Director of Public Prosecutions v Stewart
[2014] VCC 1447
•26 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01061
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID STEWART |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 19 August 2014 | |
DATE OF SENTENCE: | 26 August 2014 | |
CASE MAY BE CITED AS: | DPP v. Stewart | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1447 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Stefanovic | OPP |
| For the Accused | Ms Z. Broughton | VLA |
HER HONOUR:
1 David Stewart, shortly after 4 am on 25 August last year, you were seen by police driving a stolen car at high speed, without headlights, weaving between other cars and at times on the wrong side of the road, through suburban streets. Not long after, in High Street, Kew, alongside the Boorondara cemetery, you collided with a car doing what would have been a safe, as well as lawful U-turn had you not been travelling at the speed you were. You cannoned into the driver's side of the car, seriously injuring the pregnant driver who took the brunt of the impact, and her passenger. Your car careered into and through the high brick wall of the cemetery. Once it had come to a halt, you ran away, abandoning the injured passenger in your car, and making no attempt to render assistance to the occupants of the severely damaged car that you had rammed.
2 You later told police that you had been driving at speeds of up to 200 kilometres per hour immediately before the collision, and were impaired by a cocktail of heroin, amphetamines and alcohol. Analysis of the car's on‑board computer showed you were travelling at a staggering 145.6 kilometres per hour in that 60 kilometre per hour speed zone two and a half seconds before the collision. You have pleaded guilty to two charges of negligently causing serious injury and one of failing to render assistance arising out of this conduct (Charges 40, 41 and 42).
3 At about 11.30 am the following day, you were seen by police in Abbotsford, in another car, also stolen by you. This car had been stolen within a few hours of the collision. When they activated their lights and siren, you sped off into the traffic in the stolen car. This gives rise to uplifted summary offence 95, failing to stop a vehicle on police request.
4 Shortly before 4.00 pm that afternoon, you were seen, sitting in that same stolen car, in Fitzroy Street, St Kilda. A police car with lights and sirens activated pulled up behind you and a police officer approached you. You reversed along Fitzroy Street, did a J, or reverse U-turn, went over an embankment, and although temporarily stranded and wheel spinning in it, you accelerated sufficiently to rock your way out. You swerved onto the bitumen, and drove off at high speed. You reached speeds estimated to be up to 100 kilometres per hour in Canterbury Road, ran a red light, and drove along the tram tracks before cutting in front of the traffic in Kerferd Road. That gives rise to Charge 51, dangerous driving when pursued by police.
5 By 6 pm that same evening, you were detected asleep at the wheel of that same stolen car, this time in a residential street in Prahran. The engine was running and you had your hand on the gearstick. By the time you woke shortly after 7 pm, there were police cars parked in front of and behind your car, and a number of uniformed police, as well as dogs and their handlers from the dog squad were present. When you woke, police approached you, shouting, "Police, don't move." Under high revs, you repeatedly rammed the police cars in front of and behind you, and succeeded in shunting them sufficiently out of the way to drive out of your parking spot. Capsicum spray sprayed on you through the open sunroof of the stolen car did not subdue or incapacitate you, and you drove, at speed, directly at one of the arresting police officers. He had to jump onto the bonnet of your car to avoid being crushed against a wall. As you tried to drive away, you came perilously close to a dog handler and his dog, hemming them in against the wall, with less than one metre between your accelerating car and the wall. This driving also put a number of other police at the scene in danger.
6 I said before that you drove at speed directly at one of the arresting police officers. What I mean by that is that you drove at speed and one of the police officers was in your path and you did not divert.
7 As you were involved in these dangerous manoeuvres, other police managed to smash a window of your car with their batons, which allowed a police dog to enter the car. Only then were you able to be subdued. This course of conduct gives rise to Charge 52, one charge of reckless conduct endangering persons.
