Director of Public Prosecutions v Stahl

[2021] VCC 619

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01821 & CR-20-01818

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE STAHL

---

JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2021
DATE OF SENTENCE:	17 May 2021
CASE MAY BE CITED AS:	DPP v Stahl
MEDIUM NEUTRAL CITATION:	[2021] VCC 619

REASONS FOR SENTENCE

---

Subject: Criminal Law - Sentence

Catchwords: Theft, armed robbery, prohibited person possess a firearm, recklessly expose emergency worker to risk by driving.

Legislation Cited: Crimes Act 1958 (Vic) s317AE; Sentencing Act 1991 (Vic) ss 16(3D) and 89(1).

Cases Cited: DPP v Nelson [2020] VSCA 219

Sentence: 3 years and 4 months, NPP 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms M. Greener	Emma Turnbull Lawyers PTY LTD

HER HONOUR:

1Jake Stahl, you have pleaded guilty to the following offences:

Charge No	Offence	Maximum Penalty
1,2,3,4,5	Theft (s 74 Crimes Act1958)	10 years
6	Armed Robbery (s 75A Crimes Act1958)	25 years
7	Prohibited Person Possess a Firearm (s 5(1) Firearms Act1996)	1200 PU or 10 years’ imprisonment
8	Recklessly Expose Emergency Worker to Risk by Driving (s 317AE Crimes Act 1958)	10 years

2You have also pleaded guilty to seven summary offences:  

Summary Offence No	Offence	Maximum Penalty
10	Possess Cartridge Ammunition (s 124(1) Firearms Act 1996)	40 penalty units
13	Drive in a Manner Dangerous (s 64(1) Road Safety Act 1986)	240 PU or 24 months’ imprisonment
14	Resist an Emergency Worker on Duty (s 51(2) Summary Offences Act 1996)	60 PU or 6 months’ imprisonment
18	Fraudulently use an identifying number on a motor vehicle (s 72 Road Safety Act 1986)	10 PU or 2 months’ imprisonment
19	Commit an Indictable Offence whilst on Bail (s 30B Bail Act 1977)	30 PU or 3 months’ imprisonment
20	Contravene a conduct condition of Bail (s 30A(1) Bail Act 1977)	30 PU or 3 months’ imprisonment
25	Possess a Controlled Weapon without lawful excuse (s6(1) Control of Weapons Act 1990)	120 PU or 1 year’s imprisonment

3The circumstances of your offending have been provided in the summary of prosecution opening, which your counsel accepts is an accurate account of events.  A general summary of the facts is as follows.

4On 9 November 2019 at around 7.00 to 7.30am, you parked your motor vehicle in Werribee.  You walked along an area adjacent to the Werribee River and stole the following items:

·     a Ryobi brand cordless power tool and socket set from the rear of a motor vehicle.

·     a Milwaukee brand tool bag containing various power and hand tools from the rear of a motor vehicle. 

5You crossed the road and hid the items.  Your offending continued as you then stole:

·     a spare Magnesium wheel from the tailgate of a motor vehicle.  You rolled it down the road and left it in front of a vacant block.

·     a wrench from a motor vehicle after breaking the window. 

6You opened toolboxes attached to another motor vehicle but did not remove anything.  At the same address, you entered a carport and stole:

·     a Honda brand generator and a bag containing assorted fishing equipment.

7These items were placed on a nature strip nearby.  You moved into the front area of another property and started to look through a trailer before you were confronted by the owner.  You produced a sawn-off shotgun which you pointed directly at the victim and said, “get inside” and “give me your keys”.  The victim cooperated, produced a set of keys and was again told to go inside.  The victim told you that he needed his keys in order to comply with your direction.  You removed them from the set of keys and handed them to him.  A further conversation ensued. The victim pleaded with you not to take his car as he was a tradesman.  You returned the remaining keys to him and left.  Police were notified.

8Within a short time, the police attended and drove past as you hid behind some bushes.  You removed your jumper, gloves, face mask and a peaked cap. You wrapped the firearm in the jumper and placed all of the items underneath a bush.  You remained hidden in the area until, eventually, you were observed by police and arrested.  You were subsequently searched and found to be in possession of a screwdriver.

9The immediate area was searched and numerous items, including your backpack were located.  The backpack was found to contain stolen tools, five 12-gauge shotgun cartridges and four 0.38 calibre hollow point cartridges. You were transported to the Werribee Police Station.  A further search revealed that you were in possession of three 0.22 calibre cartridges. 

