Director of Public Prosecutions v Smith

[2021] VCC 1150

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01169
Indictment No. K12823290

DIRECTOR OF PUBLIC PROSECUTIONS

v

SMITH, NATHAN

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2021
DATE OF SENTENCE:	18 August 2021
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2021] VCC 1150

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Aggravated offence of intentionally exposing an emergency worker to risk by driving - prohibited person in possession of a firearm - serious example of an inherently serious offence – totality – good prospects of rehabilitation – COVID-19

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981; Firearms Act 1996; Criminal Procedure Act 2009

Cases Cited:R vVerdins & Ors (2007) 16 VR 240; Jaeger v The Queen (2020) 92 MVR 95.

Sentence:                  Total effective sentence of 4 years and 9 months imprisonment. I order that you serve a period of 3 years and 3 months before becoming eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole (Plea) Mr R. Casey (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Andrianakis	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Nathan Smith, you have pleaded guilty to:

(a) Charge 1, theft contrary to s 74(1) of the Crimes Act 1958, maximum penalty 10 years’ imprisonment;

(b) Charge 2, aggravated offence of intentionally exposing an emergency worker to risk by driving contrary to s 317AD(1)(a) of the Crimes Act 1958, maximum penalty 20 years’ imprisonment. This is also a Category 2 offence pursuant to s 3 of the Sentencing Act 1991.

(c) Charges 3 and 4, damaging property contrary to s 197(1) of the Crimes Act 1958, maximum penalty each of 10 years’ imprisonment;

(d) Charge 5, prohibited person in possession of a firearm contrary to s 5 of the Firearms Act 1996, maximum penalty 10 years’ imprisonment or 1200 penalty units; and

(e) Charges 6, 7, and 8, possession of a drug of dependence namely methylamphetamine, lysergic acid diethylamide (LSD), and methylenedioxy-N-methylamphetamine (MDMA) contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, maximum penalty 1 year imprisonment or 30 penalty units (or both), or, where trafficking purpose not excluded, 5 years’ imprisonment or 600 penalty units (or both).

2I note that the prosecution concede that based on the evidence in this case, that I can conclude on the balance of probabilities that the possession covered by Charges 6, 7, and 8 was not for the purpose of trafficking and as such the lower maximum penalty is applicable here.

3Pursuant to s 145 of the Criminal Procedure Act 2009, you have also agreed to the following Summary Charges being heard by this court and you have pleaded guilty to:

(a)   Summary Charge 72, unlicenced driving, maximum penalty 6 months’ imprisonment or 60 penalty units;

(b)   Summary Charge 73, fraudulently use registration label/plate, maximum penalty 6 months’ imprisonment or 60 penalty units;

(c)   Summary Charge 76, possess cartridge ammunition without a licence/permit, maximum penalty 40 penalty units;

(d)   Summary Charge 77, possess controlled weapon without excuse, maximum penalty 1 years’ imprisonment or 120 penalty units;

(e)   Summary Charge 82, drive vehicle whilst exceeding prescribed concentration of drugs, maximum penalty 12 penalty units; and

(f)    Summary Charge 84, wilfully damage property, maximum penalty 6 months’ imprisonment or 25 penalty units.

Summary of Offending

4The Prosecution tendered the summary of Prosecution Opening[1] and Photograph Folio One.[2]  A summary of your offending is as follows:

[1]Prosecution Exhibit 1.

[2]Prosecution Exhibit 3.

5You were 32 at the time of the offending and were wanted by police for questioning in relation to unrelated matters.

6On 17 October 2019 at approximately 4.30pm, Brendan Wright (‘Wright’) parked his vehicle, a 2000 Mazda Bravo dual cab utility in Hopetoun Street, Ballarat East (‘the Mazda utility’). Wright locked and left his vehicle. At 7.00pm when Wright returned to where he had parked the Mazda utility, it was gone, having been stolen by you (Charge 1, theft). Wright reported the theft of his vehicle to police immediately.

7Wright then observed on social media that his vehicle had been involved in an incident in the Creswick State Park, which was captured on CCTV from a police airwing. Wright observed that his vehicle had been painted green in disguise.

