Director of Public Prosecutions v Shaw

[2022] VCC 897

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-22-00547

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN SHAW

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 June 2022
CASE MAY BE CITED AS:	DPP v Shaw
MEDIUM NEUTRAL CITATION:	[2022] VCC 897

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Grant	Office of Public Prosecutions
For the Accused	Mr D Taylor	Daniel  Taylor Lawyers

HIS HONOUR:

1Lachlan Shaw, you have pleaded guilty to one charge of burglary, one charge of theft, three charges of damaging or destroying property and one charge of aggravated endangerment of an emergency worker. These charges carries  a maximum penalty of 10 years, 10 years, 10 years and 20 years. There is a mandatory minimum of 2 years on the endangerment charge but, in my view, that would be grossly inadequate in these circumstances.

2A summary of the offending is that on 24 July 2021 - and I have noted that you were on a Community Correction Order at that period of time - you attended the house of your ex-partner Jessica McKay, located in Lakes Entrance.  Her father was there and there was an argument.  She walked away with you and she put her purse in your backpack.  She has said that you were talking 'cooked shit' and you were incomprehensible.  In any event, she went home. 

3Sometime after 4.30 pm on that day, you attended Lakes Detailing and Panel Works and the business was closed.  You gained entry to the yard, forced open the side door of the premises and entered the workshop are.  That's Charge 1 of burglary.  You located and forced open a storage toolbox containing customer keys.  You got a set of keys belonging to a Mercedes wagon four-wheel drive that was parked inside and belonged to the Department of Environment, Land, Water and Planning.  You then used a can of grey spray paint located within the workshop to spray the cabin of that Mercedes. 

4

You opened the roller door of the garage and reversed the car out of the workshop.  In doing that, you rammed into the side of a silver Subaru hatch parked across the roller door entrance.  You rammed that vehicle sideways into a Toyota HiLux ute that was parked nearby.  You then exited the premises by crashing through the locked front gates and dragged them a short distance.  That gives rise to

Charge 3 of destroying property, bearing in mind that what I have just described was Charge 2 of theft of a motor vehicle. 

5You were then seen to drive north away from the gates and a person endeavoured to follow you to maintain observation of you.  That gives rise to the drive whilst disqualified.  You returned to the address of Mr McKay Senior and CCTV captures you ramming that vehicle into the rear of his vehicle, which was parked in the driveway of his address.  That ramming, deliberate of course, caused his Triton to push up onto a trailer parked in front of it, causing damage to both the trailer and the Triton and the western boundary of the fence. 

6

You left the address in a stolen car and was seen by another witness as turning left and heading towards Ostlers Road, Lakes Entrance.  You drove to

Colquhoun Road, Lakes Entrance and that was the rented property of associates of you with whom you had recently had a dispute.  You rammed in the closed gates to the property, you then drove to an area behind the shed where you rammed a Hyundai wagon belonging to Robinson, causing substantial damage to that vehicle.  So that is Charge 5 of damaging property.  I note - and I am not going to go into the detail at all - but the damage caused was very, very significant indeed and it can only be said on the material before me, deliberately targeted. 

7

You were again seen by that earlier witness driving on Colquhoun Road and there is a description of which I do not need to go into.  Leading Senior Constables Roney Foray and Russell Hodge were in a marked patrol vehicle and had a yarn the eyewitness and, indeed, were looking for you.  They were parked on Blackfellows Track in Toorloo Arm and Mr Hocking, that is, the witness, pulled up alongside of their vehicle.  They were parked in the centre of the road at an intersection.  The headlights of the vehicle were on, it was in drive, and

Senior Constable Hodges' foot was on the brake.  They believe that to be the best position to maintain observation of the area in search of you while they waited for additional police units to arrive.

8

The three, that is, the witness and the two police officers, were having a conversation from within their vehicles when the witness observed you approaching the stolen Mercedes from behind.  You slowed down approximately

60 metres from the police vehicle.  He alerted the police of the approaching car and Senior Constable Hodge was about to turn on his emergency lights to intercept you when you accelerated heavily and impacted the right rear of the police car, shunting it forward approximately 16 metres, causing extensive damage to both vehicles. You were able to keep going for another 82 metres when you got out of the vehicle and ran off into the scrub.  They were unable to find you.  You left the police officers without doing anything about their welfare.  Each of them was significantly injured, though not seriously on this plea, and you were not found again until the next day.

9

On that next morning, you came out of the bush and told a man that you had bogged your car in the bush overnight.  He took you to his former friend's house.  At that house, the friend and his partner obviously, took you into their home and fed you.  You explained to them that you had bogged your car in the bush somewhere near Broughton on the previous night.  They offered to assist you to retrieve the vehicle but you declined.  The summary then goes through the police investigation that has been tendered, so I do not need to go into the detail of that.  The cars essentially appear to have been all

write-offs.  The damage to the buildings was clearly significant. 