10A formal record of interview was conducted on 9 November 2019.  You were charged and remanded in custody. You were released on bail on 5 May 2020.

11On 10 July 2020, you were arrested in respect of a previous family violence matter, involving your ex-partner.  You were interviewed about alleged criminal conduct and released on bail. The allegations do not form part of these proceedings.  The conditions of bail replicated the conditions of a full family violence intervention order that was in place, where your ex-partner was the affected family member and you were the respondent.

12On Sunday 11 July 2020 at approximately 9.22pm, you attended at an address in Tarneit to speak with your ex-partner. This was in breach of a condition of the undertaking of bail imposed the day before. You spoke to a friend of hers who was concerned by your behaviour and called Triple 0.  She stated that you appeared to be drug affected and were in possession of a machete. 

13At approximately 9.44pm, Acting Sergeant Grant Farley, Senior Constable Michael Simonetta and Constable Hayden Bennett responded to the Triple 0 call and travelled to the area in two separate police vehicles.  They drove towards your ex-partner's address and observed you driving towards them. You flashed the headlights on your vehicle.  You were hanging out of the driver’s side window and gestured towards the police with your middle finger, yelling “fuck you cunts” or words to that effect.

14You drove towards a roundabout as Acting Sergeant Farley took up a position behind you and activated the police vehicle's flashing lights and sirens.  You travelled around the roundabout in an attempt to evade police.  You failed to stop on police direction and drove at a fast rate of speed, in a dangerous manner.  The road was slippery and Acting Sergeant Farley made the decision to stop pursuing you, as a result of the way you were driving.  He deactivated his lights and sirens.

15Both police vehicles stopped in Tarneit, and a short time later, you returned to the area.  You sounded the horn on your motor vehicle repeatedly and waved your arms at police.  Senior Constable Simonetta and Constable Bennett responded by executing a U-turn in their vehicle in order to follow you and Acting Sergeant Farley took up a position behind them. Your driving became more dangerous as you swerved from one side of the road to the other with little or no control of your vehicle. The police officers decided to maintain observations of you from a safe distance rather than to follow directly behind you.

16You performed a U‑turn at a roundabout and swerved across the road from side to side at a fast rate of speed as you approached the two police vehicles.  Both police members who were driving were forced to take evasive action, by driving up onto the nature strip and footpath area, to avoid a head on collision with your vehicle. The police then executed U‑turns to follow you.  You turned into a road and manoeuvred your vehicle so that it blocked the roadway. Acting Sergeant Farley formed the view that you posed a significant ongoing threat to the safety of the community.  He used his vehicle to disable yours, by ramming its’ passenger side, twice. 

17You got out of your vehicle and ran away, attempting to avoid arrest.  You were followed by Acting Sergeant Farley, who eventually caught up to you.  You then cooperated and surrendered.  You were handcuffed.  You attempted to avoid being placed inside the police vehicle.  The police were required to use OC spray to obtain your compliance.

18Your vehicle was examined.  It was a stolen, although there are no related charges in this case. It had false registration plates attached to it. Inside the vehicle, an orange case containing a fishing knife, approximately 20 centimetres in length, and a black case containing a machete, approximately 60 centimetres in length, were found

19You were required to undergo a preliminary breath test and preliminary oral fluid test.  These tests were conducted with your consent.  The preliminary oral fluid test sample was later analysed and found to contain methylamphetamine.  You were taken to the Werribee Hospital to be examined, as you complained of being in pain.  After the examination, you were taken to the Werribee Police Station where a formal interview was conducted. You were charged and then remanded back into custody. You have now served a total of 488 days of pre‑sentence detention.

20You have pleaded guilty to a course of criminal conduct on 9 November 2019, that ended after you committed the armed robbery.  You were a prohibited person at the time as you were on a Community Correction Order.

21A victim impact statement has been prepared by the victim of the armed robbery.  He outlines the burden you have imposed on him, as a result of your offending.  Every morning when he leaves for work, he relives the experience of being the victim of your offence, where he feared for his life.  He is unable to relax and often feels anxious.  Your conduct has challenged his perception of safety.  He states, “I feel I have been robbed of my freedom of space and peace of mind.” 