8On 29 October 2019 at approximately 7.00pm, Warren Trainor, the owner of the Ambassador Motel in Alfredton (‘the Motel’), was working on reception, where a female attended and wanted to book a room. The female was accompanied with two men, including you, who had driven the now green coloured Mazda utility to the Motel, where it was ultimately parked outside Room 4 of the Motel.

9Later that evening, at 7.40pm, Detective Sergeant Howard was driving along Sturt Street when he observed the Mazda utility parked in the car park of the Ambassador Motel. Detective Sergeant Howard observed that the vehicle had been painted green to disguise its original colour, and identified the vehicle as the one driven by you in the Creswick State Park previously.

10Senior Constable Knight and Sergeant Robinson drove to meet Detective Sergeant Howard in an unmarked police vehicle. Detective Sergeant Howard was driving an unmarked white Colorado four wheel drive police vehicle (‘the Colorado’).

11Senior Constable Knight walked to the Motel reception and observed that the Mazda utility had been spray-painted green. He spoke to Warren Trainor, and asked about the occupants of Room 4. Another occupant of the Motel, Mr Howell, had temporarily parked his white Mitsubishi van (‘the van’) in the driveway of the Motel, blocking the exit. Senior Constable Knight asked Mr Howell to leave his vehicle there for the time being, Mr Howell agreed to do so, and then left the area briefly.

12Detective Sergeant Howard, Senior Constable Knight and Sergeant Robinson then conducted a briefing to formulate an arrest plan. They each put vests on with ‘POLICE’ insignia attached.

13At approximately 8.15pm, Detective Sergeant Howard drove the Colorado into the Motel driveway and parked it behind Howell’s van. There was a third vehicle in the other lane of the driveway, so all entry and exit points of the car park were blocked.

14Senior Constable Knight and Sergeant Robinson walked up the driveway of the Motel, passing the Colorado and van on their right hand side. Detective Sergeant Howard exited the Colorado and followed them.

15As they walked past the van, you exited Room 4, looked towards the police members, and immediately got into the Mazda utility, started the engine, and revved the engine loudly.

16Senior Constable Knight and Sergeant Robinson yelled to you “Nathan, stop, police”. At this point, Senior Constable Knight and Sergeant Robinson were directly in front of the van, with Senior Constable Knight being in front of the passenger seat and Sergeant Robinson in front of the driver’s seat. Detective Sergeant Howard was positioned just behind Sergeant Robinson at the front of the van.

17Warren Trainor was standing near Senior Constable Knight, and was walking forward, as he planned to open Room 4 for the police members.

18You then drove the Mazda utility forward at speed, directly towards Senior Constable Knight, Sergeant Robinson and Detective Sergeant Howard, and rammed the bonnet of the van (bonnet to bonnet). Senior Constable Knight and Detective Sergeant Robinson had to jump out of the way, otherwise they would have been hit by you.

19Senior Constable Knight continued to yell at you, directing that you stop the vehicle. However, you reversed the Mazda utility at speed, ramming a parked Toyota HiLux four wheel drive, damaging both vehicles (‘the Toyota HiLux’). Detective Sergeant Robinson then deployed stop sticks under the rear tyres of the Mazda utility, however, they were not effective.

20You then accelerated the Mazda utility forward at speed for a second time. Senior Constable Knight yelled at Warren Trainor to move, which he did. Detective Sergeant Robinson also took evasive action to avoid being struck by you. The Mazda narrowly missed Detective Sergeant Robinson, Senior Constable Knight, Sergeant Howard and Warren Trainor, and then rammed the front of the van again, bonnet to bonnet, damaging both vehicles. The collision did not move the van enough to allow you to get out of the drive way.

21Senior Constable Knight then ushered Warren Trainor from the area, who then stopped other Motel guests from entering the driveway. Warren Trainor was fearing for his life, and for the lives of the police officers.

22You then reversed the Mazda utility for a second time. As you were reversing, Senior Constable Knight, Detective Sergeant Robinson and Sergeant Howard were trying to get close to the doors of the Mazda utility, unsuccessfully attempting to open the locked car doors and trying to smash the windows of the Mazda utility with their police batons.

23Senior Constable Knight stood onto a step by the side of the Mazda and tried to smash the window with his police baton, but momentarily got his sleeve stuck on the mirror as the Mazda utility reversed, however, his sleeve became free.