8 You were arrested, and remanded in custody. You were not fit to be interviewed until the following day. In your interview you made extensive admissions. You admitted to having taken amphetamines, heroin and alcohol prior to the collision in Kew the day before your arrest. You admitted to running from the collision and stealing another car in a nearby burglary. You said you had a heroin habit and were spending $1000 a day on it. You admitted to committing one or two burglaries per day over the previous month in the suburbs of Brighton, Elwood, St Kilda and Diamond Creek.
9
As a result of the police investigation and your admissions, in addition to the charges that I have already detailed, you have also pleaded guilty to
22 charges of burglary (Charges 1, 4, 5, 7, 8, 11, 12, 16, 17, 18, 21, 25, 26, 27, 29, 31, 33, 36, 43, 45, 47 and 50); two charges of aggravated burglary (Charges 2 and 15); four of attempted burglary (Charges 10, 14, 34 and 39), and three uplifted summary offences of unlawfully on the premises (Charges 58, 64 and 86).
10 All these offences occurred between 27 July and your arrest on 26 August. All the burglaries and attempts are put on the basis of entry or attempted entry with intent to steal. All were on residential properties in or near the suburbs you had nominated when interviewed. The circumstances of aggravation in respect of the aggravated burglaries is knowledge or recklessness as to the presence of people in the homes that you broke into.
11 Associated with those charges, you have pleaded guilty to one rolled‑up charge of theft relating to property stolen from the homes you broke into (Charge 53), three rolled-up charges of obtaining by deception relating to the use of credit cards stolen in the burglaries and then used to buy predominantly supermarket items (Charges 22, 37 and 49). In addition, you have pleaded guilty to seven charges of car theft (Charges 3,6, 9, 19, 28, 44 and 46). The cars were stolen in the course of six of the burglaries, and one of the aggravated burglaries.
12 You used the cars to drive yourself to and from the places you burgled and as your means of transport more generally. You were seen by the police driving various of them dangerously and at high speed during this period. The cars you stole were generally luxury or high-performance cars that included a Golf, a Passat, three BMWs and an HSV Commodore. You were driving the Commodore when you collided with the car in which Ms Ly and Mr Franklin were driving. The last car you stole was the BMW which you rammed into the police cars in your attempt to avoid arrest. The other cars were abandoned by you when they had outlived their usefulness to you, or when, in the course of another burglary, you came across another to substitute for the one you had been using.
13 You have also pleaded guilty to five charges of theft of petrol, filling the stolen cars with petrol and driving away from service stations without paying (Charges 13, 23, 30, 32 and 38). You have also pleaded guilty to one charge of theft from a car (Charge 48). I have already noted that Charge 53, the theft charge, is a rolled-up charge related to the items stolen from all of the burglaries and aggravated burglaries where you were successful in obtaining items. A number of the charges of obtaining by deception and theft of petrol are also rolled-up charges relating to more than one transaction of a like nature.
14 Mr Stewart, you had better stand up again.
15 I have already recounted the appalling driving which resulted in the collision which injured Ms Ly and Mr Franklin, the manner in which you drove when escaping from a police attempt to pull you up in Fitzroy Street, your conduct behind the wheel at the time of your eventual arrest, and in the episode of dangerous driving when police activated lights and siren and tried to pull you over in Abbotsford. These were not the only occasions you were seen driving dangerously or, when you did so, when being pursued.
16 You have pleaded guilty to three other charges of dangerous driving when pursued, and one further uplifted summary offence of dangerous driving. The other episodes of dangerous driving when pursued occurred just before midnight on 17 August (Charge 20), just after midday on 19 August (Charge 24) and mid‑afternoon on 24 August (Charge 35). The unlawful summary offence of dangerous driving occurred later in the afternoon of 19 August (uplifted summary charge 70), after the second of the dangerous driving when pursued charges occurred that I have just recounted.
