Director of Public Prosecutions v Singleton (a pseudonym)
[2023] VCC 1484
•22 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD SINGLETON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 May 2023, 15 May 2023, 17 July 2023 | |
DATE OF SENTENCE: | 22 August 2023 | |
CASE MAY BE CITED AS: | DPP v Singleton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1484 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Pleas of guilty – police pursuit - recklessly exposing emergency worker to risk by driving – conduct endangering persons – resisting an emergency worker on duty – possession of a drug of dependence – fail to give name and address where property was damaged – recklessly engage in conduct where property damaged – drive whilst authorisation suspended – use unregistered motor vehicle on highway – fail to stop vehicle after accident – possess controlled weapon without excuse – commit indictable offence whilst on bail – fail to answer bail - drive whilst exceeding the prescribed concentration of drugs – criminal history – lengthy history of drug use – mental health – guarded prospects of rehabilitation – current sentencing practice.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Road Safety Act 1986 (Vic); Control of Weapons Act 1990 (Vic); Bail Act 1977 (Vic).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins [2007] 16 VR 269; Newton v The King [2023] VSCA 22; R v Whyte (2002) 55 NSWLR 252; Stephens v The Queen [2016] VSCA 121; Nelson v The Queen [2020] VSCA 219; Hutchison v The Queen [2021] VSCA 235; Newton (a pseudonym) v The King [2023] VSCA 22; Worboyes v The Queen [2021] VSCA 169; DPP v Zhuang [2015] VSCA 96.
Sentence: 34 months imprisonment with a non-parole period of 24 months. Fines totalling $1,200. Licence disqualified for a period of 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Tatas | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr P. Chadwick KC | Robyn Greensill & Associates |
HIS HONOUR:
1Leonard Singleton[1], you have pleaded guilty to the following offences, all of which occurred on 16 November 2021 at Doncaster East:
(a) Charge 1 – that, without lawful excuse, you drove a motor vehicle in the vicinity of Lachlan Webb, an emergency worker on duty, and recklessly exposed Lachlan Webb to a risk to safety, knowing or being reckless as to whether Lachlan Webb was an emergency worker. In the commission of the offence, Lachlan Webb was injured.
This offence has a maximum penalty of 10 years’ imprisonment.
(b) Charge 2 – that, without lawful excuse, you recklessly engaged in conduct, namely by driving a motor vehicle erratically, that placed, or may have placed, persons in danger of serious injury.
This offence has a maximum penalty of five years' imprisonment.
(c) Charge 3 – that you resisted Benjamin Meiers, an emergency worker on duty, knowing, or being reckless, as to whether Benjamin Meiers was an emergency worker.
This offence has a maximum penalty of five years' imprisonment.
(d) Charge 4 – possession of a drug of dependence, namely, 4-Hydroxybutanoic Acid.
This offence has a maximum term of 12 months' imprisonment where the Court is satisfied on the balance of probabilities, as I am here, that the offence was not committed for any purpose relating to trafficking.
[1] A pseudonym.
2You have also pleaded guilty to the following related summary offences:
(a) Charge 14 – Failing to give your name and address where property was damaged. This offence, where it is a first offence, has a maximum sentence of not more than 14 days' imprisonment.
(b) Charge 15 – Failing to stop a vehicle after an accident. This offence, where it is a first offence, has a maximum penalty of 14 days' imprisonment.
(c) Charge 16 – Failing to give your name and address where property was damaged.
(d) Charge 17 – Driving whilst your authorisation was suspended. This offence has a maximum penalty of two years' imprisonment.
(e) Charge 18 – Using an unregistered motor vehicle on a highway. This offence has a maximum penalty of 25 penalty units for a first offence and 50 penalty units for a subsequent offence. You have prior convictions for this offence.
(f) Charge 22 – Possessing a controlled weapon without excuse. This offence has a maximum penalty of 12 months' imprisonment.
(g) Charge 23 – Committing an indictable offence whilst on bail. This offence has a maximum penalty of three months' imprisonment.
(h) Charge 24 – Failing to answer bail. This offence has a maximum penalty of two years' imprisonment.
(i) Charge 26 – Driving whilst exceeding the prescribed concentration of drugs. This offence, where it is a first offence, as it is here, has a maximum penalty of 12 penalty units.
3The circumstances of your offending are set out in the summary of prosecution opening on plea. The prosecution summary is not disputed and forms the basis upon which I am to sentence you.
4On 16 November 2021, just after 3.00 pm, a person contacted police and reported that a suspicious motor vehicle was parked across her driveway in Daphne Street, Doncaster East. It was reported that a male was seated in the driver's seat who appeared to be drug-affected, and a female was seated in the front passenger seat.
5That person gave police the registration number of the car, and police inquiries revealed that it had been registered to you. Both you and the car were 'flagged for whereabouts'.
6First Constable Lachlan Webb and First Constable Benjamin Meiers responded to the report and attended at the address some three minutes after the call was made. Their police lights were activated. They saw your car parked across a driveway in Daphne St. You were seated in the driver's seat. There was another person in the front passenger seat. First Constable Webb parked the divisional van in a position to prevent you from driving off. Both officers then got out of the van and approached the driver and passenger doors of your car.
