gain entry.  Those businesses were targeted and the burglaries were purposeful in that you intended to steal a vehicle.  You offended in company.  You entered the Tyre Factory when a person was present.  It was only his interruption that stopped you.

16Not to be deterred, you then proceeded to KM Car Sales.  You caused damage to the premises.  No doubt, that caused loss to the business.  You stole items of significant value, being two vehicles.  You used the Toyota Prado for the purpose of committing further offences.  That fact is borne out by the fact that three hours later you used that vehicle to ram the shop front of Hairco Hair and Beauty Supplies, again causing damage to that business.

17Your reckless driving is the most serious of your offending.  That fact is reflected by the fact that that offence of recklessly exposing an emergency worker to risk by driving, attracts a mandatory term of imprisonment unless some special reason is advanced.[1]  Sensibly, no such reason was advanced on your behalf.

[1] Charges 5 and 7 (Aggravated offence of recklessly exposing an emergency worker to risk by driving) are Category 2 offences for the purpose of the Sentencing Act 1991. Section 5(2H) Sentencing Act 1991 applies.

18In assessing the objective seriousness of that offending, I am mindful of the matters outlined by the Court of Appeal in the NSW case of R v Whyte [2002] 55 NSWLR 252 and adopted by the Victorian Court of Appeal in DPP (Vic) v Johnstone [2006] 16 VR 75. Those are a non-exhaustive list of factors to take into account when assessing the gravity of such offending. A number are present here.

19Here there are two separate offences over two days.  They are both reasonably serious examples of that offending.  On both occasions you were drug affected.  In the first episode, you drove at a fast rate of speed, you ignored police lights and sirens, you turned off your headlights, increasing the danger to other road users, you crossed to the wrong side of the road and drove directly at police.  Thanks to the quick response by Acting Sergeant Dawson, a head on collision was avoided.  Even after that near miss, you then stopped and deliberately reversed at the police vehicle at speed for a second time.  Again, evasive action was necessary.

20Your driving placed police in danger as they tried to apprehend you so that you did not risk injury to other road users.  It is fortunate that the time of day meant there were fewer people on the road.  That is, in my view, at least a mid-range example of that offending.

21Your offending the next day was increasingly dangerous.  It was protracted, lasting approximately an hour.  It involved marked, unmarked and air wing police in pursuit.  You drove at speed, without lights, running red lights, and through residential and commercial areas.  You drove onto the wrong side of the road,  you placed police members at risk, swerving at them, requiring them to take evasive action.  Fortunately, the quick responses by Senior Constable Brendan Williams and Detective Senior Constable Graeme Rayner avoided damage to vehicles or injury to them or their colleagues.  Ultimately, you decamped.  Fortunately, there were no police members or members of the public who were injured and there was no damage to police vehicles.  I take those mattes into account. 

22Even though the prosecution accept that this is a course of offending, in my view, the fact you committed these offences on two separate consecutive days is aggravating.  It warrants cumulation to reflect each episode of offending.  The legislation also indicates that the starting position in relation to that offending should be cumulation. 

23The fact that you had no drivers licence is also aggravating.  I do accept that you had been release after only a short time in custody and, as such, you were still in the throes of serious drug addiction.  You were in fact on two Community Corrections Orders, having agreed to undertake one in April 2020, as well as the one on the day of your release. 

Sentencing Principles

24The offending is serious, as I have said.  General deterrence and community protection must be at the forefront in sentencing for this offending.  Specific deterrence also has a part to play, given your criminal history, your recent court appearances and the repeated offending here despite police involvement on the first day.  Anyone who drives in this dangerous manner and places the lives of police and emergency workers in danger, as well as creating such a risk to the public, must expect a term of imprisonment to follow.

25S.16(3D) Sentencing Act 1991 requires that in relation to Charges 5 and 7 of the aggravated offence of recklessly exposing an emergency worker to risk by driving, requires that any term of imprisonment must be served cumulatively unless otherwise directed by the Court.

26You were arrested on 2 July 2020 and you have remained in custody since that time, having served, therefore, presentence detention of 321 days. 

Personal Background

27Your personal history was outlined in the psychiatric report of Dr David Thomas dated 5 Mach 2021.  You have had a difficult and chaotic background.  I have no difficulty accepting that principles of Bugmy v The Queen[2] apply to you.  That is, your early life has left its mark on you and, despite the effluxion of time, the impact on you is ongoing. 

[2]Bugmy v R (2013) 302 ALR 192

28You were born in Sunshine on 10 December 1986.  At the time of this offending you were 33 years of age; you are now 34 years old.  Your parents' relationship was over shortly after your birth and you had no positive male role model in your life.  Your father died when you were about 20 years of age at a time when you were remanded in custody.

29Your mother had a series of subsequent relationships and you have two
stepbrothers.  You have not contact with them since you were removed from the family home as a child.  Your mother was the victim of physical abuse and violence.  You witnessed that on numerous occasions and were a victim yourself, at one time being admitted with injury to the Royal Children's Hospital.  In 2002, you disclosed sexual abuse by your stepfather.