17 On each of those occasions, you were in a built-up area, starting in St Kilda, South Melbourne, Richmond and South Melbourne respectively. On each occasion there was other traffic in the vicinity. On each occasion you travelled at well above the speed limit and ran red lights. On occasions, you drove on the wrong side of the road, into oncoming traffic. It is an understatement to say on each occasion you put a considerable number of other road users at risk. On one occasion, the police helicopter was deployed to track you. On each occasion, despite the risk you posed to others, police had to call off the pursuits because the danger you posed was substantially increased by the manner in which you then drove off to avoid apprehension.
18 You did not hold a driver's licence at the time of this offending, and you have also pleaded guilty to a between‑dates charge of unlicensed driving (uplifted summary charge 43).
19 You were on parole at the time of this offending. On 1 June 2012 you had been sentenced to 12 months imprisonment with a nonparole period of six months for numerous offences, including theft, possession and use of a drug of dependence, burglary, and dealing with property suspected to be the proceeds of crime. A seven-month suspended sentence which you breached by that offending was wholly restored and ordered to be served cumulatively.
20 After serving the seven-month restored sentence and the six-month nonparole period, you were released on parole in May 2013. You were quick to succumb to the illicit substance abuse habits of your pre-custody lifestyle. Less than a month later, in June 2013, you were admitted as a voluntary patient to the Sunshine psychiatric unit suffering a drug-induced psychosis.
21 Your parole was cancelled on 6 August 2013 and a parole warrant issued. It was executed the day after your remand on these charges. You have now served the six-month balance of that earlier sentence. That sentence lapsed on 26 February of this year. That time does not count as pre‑sentence detention in respect of these charges and I do not propose to reduce this sentence to take it into account in a general sense as time attributable to these offences. There is nothing to displace the presumption of cumulation in respect of sentences imposed for offences committed whilst on parole.
22 There are numerous victims of your offending over the period from 27 July to 26 August 2013. Although no victim impact statements were tendered, the experiences were no doubt, in their different ways, frightening for all of them. In addition to the serious physical injuries that Ms Ly and Mr Franklin suffered, one can imagine the fear they must have felt as your car careered into them, and the outrage of your cowardly running away afterwards, without any concern for their welfare.
23 The physical injuries Ms Ly and Mr Franklin suffered fall well above the lower end of the range of injuries constituting serious injury. Ms Ly was 20 weeks pregnant at the time. Her injuries were such that she was placed in an induced coma for several days. She suffered fractures to each of the first to tenth ribs, a punctured lung and lacerations to her head. Fortunately, it appears her unborn child was not harmed. One can only imagine the fear she must have felt for her unborn child, and the compounding effect of the pain from these lung and thoracic injuries caused by her advancing pregnancy.
24 Mr Franklin suffered serious facial and neck injuries, including multiple bone fractures in his nose, fractures of both eye sockets and his first cervical spine, broken teeth and lacerations to his head. He also sustained injuries to his left forearm, right metacarpal and knee.
25 Your conduct imperilling police and other motorists by your driving on the occasions other than the collision is simply inexcusable. It is due to good fortune, and not any steps taken on your part to consider the safety of others, that Ms Ly and Mr Franklin were the only people injured by you during this period.
26 On each occasion of driving described, you drove with a flagrant disregard for the rights and safety of other road users. You engaged in highly dangerous driving repeatedly, and showed repeatedly that no matter what risk you posed to others, driving away to avoid apprehension outweighed all other considerations.
27 You have admitted to having been substantially impaired by illicit substances at the time of the collision. The evidence of your state at the time of your arrest reveals you were again substantially substance impaired when at the wheel of the car. Whether you were impaired by substances as well on the other occasions the subject of the driving charges is not known. Whether substance abuse can be blamed for the driving on these occasions as well is not to the point. It is no mitigator, and it is the circumstances of the driving and the pattern of selfish and dangerous disregard for the rights of others that the evidence reveals which determines the appropriate sentence.
28 It is clear that subject to considerations personal to you, denunciation, deterrence, both general and specific, just punishment and protection of the community must all weigh heavily in the sentencing process in respect of these driving and related matters.