7You were directed to get out of your car. It would appear that you were startled by the direction to get out of the car. Instead of getting out, you started the engine and tried to place your car into gear. First Constable Webb gave you a further direction to turn off the engine and get out of the car. He opened the driver's side door and attempted to take the keys from the ignition. First Constable Meiers sprayed you in the face with OC spray in an effort to prevent you driving and to effect an arrest. This conduct is relevant to Charge 3.
8You managed to put your car into gear and drove forward, striking First Constable Webb to the right knee and pinning him between your car and the police van. First Constable Meiers activated his body-worn camera and again sprayed you with the OC foam in an attempt to incapacitate you.
9You drove forward and dragged First Constable Webb along the right front quarter panel of the police van. As a result, First Constable Webb's right leg was hit by your car, causing immediate pain to his knee.
10You continued to drive in a forward direction, and fortunately First Constable Webb rolled off the back of your car as you continued to drive. You then struck the rear driver's side panel and tyre of the police van with the rear driver's side panel of your car, causing minor damage. You fled from the scene. This conduct is relevant to Charges 1 and 3.
11As a result of your conduct, First Constable Webb sustained abrasions to his left forearm and elbow and bruising, abrasions and swelling to his right knee.
12You drove west along Daphne Street, before turning left into Victoria Street. You were seen by both officers to drive onto the wrong side of the road as you travelled north along Victoria Street before you turned left into Doncaster Road, travelling in an easterly direction.
13By this time Officers Webb and Meiers alerted police communications, advising of what had occurred. They also reported that the front driver's side tyre of your car had completely blown out.
14Acting Sergeant Russell and Constable Johnston-Bailey were parked on Doncaster Road when they saw your car drive past them. They saw smoke billowing from the front right-hand area of your car, and that you were struggling to maintain proper control. They pulled out behind your car and activated their flashing lights and siren to get you to stop. You ignored them and continued driving at speed along Doncaster Road, driving through the red light at the Dryden Street intersection. There were a number of cars at the intersection, and many pedestrians on foot, including school children.
15You then turned left onto Blackburn Road and continued northbound before the police pursuit was terminated. You continued driving erratically and at speed along Blackburn Road, weaving in and out of peak-hour traffic. You then turned onto the wrong side of Blackburn Road and into oncoming traffic, before turning right into Nonda Avenue, Doncaster. As you did so, your car side-swiped another car driven by Mr Feng Gao. He had his two children in the car with him. Moderate damage was caused to the rear passenger side of his vehicle. A pedestrian who was crossing Nonda Avenue at this time was approximately three metres from where the collision occurred.
16You did not stop but continued driving west on the wrong side of Nonda Avenue before colliding head-on with an unoccupied parked car. The impact of the collision was such that the parked car was pushed back approximately 50 metres. Significant damage was caused to both cars. The collision was captured on CCTV. This driving conduct, in addition to giving rise to related summary offences, is also relevant to Charge 2 on the indictment.
17You and your passenger, Melissa Pisano[2], got out of your car and took off on foot.
[2] A pseudonym.
18At approximately 3.29 pm, Officers Webb and Meiers saw you on the roof of a property in Nonda Avenue. You attempted to jump from that roof onto a neighbouring roof. In your attempt, you fell through the tiled roof eave and onto the ground. First Constable Meiers again deployed OC foam. You ran into the back yard of that property, where both officers caught up with you and placed you under arrest. This conduct is also relevant to Charge 3. You were searched, and a tomahawk folding knife was found in one of your pockets as well as a small clear bottle containing 4‑hydroxybutanoic acid (GHB) and a plunger syringe. The possession of this drug is the basis of Charge 4 on the indictment.
19You were taken to hospital, where a blood sample was taken. Your blood was analysed at the Victorian Institute of Forensic Medicine and was found to contain 0.34 mg/L of methylamphetamine and 3 ng/mL of cannabis.
20At the time of the above-described incidents, the car you were driving was unregistered. You were also suspended from driving. At the time of your offending you were on bail, and had failed to attend court on 8 November 2021.
21You have remained in custody since your arrest on 16 November 2021.
Criminal Record
22You have admitted your criminal record. According to your record, you first appeared in the adult jurisdiction of the courts on 8 March 2002. On that occasion, in relation to charges of theft and theft of motor vehicle, you were sentenced to four months and 14 days' imprisonment.
23I do not propose to refer in detail to all of your court appearances, but it is clear that you have spent a significant period of your adult life in custody. You have numerous convictions in relation to dishonesty offending, drug offending and driving offences.
24In 2009, on a charge of defensive homicide, you were sentenced in the Supreme Court at Melbourne to eight years and six months' imprisonment with a non-parole period of five years and six months. You served the full term of your sentence.
25On 14 November 2017, for the offences of armed robbery and recklessly causing injury, you were sentenced in the County Court at Melbourne to three years and nine months' imprisonment with a non-parole period of two years and four months.
26On 26 February 2021, in the Magistrates' Court at Warrnambool, for offences including using a drug of dependence, possessing a controlled weapon without excuse, making a threat to kill, unlawful assault, and committing indictable offences on bail, you were sentenced to a total effective sentence of seven months’ imprisonment and placed on a community correction order with conditions, including for drug treatment and rehabilitation for a period of 18 months.