30You also witnessed your mother being introduced to drugs by one of her partners and the impact not only on her but also on her ability to care for the children.  At one stage, she and a partner spent the entirety of her savings to buy a home on heroin use.  Your mother is a lady with serious and chronic physical and mental health diagnoses. 

31You went into State care as a nine or 10-year-old.  You had various foster placements with a number of unsuccessful attempts to return you to the family home.  You were sexually abused at some stage.  The State system did not provide you with a stable environment, as you were moved from house to house.  You did not fit in at school and recall always being in trouble and in fights.  Unsurprisingly, with little support, you did not do well at school and do not have any formal education beyond Grade 6.

32You were introduced to drugs by peers in boys' homes.  You say your behaviour changed and you became angry and disruptive.  You became involved in criminal activity and spent time in Juvenile Justice.

33Over the years you have variously been addicted to or dependent on alcohol, cannabis, solvents, heroin, methamphetamine, amphetamine and GHB.  That is, despite a methadone program and various other programs directed at drug treatment and rehabilitation, drug use is a predominant problem for you.

Mental Health

34At the young age of 16 when in secure welfare, you were assessed by a neuropsychologist and diagnosed with an acquired brain injury as a result of your chronic drug use and an injury you sustained when previously assaulted.  Your acquired  brain injury obviously remains with you for life.   As a result, you have, for a long time, been on a disability support pension. 

35When you were dealt with in this Court in 2005, an ARBIAS report authored by Ms Linda Farkas, Clinical Neuropsychologist, was exhibited.  That report apparently confirmed your ABI.  It is no longer available but there is no issue taken with my acceptance of that fact.  I have read sentencing remarks which outline the findings of Ms Farkas, namely that you have impairment in your intellectual, attention, new learning and memory factors as well as difficulty with complex learning and impulsivity. 

36Ms Carla Lechner, Clinical and Forensic Psychologist, in 2010 concluded your judgment and reasoning skills were extremely poor and would be further undermined by substance abuse and/or a high level of emotional distress.  She noted your extensive prior criminal history, which she suggested had arisen against the backdrop of exposure to physical abuse, emotional neglect, early removal from the home environment, coupled with early drug use that undermined your vocational, social and emotional development.  In addition, she noted your acquired brain injury and, at the time of her report, you were exhibiting symptoms of clinical depression.

37On current assessment, Dr Thomas states your behaviour satisfy a diagnosis of Anti-Social Personality Disorder.  He says, you admit engaging in criminal offences to satisfy basic needs and wants.  However, you do have very poor
problem-solving skills and you do not engage in consequential thinking.  While he opines that your offending is not driven by identifiable mental illness, he  states that your pattern of behaviour is often seen in the context of significant frontal lobe dysfunction.  Those matters, together and in combination with chronic drug use, have contributed, he says, in a significant way to your repeated offending.  I take those matters into account and the comments of Ms Lechner. 

38Those findings, in my view, do raise considerations of the principles of The Queen v Verdins[3].  However, it was accepted that any moderation of sentence, either on the basis of Bugmy or of Verdins, can only be modest.  That is so, given the seriousness of the offending, the complex interplay of ongoing drug use despite repeated opportunities to rehabilitate, including by the two Community Corrections Orders in place at the time of these events and your history and knowledge of the impact of drug use on you.  However, I take those matters into account as the general backdrop for your offending. 

[3]R v Verdins (2007) 16 VR 269

Prior Criminal History

39Your criminal history is extensive.  You have served numerous periods of imprisonment for serious and relevant offending, including numerous short terms for burglaries and theft.  In 2008, you were sentenced to four years imprisonment with a non-parole period of two years nine months for two armed robberies and a charge of reckless conduct endangering serious injury.  In 2010, for aggravated burglary you received a term of three years imprisonment, in a total sentence of four years and two months' imprisonment.  Though relevant, it was a burglary of a very different nature and is therefore of more limited relevance.  In 2018 you served six months for burglary, and again, served short sentences in 2019 and 2020.  You have received various Community Corrections Orders aimed at your rehabilitation.

40I do note there was a break in your offending between your release from custody in approximately 2014 and 2017, which is not insignificant, given your past history.

41You lack a history of employment, though I have read that at times you have made attempts at various points in your life.

Prospects of Rehabilitation

42Despite the fact Dr Thomas describes you as having reasonably good insight into your problematic drug use, your impulsive criminal behaviour and poor
problem-solving skills, it is my view that your prospects of rehabilitation at this point are extremely guarded.  The fact that you were on multiple Community Corrections Orders, including one imposed on the day of this offending, reflects that fact.  You were, no doubt, required to sign that order and indicate your agreement and willingness to abide by it.

43There is some evidence that you did engage to some extent with the first Community Corrections Order imposed in April 2020.  That is demonstrated by the judicial monitoring report dated June 2020.  However, issues with a relationship breakdown and homelessness, became critical barriers.  You were frank with Corrections Victoria in admitting you had recommencement ice use and the fact you were experiencing self-harming thoughts.  You were described in the report as honest and wanting to engage in treatment and support services.  It seems to me those service had not really been engaged at the time of this offending. 

