Director of Public Prosecutions v Shortall

[2024] VCC 152

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00473

DIRECTOR OF PUBLIC PROSECUTIONS

V

PATRICK SHORTALL

---

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2024
DATE OF SENTENCE:	14 May 2024
CASE MAY BE CITED AS:	DPP v SHORTALL
MEDIUM NEUTRAL CITATION:	[2024] VCC 152

REASONS FOR SENTENCE
---

Subject:Theft of motor car; burglary; criminal damage and failing to render assistance after a motor car accident

Catchwords:          Convicted after trial – burglary on commercial premises – crashed motor car in course of getaway - fled accident scene without assisting seriously injured passenger –– no remorse

Legislation Cited:         Road Safety Act 1986 (Vic)

Cases Cited:Santino Bankal v The Queen [2019] VSCA 171; R v Kilic (2016) 259 CLR 256; DPP v Dalgleish (a Pseudonym) [2017] 262 CLR 428.

Ruling:  Sentence of four years and 6 months years imprisonment; minimum non-parole period of three years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A McKenry	Office of the Director of Public Prosecutions
For the Accused	Mr I Polak	Emma Turnbull Lawyers

HIS HONOUR:

1On 21 February 2023, after a trial, a jury found you guilty of:

(a)   one charge of theft of a motorcar;

(b)   two charges of criminal damage;

(c)   one charge of burglary; and

(d)   one charge of failing to render assistance after a motor car accident.  

2The maximum penalty for each offence is 10 years imprisonment.

Circumstances of offending

3Your offending occurred on 23 March 2020 at Wandong.

4CCTV footage captured a white Hyundai i30 motorcar arrive at the Wandong IGA at 3:08 AM. The registration plates had been removed from the vehicle.

5When the car stopped, the front seat passenger got out of the car with a jemmy bar and levered open a roller door, which covered the two front sliding glass doors to the supermarket. Meanwhile, the driver removed a power tool from the rear right hand side of the sedan, started it up and then cut through the lock which secured the sliding doors.

6The driver and passenger could be distinguished by the respective tops they were wearing. The driver had a dark coloured top; the passenger a light coloured top.

7The two intruders entered the supermarket and, when the passenger jumped a counter to get to the cigarette cupboard, a smoke bomb ignited and filled the room with smoke. The two intruders left empty-handed.

8The passenger returned to the front passenger seat of the car. The driver got back into the driver’s seat and drove off. It was then 3:18 AM.

9Police arrived soon after.

10CCTV footage showed the passenger wearing a cap when he got out of the car. He was not wearing the cap when he returned to it. Police found a cap at the scene and seized it.

11Around 5 AM, an off duty police officer, Parrish Walton, saw a white Hyundai i30 motorcar in scrub off the Broadford-Wandong Road, near its intersection with Clonbinane Road. It had been travelling away from Wandong towards Broadford.

12The car had front end damage. The driver’s door was open. Nathan Bell was trapped in the passenger seat. He was wearing clothing similar to the clothing worn by the passenger in the car which arrived at the supermarket.

13Bell told Walton he had been there for a couple of hours and the driver had gone to get help. He said he could not move his legs.

14Walton called emergency services.

15Bell was airlifted to the Royal Melbourne Hospital for treatment of his injuries.

16Police found two pairs of gloves, one matching (yellow) and the other mismatched (yellow and red), and a jemmy bar at the scene. The vehicle’s registration plates were in the boot.

17Crime scene officers inspected the damaged motorcar at Broadford towing. They saw a drop of blood on the steering wheel airbag, which had activated when the car crashed.

18They cut a piece of fabric containing the stain from the airbag and sent it, with the hat which had been found at the IGA, to forensic examination.

19A biological sample was obtained from the sweatband of the hat. There were two contributors. The sample was compared to a reference sample of Bell’s DNA and yours. You were excluded as a contributor. There was a match with the Bell sample, which showed extremely strong support for the proposition he was one of the two contributors to the biological material found on the hat.