27On 4 March 2021, you appeared at the Bendigo Magistrates' Court in relation to a number of driving offences, including using an unregistered motor vehicle, careless driving, using a vehicle that was not in a safe and roadworthy condition, and handling stolen goods. You were convicted and fined the sum of $2,000.
28On 9 October 2021, for exceeding the speed limit by 30 kilometres per hour or more but less than 35 kilometres per hour, your licence was suspended for three months.
29Regarding the community correction order imposed in February 2021, I was provided with a breach report dated 20 August 2021. It was noted that this was your first attempt at completing a community-based disposition. I have read the contents of the report, and it is clear that you failed in respect to a number of matters to follow the directions of your case officer. You failed to attend for supervision on a number of occasions, including, on two occasions, stating you had 'more pressing issues' with which to deal. Because of Corrections' concern to address your non-compliance and sporadic engagement, you were directed to attend a compliance review hearing. You failed to appear at that hearing, despite being notified of the hearing by email and text messages.
30A drug screening performed on 7 June 2021 returned a positive result for heroin, cannabinoids, and amphetamine substances, including methylamphetamine. The drug treatment component of the order was not completed.
31You also did not follow through on obtaining a mental health care plan, you did not engage in any offending behaviour programs, nor did you complete any of the 100 hours of unpaid community work that were imposed. Moreover, you further offended during the operational period of the community correction order.
32It is reported that you presented as unmotivated to complete the order successfully; at one point requesting to have your case returned to Court, adding that you did not believe you would be resentenced to prison.
Background and personal circumstances
33You were born in February 1984. At the time of this offending, you were 37 years of age.
34When you were about four years old, your father was imprisoned for double homicide. You remained living with your mother and your older brother and older sister.
35Soon after your father's incarceration, your mother formed a relationship with a man who engaged in alcohol-fuelled violence mainly directed towards your mother. On many occasions, you witnessed your mother suffer physical abuse at his hands. At times, you intervened to protect your mother, but you were then subjected to his violence. Your mother remained in that relationship for between six and seven years before she was able to extricate herself.
36When you were aged 10, your sister left home and a year later your brother also left. At the age of 12, you were placed in State care.
37Your education was significantly disrupted by the dysfunctionality of your upbringing.
38You attended primary schools in Warrnambool and Bendigo. In State care, you completed primary school at the Bradman Unit of Youth Training.
39You completed the General Certificate of Education, which is the Year 10 equivalent, at the Turana Youth Training Centre.
40While at Turana, you also completed short courses in hospitality, woodwork, cabinetmaking, and welding.
41Your employment history was limited because of the length of time you have been incarcerated. Some of the areas of work in which you have engaged include plastering, concreting, and tiling.
42A number of psychiatric and psychological reports were tendered on your behalf.
43In a report dated 6 September 2008, clinical psychologist, Bernard Healey, noted you had been troubled by heroin addiction for almost 10 years. You had also been using amphetamine and 'ice' for the preceding four years, resulting in episodes of amphetamine psychosis.
44In a further report, dated 23 July 2017, Mr Healey noted that by the age of 10, you were living on the streets. He also referred to your relationships with partners and noted that you have three sons.
45In his third report, dated 3 June 2022, Mr Healey considers that from about the age of 13 you started to become institutionalised; spending multiple periods at Youth Training Centres and then in adult prisons.
46Mr Healey notes that following your release from prison in May 2021, you did not receive any support or assistance in regard to accommodation and found yourself homeless. Not long thereafter, you met your current partner, Melissa, who was also an illicit drug user. Mr Healey noted that you had received a $200,000 award as a result of sexual abuse you suffered in State care. You bought yourself a caravan and, it would appear, effectively spent the balance of the moneys on drugs. Mr Healey considers that you use drugs as a source of comfort and support when confronted with the challenges of normal community living once you leave institutional care.
47
Mr Healey states it was 'clear that the intuitional life and the entrapment in maladaptive behaviours and escape through drug abuse addiction was imposed upon [you] from the age of 10 where in effect [you] had no stable family life'.
Mr Healey considers you have developed some awareness of the gravity of your problems and you frankly acknowledged that prison had become a haven for you, not having the challenges of normal community living.
48Mr Healey notes, in relation to your background, that you felt betrayed, first by the abuse perpetrated upon you in the presence of your mother by her then partner, and then your being placed away from her in institutional care which became the pattern of your life. For you, there was no real meaningful family life and no stable role model figures.
49Regarding your own children, you told Mr Healey that your oldest son, then almost 19 years of age, has his own child. You remain in contact with him. Your two other boys are now aged 17 and 14, living with their mother in Bendigo. You also have contact with them.
50Mr Healey is of the opinion that your IQ level is 'probably in the range of 90-100'.
51Personality testing indicated a drug use disorder and post-traumatic stress disorder. Mr Healey reported that at 'clinical significant level, although not at disorder level, was the bipolar spectrum, schizophrenic spectrum and delusional'.
52Mr Healey reports that your personality trait patterns reflect very much your unfortunate, limited, and even distorted experiences in critical formative years with 'paranoid, schizotypal, melancholic and turbulence at clinical significant levels'.