29 Although the effect of the property offences cannot be equated with the harm or risk of harm to those you imperilled on the road, the sense of violation of people's homes, as well as their financial loss, is considerable. You trawled through their personal possessions, took items which were valuable, not just in money terms, but often items which had sentimental value to the true owners. Some items you stole were of no real value in terms of trading and converting to money for drugs, and your theft of credit cards and passports allowed you to use or allowed the potential for them to be used for further crimes, such as the obtaining by deception or identity fraud. You damaged property in some of the homes when breaking in and frightened the occupants who were at home when you broke in or tried to. You stole cars and abandoned them after a few days. When found, abandoned in some of those cars were some of the items you had stolen from homes you had burgled. All of the property owners were put to the inconvenience of making good the property losses, obtaining replacement passports, changing locks or repairing doors and windows, replacing cars and replacing those stolen items which could be replaced.
30 Over this period, you entered 31 private properties, and at eight of these properties, people were present. For those who were not home at the time of your offending, they were subjected to the sickening and sometimes frightening experience of coming home to discover their home had been broken into and their possessions stolen, and living with the sense of violation and insecurity that such an experience brings. You often stole their personal and sentimental possessions, some of which, as I have noted, would have had no value to you or utility in converting into drug money. Some items, not just those of little value except to the rightful owners, but also some of the saleable items such as jewellery and electronic items, were found in the various abandoned cars. I have already noted the theft of passports and other items capable of use in identity fraud. Again, some of those were found abandoned in the stolen cars, despite what appears to have been at times significant efforts to ransack the homes that you had broken into to locate the identity items. Stealing something, then abandoning it because it is no longer of use or interest to you, is just one means of demonstrating your total lack of regard for the rights and interests of your victims.
31 Again, it is clear that subject to considerations personal to you, denunciation, deterrence, both general and specific, just punishment and protection of the community must weigh heavily in the sentencing process for these offences.
32 You indicated at an early stage that you intended to plead guilty, and clearly that must be taken into account in your favour.
33 Do you need to sit and have a rest again before I continue?
34 PRISONER: No, that's fine.
35 HER HONOUR: The plea of guilty has utilitarian value, and indicates a preparedness to take responsibility for your conduct. Ms Broughton submitted that your guilty pleas were also indicative of remorse. She pointed in particular to a passage in the report of Ms Matthews where you said that you were angry with yourself and that you are "thinking all the time of what you have done, a pretty bad crash, a lady involved", as well as the extensive admissions you made to police. I am satisfied that you have provided information which otherwise may not have been able to tie you to particular burglaries or thefts. I am also satisfied that you acknowledge that the collision which injured Ms Ly and Mr Franklin was serious, and that you are regretful that one of the victims was a woman and a woman who was pregnant, but I am not satisfied that you are remorseful, in the sense in which that term is described by the Court of Appeal in Barbaro and Zirilli.[1] That in itself is not a matter that aggravates the seriousness of the offending, it is simply a matter that goes to the assessment of your prospects for rehabilitation.
[1]Barbaro; Zirilliv R [2012] VSCA 288.
36 At the age of 35, you have an extensive, relevant and troubling criminal record. Your first conviction was in 1998, when you were 18, for theft. Between that time, April 1998 and June 2012, you have amassed 19 separate court appearances, in this state and South Australia. You have been convicted of a wide variety of types of offending, including, amongst other things, theft, theft of motor vehicles, burglary, attempt to and actual obtaining of property and financial advantage by deception, driving offences, drug use and possession, criminal damage, resist police, dealing with property suspected to be proceeds of crime, aggravated burglary, and entering buildings with intent to steal. You have convictions for failing to answer bail and breach of bail. You have been sentenced to the full range of penalties: bonds, fines, community-based orders, suspended sentences, and sentences of imprisonment requiring immediate detention. You have breached most, if not all of the community-based orders and suspended sentences that were imposed upon you, and you have faced further court proceedings and often further sentences as a result. Your first period of imprisonment in July 2000 was for breach of a suspended sentence imposed only a month before. You have since served multiple periods in custody, including most recently for the sentence imposed in June 2012, to which I have previously referred.