20A single source DNA profile was obtained from the bloodstain. The sample was compared to a reference sample of Bell’s DNA and yours. Bell was excluded as a contributor. There was a match with your DNA, which showed extremely strong support for the proposition you were the source of the blood stain on the driver’s steering wheel airbag.

21The same crime scene officers had seen you, around 10:45 AM, walking in a remote rural area on Sunday Creek Road near Burges Lane, about 9 ½ km from the crash scene.

22You told police you had had a fight with your missus in the car on the freeway and she kicked you out and you were heading back to Broadford.

23You were wearing dark pants and tan boots similar to those worn by the driver of the small white sedan when it arrived at the supermarket.

24They let you walk on.

25Police had seized Bell’s phone.

26From it, a message had been sent at 3:29 AM to a telephone service used by your daughter, Aimee. It read, “we crashed” with the words Broadford and Clonbinane misspelt.

27In Bell’s phone, there were other messages, on 22 March 2020, between 5 PM and 9 PM, to Aimee and another person called Brayden, which showed Bell had asked Brayden to steal an “i30” and directed him to deliver it to 34 Catherine Street Broadford, where you lived.

28The crashed car was stolen from Collingwood around 8:45 PM on 22 March.

29Telephone records, for a service subscribed in your name, showed your number had exchanged messages with Bell, up to 21 March, and phone calls with him, on 22 March.

30They also showed your phone number was active between 3:14 AM and 6:35 AM. There were no calls to emergency services or anyone else during this time.

31The car crash scene was about 7 km, and five minutes’ drive, from the IGA supermarket.

32At your trial, you did not dispute the driver of the motorcar was guilty of the crimes charged.

33You denied you were the driver.

34To prove you were, the Prosecution relied on a combination of:

(a)   DNA analysis, which gave extremely strong support for the proposition the bloodstain on the driver’s airbag was your blood and for the proposition the biological material on the cap, left at the IGA by one of the intruders, was Bell’s;

(b)   Similarities between:

(i)the car which arrived at the IGA and the I30 which crashed on the Broadford Road;

(ii)your clothing and the clothing of the driver of the car; and

(iii)Bell’s clothing and clothing of the passenger;

(c)   Finding of tools of the burglar in the car and at the crash scene, including:

(i)a crowbar; and

(ii)two pairs of gloves;

35Proximity in time and location of the supermarket break-in and the car crash. It was a very strong circumstantial case.

36By their verdicts, the jury was satisfied:

(a)   you were involved in the break-in at the Wandong IGA;

(b)   you were the driver of the Hyundai when it crashed on the Broadford Road; and

(c)   Bell suffered serious injuries and you knew it.

37They were also satisfied you knew you were driving a stolen motorcar.

Victim Impact

38Bell suffered serious injuries.

39He was left trapped in the passenger seat of the motorcar, unable to move his legs, for nearly two hours until Parrish Walton found him.

40Walton said Bell appeared to be in a lot of pain and was falling in and out of consciousness.

41He was airlifted to the Royal Melbourne Hospital for treatment of his injuries, which have left him a paraplegic.

42His mother spoke movingly of the severe deficits in his life.

43He is wheelchair bound and requires a daily carer to help him with bathing and personal hygiene. He is at risk of serious injury in consequence of any fall.

44He has told his mother many times “this is not a life”.[1] She is afraid he will take his own life. She is continually hypervigilant fearing his suicide or a fall. Each day, she worries until she has spoken to him.

[1] Victim Impact Statement of Tracey Butler dated 15 April 2024 (Exhibit B).

45As she wrote, “You walked away from (my) son, and he has not been able to walk since”. [2]

[2] Ibid.

Criminal record

46You have admitted a limited criminal record of summary offences, largely driving. Penalties of an undertaking and fines were imposed.

47This is your first time in custody.

Personal circumstances[3]

[3] Report of Ms Cidoni dated 5 July 2023 (Exhibit 2) (Your personal circumstances are set out in a chronology).