53Mr Healey states that institutionalisation is not an indefinite sentence and measures can be adopted to make changes in your life. With regard to your community correction order breach, Mr Healey considers that you were not in a sober state at the time of the Order and, as a consequence, you were not present and availing yourself of the services offered to you. According to Mr Healey, you appreciate the serious nature of your offending, and you are self-berating, if not self-reproachful, in relation to those matters.
54In relation to your offending, Mr Healey states there was an apparent desperate escape on your part which was rather mindless but also fuelled by the intake of the combination of heroin and ice. You acknowledged to Mr Healey the seriousness of your behaviour, the danger in which you placed yourself, your partner, and other members of the community.
55Also tendered on your behalf was a psychological report from Neil Woodger, dated 6 February 2020. You were referred to Mr Woodger for psychological assessment in respect to a claim for compensation for sexual and physical abuse by staff members at the Turana Detention Centre when you were aged 13.
56Mr Woodger states that this sexual abuse, combined with exposure to violence in early childhood, has had lasting effects, and has contributed to ongoing problems with your mental health and substance abuse.
57Mr Woodger is of the opinion that your mental health condition warrants the label dual diagnosis, and consists of post-traumatic stress disorder, comorbidly with panic disorder and depression, in conjunction with substance abuse disorder. He states that your post-traumatic stress disorder diagnosis is supported by the opinions expressed 20 years ago by mental health professionals and are recorded on your DHS file.
58A report from St Vincent's Hospital concerning your admission on 20 November 2021, shortly after the commission of the instant offences, records you telling the Registrar, Dr Lachlan Angus, that you and Melissa were having sex in the car when police found you and tried to arrest you. You told Dr Angus that they hit the back of your head causing you to lose consciousness. You could not recall falling through a roof and being tackled by police. It was noted from your records that whilst in prison you had been diagnosed with post-traumatic stress disorder and panic disorder. You also reported to Dr Angus that you had been using heroin since your early teens as a way of coping with sexual assault. You said that since your release from custody in March 2021, you had been injecting heroin mixed with methamphetamine three times a day.
Defence submissions
59Mr Chadwick KC, on your behalf, submitted that it was not your intention to harm police or anyone else when you committed these offences. You simply wanted to get away and that this flight response, he submitted, is consistent with your diagnosis of post-traumatic stress disorder.
60It was conceded that your driving offending was serious and that there was little that could be said to mitigate your behaviour other than it was connected to your flight response.
61Mr Chadwick acknowledged that you were drug-affected at the time, having used heroin and ice, and noted your different memory of the events, as recorded in the St Vincent's records.
62Mr Chadwick submitted that there was a degree of cross-over between Charge 2 and some of the driving offences. He cautioned against double punishment.
63Mr Chadwick relied upon your pleas of guilty to the charges, submitting that although there was a contested committal hearing, you were then facing more serious charges and that I should treat your pleas of guilty as having been entered at an early stage.
64I was informed that since your remand, you have been working within the prison factory. You have also received some counselling as a victim of crime yourself. Mr Chadwick relied on the fact that you received an 'enhanced prisoner status' within 10 weeks of your remand, and that all of your drug screenings have been negative for illicit drugs. You are currently receiving methadone at 100 milligrams per day. As I understand it, this is the highest level at which methadone is prescribed. You are also prescribed Avanza, Gabapentin, and Lexapro.
65In custody, you have regular contact with your older sister and indirect contact with your mother, your sister acting as intermediary.
66Reliance was placed on the principles in Bugmy v The Queen[3] and also on Verdins[4] principles 1, 3 and 4. Your 'dreadful start to life', as Mr Chadwick put it, is well borne out in the numerous reports tendered on your behalf and in the sentencing remarks of Kaye J in 2009.
[3] (2013) 249 CLR 571.
[4][2007] 16 VR 269
67When sentencing you for the offence of defensive homicide , Kaye J stated:
'Your background and history reveals that you have had a most unfortunate life, a disproportionately large amount of which seems to have been lived either in institutions or in custody.[5]
[5] [2009] VSC
68Mr Chadwick referred to the fact that on many occasions your parole was denied, and on other occasions, cancelled. The prison indent, Exhibit 5, shows your history of parole. Mr Chadwick submitted that I should have regard to the fact that you may be required to serve every day of the sentence to be imposed.
69Mr Chadwick's ultimate submission is that I impose a sentence of imprisonment combined with a community correction order. Having regard to those occasions when you were denied parole, and the prospect of that happening again,
Mr Chadwick submitted that it was in the community's interest that when you are released into the community there be a support structure in place, such as that provided by a community correction order. Mr Chadwick submitted that the time you have served on remand was sufficient detention and that I should structure my sentence so that you are released immediately onto a community correction order. In the alternative, Mr Chadwick noted that I am able to sentence you to a further period of imprisonment of up to 12 months and then release you on a community correction order. Mr Chadwick submitted that the advantage of such a disposition is that there would be a definite release date, certainty of supervision, and judicial oversight possible through a judicial monitoring condition.70Mr Chadwick acknowledged the relevance of your previous breach of a community correction order. He submitted that you were then still caught up in the vicious cycle of drug use and criminal offending. However, a further matter relevant to this consideration is your newfound faith in Buddhism. I will return to this shortly.