22In a letter that you have prepared for the Court, you acknowledge that you are ashamed that the victim is now scared in his own home, due to your criminal conduct.  I consider that it would have been a confronting and terrifying experience for the victim.  I take the content of the victim impact statement into account.

23After almost six months in custody, you were released on bail on 5 May 2020.

24In the offending that occurred on 11 July 2020, you drove in a dangerous manner and then recklessly exposed emergency workers to risk.  In light of the previous interaction between you and the police members that night, it is clear that you were aware that the occupants of the cars were police members. You used your car to place the three police officers at risk of harm.  You drove towards them, at speed, which was inherently dangerous, both due to the risk of collision with your car as well as the risks associated with taking evasive action and driving onto the footpath. This threat of violence is unacceptable.  Your conduct was reckless, as you exposed the police to the risks associated with your dangerous driving.  The oral fluid test reveals that you were affected by methylamphetamine at the time, although any related charges do not form part of this hearing. 

25You fled on foot and once you were arrested, you attempted to avoid being placed into the police vehicle.  Your conduct was impulsive, ill-considered and perhaps, not surprising, given that you were drug affected. While no victim impact statement has been provided by any of the police involved in the second incident, I accept that this would have been a frightening experience.  It is most fortunate that an accident did not occur and that no one suffered any injury as a result of your behaviour. 

26The prosecution concedes that your guilty pleas were entered at an early opportunity.  While the offending that occurred on 9 November 2019 was initially listed for a committal hearing, it resolved at the same time that the second set of offences resolved and your pleas were entered on 15 December 2020.

27Those pleas of guilty have a significant utilitarian benefit.  You have saved the Court and the community the time and expense of running two trials.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant, given the delay in jury trials that has resulted from the COVID‑19 pandemic. 

28You have admitted your criminal history.  You have a number of relevant prior convictions for being in possession of weapons without lawful excuse as well as for drug, driving and dishonesty related matters. 

29You have appeared in the Children's Court on several occasions.  You have four prior appearances in the Magistrates' Court, the first two being in 2013 and the third, on 26 June 2019.  You received monetary penalties for these offences.

30Most recently, on 21 September 2019, you pleaded guilty to a consolidation of offences. You were released on an 18-month Community Correction Order with conditions to perform unpaid community work and to undergo assessment and treatment for drug use or dependency as directed. 

31The first set of the current offences occurred approximately seven weeks later. Despite being subject to a therapeutic Community Correction Order, you say that your drug use was out of control and it was in this context that the offences occurred. This is an aggravating feature of your offending.  The offences of armed robbery and being a prohibited person in possession of a firearm demonstrate an escalation in the seriousness of your offending. 

32After serving almost six months on remand, you were released on bail. You soon relapsed into excessive drug use. The second set of offences occurred approximately two months later and also demonstrate an escalation in the seriousness of offending when compared to your criminal history. The fact that you were on bail at the time is an aggravating feature here.  Overall, I regard your moral culpability for the offences as high.

33At the time of these incidents you were 25 years old.  Your age is a relevant consideration even though it falls at the upper end of the range of a youthful offender.  In light of your offending and your criminal history, the mitigating effect of age and your relative youth is reduced, although it is not extinguished.  These factors are still relevant when considering your prospects of rehabilitation.  Deterrence, denunciation and community protection are also relevant considerations when sentencing in this matter.

34You were born on 19 October 1994 and are now 26 years of age.  You come from a stable family where both of your parents worked. You have one sister. Your mother died from cancer when you were 18 years of age. 

35It is proposed that when you are released from custody you will live with your father and recommence work with him, as a crane operator.  Your father, sister and ex‑partner all remain supportive of you.  You are most fortunate in that regard. 

36You had behavioural problems and difficulties throughout your time at school. You had ADHD and were prescribed stimulant medication between the ages of 6 and 15 years.  When you were 13 years old, you were treated at the live-in unit at the Austin Child and Adolescent Mental Health Service.

37At around the time of your incarceration, you were in a relationship with your former partner.  She is the affected family member in the intervention order that was mentioned earlier.  That order has now been varied to a safe contact order.  She gave birth to your daughter on 4 February 2021. While you are no longer in a relationship with her, it is anticipated that you will establish a relationship with your daughter.  You have not yet seen your baby as your preference has been that she stays away from the custodial environment.  You have only recently been permitted to have visits while in custody. 