44Since being remanded for this offending, you report being abstinent from drugs and having broken that cycle of immediate addiction.  You state you have a desire to be drug free and you accept the need for counselling, not only in relation to drug use, but your past history.  Drug use, in my view, represents the biggest risk factor for you in terms of reoffending on your release.

Plea of Guilty

45You have pleaded guilty to this offending and you did so at an early stage of a committal mention.  You receive the benefit of those pleas.  A plea of guilty has a utilitarian benefit in that it saves the time and cost of a trial.  I take those matters into account.  I also take into account the particular value of a plea of guilty in the current COVID-19 pandemic, where all trials in this court were suspended between March and November 2020 and where there is now significant backlog.  In your case, your plea was entered in November 2020.  I take that into account.

46I also accept your pleas of guilty are some expression of remorse.  I accept in your discussion with Dr Thomas you expressed insight into the significant negative impact on victims of your offending.

47You have been serving your sentence during the COVID-19 pandemic.  As with the broader community, prisons are places of heightened anxiety in that setting.  A number of courses and activities have all been affected to some extent.  Prisons, like the community, have been more difficult places during the COVID-19 pandemic, however, prisoners, of course, are unable to make autonomous choices about exposing themselves to risk.  I take those matters into account.

Totality

48In sentencing you for this spate of offending, I am mindful of the principle of totality.  Although there must be a degree of cumulation as between each set of offending, in my view, it must be moderated so the ultimate sentence is not a crushing one.

49Ms Lechner 10 years ago stated that you were at risk of becoming institutionalised, as you functioned more effectively in the prison structure and a structured environment rather than in the community.  Sadly, that is still the case, despite a decade passing.  I take those matters into account.

Cumulation

50The base sentence will attach to the second charge of aggravated reckless exposure of emergency workers to risk by driving which, in my view, is the most serious offending here.  I intend to cumulate a portion of the other charge of the same offending.  I intend to cumulate a portion of the other offences of burglary,  theft and attempted Burglary, but that cumulation will be modest. 

Current Sentencing Practices

51I am required to take into account current sentencing practices.  In relation to the aggravated offending of recklessly exposing an emergency worker to risk, that is a reasonably new offence on the criminal calendar.  I have had regard to the decision of the Court of Appeal in Nelson v The Queen[4], which is the only authority from a higher court at this stage.  There are some general parallels to this case.  I have had regard to driving matters more broadly.  Ultimately, I am required to impose a just sentence, and that is what I have endeavoured to do.

[4]Nelson v R [2020] VSCA 219

Sentence

52Mr Richards, the sentence I impose is as follows:

·    Charge 1, which is the burglary at tyre factory, you are convicted and sentences to 20 months' imprisonment

·    Charge 2, burglary at the KM Car Sales, two years and three months' imprisonment

·    Charge 3, the theft of the vehicles from those premises, you are convicted and sentence to 20 months' imprisonment

·    Charge 4, the attempted burglary of Hairco Hair and Beauty, you are convicted and sentence to two years' imprisonment

·    Charge 5, aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to three years imprisonment

·    Charge 6, dangerous driving while pursued by police, you are convicted and sentence to 15 months' imprisonment

·    Charge 7, aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentence to four years' imprisonment; that is the base sentence

·    In relation to the Summary Charge of fail to give name and address after an accident, you are convicted and sentenced to seven days' imprisonment

·    And on the Summary Charge of driving whilst disqualified, you are convicted and sentenced to 10 months' imprisonment

53I make the following orders for cumulation on the base sentence of four years' imprisonment.

·     On Charge 2, I direct that six months of that sentence be served cumulatively

·     On Charge 3, I direct that two months of that sentence be served cumulatively

·     On Charge 4, I direct that two months of that sentence be served cumulatively

·     And on Charge 5, I direct that 12 months of that sentence be served cumulatively. 

Total Effective Sentence

54The total effective sentence is five years and ten months imprisonment and I direct that you are to serve four years and three months' imprisonment before becoming eligible for parole.  I declare that you have served 321 days presentence detention and that that presentence detention be reckoned as having been served under this sentence. 

Licence Disqualification

55In relation to Charges 5 and 7, I intend to impose an aggregate cancellation and disqualification in relation to your licence, as I am required to do.  The aggregate term will be three year and that will be from the date of your remand.  I make that order specifically so that when you are released from custody, you are in a position to obtain your license as soon as possible, therefore, not be exposed to the risk of driving again whilst disqualified which will expose you to a prison term. 

56In relation to Summary Charge of driving whilst disqualified, you license is also cancelled and disqualified for 12 months and that will run parallel to the other license qualifications. 

S.6AAA

57But for your pleas of guilty, the sentence I would have imposed would have been one of seven years and 10 months' imprisonment with a non-parole period of six years and four months imprisonment. 

HER HONOUR:  Are there any matters to raise, counsel?

MR NICOLOSI:  No.  No, Your Honour.

HER HONOUR:  All right, thank you very much.  Thank you, we'll now adjourn.  Thank you.   

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