71Mr Chadwick also acknowledged that one of the difficulties with your release on such an order is that you do not have an address at which you can live should I place you on a community correction order.
72On 17 July 2023, I heard further plea submissions. On that occasion, I heard from Mr Hojun Futen. Mr Futen is ordained in the Buddhist faith and is a Buddhist monk. He has been a senior prison chaplain for the last eight years. He runs chaplaincy programs and meditation services at Port Phillip Prison.
73Exhibit D7, a letter dated 16 May 2023 from Mr Futen to your solicitors, confirms you have been attending Buddhist meditation services at Port Phillip Prison since October 2022. On 8 April 2023, after completing three months of consistent weekly Buddhist practice, you underwent the 'Ceremony of Refuge' with Mr Futen and officially became a Buddhist. Mr Futen's letter sets out what the meditation service involves and the vows you have taken to live the life of a Buddhist lay person. Those vows are that you refrain from killing; stealing; committing falsehood; sexual misconduct and 'intoxifying' the mind.
74His letter states that since you became involved in Buddhist meditation, you have been respectful, enthusiastic and a consistent participant in the program. Mr Futen states that you and he have had 'wonderful conversations', both in group and in one-on-one sessions.
75In evidence before me, Mr Futen expanded on the contents of Exhibit D7. He said that you have followed up on what he has taught in the weekly sessions with additional reading.
76Mr Futen considers that your commitment to the five vows is genuine. Moreover, in his discussions with some of the prison officers, they have reported to him a positive change in your behaviour.
77Mr Futen said that once you are released, you can be directed to an appropriate Buddhist temple consistent with the particular Buddhist tradition you choose. As I understood his evidence, it is not contemplated that he will continue meditation services with you upon your release as he does not have a temple or that capacity.
78Mr Chadwick submitted that your conversion to Buddhism is the first glimmer of hope for you in a very long time. The evidence shows that you are involved in the program and that you have made progress. He submitted that for you, this is a significant step in the right direction.
Prosecution submissions
79Ms Tatas, who appeared on behalf of the Director of Public Prosecutions, submitted that the sentencing principles of general deterrence, specific deterrence, denunciation, and protection of the community must be given priority over your rehabilitation. She submitted that you had been given the opportunity of a community correction order which you breached. Ms Tatas submitted there was almost no compliance with that order. She referred to the matters set out in the breach report, Exhibit D4. Particular note was made of you on occasion stating that you had more pressing matters than attending to the requirements of your order. As a result of that breach, I was told, you were sentenced to two months' imprisonment.
80Ms Tatas accepted that your rehabilitation will offer some protection to the community, but that when your prospects are so low, as she submitted they are, the community is better protected with you in custody.
81With regard to your offending, and notwithstanding the relevance of the principles in Bugmy, Ms Tatas submitted that your moral culpability is high, even allowing for some reduction.
82Ms Tatas referred to the decision in Newton v The King,[6] submitting that the Bugmy considerations may be taken into account in a general way only. It was submitted that the instant offences are not directly linked to what happened to you in your childhood. It was also submitted that there was no evidence before the Court to connect your mental state to your decision to try and escape the police and drive, in the manner you did, for some 15 minutes.
[6][2023] VSCA 22
83Ms Tatas submitted there was no overlap between Charge 2 and a number of the related summary offences. Charge 2, she submitted, relates to the manner of your driving, whereas the related summary offences relate to the results of your driving or the act of driving in a particular state.
84With regard to the objective seriousness of your driving, Ms Tatas referred to the guideline judgment in R v Whyte[7] and to the decision in Stephens v The Queen.[8] Ms Tatas pointed to the following factors as relevant to the assessment of the objective gravity of your offending:
[7](2002) 55 NSWLR 252
[8][2016] VSCA 121
(i)you were a suspended driver;
(ii)the car was unregistered;
(iii)you had a passenger in the car throughout the offending;
(iv)you had methylamphetamine and cannabis in your system;
(v)First Constable Webb received abrasions and bruising;
(vi)you drove erratically, at speed, sometimes on the wrong side of the road and without proper control due to a tyre of your car having blown out;
(vii)you went through a red light at a busy intersection;
(viii)you hit a police vehicle, ignored the police pursuit, sideswiped a wagon in which there were young children, and you then had a head-on collision with an unoccupied car, pushing it 50 metres back. You did not stop at any of the collisions;
(ix)you drove through densely populated residential areas, including areas in close proximity to pedestrians;
(x)your driving lasted approximately 15 minutes;
(xi)after crashing the car, you took off on foot and resisted arrest when located; and
(xii)you were on bail at the time of your offending.
85Ms Tatas submitted that your offending is a serious example of the offence of recklessly exposing an emergency worker to risk by driving. In this instance, she said, the police officer was pinned by your vehicle. It was also submitted that your offending on Charge 2, recklessly engaging in conduct endangering serious injury, is serious given the circumstances in which the offence was committed.
86Ms Tatas submitted that your poor driving record, as demonstrated by your criminal and driving history, affects the level of your moral culpability, your prospects of rehabilitation, the weight to be given to specific deterrence, protection of the community and denunciation.