38I am told that becoming a father has provided you with the incentive to change your lifestyle, upon your release from gaol.  You hope to return to work and to play an active role in the life of your daughter. There is a gap in your criminal history between 2013 and 2019.  At that time, you were in a stable relationship with a different partner who had a young child.  You did not commit any offences nor use drugs during that time. 

39You attended the Altona West Primary School and then Altona College until Year 8 when you left school to obtain employment.  You have a good work history in various trades including cabinetmaking, framing and demolition.  Most recently you worked as a crane operator with your father.  You were last in paid employment in 2019. 

40Your history of illicit substance use began when you used cannabis at the age of sixteen.  You commenced using methylamphetamine when you were 18 years old, following the death of your mother.  In the period prior to your arrest in November 2019 and then again after you were released on bail in 2020, you consumed significant quantities of drugs daily, namely 20 milligrams of GHB and approximately 1 gram of ice. 

41Your counsel submitted that you were affected by drugs on both offending occasions.  Your criminal history is also drug related.  You were given the opportunity to address rehabilitation in the community on the Community Correction Order.  Regrettably, you continued to use drugs of dependence throughout this time and reoffended.  Your goal when you are released is to successfully reintegrate into the community and remain drug-free.

42I am told that you have provided clean urine samples while in custody.  You have also undertaken a course in drug and alcohol rehabilitation.  You have attempted to access other courses although have been unable to do so, in light of the measures taken by Corrections to deal with COVID‑19 pandemic.  You are currently working while in custody. 

43I accept that your drug use provides a context for your ongoing offending.  Successful drug rehabilitation is essential if you are to improve your prospects.  In your letter to the Court, you acknowledge that your previous lifestyle choices have been the consequence of your drug use.  You have shown remorse for your conduct in your letter and this is consistent with your plea of guilty. I consider that you also showed immediate remorse after committing the armed robbery. I am prepared to moderate your sentence to reflect that.

44At the request of your solicitor you were assessed by Dr Aaron Cunningham, psychologist.  In a report prepared for the Court, dated 5 May 2021, he makes the following findings:

·     You presented as appropriately oriented and you did not present with symptoms of mental illness. 

·     Your level of cognitive functioning is assessed as having an impairment in verbal comprehension and a working memory in the average range.  Your scores are consistent with your childhood behavioural and learning problems.

·     You disclose having symptoms of a substance-induced psychotic disorder when in the community.  You were experiencing paranoia and auditory hallucinations.  Your symptoms have resolved in gaol, due to a combination of taking antipsychotic medication and abstinence from drug use. 

·     You used cannabis and associated with negative peers from an early age.  Your drug use escalated to the abuse of methylamphetamine following the death of your mother.  You have previously maintained a period of abstinence from drug use while in a supportive relationship.  This period is reflected in the absence of your criminal history at that time.

·     You describe feeling guilt and shame as a result of committing an armed robbery.  You admit that there was no excuse for your offending behaviour.  You presented with remorse. 

·     In Dr Cunningham’s opinion your drug abuse is the main contributor to your offending behaviour.  You stated that this was your motivation for offending.

·     You are motivated to address your drug-related issues, by becoming a father.  You understand that you need to mature and look after others.  You present with the protective factors that may reduce your risk and improve your prospects.

45Your counsel has submitted that it would be appropriate to impose a Community Correction Order as part of the sentencing disposition here. The prosecution submits that a term of imprisonment with a non-parole period is appropriate.

46There is a presumption of cumulation for any sentence imposed under s.317AE of the Crimes Act and for the offence of committing an indictable offence while on bail.[1]  Taking these factors into account, as well as the objective gravity of the offences, I am satisfied that a term of imprisonment is the only appropriate disposition in this case. 

[1]Sentencing Act 1991 (Vic) s16(3D)

47Further, in light of your demonstrated non-compliance with court orders, I have little confidence that you would comply with a corrections order, even if I was satisfied that it was part of an appropriate disposition.

48I am cautious of your prospects of rehabilitation, in light of the ongoing nature of your drug addiction.  I accept that the fact that you have become a father may increase your motivation to deal with your issues. Hopefully your attempt to overcome your addiction will be successful in the future. You continue to have family support, employment and stable accommodation available to you. Dr Cunningham acknowledges that these protective factors may reduce your risk of reoffending.  A lengthy period of supervision provided by parole will form part of this sentence to facilitate your rehabilitation and will be of benefit both to you and to the community.

