Director of Public Prosecutions v Shomshe

[2020] VCC 1308

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01192

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURAT SHOMSHE

---

JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 August 2020
CASE MAY BE CITED AS:	DPP v SHOMSHE
MEDIUM NEUTRAL CITATION:	[2020] VCC 1308

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, conduct endangering persons, theft of motor vehicle, possessing a drug of dependence, specific and general deterrence, denunciation, good prospects of rehabilitation, COVID-19

Legislation Cited: s.89(4) of the Sentencing Act;s.89A of the Sentencing Act; s.28 of the Road Safety Act; s.6AAA of the Sentencing Act

Cases Cited:
Sentence:  15 months imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Mr L. Barker	TM Lawyers

HIS HONOUR:

1Murat Shomshe, you pleaded guilty to one charge of conduct endangering persons which is conduct placing another in danger of serious injury, for which the maximum penalty is five years' imprisonment; one charge of theft which was a motor vehicle theft, for which the maximum penalty is 10 years' imprisonment; a charge of possessing a drug of dependence, which was rolled-up to incorporate two drugs, methylamphetamine and diazepam - the maximum penalty for that is one year imprisonment; and a related summary offence of unlicensed driving, for which the maximum penalty is six months' imprisonment or 60 penalty units.

2The circumstances of the alleged offending are set out in detail in the prosecution opening which was tendered and marked as Exhibit 1 on the plea.  I will outline the circumstances of the offending.

3Between 31 December 2018 and 1 January, a white 2017 Porsche with a registration VARYA was stolen from a residence in Templestowe.  This vehicle belonged to Sayeed Amir Taheri and it was valued at $300,000.  This theft was reported to police on 2 January 2019. 

4On 4 January 2019, Senior Constable Thomas Scott and Senior Constable Rory Hampton were patrolling in Hoppers Crossing in an unmarked police vehicle.  As they approached the roundabout at the intersection of Hogans and Derrimut Roads, they observed a white Porsche vehicle with that registration VARYA.  You were driving that vehicle. Your possession of the vehicle at that time is the basis of Charge 2, being the car theft.

5Senior Constable Scott performed a check on the LEAP police database, which indicated that the vehicle had been reported as stolen.  The police then proceeded to perform a U-turn and notified police communications requesting police Air Wing assistance.  Police officers Hampton and Scott followed the vehicle you were driving, before losing sight of it somewhere near the
High Street exit, from the freeway in Laverton.

6At approximately 2.10 am, the vehicle was observed by the police Air Wing.  Lieutenant Senior Constable Johnathan Anderson was in a police helicopter and observed the vehicle near Bladin Street in Laverton.  The helicopter has a camera. The camera was trained on the Porsche, using GPS coordinates to measure the speed.  A recording was created. It showed the Porsche travelling on the various roads on the night in question.

7A video was produced showing the movements of the Porsche from Fitzgerald Road up until Santolin Drive.  The speed of the vehicle can be shown in the video recording in the top-right of the recording.  I indicate I have viewed that Air Wing video.  Whilst the Porsche car was travelling north on Fitzgerald Road In Laverton North, the estimated speed of the vehicle at times reached to between 100 to 130 kilometres an hour.  The speed limit for that stretch of road is 80 kilometres an hour.

8At about 2.13 am, the vehicle was observed by the Air Wing entering the Western Ring Road and travelling northbound and exited onto Ballarat Road.  In this stretch, you were driving the Porsche at speeds reaching and at times exceeding 230 kilometres an hour.  The Porsche that you were driving passed nine other vehicles.  The speed limit for this stretch of road is 100 kilometres an hour.

9The vehicle then turned from Ballarat Road onto Cairnlea Drive towards Station Road in Deer Park.  While travelling down Cairnlea Drive, the vehicle reached speeds of 150 kilometres an hour, the speed limit for that stretch or road is
60 kilometres an hour.

10The vehicle then turned right from Cairnlea Drive onto Station Road, travelling through the intersection against a red traffic light.  A car travelling the opposite way, attempting to execute a U-turn at the intersection, stopped.