37 You have led a life of significant deprivation and disadvantage, including at the hands of your family, and a life which has been marred, initially by their and later by your, substance abuse. You were sexually abused by your uncle over the period of a year when you were 10 years old. The only disclosure you have ever made about this was to your brother. You left school at the age of 12 after only completing half of year 7. In that same year, your parents separated, and you became homeless. The following year, when you were about 13, you began using cannabis. By the time you were 14, this had progressed to abuse of heroin and amphetamines as well, and it was in the first year of using these illicit substances that you had your first overdose.
38 Your first conviction was in 1998 and your first period of imprisonment was in 2000. When you were 21 you were admitted to Odyssey House and you remained there as an in and, later, outpatient for up to three years. Treatment there proved effective for a considerable time, and you were abstinent, it would appear, from illicit substances for six or seven years. During that time, you married, although that marriage has now come to an end. You completed a plastering apprenticeship and worked as a plasterer. You had the support of your father throughout those years as well. As Ms Matthews notes in her report of 9 December last year, your offending was significantly reduced during this time. In 2007 your marriage broke down and your father died, and you relapsed into drug abuse or, as Ms Matthews put it, you "relied on former methods of coping". Over the following five years, you had a series of other relationships, but all of them drug based. You stopped working, and your offending became more regular.
39 Your drug abuse is no mitigating factor and it does not excuse your behaviour. You and others must understand that a desire to get money for drugs is no excuse, and provides no justification for what you did or for the fear that you caused your victims.
40 However, as Ms Broughton rightly submitted on the plea, your background of deprivation and disadvantage impacts upon the assessment of your moral culpability and lessens the weight to be given to general deterrence and denunciation.[2]
[2]Bugymy v The Queen (013) 87 ALJR 1022.
41 Are you sure you are all right?
42 As the Court of Appeal said in the case of Marrah[3] at [44]:
[3]Marrah v R [2014] VSCA 119.
"Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour.
The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender."
43 Your substance abuse can be traced back to your background of instability and chronic disadvantage in childhood and to the effects of being exposed far too young to substances that were always going to be addictive and always going to make it difficult for somebody with your youth and disadvantage to be able to overcome. Your background of significant disadvantage and deprivation in my view means that the weight to be given to your moral culpability and to personal and general deterrence should be significantly moderated. I also consider increased weight should be given to the need to protect the community. I take those matters into account when determining the sentences.
44 Ms Matthews assesses your cognitive functioning as being in the low average to impaired range of functioning, suggestive of some low-level acquired brain injury but, she says, not at a level of dysfunction that would contribute to your offending. She diagnoses you with persistent depressive disorder and stimulant use disorder. These matters, coupled with your long history of substance abuse, brought about in part by your almost non-existent educational history and poor employment history, indicate she says why you were always going to be vulnerable to substance abuse and offending. As Ms Matthews said:
"It is likely that reactive mood disturbance of depressive form in response to acute psychosocial stress, triggers a downward spiral into substance use as a means of self-medication and coping for Mr Stewart, but then substance dependence becomes self‑perpetuating as addiction sets in, and in turn impacts upon mood and self-esteem."
45 I accept too that imprisonment will be more onerous for you, because of your lowered mood and your low cognitive functioning. I also accept that the fact that you have been placed in protective custody since remand and are likely to remain in protective custody, will mean that imprisonment is more burdensome for you than it would be if you were in mainstream custody. Since the first hearing of the plea, I have been advised that Corrections records reveal that you are placed in protection and have been for all of your sentences because you are perceived to be "at significant risk of threat from others".