87With regard to the Verdins principles, Ms Tatas submitted that principles 3 and 4 may have some limited application. However, the medical and psychological reports do not link your mental health issues to your culpability for this offending.
88Regarding your prospects for rehabilitation, it was submitted by Ms Tatas that they are 'very poor'. Whilst you have been in prison for a substantial period of your life, it was submitted that the fact you had amassed such a number of prior convictions in the short times you have been at liberty, highlights your poor prospects and the need for community protection. Ms Tatas submitted that your conversion to Buddhism has occurred only recently and that the real test for you is when you are in the community.
89In respect to your reliance on the case of Bugmy, Ms Tatas conceded it has mitigatory application in a general sense but that it also increased the need for community protection.
90Ms Tatas relied upon the decisions in Nelson v The Queen[9] and Hutchison v The Queen[10] as comparable cases.
[9][2020] VSCA 219
[10][2021] VSCA 235
91Ms Tatas submitted that the only appropriate disposition, in all the circumstances, is one of a head sentence and a non-parole period.
Sentencing Considerations
92The nature and gravity of your driving offending is undoubtedly serious.
93In relation to Charge 1, there was a single victim who, in the performance of his duty, sought to arrest you. Having reviewed the body-worn camera recordings, it is noted that First Constable Webb was caught for a short time between your moving car and the stationary police van. Your car was just taking off when that happened. Officer Webb was dragged forward, and he sustained injury. Although a victim impact statement was not obtained from First Constable Webb, I infer, from the circumstances, that your conduct must have been, at the least, frightening.
94Your subsequent driving to escape the police, at that time of day, and in suburban streets, was particularly serious. It was outrageous driving that saw you, at times, on the wrong side of the road, struggling to maintain control of your car, weaving in and out of traffic, and driving through an intersection against a red light. You side-swiped Mr Gao's car in which there were two young children. The head-on collision you had with the parked, unoccupied car was of such force that it pushed it some 50 metres along the road. You had with you, in your car, a passenger. It is fortunate that as a result of your driving no one was seriously injured.
95You accept, through your plea of guilty to Summary Charge 26, that at the time you drove, you had more than the prescribed concentration of drugs present in your blood. As you are charged separately for that offence, I will not have regard to it in sentencing you on Charge 2.
96While it may be that your conduct in attempting to escape from police was related to your mental health issues, I cannot be satisfied of that on the balance of probabilities. It would seem, from your discussions with the Registrar at St Vincent's Hospital, that you have no recollection of the events or why you took flight. Mr Healey, in his most recent report, states that you were afraid of police who, in your view, regularly targeted you, and you endeavoured to escape their presence. Mr Healey did not relate this to any disorder that you suffer. Although you told Mr Healey that guns had been drawn on you, that was not put to me during the plea hearing and there was no suggestion elsewhere that that is what occurred when you were first approached, nor is it consistent with the body worn camera recording that I have viewed.
97Mr Healey considers that the abuse you suffered over the years from your stepfather and in institutions has produced a 'fight or flight' response.
98In assessing the seriousness of your offending, I have also had regard to the maximum penalties that may be imposed in respect to each offence.
99Regarding your moral culpability, I have regard to your background of childhood deprivation as reducing the level of your moral culpability for this offending. I also have regard to the fact that your 'fight or flight' response developed as a result of your childhood experiences at home as a child and in institutions.
100In Newton (a pseudonym) v The King,[11] the Court stated:
'… As was subsequently said in Sabbatucci:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[34]
Similarly, albeit prior to Bugmy, in DPP v Terrick,[35] after observing that the individual circumstances of an offender are always relevant to sentencing,[36] and in a passage consistent with Bugmy and the decisions that have followed it, this Court said:
An offender's background may explain the offending conduct, though whether it provides an excuse is a separate question. Background circumstances may affect the assessment of moral culpability and in addition (or in the alternative) may require some moderation of general or specific deterrence or the need for denunciation or may bear upon prospects of rehabilitation.[12]'
[11][2023] VSCA 22
[12]At [37] – [38]
101As was said in Bugmy:
‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’[13]
[13] (2013) 249 CLR 571 at [40]
102I accept that Bugmy considerations may be taken into account in a general way to mitigate your moral culpability.
103Your deprived background does not excuse your behaviour, but it is relevant to the sentencing synthesis. I also consider, given the significance of your childhood deprivation and your periods in juvenile institutions, that it also impacts, to a degree, on the need for general and specific deterrence and denunciation.
Verdins principles
104
I am not persuaded on the evidence that your mental health issues reduce your moral culpability. In my opinion, the reports tendered on your behalf do not establish how your mental health impairments affected your behaviour at the time of your offending. It is also not insignificant to this consideration that at the time you offended you were under the influence of illicit drugs. As I earlier stated, I am not satisfied that you fled from police as a result of any mental health condition.
Mr Healey put your escape endeavours down to your past experiences but did not suggest that such conduct was caused or contributed to by any mental health disorder. Whether your behaviour was the product of, or was contributed to by your post-traumatic stress disorder, panic disorder, or other disorder, has not been sufficiently established.
105Mr Chadwick submitted that Verdins principles 3 and 4 operate to reduce the need for general and specific deterrence. Ms Tatas accepted that those principles have some 'limited application'. In view of that concession, some moderation will be made to those sentencing considerations by reason of Verdins principles 3 and 4.