11Constable Anthony Trigg and Senior Constable Mark Pulmer were on duty in a marked police vehicle.  They observed your vehicle travelling north on Cairnlea Drive at a fast rate of speed.  They attempted to follow you, but they could not catch up to the Porsche that you were driving.  They observed the vehicle that you were driving enter an intersection against the red arrow at that traffic light.

12Then, Constables Adam Briggs and Thomas Perry who were on duty in a police vehicle, stopped near the intersection of Station Road and Cairnlea Drive in Deer Park.  At about 2.18 am, they observed the Porsche travel through the intersection at Station Road at Deer Park at an excessive speed.  Constable Perry noted that he lost visual contact with the vehicle within a couple of seconds, on account of the speed that you were driving at that point.

13The Air Wing footage depicts the vehicle travelling north up Station Road and reaching speeds in excess of 200 kilometres an hour.  The vehicle passes one car and travels through an intersection against a red traffic light.  The speed limit for this stretch of road is 60 kilometres an hour.

14The Air Wing footage shows the vehicle then turning left onto Taylors Road.  After turning, the vehicle passes one other vehicle and then reaches speeds of up to 168 kilometres an hour, passing a further three vehicles.  The vehicle then turned right into Calder Park Drive, and drove north-bound, reaching speeds in excess of 150 kilometres an hour.  Whilst travelling, the vehicle passed two vehicles traveling in the opposite direction.  The vehicle then overtook another vehicle, as both vehicles approached a roundabout.

15This driving and these extreme speeds form the basis of the Charge 1, the conduct endangering persons.

16The vehicle then did a U-turn, turned right into Catherine Drive and then into Santolin Drive.  The vehicle was observed by the police Air Wing driving into
12 Santolin Drive hillside.  You, the driver, exited the vehicle and attempted to open the garage door to the property but the door would not open.  Eventually, you returned to the vehicle, and drove the vehicle to the street behind
Santolin Drive and parked it in front of another address in Varna Court hillside.

17Constable Briggs and Perry arrived at Santolin Drive because they had been advised of the location of the driver by the police Air Wing.  They saw you, arrested you, and cautioned you.  They found the following items in your possession: the Porsche key in the left pocket of your shorts, two zip lock bags containing a crystal substance later determined to be .6 grams of methylamphetamine, and a zip lock bag containing one full pill of Diazepam and one other pill cut into two halves.  This forms the basis of the Charge 3, the rolled-up charge of possessing a drug of dependence.

18Investigations of your license status revealed you have not held a license or a permit to drive a motor vehicle since 2 June 2009.  This is the basis of summary Charge 6, unlicensed driving.

19You made a no comment record of interview. 

20Mr Shomshe, your plea of guilty was not an early plea, coming on 7 August 2020 after a case conference in this matter.  But the most serious charge was withdrawn after negotiation and I take that into account in assessing the stage at which you pled guilty.  I give you credit for the utilitarian value of your plea, heightened in the current environment with jury trials suspended.  This will cause a large backlog for this court to deal with when it resumes normal operations again, and in those circumstances, a guilty plea avoiding a trial has a very significant utilitarian value.

21You have written a letter to the court which I have read, which indicates you have some insight into your offending and some remorse.  I accept your guilty plea is indicative of some level of remorse and a willingness to facilitate the course of justice.  Of course, the depth of your remorse is difficult to gauge.

22I turn now to the gravity of this offending.  It was submitted regarding the car theft, that you had no intention to keep the car for yourself, and that you did not take the car from its rightful owner.  It was submitted that the Porsche had been presented to you by an acquaintance for you to work on as a qualified mechanic, and that you decided to test drive the vehicle in the manner alleged.

23It was submitted that no damage was done to the vehicle, and it has presumably been returned to the rightful owner after being repaired by you.  In my view, this is a very rosy picture of this offence, and there is no evidence that this is how this unfolded.  These are just your instructions.  I simply do not know how you came into possession of the vehicle, or from whom.  Beyond that, it is not put against you that you took the car in the first place.  I do not know what your intentions regarding the vehicle were, or whether you were being paid for your mechanical skills being applied to the stolen car, if indeed, that is what you were doing.

24In the end, you were in possession of a high value motor vehicle which in my view, was no doubt stolen as a targeted vehicle, and you were in possession of that within a week of its theft.  In those circumstances, I regard it as a reasonably significant offence of car theft.