24You reversed the Mazda utility into the Toyota HiLux again, this time with such force that the Toyota HiLux moved and hit a third vehicle, a black Holden Commodore, parked next to it.

25You then drove the Mazda utility forward for a third time at speed. The passenger side window was open slightly, and Detective Sergeant Robinson deployed capsicum spray into the Mazda utility. You then rammed the front of the van for a third time. This time the force of the impact pushed the van backwards and into the front of the Colorado, shunting both vehicles backwards approximately two or three metres.

26Due to the collision, the Mazda utility became lodged in the front of the van. You continued to rev the Mazda and change gears, trying to push forward.

27Detective Sergeant Robinson used his baton to smash the front passenger window, and attempted to open the passenger door. He was unable to do so due to the damage to the Mazda utility. You refused to get out of the vehicle, and kept trying to drive the Mazda, so Detective Sergeant Robinson reached through the window and struck you with his baton.

28You then tried to climb into the rear seats of the Mazda utility and began unwrapping an item in the rear. Fearing you were searching for a weapon, Detective Sergeant Robinson struck you with his baton again, and then, together with Senior Constable Knight, they were able to drag you from the Mazda utility and you were placed under arrest.

29The prosecution allege that by your driving, repeatedly accelerating towards the exit of the Motel and ramming the van, despite the police officers standing in front of the van and having to take evasive actions, and the police officers attempting to gain access to the Mazda utility as you were reversing, you intentionally exposed the three police officers to a risk to safety in order to evade capture and escape from the Motel car park (Charge 2, aggravated offence of intentionally exposing an emergency worker to risk by driving. This is a rolled-up charge).

30Damage was caused to all five vehicles involved as follows:

(a)   The Mazda utility (belonging to Wright) was written off, with damage to the front and rear of the vehicle, which was valued at $8,000.00;

(b)   The Mitsubishi van (belonging to Howell) sustained damage to the front and rear of the vehicle, valued at $5,000.00 (Charge 3, damaging property);

(c)   The Toyota HiLux (belonging to Mr Shaw) sustained extensive damage and was written off, which was valued at $40,000.00 (Charge 4, damaging property);

(d)   The Holden Commodore (belonging to Hilton) sustained damage valued at $4,999.00 (Summary Charge 84, wilfully damage property); and

(e)   The Colorado (belonging to Victoria Police) sustained damage to the front of the vehicle valued at $9,028.65.

31The Mazda utility was searched by police. In a sleeping bag on the rear floor was a Mossberg bolt action .243 longarm firearm, which was seized and secured. The firearm was later confirmed to have been stolen during a burglary between 11 and 12 May 2019 from a home in Lara. You were a prohibited person at the time you possessed the firearm (Charge 5, prohibited person possess firearm).

32The firearm was not loaded, however, one round of ammunition that could be used in the firearm was located in a magnetic box in your pocket (Summary Charge 76, possess cartridge ammunition without a licence).

33Also located in the magnetic box was a small quantity of methylamphetamine (Charge 6, possession of a drug of dependence), lysergic acid diethylamide (LSD) (Charge 7, possession of a drug of dependence), and ecstasy pills (Charge 8, possession of a drug of dependence) in small zip-lock bags.

34Located inside the driver’s side door was a hunting knife (Summary Charge 77, possess controlled weapon without excuse).

35The Mazda was confirmed via its VIN to be Wright’s stolen vehicle. It had been spray painted green to disguise its real colour. It had false number plates affixed being 1AR9CZ. The numeral ‘1’ had been made to look like a ‘T’ with blue tape (Summary Charge 73, fraudulently use registration plate).

36At the time of driving, you were not licensed to do so (Summary Charge 72, unlicensed driving).

37You were assessed at the scene by paramedics, before being transported to the Ballarat Hospital for assessment at 9.05pm.

38A blood sample taken from you by a medical practitioner at 1.55pm later returned a positive result for the presence of methylamphetamine (Summary Charge 82, drive whilst exceeding prescribed concentration of drugs).[3]

[3]Prosecution Exhibit 4.

39You declined to be interviewed.

40There have been no Victim Impact Statements tendered on the plea.

Nature and Gravity of Offending

41The aggravated offence of intentionally exposing an emergency worker to risk by driving is an inherently serious offence.  Such is evident from its maximum penalty of 20 years' imprisonment.