48You were born in April 1971.

49You were 48 years old when you offended. You are now 53.

50Your personal circumstances are set out in the report of Gina Cidoni, Psychiatrist, who assessed you on 14 June 2023.

51You were born in Melbourne and raised in Broadmeadows with your younger sister.

52Your parents separated when you were 12 years old. You went to live with your father; your sister with your mother.

53When you were 16 years old, your father moved to Murchison. You stayed in Melbourne with a friend.

54When you left school, you started work as a spray painter and panel beater. You then got work as a concreter and worked in that industry for 30 years until 2019, when you started driving trucks.

55You have three daughters aged 32, 28 and 24.

56In 2010, you separated from their mother. Your two younger daughters were in your care for two years.

57You had a relationship with another woman for five years until 2019. It was marred by mutual drug use.

58Around 2020, you moved to Kilmore where you lived with your daughter Aimee and her partner.

59At the time of your offending, you were living with a friend of Bell and abusing illicit drugs.

60In 2023, you moved to Murchison, where you live with your father.

61You told Ms Cidoni, you were never a heavy drinker, but have used methamphetamine, amphetamine and cocaine since your teenage years.

62On psychological testing, you exhibited a complex range of symptoms across different domains.

63Subject to the qualification recent drug use could have been responsible for your symptoms, Ms Cidoni, made provisional diagnoses of:

(a)   Borderline Personality Disorder;

(b)   Major Depressive Disorder; and

(c)   Generalised Anxiety Disorder.

64To mitigate your risk of reoffending, Ms Cidoni recommends counselling to address your substance abuse and psychological problems.

65In her opinion, your diagnoses make it difficult for you to cope with a highly structured and often stressful prison environment.

66Remand custody has been stressful. Unfortunately, on an occasion, you were assaulted by prisoners not known to you. You fear it may have been a revenge attack.

67In prison, you have completed several behavioural and vocational programs.[4]

[4] Prison program certificates (Exhibit 5).

68Your father and daughter, Chloe, wrote references for you in June 2023, before your trial.[5]

[5] Letter of Anthony Shortall dated 3 June 2023 (Exhibit 3); Letter of Chloe Shortall dated 4 June 2023 (Exhibit 4).

69Your father wrote you were helping him with the maintenance of his 60-acre property. To his observation you were not using drugs in the family environment

70Your daughter wrote she was seeing you regularly. According to her, you mutually support each other.

71Aimee and Chloe, with their partners, and one of your friends, supported you at court.

Defence submissions [6]

[6] Submissions dated 3 May 2024 (Exhibit 1).

72Your trial Counsel, Mr Polak, submitted a sentence of imprisonment combined with a Community Corrections Order could meet sentencing purposes in your case.

73He submitted, in mitigation of penalty, incarceration will be harder for you, because of your psychological diagnoses, and those conditions are likely to worsen in the prison environment.

74He also submitted the delay in prosecution should moderate your sentence

75He submitted, considering your limited criminal history and strong family support, your prospects of rehabilitation are strong.

76He acknowledged your failure to render assistance to Bell, when he was seriously injured, is an inherently serious offence.

77He submitted the burglary and criminal damage offences were less serious because of the disruption to the business was brief.

78He submitted the theft of motor vehicle offence was also less serious because, on the evidence, someone else actually stole the car.

Prosecution submissions [7]

[7] Submissions dated 3 May 2024 (Exhibit A).

79Mr McKenry, who appeared for the Prosecution, submitted considering you left a friend without assistance, in a rural area, in order to evade detection for your involvement in the IGA break-in, yours is a serious example of the Road Safety Act offence.

80Mr McKenry helpfully referred me to Santino Bankal v The Queen [2019] VSCA 171, in support of the proposition, because of the need for general deterrence, a period of imprisonment ought to be imposed for the offence of failing to render assistance after an accident.

81He submitted, considering the high degree of your criminality, the only appropriate sentence is the imposition of a prison term with a non-parole period fixed.