25In relation to the charge of recklessly engaging in conduct, place in danger of serious injury, that offence can cover a wide array of circumstances and activity; not simply driving offences, as you well know, having been previously convicted of reckless conduct placing others in danger of death in respect of a prior shooting incident.  That was your last conviction, for which you received a sentence of three years, with a minimum of two years and a community correction order.  I will return to that matter.

26The speeds you reached in this offending were extreme.  By driving at extreme speed in this stolen high performance vehicle, you showed complete disregard for the other road users, who happened to be anywhere near you in the early hours of the morning.  You accept by your plea, that you created an appreciable risk of serious injury for those who were in the other cars, close by on the road that night.

27An aggravating feature of the offending is the number of people who were put at risk by your profoundly anti-social driving.  That said, I have viewed the footage, and it does not appear that any stage you are not in control of the vehicle, or that there were any near collisions or close calls with other drivers on the road.  Mr Barker submitted that despite the speed and proceeding through red traffic lights, there were no close calls with other vehicles.

28Indeed, he said the roads on which you travelled were mostly straight and sparsely populated.  I accept this.  However, driving at the speeds you did over the distance you covered is an inherently highly dangerous activity for any other road users in the vicinity.  In all the circumstances, I find this to be in the lower mid-range of the spectrum of seriousness for such an offence.  But as an example of appalling driving, it is hard to top.

29A further aggravating feature is that at the time of the offending, you were subject to a community corrections order pursuant to the earlier sentence of Judge Morrish.

30I turn now to your personal circumstances, Mr Shomshe.  You are now 38 years of age.  You grew up in Melton where you attended the local primary and secondary schools.  You left school at the end of Year 10.  You had apprenticeships as a mechanic and then a plumber, both of which you gave up.  In the end, you worked for the Melbourne fruit and vegetable market.

31You were working there in November 2000, when you became involved in an affray over which you were ultimately charged.  However, you also sustained a significant injury causing a left subdural haematoma.  You were hospitalised for two days.  Following that, there was a period of approximately three to four weeks rehabilitation.

32You got married in 2003 but that did not last beyond late 2006. 

33You have a history of substance abuse.  You started smoking marijuana and drinking alcohol in that period, and later on using methylamphetamine daily, for three or four years, between approximately 2008 and 2010.

34You re-married in 2011 and your then wife fell pregnant.  You apparently started using methylamphetamine again leading to feelings of paranoia, which negatively impacted on your marriage.  You assaulted your wife and you received a term of imprisonment for that, together with a community corrections order.

35That order which as I understand it, was in 2014, required you to participate in treatment directed at your rehabilitation.  You participated in behaviour counselling which was a condition of the community correction order.

36I have been provided with a report of a Dr Hughes, which seems to have been directed towards the previous plea hearing in 2016 for Judge Morrish.  It is indicated in that report that you found the group therapy on that earlier community correction order in 2014, confronting and you decided to stop attending.

37You are now in a relationship with a woman named Lauren.  She is your current partner.  She lives in Hoppers Crossing with your children, Romeo born on
6 December 2013, and Evie born on 22 April 2019.

38Mr Shomshe, you have a significant criminal history, including a number of offences related to driving. Back in October 2004, you received a traffic infringement notice for exceeding the speed limit by more than 45 kilometres an hour and your license was suspended for 12 months at that time.

39You have a prior conviction in 2008 for driving whilst suspended.  You have a prior conviction in 2009 for exceeding the proscribed concentration of alcohol, and you have an earlier prior conviction, at least one, for unlicensed driving.  As well as that, you have prior convictions for assault-related matters, some
drug-related matters, including trafficking, and the significant reckless conduct endangering life in 2016 before Judge Morrish.

40In relation to that matter, on 10 June 2016, you received a combination sentence of three years' imprisonment with a minimum of two years' imprisonment, being the non-parole period, and a two year community correction order from Judge Morrish, for a reckless conduct endangering life based on a shooting incident.  The pre-sentence detention declared at that time was 429 days.