42Further, Charge 2 is a Category 2 offence, pursuant to s 317AD of the Crimes Act 1958 and s 3 Sentencing Act 1991. The Court must impose a period of imprisonment, unless one of a number of specific exceptions are established. No such exception applies in this case.

43Aggravated intentionally exposing an emergency worker to risk by driving in this case, is a ‘rolled up’ charge relating to the risk to which you exposed three separate police officers.

44Your actions created a substantial possibility that one or more of those officers could have been seriously injured. That this did not occur was a result of their successful evasive action and plain good luck.

45This is an offence related to risk, not outcome, so the absence of injuries because of your actions is not a feature in mitigation but rather the absence of an aggravating factor that may have amounted to a separate charge in itself.

46Your actions occurred in circumstances where you knew you were being sought for arrest and were calculated to avoid that outcome. Whilst the incident was not of long duration in relative terms, it involved multiple separate driving actions by you. This was not a case of a one-off act that caused danger.

47You deliberately drove in a confined space towards a location where two of the police members were standing in front of the van. Your actions only ceased as a result of the forcible intervention by police which involved capsicum spray and your physical restraint. You were completely resistant to their lawful directions.

48You were not licensed to drive a motor vehicle at the time and the vehicle was stolen. You were under the influence of methylamphetamine at the time.

49This is in my view a serious example of an inherently serious offence.

50The offence of possessing a firearm whilst a prohibited person is also a serious matter. In this case, the offence relates to your possession of a Mossberg bolt action .243 long arm firearm which I am instructed was in working condition. You were a prohibited person as a result of your prior convictions, including a period of imprisonment imposed in 2015. The circumstances of the possession of that weapon make this a serious example of the offence.

51The weapon was stolen. You were in possession of it in a stolen car, at a time when you knew yourself to be wanted by police. Whilst the weapon was not loaded, you  had ammunition in your pocket.

52Most significantly, however, is what is revealed by your actions during the incident itself. I am satisfied beyond reasonable doubt of the following; you were aware that the weapon was in a sleeping bag on the rear floor of the stolen vehicle.

53During the incident, you attempted to retrieve this firearm by climbing into the rear of the vehicle and beginning to unwrap it from the sleeping bag. Your possession of the weapon was accompanied by a willingness on your part to grab this weapon at a time that you were in violent defiance of police direction.

54I do not speculate as to what your plans were if you had got that weapon into your hands at that time. However, your effort to do that shows that you were aware of the presence of the weapon in the car and were willing to grab hold of that weapon in circumstances where you were attempting to avoid police apprehension.

55This offence in my view adds significantly to the overall criminality of the incident.

Personal Circumstances

56You are now 35 years old. You are the second eldest of three children. You have a 37 year old brother and a 33 year old sister. You apparently have a positive relationship with your parents, as well as your siblings.  Your parents Leanne and Barry Smith were both present via video link during the plea hearing.

57You have never married and are not currently in a relationship. You have three children from your previous partner. Your three sons are aged 16, 12, and 6. You separated from your partner in 2019.

58You grew up in Ballarat. You report no substantial difficulties from your childhood. Your parents were supportive and at no stage during your childhood were you exposed to domestic violence or substance abuse. Your father worked in landscape gardening and your mother worked in a local hospital.

59By way of education, you attended Grevillea Park Primary School until Grade 6, then went to Wendouree Secondary College where you completed Year 10. Whilst you report having been diagnosed with attention deficit hyperactivity disorder at age 8, this would not seem to have caused any social or behavioural problems.

60Upon leaving school, you successfully completed a carpentry apprenticeship. At age 21 you commenced your own business and shortly thereafter purchased your first home. You employed one labourer and two apprentices over a four year period. At age 25 you sold that business and I am instructed that you then built your own home.

61You reported to psychologist Carla Lechner that “the wheels fell off about 5 to 6 years ago when the cops raided my house”.[4] You pinpoint the catalyst for your otherwise very successful life commencing its decline to an increase in your drug usage related to the tragic deaths by suicide of two of your close friends. Whilst you report having been a casual drug user from about age 20, it would seem that these events have precipitated a spiral that meant by the end of 2018, the DHHS was involved with your family because of concerns about your drug use.