10The two police officers were taken to Bairnsdale Regional Health and both underwent medical examinations and they were discharged on the following day, having been kept in for assessment.  I note that you were picked up on 26 July and on 27 July you were found to be unfit to be interviewed. You counsel has pointed out that witnesses, that is your former partner, said that you were incomprehensible. 

11The fact of the matter remains; that you had your wits about you sufficiently to break into the car yard, to spray paint the vehicle itself, to then target two other people, before ultimately, on the material before me, you clearly targeted a vehicle with police officers in it.  It must have been obvious to you that that is what they were and, indeed, you have pleaded guilty to doing just that.  The evidence is, that you slowed down, saw it and just simply drove straight at it.  I have seen the photographs of that police vehicle and it was a significant impact indeed, bearing in mind that the police vehicle was stationery. 

12They are the matters I think I need to go into for these purposes.  The Crown have provided a list of other matters such as this but not really comparative cases.  It is always difficult in these circumstances to use comparative cases but it is certainly my experience, having done many of these in country areas and also having had a look through the matters provided by the Crown, the vast majority of them are people endeavouring to escape police, they involve driving too close to a police car or clipping a police car.  This is a deliberate ramming of a police car, not in order to avoid escape but it would appear - perhaps that was part of it - but to simply do damage to the police car. 

13Indeed, of real concern is that when you were spoken to by Ms Cidoni, a psychologist, some time after the event, you said that you were under the influence of amphetamine, and I have no reason to doubt that, but you also said, and I quote from her, 'Mr Shaw expressed remorse for causing harm to the police officers he injured in the offending.  He said that he crashed his car as he was feeling extremely suicidal, explaining the intend to do himself in and wanting to die.  This was triggered by Jessica who reportedly told him she was seeing another man which he said really hurt.'  Well, if that is true, there were plenty of trees you could have crashed into, Mr Shaw, as I pointed out during the course of the plea. 

14In my view, this is a very serious example of this offence.  This carries a maximum penalty of 20 years.  There is nothing in terms of endeavouring to avoid arrest or anything on those lines which in any way mitigates it and I will now briefly refer to the Victim Impact Statement of Ms Forai who was then senior constable.  The other police officer suffered bruising as well, as I have already indicated I think.  He has declined to make a Victim Impact Statement.

15Her Victim Impact Statement is somewhat understated, if anything.  Essentially, what it points out is that she had been a fully operational member of Victoria Police for 28 years.  She received severe bruising to her body, include her left arm and right leg and she also suffered whiplash and a concussion.  She said her right shoulder was injured and as a result she has trouble moving the shoulder in certain positions.  She has been unable to return to operational duties.  She has trouble sleeping because of the pain.  She was very active before this.  The injury stopped her from doing leisure activities and sports.  She said it stopped her from working operationally, even typing causes her pain. 

16She said that her husband and herself also have a hobby farm and wildlife rescue.  She cannot do any heavy lifting so she cannot feed the animals and has difficulty dealing with the larger animals.  She said at times she feel defeated and angry.  She said she understood her job had risks bit being injured in those circumstances was just wrong.  She said she feels very anxious if located in a vehicle on a roadside.  She said that she does not know how long the situation is going to continue and is very concerned as to what the future holds for her.  She misses the social interaction of her work and her work colleagues. 

17That is the extent of what occurred and police officers do not have to, and should not have to, suffer these sorts of consequences from simply doing policing, especially, in my view, in country towns.  It is many times a thankless job and to be affectively put in the situation of a deliberate and considered attack by you with a vehicle as lethal as a car, is just unconscionable.  It calls very much for the application of general deterrence.  It was very much for the application of specific deterrence on your part and also denunciation and an appropriate, in what must be, in my view, very significant sentence of imprisonment as a punishment.

18

On the plea - and I want to thank counsel for the succinctness of it - the plea put on your behalf was that you are now 31, you are an Indigenous male, you are married with two children.  You had run a successful fencing business and had no criminal history until the age of 30.  At the age of 29 your marriage broke down and I understand that to have been a marriage of some years.  You told your counsel that you were affected by methamphetamine at the time of the offending and you said you were angry and worked up apparently after learning that your

ex-partner was seeing another man.  You said that you were suicidal and your intent was to harm yourself rather than others.  Well, there is ways of doing that other than what you did.

19As I have already indicated, I have taken into account the matters contained in Worboyes and to simply go through it in short compass, your history; you were brought up in the East Gippsland area, lived in Sale, Paynesville, Cabbage Tree Creek, also Healesville and Wal.  Your family home at one stage was lost in a bushfire.  Your father struggled with depression and anxiety and was verbally abusive throughout your childhood.  You still have a positive relationship with your mother.  You are the second of five children and, whilst you had difficulties relating to the children earlier on, you have been contacting them by phone and trying to restore that relationship. 