41On my understanding of the prison material, you were released on 6 April 2018, which means you served the whole of the head sentence in respect of
Judge Morrish's sentence.  You committed these offences whilst on the community correction order component of Judge Morrish's sentence, and you have since been breached and re-sentenced by Her Honour in February this year to a three and a half year sentence, with a minimum of two and a half years, with effectively three years declared as pre-sentence detention.

42That means that since February of this year, you have been serving the final six months of that head sentence, which as I understand it, is due for completion fairly shortly.

43You have now been in custody since your arrest which is over 19 months or thereabouts.  I have been told today that 415 days of that sentence is available to be reckoned as pre-sentence detention in respect of any sentence that I order, having regard to the further six months which you have served pursuant to Judge Morrish's sentence.

44In relation to that sentence, it is clear, and it is agreed between the parties, that I must have regard to the totality principle in assessing the period of time that you have now been continuously been in custody since your arrest in respect of these matters, and I do so.

45Having regard to the circumstances of this offending and the earlier offending, including the episode that led to the substantial sentence from Judge Morrish, it is difficult to have any great optimism concerning your prospects of rehabilitation.  Considerations of specific deterrence must also be emphasised given the history of offending, in your case.

46Mr Barker has submitted that your head injury and its disinhibiting effects, is sufficient for the Verdins principles to apply, that I should moderate general deterrence.  I indicate given the purposive nature of the conduct in this case; I am not satisfied that your condition triggers the application of the Verdins principles in this matter.

47It is submitted further that the COVID-19 pandemic is a highly relevant sentencing consideration.  That is, that imprisonment since March and through to the present time has been extremely difficult.  Prisoners have been limited to Skype calls or video conferencing instead of visits, which have been suspended.  Lockdowns have been prevalent.  I am told that you have been subjected to a 20 hour lock down regime at times, and you have had only four hours out of your cell per day.  Courses have been suspended by prison authorities designed to assist your rehabilitation.

48You are a person with young children and partner, and you have not had visits from them for some significant period of time.  I take into account the period you have been in prison has involved an increased burden because of the stringent conditions that have prevailed as a result of the pandemic.

49I indicate to you that I have had regard to the letter that you wrote to the court dated 20 February 2020, in which you express your remorse for this offending, your plans for your rehabilitation, your desire to be reunited with your family, and some matters concerning your history.  Also, I have received a letter from a previous partner, Belinda Gulevski and I have had regard to that letter.

50A further reference was submitted from Maria Petru from the Jailhouse Rock organisation, who formed an association with you through your time at Ravenhall, who speaks highly of your participation in their programs, as well as a drug screen - a negative drug screen result from 20 February of this year.

51Other psychological material was submitted from Dr Hughes, to which I previous referred and also a report from back in 2006 from Tim Watson-Munroe, and I have had regard to all of those matters.

52It is my view in this matter, that considerations of general and specific deterrence are relevant.  Denunciation is also important. This conduct involved driving at a ridiculous speed and a threat to public safety.  The court must denounce such behaviour.  As I said, in discussing your criminal history, specific deterrence is also a sentencing objective of some importance in this case, as is community protection.

53However, in fixing the appropriate sentence, I must still have regard to your rehabilitation.  To that end, I ordered an assessment from the community corrections office in this matter.  Having regard to your history on community correction orders, you were judged to be unsuitable for such an order.  In the circumstances, it does not seem to me, having regard to that assessment, appropriate that I place you on a community correction order.  You are now old enough and experienced enough to make a decision about how you are going to live your life hereafter.

54I must also take into account current sentencing practices for offences such as these.  Sentences practices are a guide, they are not a controlling factor in the imposition of a sentence.  Nonetheless, I have considered the endangerment cases in the sentencing manual summaries, and in my view, most of those dealt with on indictment are more serious than this, because they involve more immediate danger than was the case in Charge 2, notwithstanding the appalling nature of your driving.

55Mr Menon effectively conceded that in his survey of the cases involving driving, most involved either an accident or a near accident which is not the case here.  Nonetheless, as I said earlier, I regard this offence to be in the lower middle range for an offence of reckless conduct, endangering serious injury.  But as I said, as an example of appalling driving, it is hard to top.