[4]Defence Exhibit 2.

62You instruct that after the end of your relationship with the mother of your children, your drug use increased further.

63Whilst your drug use has not been restricted to one substance alone, it is your use of ‘ice’ that has most directly contributed to your difficulties. You reported that you began smoking cannabis at about the age of 16. Between the ages of 18 and 26, you had commenced to use ecstasy and amphetamines socially on weekends.

64You commenced using ‘ice’ nine years ago at the age of 26. Whilst you did have some success in remaining abstinent during your successful completion of an 18 month Community Correction Order that followed your only previous period in custody, you relapsed around 2018 and your ‘ice’ use escalated to around 1.7 g per day. You report in the lead up to your arrest in 2019, in addition to that intake of ‘ice’ you were also using around 20 milligrams of GHB per day. You report the combination of these drugs made you feel “psychotic… Felt like it was in a video game… I continued to smoke it and was so paranoid and thought people were trying to kill me”.

Prior Criminal History

65You have admitted a criminal history, the most significant entry in which was an aggregate 9 months' imprisonment imposed in combination with an 18 month Community Correction Order by the Ballarat County Court on appeal in 2015 for offences including trafficking in methylamphetamine.

66There are also relevant driving, drug and dishonesty priors including drive while prescribed concentration of drugs present in 2013, and fail oral fluid test within three hours of driving in 2018.

67It is notable that you were 29 years old before you had been dealt with for any matter by the court at all. This is consistent with the narrative of a steep, ‘ice’ fuelled descent.

68There are matters that have been dealt with after the commission of the offences on the indictment that have some consequence for the current sentencing process. You were remanded in custody on 29 November 2019. You were remanded in relation to both this matter, plus a further matter for an incident involving the reckless exposure of an emergency worker to risk by driving committed on 11 September 2019.[5]

[5]Prosecution Exhibit 2.

69On 5 June 2020, you were sentenced in the Magistrates’ Court for charges relating to that incident on 11 September 2019, amongst an array of 67 separate charges. You were sentenced to a period of 12 months imprisonment, to be followed by an 18 month Community Correction Order. That sentence expired on 13 August 2020, since you were credited with 75 emergency management days.[6]

[6]Defence Exhibit 5.

70What this means is that the period since 13 August 2020 is the pre-sentence detention directly attributable to the matters on the indictment. As matters currently stand, the Community Correction Order has not commenced as you have not been out of custody and in a position to undertake that order. If no further applications are made, and I cannot conclude that they will be, you will be required to serve an 18 month Community Correction Order at the conclusion of the sentence imposed on the current matters, including completion of the parole period. 

71This matter does have some significance to the present task.

(a)   First, there are undoubted similarities between the incident on 11 September 2019 and that on 29 October 2019. Both involved the use of a motor vehicle driven in defiance of police direction and motivated by a desire to escape arrest. Both involved putting police officers at significant risk of collision with the vehicle you were driving, a risk that failed to be realised because of evasive action and good fortune.

(b)   Second, the fact of the incident on 11 September 2019 is relevant to your culpability on 29 October 2019. By virtue of the earlier matter, you were well aware that you were being sought by police, so whilst your actions in trying to drive out of your predicament could not be said to be premeditated to any significant extent, the intention to avoid arrest was long-standing.

(c)   Third, the June 2020 sentence must be taken into account as part of the broader consideration of totality. Whilst I do not regard it as necessary to engage in an exercise of trying to determine precisely what level of cumulation might have been imposed had that Magistrates’ Court matter been dealt with as part of this indictment, I take into account that you have already served 12 months' imprisonment subsequent to the offending before this court and moderate my sentence somewhat to reflect the total period of imprisonment that both sets of charges will produce.

72It is, as I mentioned during the plea, much more challenging to have regard for the Community Correction Order which will not be commenced for quite some time as a result of your incarceration.

Plea of Guilty

73You have pleaded guilty to this matter at a time that followed a contested committal hearing. Whilst this could not be said to have been at the earliest available opportunity, there is still significant utilitarian benefit in your plea as it has avoided the time and resources that would otherwise have been expended on a trial.

74The significance of this utilitarian benefit is especially high in circumstances where as a result of pandemic restrictions, court listings are under significant pressure.