49I take into account that measures taken by Corrections to deal with the COVID-19 pandemic have added to your hardship as a prisoner, particularly as this has been the longest time that you have been remanded in custody and this will be your first sentence of imprisonment. 

50I am aware that the first 14 days you spent in custody most recently were in a 24-hour lockdown, due to quarantine requirements.  You have spent periods in half day lockdown while on remand.  I do not provide any specific sentencing benefit for this or for the possibility that lockdown may occur again.  As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of the prison authorities. 

51It is clear, however, that the current time has been more stressful for you than it would be, had you been in the community.  This is not only due to your personal position of confinement but also due to the emotional impact of being unable to have any personal visits for some time.  The limited availability of educational and vocational programs has also increased the burden of imprisonment. Overall, these hardships justify a sentencing benefit.

52The principle of general deterrence looms large and is the principle sentencing factor here, while denunciation and just punishment as well as specific deterrence are also relevant.  Rehabilitation also remains a relevant consideration. 

53I take into account the maximum penalties for each offence and current sentencing practices.  The offence of recklessly placing emergency workers' safety at risk by driving has only recently been incorporated into the Crimes Act 1958.[2]  It appears that it has not yet been considered in sufficient numbers to build up a sentencing profile although I have considered DPP v Nelson [2020] VSCA 219. While there is a presumption of cumulation for some charges, the principle of totality also needs to be considered. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct. I have taken care not to doubly punish you for the offences of armed robbery and being a prohibited person in possession of a firearm, as well as recklessly exposing emergency workers to risk and dangerous driving.

[2]Crimes Act 1958 (Vic) s317AE

54The commission of Charge 8 and summary offence 13 both require a mandatory licence disqualification for a period of not less than 24 months and 6 months respectively.[3] 

[3]Sentencing Act 1991 (Vic) s 89(1)

55Balancing all the relevant factors as best I can I sentence you as follows:

56Mr Stahl, I am going to read out the sentence for each charge and then I will read out the level of cumulation and then I will read out the total effective sentence.

57OFFENDER:  Yes, Your Honour.

58HER HONOUR:  Charges 1, 2, 3, 4 and 5, the charges of theft: given that these offences are a series of offences of a similar character and in effect form part of one course of conduct, I impose an aggregate sentence of three months' imprisonment.

59Charge 6, armed robbery, two years and six months imprisonment.

60Charge 7 prohibited person in possession of a firearm, 12 months' imprisonment.

61Charge 8, recklessly exposing emergency workers to risk by driving, 15 months' imprisonment.

62The summary offence of possession of cartridge ammunition, you are convicted and fined $500.

63The summary offence of a driving in a manner dangerous, six months' imprisonment.

64The summary offence of resisting emergency workers on duty, two months' imprisonment.

65The summary offence of fraudulently using an identifying number on a motor vehicle, seven days' imprisonment.

66The summary offence of committing an indictable offence on bail, two months' imprisonment.

67The summary offence of contravening a conduct condition of bail, one-month imprisonment.

68The summary offence of possessing controlled weapons without lawful excuse, four months' imprisonment.

69I direct that Charge 6, the charge of armed robbery with a sentence of two years and six months, be the base sentence.

70I direct that one month of the aggregate sentence for Charges 1 to 5, two months of Charge 7, six months of Charge 8 and one month of driving in a manner dangerous are to be served cumulatively upon the base sentence and upon each other.  The balance of the sentences are to be concurrent.

71That is a total effective sentence of three years and four months imprisonment.  I fix a non-parole period of two years.

72I enter in the records of the court that have you served 488 days by way of pre-sentence detention. 

73Your licence is cancelled and disqualified for the minimum period of two years for Charge 8 and for driving in a manner dangerous, six months.  These will run concurrently and commence on 11 July 2020, the date of your most recent remand.

74I will not grant a stay for the payment of the fine so that it can be converted to days of imprisonment immediately.  I make the orders for forfeiture and disposal as requested and understand there is no objection to those orders.

75The declaration I make under s.6AAA is four years and three months with a minimum of three years. 

76I will leave the Bench.  I will leave the decision here if Ms Greener and Mr Goetz would like to just check the figures. I will excuse Mr Goetz and give you a chance to speak with your client.

77MS GREENER:  Thank you, Your Honour.

78HER HONOUR:  I will now leave the Bench.

79MS GREENER:  As Your Honour pleases.

‑ ‑ ‑