56Balancing all of these matters as best I can, I am satisfied that the only option open is a reasonably significant sentence of imprisonment.  As I said, you have now been in custody since 4 January 2019 and the period of pre-sentence detention applicable is 415 days.

57I have formed the view that this is very close to a sufficient period of imprisonment, having regard to the nature and gravity of the offending but also having regard to totality.  But you will be required to serve a further period of relatively short duration.

58It is mandatory under s.89(4) of the Sentencing Act that I make an order relating to your driver's license for an offence of car theft. I also have power pursuant to s.89A of the Sentencing Act to disqualify your license for any offence. Section 28 of the Road Safety Act provides a power to disqualify you for offences in connection with the driving of a motor vehicle, which indeed this was.

59In respect of the reckless conduct charge, having regard to the extreme speeds at which you drove, and the danger created, in my view, a substantial cancellation and disqualification period is appropriate.

60Mr Shomshe, the sentences that I impose are as follows.

61On Charge 1 of reckless conduct endangering persons, you are imprisoned for a period of 11 months;

62On Charge 2 of car theft, you are imprisoned for a period of nine months;

63On Charge 3 of possessing a drug of dependence, you are imprisoned for
14 days;

64In respect of the summary offence of unlicensed driving, I sentence you to a period of imprisonment of one month;

65I order that four months of the sentence on Charge 2, that is the car theft, be made cumulative on the sentence on Charge 1.

66That makes a total effective sentence of 15 months, and I declare pre-sentence detention in this matter of 415 days.

67In relation to Charge 1, any licenses you hold are cancelled and you are disqualified from obtaining any further license for a period of nine months.

68In relation to Charge 2, any license you hold is cancelled and you are disqualified from obtaining a further license for a period of four years.

69All right, so that is a sentence of 15 months.  So, it is about a month and a half to go, until the end of the sentence.  I am not fixing a non-parole period.  There is no point.

70MR BARKER:  I understand that, Your Honour.

71MR MENON:  And so, can I ask you to clarify the disqualification periods?

72HIS HONOUR:  All periods are concurrent.  The total period is four years.

73MR MENON:  Nine months, nine months on the theft charge and four years on the ‑ ‑ ‑

74HIS HONOUR:  I beg your pardon, I am sorry.  I may have announced those in the wrong order, I apologise for that.  It is four years on the conduct endangering.

75MR BARKER:  Thank you, Your Honour.

76HIS HONOUR:  Charge 1.  Nine months on the car theft.

77MR BARKER:  Thank you, Your Honour.

78MR MENON:  Your Honour, I think there were some ancillary orders that were sought.  I think they have all been lodged.  It is just a disposal order in relation to the drugs.

79HIS HONOUR:  Yes, to the drugs and so forth.  No objection to those,
Mr Barker?

80MR BARKER:  No, Your Honour.

81HIS HONOUR:  All right.  I will make the orders in the terms sought by the prosecution.  I will make those in chambers.  All right, Mr Shomshe, did you hear all of that?  Mr Shomshe?  Yes, he has acknowledged that he did.

82MR BARKER:  He is muted, Your Honour.

83HIS HONOUR:  All right, but he shook his head and he acknowledged it.

84MR BARKER:  Yes.

85HIS HONOUR:  All right, thank you both.  I will stand the matter down.

86MR BARKER:  Could I possibly stay on and speak to Mr Shomshe?

87HIS HONOUR:  Yes, of course you can.

88MR BARKER:  Thank you.

89HIS HONOUR:  Yes, all right.  I will get off while you do that.

90MR BARKER:  Thank you, Your Honour.

91HIS HONOUR:  All right.

92(At a later stage.)

93MR BARKER:  I am back.

94HIS HONOUR:  Yes, look.  Can you hear me, Mr Menon?

95MR MENON:  Yes, I can, Your Honour.

96HIS HONOUR:  Look, I made a mistake with the s.6AAA.   Do you think we need to get Mr Shomshe back for this?

97MR BARKER:  Not for this, Your Honour.  No.

98HIS HONOUR:  It is not part of the sentence.  Look, it should have been
22 months with a minimum of 16.

99MR BARKER:  Thank you.

100MR MENON:  Thank you, Your Honour.

---