75I further accept that your plea of guilty is consistent with you being genuinely remorseful for your offending.

76In your letter to the court tendered on your behalf in the course of the plea hearing,[7] you acknowledge the seriousness of the matter and display some insight into your need to address your drug problem. Whilst you do not address nor acknowledge in that letter any impact that your offending had on the police officers involved in the incident, you do acknowledge that your children have suffered and will continue to suffer as a result of your actions.

[7]Defence Exhibit 7.

77There is also evidence of remorse in your statements to Ms Lechner that you were “disgusted” by your actions. Similar sentiments are expressed in the a number of the character references tendered on your behalf, for example that provided by Kane Pickering.[8]

[8]Defence Exhibit 3.

78I consider your engagement with appropriate rehabilitation services to the extent that has been possible whilst in custody as consistent with you having both insight into and contrition for your actions.

Impact of COVID-19

79As a result of the impact of COVID-19 restrictions that have been imposed on the prison environment, the time you have served thus far has been more onerous than it would otherwise have been. It may also be reasonably anticipated that pandemic restrictions will have an impact upon prison life for the foreseeable future.

80It has been put on your behalf in mitigation of sentence, and I accept, that you have not been able to undertake the programs you otherwise would, and that your capacity to receive visits has been severely restricted. I accept that this would cause you particular anguish by virtue of you being unable to see your children in person for significant periods.

Application of Verdins’ Principles

81Ms Lechner diagnosed you with adjustment disorder and depression.[9] It has been put on your behalf, and I accept, that this diagnosis is causing you extreme psychological distress and a moderate level of anxiety. I note that you are medicated for this whilst in custody.[10] The presence of these conditions enlivens the fifth limb them of Verdins,[11] namely that imprisonment is somewhat more burdensome for you than for somebody without these conditions.

[9]Defence Exhibit 2.

[10]Defence Exhibits 6 and 8.

[11]R vVerdins & Ors (2007) 16 VR 240.

Prospects of Rehabilitation

82Despite the gravity of your offending, there remains substantial reason for optimism about your prospects of rehabilitation. You are someone whose history would suggest is capable not just of managing in the community without offending, but of being highly successful. You have the ongoing support of a loving family and friends. You have skills as a qualified carpenter and the experience of successfully running your own business including the employment of multiple people. You have the ongoing motivation for rehabilitation of your three sons.

83The character references tendered on your behalf repeatedly described you as somebody who has achieved much at a young age, including a carpentry apprenticeship, homeownership, a successful business and a settled family life. Referees repeatedly describe you as hard-working. A number note your devotion to your family, and your eldest son has clearly been influenced by you to commence a carpentry apprenticeship himself.

84Whilst in custody you have taken what opportunities have existed to undertake courses and to participate in employment.[12] There is evidence in the form of urine screens undertaken whilst in custody to confirm the contention that you are currently drug free.

[12]Defence Exhibit 4.

85There is a clear pathway for your successful rehabilitation. That pathway requires you to remain abstinent from illicit drugs, and in particular ‘ice’. If you can achieve that, your prospects are excellent. If you relapse, the consequences for the community of a repeat of the extreme and dangerous actions engaged in by you in 2019 are significant. Overall, I am prepared to regard your prospects of rehabilitation as good.

Sentencing Factors

86The nature of your offending requires consideration of a number of sometimes competing sentencing priorities. I must impose a sentence that has the effect of deterring others, and to a lesser extent you, from engaging in similar actions. I must express denunciation for the conduct, and protect the community. I must impose a punishment that is in all the circumstances, just, having regard to the gravity of the offending. There is also a need to consider what I have found to be your good prospects of rehabilitation.

Totality

87I must impose a sentence that imposes penalties appropriate for the individual charges and is structured in a way such as to produce a total effective sentence reflective of the entirety of the criminality dealt with on the indictment and with the additional summary offences. I will, as I have already noted, give some regard for the fact you have already completed 12 months' imprisonment for the offending dealt with at the Magistrates’ Court in June 2020.