20As is so sadly often the case, you only completed Year 7 at (indistinct) Secondary College and dropped out in Year 8.  You then worked manual labour on dairy farms from the age of 13-16, a vegetable farm from 16-18, then operated, to your credit, a fencing business until the age of 29.  At the age of 18 you formed a relationship with a lady known as Serania.  You married and remained together for a period of 11 years and two children from that marriage.  You purchased a home when you were 21 years of age and the pair of you lived there for three to four years.  You then moved around and lived in Western Australia and also on your parents' sheep farm.

21The marriage broke down in 2019 for, I am not sure whether it was true or just suspected, but in any event, it broke down and following that relationship, you started using drugs.  As a consequence of all that, you lost your business.  Following that breakdown and your using drugs, your partner kept the children from you.  And you then had, in late 2019, a new relationship with a lady known as Jess and that was short-lived and again, there was significant drug use and allegations of infidelity.  You have a son from a brief relationship with a lady named Elizabeth, and as I understand it, was born a week before your arrest and you have not met him. 

22You used amphetamine around about the age of 18 but it began seriously in around the year 2020.  I accept that at that time you were using copious amounts.  Assessed by psychologist Gina Cidoni, basically confirms what I had said.  She said that there was a history of mental health issues.  You report previous diagnosis of depression, anxiety and psychosis, which I suspect is drug induced psychosis.  She opines that you do have - or you meet the criteria for adjustment disorder and stimulant use disorder and whilst it is a fairly fragile argument, I will take into account limb 5 and 6 of Verdins in that time in custody may well be more difficult for you. 

23Suspicion is it will probably be of benefit to you in the sense that you will not be able to use, but that is the matter.  In so far as COVID's concerned, the submission filed on your behalf adequately point that out.  You have now done 319 days in COVID circumstances.  Programs have been hard to access, visitations during that time have been very limited.  If you are taken from the gaol, you are then put into a 14-day quarantine, there is lockdowns all the time whenever there is an outbreak in the gaol.  Prisoners, I understand, feel exposed and unable to defend themselves from COVID and I certainly take all that into account.

24You have been assessed by Ms Cidoni as being medium to high risk due to drug use and vulnerability and poor state of mental health.  There are several protective factors I am told.  You apparently have the support of your parents and siblings and you want to have a greater involvement in the lives of your children.  That is ultimately going to be up to you.  I accept the proposition that it would be in the best interests if you could be rehabilitated.  As I have already indicated, in my view the minimum sentence here, bearing in mind the nature of the actual offence itself and the fact that that carried 20 years, is simply not enough.

25As I said, the risk of you reoffending, medium to high, rehabilitation up to you.  It is going to depend upon what happens once you get out of gaol.  I can indicate that, in so far as the other six matters are concerned, they will reduce sentence significantly, largely because of the concept of totality and also because, as best as possible, I should endeavour not to impose a crushing sentence and avoid the risk of institutionalisation.  However, at the end of the day, it is all serious offending, as the learned prosecutor pointed out.  Even the criminal damages are at the high end of criminal damages. 

26Whilst the law says I make the sentence of Charge 6 punitive, unless I otherwise order, I will otherwise be ordering and indeed make it the head sentence.  Any others will be then partially cumulative upon that.  They are all individual victims, as I pointed out during the course of the plea.  You probably got yourself a pretty good deal, whoever negotiated this on your behalf, but that is be it as it may. 

27Accordingly, on the summary matters, three months' concurrent.  On the indictment:

·Charge 1, 18 months

·Charge 2, nine months

·Charge 3, three months

·Charge 4, nine months

·Charge 5, nine months

·Charge 6, five-and-a-years

·Charge 7, three years concurrent

28I direct that four months of the sentence imposed on Charge 1, three months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 4, two months on the sentence imposed on Charge 5 be served cumulatively upon the sentence imposed on Charge 6, giving an affective head sentence of six-and-a-half years. 

29I direct that you serve a minimum term of four years before becoming eligible for parole. 

30I direct that 319 days be written as having been served under this sentence.

31In this situation, it is difficult because of the reductions in the first five charges but, as best I can, as of the s6AAA, I say that but for your pleas of guilty to all these matters, you would have been sentenced to be imprisoned for a period of 10 years with a minimum term of six-and-a-half. 

32MR GRANT:  As the court pleases.

33HIS HONOUR:  No other orders I need to make?

34MR GRANT:  Your Honour's made the disposal order - - -

35HIS HONOUR:  Licence.  Licence, yes.

36MR GRANT:  - - - and there was the licence.

37HIS HONOUR:  Yes.

38MR GRANT:  Can I just check one matter.  It may have been a slip.  I think for Charge 7, the possession charge, Your Honour said three years but - - -

39HIS HONOUR:  Three months concurrent. 

40MR GRANT:  - - - assume three months.  Thank you, Your Honour. 

41

HIS HONOUR:  Right.  Charge 2, any licence to drive cancelled, disqualified

12 months concurrent.  Charge 9 - sorry, Charge 6, any licence to drive cancelled, disqualified period three years concurrent, which means that the total loss of licence is three years.  I do that because, hopefully, upon being released, it'll give

him an opportunity of getting employment.  Nothing else?  Thank you, gentlemen. 

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