Consideration

82Your failure to render assistance to a seriously injured person after a motor car accident is a particularly serious example of the crime.

83You knew Bell. You were living with one of his friends. You had been communicating with him in the days leading up to 23 March 2020.

84You had committed a supermarket burglary with him, using a stolen motorcar, and were driving away from the supermarket when you crashed the car in scrub off the Broadford Road.

85You left Bell, trapped in the vehicle, in unpopulated area, where, as it happened, he was not discovered until two hours later, when fortuitously a police officer driving early to work stopped and found him.

86Your departure from the scene, without regard for Bell’s welfare, was inhumane.

87Contrary to your Counsel’s submission, I am satisfied you fled in order to evade the detection of your involvement in the supermarket break-in.

88Your moral culpability is high.

89It is not reduced because you may not have known the extent of his injuries, and immediate assistance would have made no difference. [8]

[8] Santino Bankal v The Queen [2019] VSCA 171.

90The burglary is less serious. Nevertheless, it was planned. Bell arranged to obtain a stolen car. You used it, having removed the registration plates, to evade detection. With him, you went equipped with gloves, a power tool and jemmy bar, to steal from commercial premises.

91I assess the burglary to be higher than low end, for offending of the type.

92I supermarket’s operations were not disrupted. The owner was trading the next day. I accept the criminal damage offences also were lower end.

93While you did not actually steal the motorcar, you used it to commit a crime, that is the burglary. I assess the seriousness of that offence to be above low end.

94General deterrence is an important sentencing factor. So, too, is denunciation of your failure to render assistance.

95Relying on Ms Cidoni’s opinion, I will moderate your sentence to take into account, because of your psychological conditions, prison will be harder for you than a person without them. There is no material before me to support the proposition there is a serious risk your mental health will significantly deteriorate in prison.

96It is four years since you committed these offences. During the time which has elapsed you have not been convicted of any offences and you have been in suspense about the outcome of the proceedings against you. Accordingly, I accept delay is a mitigating factor.

97You do not have the benefit of a plea as a mitigating circumstance.

98You have shown no remorse. Without it, I must be cautious about your prospects of rehabilitation.

99Nevertheless, you have some protective factors.

100You have a limited criminal record. You have a good work history and strong family support.

101I will fix a non-parole period, which will allow you time to advance your rehabilitation under supervision in the community after you have served a term of imprisonment.

102Your failure to render assistance to Bell is the most serious crime.

103Sentencing practices for this offence are a relevant consideration, I have used Bankal, and the cases referred to in it, together with other sentences of this court, to identify relevant sentencing principles and, making appropriate adjustments, to measure the sentence I will impose on you. [9]

[9] R v Kilic (2016) 259 CLR 256; DPP v Dalgleish (a Pseudonym) [2017] 262 CLR 428.

104I will make orders for part cumulation to reflect the additional criminality of your involvement in the supermarket break-in.   

105Because you are to be sentence for a number of charges, I will apply the totality principle to ensure your aggregate sentence is an appropriate measure of your overall criminality.

Sentence

106By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

107Considering the circumstances of your offending, your personal circumstances and  antecedents,  and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of failing to render assistance after a motor car accident you are sentenced to 3 years and 9 months imprisonment. This is your base sentence.

108On the charge of theft of a motorcar, you are sentenced to 6 months imprisonment.

109On the charge of burglary, you are sentenced to 12 months imprisonment.

110I direct 6 months of the burglary charge and 1 month of each of the remaining 3 charges be served cumulatively upon your base sentence and each other.

111Your total effective sentence is 4 years and 6 months’ imprisonment.

112I direct you serve 3 years of your sentence before you are eligible for parole.

113I declare you have served 83 days of your sentence by way of presentence detention.

114I make an order for disposal of the items listed in the draft Order filed with the Court.

115As paragraph 61(6)(a) the Road Safety Act 1986 (Vic) requires me to do, I order all licenses and permits held by you be cancelled and you be disqualified from obtaining any further license or permit for a period of four years.