88I have also had regard for current sentencing practices, to the extent I have been referred to several comparable cases. Making direct comparisons between cases can be a difficult exercise, given the array of matters relevant to each individual sentence.  I have particular regard for the Court of Appeal decision in Jaeger v The Queen,[13] not particularly because of any remarkable similarities with your case but because of the principles enunciated by the court to the effect that drug fuelled conduct that intentionally exposes emergency workers to risk is a serious example of a serious offence, and that in these kinds of cases there is an increased emphasis on general deterrence, punishment, and denunciation.

[13](2020) 92 MVR 95.

89The cases provided show that these principles have been reflected in substantial periods of imprisonment being imposed for offending that fulfils that description.

Submissions on Sentence

90Mr O’Toole, appearing on behalf of the Director, submitted that it was appropriate to impose a term of imprisonment that comprised a head sentence and a non-parole period.[14]

[14]Prosecution Exhibit 5.

91Mr Andrianakis, appearing on your behalf, conceded that such a penalty was inevitable but submitted that a term of imprisonment be tailored in a way that reflected your optimistic prospects of rehabilitation. He submitted that there should be substantial concurrency between the offences. He further contended that a sentence structured in a manner such that the non-parole period comprised a lower proportion of the total sentence than might be considered usual was appropriate in this case.[15]

[15]Defence Exhibit 1.

Sentence

92Mr Smith, I sentence you as follows:

(a)   Charge 1, theft, you are convicted and sentenced to 9 months' imprisonment;

(b)   Charge 2, aggravated offence of Intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to 4 years and 3 months imprisonment;

(c)   Charge 3,  damaging property, you are convicted and sentenced to 3 months' imprisonment;

(d)   Charge 4,  damaging property, you are convicted and sentenced to 3 months' imprisonment;

(e)   Charge 5, prohibited person possess firearm, you are convicted and sentenced to 21 months' imprisonment;

(f)    Charges 6, 7, and 8, possession of a drug of dependence, you are convicted and fined an aggregate amount of $500;

(g)   Summary Charge 72, unlicenced driving, you are convicted and fined $500;

(h)   Summary Charge 73, fraudulently use registration label/plate, you are convicted and fined $250 ;

(i)    Summary Charge 76, possess cartridge ammunition without a licence or permit, you are convicted and fined $250;

(j)    Summary Charge 77, possess controlled weapon without excuse, you are convicted and fined $250;

(k)   Summary Charge 82, drive vehicle whilst exceeding prescribed concentration of drugs, you are convicted and fined $1000; and

(l)    Summary Charge 84, wilful damage property, you are convicted and sentenced to 1 months imprisonment.

93Charge 2 is the base sentence.

94I order that 6 months of the sentence imposed on Charge 5  be served cumulatively with that imposed on Charge 2.

95I direct that all other sentences imposed be served concurrently with each other and the base sentence.

96That makes a total effective sentence of 4 years and 9 months imprisonment. I order that you serve a period of 3 years and 3 months before becoming eligible for parole.

97I declare pursuant to s 18(4) Sentencing Act 1991 that you have spent 370 days in custody by way of pre-sentence detention up to and including yesterday 17 August 2021, and I direct that this be entered into the records of the court.

98I order that on Charges 1, 2, and Summary Charge 82, any licence you have is cancelled and that you are disqualified from applying for a driver’s license for a period of 36 months from today’s date.

99Pursuant to s 89C Sentencing Act 1991, Charge 2 was committed under the influence of a drug of dependence, namely methylamphetamine, I order that be entered into the records of the court.

100The prosecution made Application for forfeiture of the firearm, ammunition and knife and disposal of all drugs of dependence. These Applications were not opposed and I make those Orders in the terms sought.

101Pursuant to s 6AAA Sentencing Act 1991 but for your plea of guilty I would have imposed a term of imprisonment of 6 years with a non-parole period of 4 years and 6 months.

102Any other orders required?

103MR CASEY:  No, Your Honour.

104MR ANDRIANAKIS:  No, Your Honour.

105HIS HONOUR:  All right,  Now, Mr Andrianakis, in relation to the fines there is a nominal stay of 28 days, do you want me just to leave it at that or do you want to make any application about extending that?  I think it is 28, 28 or 30.

106MR ANDRIANAKIS:  Probably just leave it at that, Your Honour.

107HIS HONOUR:  Yes, okay.  Well I will not make any order about stay then, I will just let the default position be the case.  I will then adjourn the court, thank you very much.   

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