Pleas of Guilty
106You have pleaded guilty to each of the charged offences. Your pleas of guilty, I accept, were entered at a relatively early time, given you were charged with more serious offending that is no longer pressed. Your pleas of guilty have significant utilitarian value, particularly at a time when courts are endeavouring to clear the backlog of cases resulting from the COVID‑19 pandemic. As was stated in Worboyes v The Queen:
'A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'[14]
[14] [2021] VSCA 169 [39]
107Your pleas have saved the Court and community the time and cost of a trial and you have spared witnesses from having to give evidence. Your pleas of guilty have facilitated the course of justice and are an acknowledgment by you of your wrongdoing. I accept also that they are indicative of your remorse. In this regard I note your acknowledgement to Mr Healey of the seriousness of your behaviour, the danger in which you placed yourself, your partner, and other members of the community.
Deterrence, Denunciation, Community Protection and Rehabilitation
108You have a significant and concerning history of criminal offending. That history is relevant to my assessment of your prospects of rehabilitation, the need for specific deterrence, and the need for community protection from you. You have some 33 prior convictions for driving and driving-related offences, although none approach the seriousness of Charges 1 and 2.
109In my opinion, the sentencing considerations of general deterrence, specific deterrence, denunciation, and protection of the community, are paramount. The sentences to be imposed must seek to deter you and others from engaging in similar behaviour, although, as I have stated, there will be some moderation of the need for deterrence and denunciation. I accept the submission of Ms Tatas that community protection is usually a significant consideration for indictable driving offences.
110Your prospects of rehabilitation I consider are guarded at best. In coming to this conclusion, I have regard to your criminal record, your lengthy history of illicit drug use, and your relatively recent unsuccessful attempt at a community correction order. I make this finding notwithstanding your positive efforts on remand and your conversion to Buddhism. You are, however, now in a controlled environment and the test for you will be how you cope upon your release into the community. In my opinion, it is imperative that upon your release, you obtain treatment to address your psychological and drug issues.
111I have given very careful consideration to Mr Chadwick's submission that you be sentenced to a combination sentence of gaol and a community correction order. There is much to be said for the proposition that persons such as yourself, when released from custody, are not released without supervision. I consider such supervision essential in your case. However, I am not able to accede to the submission that you be placed on a community correction order. I come to this conclusion given my assessment of your prospects for rehabilitation and your recent failure to abide by the terms of a community correction order. I note that in the written submissions filed on your behalf, one of the reasons advanced for your failure to comply with the community correction order was that you were released into the community without accommodation and without support. As I understand it, you still do not have accommodation and I am not aware of the extent of any support you will have upon your release.
112Although in sentencing you I am to sentence on the basis that you may serve the entirety of the head sentence, I am not able to speculate that should I sentence you to a term of imprisonment with a non-parole period, you will be refused parole. While that may happen, I am not persuaded that that constitutes a reason for placing you on a community correction order, notwithstanding the desirability of you being supervised within the community. Supervision in the community may occur on a parole order if parole is granted.
113As stated, I do not overlook the fact that you appear to be doing well on remand, nor do I overlook your conversion to Buddhism and the five vows you have taken. Each of those matters will no doubt weigh in your favour in any application you make for parole.
Current Sentencing Practice
114I am required to have regard to current sentencing practice in relation to the offences to which you pleaded guilty.
115I was referred to two sentencing decisions by Ms Tatas. I have had regard to those cases, as well as a number of other sentencing cases.[15] I note that the case of Nelson is one involving the aggravated charge of recklessly exposing an emergency worker to risk by driving, as are some of the other cases which I have considered.
[15]McKay v The King (No 2) [2023] VSCA 8; DPP v Walker [2023] VCC 1160; DPP v Earley [2023] VCC 1079; DPP v Balancy [2023] VCC 1244; Kehayias v R [2021] VSCA 261; DPP v Rae [2021] VCC 1815; DPP v Townley [2019] VCC 1825; DPP v Johnston [2021] VCC 2151; DPP v Bagdas [2019] VCC 1951; DPP v Mitchell [2021] VCC 833
116The sentences passed in other cases may provide some assistance in providing a general overview of the sentencing range for the type of offences under consideration. However, comparative sentences are 'not precedents which must be followed unless they are capable of being distinguished'.[16] Each sentence must ultimately be decided upon its own facts and circumstances.
[16] See DPP v Zhuang [2015] VSCA 96 at [30]
Cumulation of sentences and totality
117Section 16(3C) requires that every term of imprisonment imposed on a person for an offence committed while released on bail be served cumulatively unless otherwise directed by the Court. Similarly, s16(3D) requires that every term of imprisonment imposed on a person for an offence against s317AE of the Crimes Act must, unless otherwise directed by the Court, be served cumulatively on any other sentences imposed.
118You were on bail at the time you committed the offences before me, and you have also committed an offence against s317AE.
119I accept the further written submissions of Mr Chadwick, dated 18 August 2023, that the capacity of a Court to tailor a sentence to reflect the circumstances of the offending is preserved, and that it is relevant that your offending occurred in the course of a single transaction. Section 16(3C) and (3D) do not replace the totality principle of sentencing, although some effect must be given to them.
120In sentencing you, I propose to 'otherwise direct' having regard to the circumstances of your offending, including the fact that most of the offending, and certainly the most serious, occurred over a relatively short period of time; your personal circumstances, the application of the totality principle of sentencing and the need to impose a just and proportionate sentence and the desirability of avoiding a crushing sentence.
Licence disqualification
121The charge of recklessly exposing an emergency worker to risk by driving is classified a 'serious motor vehicle offence' and requires the cancellation of any licence or permit that you hold to drive a motor vehicle and that you be disqualified from driving for at least 24 months. As a result of this offence, and your outrageous driving generally, I propose to cancel all licences held by you and disqualify you from driving for a period of two years from today's date. I have decided not to increase the disqualification period beyond the minimum, in the hope that this will assist with your rehabilitation upon your release and your efforts to find employment.
122Ms Tatas submitted I should find, pursuant to s89C Sentencing Act 1991, that Charge 1 was committed while you were under the influence of a drug that contributed to the offence. In all the circumstances, including your blood tests and what you told Mr Healey concerning your drug use, I make that finding.
Other Matters
123In sentencing you, I have viewed and have had regard to the various recordings of your offending, as well as the photograph of the tomahawk folding knife. I accept that the possession of the 4‑hydroxybutanoic acid was not for any purpose related to trafficking. I have also taken heed of Mr Chadwick's caution that you not be doubly punished for your offending.
Sentence
124Having regard to all of the circumstances of your offending, as well as your personal circumstances and the sentencing principles which are to be applied, you are to be sentenced as follows:
125
| Charges on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Recklessly exposing an emergency worker to risk by driving contrary to s 317AE(1) of the Crimes Act 1958 | Level 5 imprisonment (10 years maximum) | 16 months | 8 months |
| 2 | Conduct endangering persons contrary to s 23 of the Crimes Act 1958 | Level 6 imprisonment (5 years maximum) | 22 months | Base |
| 3 | Resisting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act 1958 | Level 6 imprisonment (5 years maximum) | 6 months | 1 month |
| 4 | Possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 | 30 penalty units or to level 8 imprisonment (1 year maximum) | Convicted and Discharged | |
| Summary Charges | ||||
| 14 | Fail to give name and address following motor vehicle accident where property damage occurred. Road Safety Act 1986 61(1)(c) | first offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not more than 14 days and for a subsequent offence to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than 1 month. | 7 days | |
| 15 | Fail to stop following a motor vehicle accident where property damage occurred. Road Safety Act 1986 61(1)(a) | first offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not more than 14 days and for a subsequent offence to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than 1 month. | 7 days | |
| 16 | Fail to give name and address following motor vehicle accident where property damage occurred. Road Safety Act 1986 61(1)(c) | first offence to a penalty of not more than 5 penalty units or to imprisonment for a term of not more than 14 days and for a subsequent offence to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than 1 month. | 7 days | |
| 17 | Driving whilst suspended. Road Safety Act 1986 30(1) | 240 penalty units or imprisonment for 2 years. | 4 months | 1 month |
| 18 | Driving unregistered vehicle on highway Road Safety Act 1986 7(1)(a) | First offence - 25 penalty units | $400 | |
| 22 | Possessing a controlled weapon without excuse Control of Weapons Act 1990 6(1) | 120 penalty units or imprisonment for 1 year. | $200 | |
| 23 | Commit an Indictable offence on bail Bail Act 1977 30B | 30 penalty units or 3 months imprisonment | 2 months | 1 month |
| 24 | Fail to appear in accordance with bail undertaking Bail Act 1977 30(1) | Level 7 imprisonment (2 years maximum) | 2 months | 1 month |
| 26 | Drive motor vehicle with more than prescribed concentration of drugs present in blood. Road Safety Act 1986 49(1)(bb) | First offence - fine of not more than 12 penalty units Second offence - fine of not more than 60 penalty units Subsequent offence - fine of not more than 120 penalty units | $600 |
126The sentence imposed on Charge 2 is the base sentence. I direct that 8 months of the sentence imposed on Charge 1, 1 month of the sentence imposed on Charge 3, 1 month of the charge imposed on Charge 17, 1 month of the sentence imposed on Charge 23, and 1 month of the sentence imposed on Charge 24 be served cumulatively on each other and on the base sentence. This makes a total effective sentence of 34 months imprisonment and fines totalling $1,200.
127I set a non-parole period of 24 months.
128All licences held by you are cancelled and you are disqualified from driving for a period of 24 months from today's date. Pursuant to s89C Sentencing Act 1991, I find that Charge 1 was committed while you were under the influence of a drug and that contributed to the offence.
129Pursuant to s18 Sentencing Act the period of imprisonment already served under this sentence is reckoned at 424 days not including today.
130Had it not been for your pleas of guilty I would have sentenced you to a term of imprisonment of three years and nine months with a non-parole period of two years and 10 months.
131Ms Tatas, were there any forfeiture and disposal orders sought?
132MS TATAS: Yes, Your Honour, there's forfeiture of the knife and disposal of the drugs.
133MR CHADWICK: They are not opposed, Your Honour.
134HIS HONOUR: Thank you, Mr Chadwick. I will make those orders.
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