46 Ms Matthews recommends that you receive counselling and treatment for your past childhood sexual abuse, for family/relationship breakdown and the loss of your father and counselling treatment for your depression. She considers inpatient admission for management of your substance abuse and dependence, and transition supports be provided in regard to housing and day‑to‑day coping upon your release. I accept these recommendations of Ms Matthews and endorse them and could not commend them in any greater force than these words can convey to Corrections and to the Adult Parole Board.
47 I accept that, based on the materials that I have identified and the other matters put before me on the plea, that it is correct, as Ms Broughton put it, to say that your prospects of rehabilitation ought not be dismissed entirely, despite the serious diverse and protracted nature of this offending and your extensive criminal history, much of it for like offending. You have shown in the past that you can for a time and with support stay drug free and out of trouble. However, your history since relapsing into drug use has been appalling. You were not able to capitalise on the potential to break the cycle of drugs and offending that your last term of imprisonment offered. You were released on parole, on conditions including residential conditions. I am told that you did not tell the parole board that the accommodation that you had intended to go to, which they had assessed and considered to be safe, had fallen through. You were released and immediately moved yourself into a circle of drug abusers and began abusing drugs and alcohol yourself.
48 Ms Broughton was understandably circumspect about what she said concerning your will to remain drug free. I was concerned during the plea hearing to see you, as you were seated in the dock, with your head frequently rolling back, as you fell asleep or passed out. This happened on so many occasions on the first day of the hearing that, despite a number of breaks, I eventually adjourned, as I was not satisfied that you were fit to proceed or capable of properly participating in the proceedings. You were no better on the second day, and again today, the day of sentence, you are in the same state. I have grave concerns that you may be affected by illicit drugs or a greater than therapeutic dose of drugs lawfully prescribed for you. I can make no affirmative finding adverse to you about that, but I consider those responsible for your custody and care should monitor you closely to ensure that you are not taking drugs that you should not and that you do not pose a risk to yourself or to others. My concern, for sentencing purposes, is that you do not seem to display at this stage any enthusiasm for addressing your drug and alcohol problems, and it is that, coupled with your history that leads me to accept Ms Broughton's submissions about taking a guarded view of your prospects for rehabilitation. The offending itself, and your history, lead me to the view that this sentence, whilst making proper allowance for your disadvantaged background, must reflect those guarded prospects for rehabilitation and also give weight to protection of the community.
49 You have pleaded guilty to 61 charges in total (53 on the Indictment and eight uplifted summary charges) committed over a one-month period. Many of the individual charges represent very serious examples of their type. The sheer number and widespread range of offences makes this, overall, extremely serious offending. As your counsel rightly conceded on the plea, it warrants a substantial term of immediate imprisonment. Her submissions were, rightly, directed to the complex nature of totality when dealing with serious wrongdoing of this range and volume, and the gap between the head sentence and the nonparole period,
50 In her thoughtful and helpful submissions, Ms Broughton referred me to the decision of the Court of Appeal in Azzopardi[4] and in particular to the passages set out at [57] to [69]. It is clear that the totality principle requires that a sentence for multiple offences is a just and appropriate measure of the total criminality involved, proportionate to the overall criminality of an offender's conduct over the whole period involved and I take that as my guiding framework.
[4]Azzopardi v R [2011] VSCA 372.
51 This is one of those cases where, in my view, if I followed what has been described as the preferable approach following the decisions of Mill[5] and Johnson,[6] that the individual sentences for each offence which would be appropriate, and the cumulation between sentences which might be appropriate if you were facing fewer charges, or a lesser range of types of offending, would result in a total effective sentence which would not be just and appropriate. In other words the total effective sentence, using that usual or preferable approach to totality, would result in a sentence which is too high, which is more than a just measure of your total criminality and which would be disproportionate.
[5]Mill v R (1988) 166 CLR 59.
[6]R v Holder and Johnston [1983] 13 A Crim R 375.
52 I consider I am bound to adjust the individual sentences and the cumulation between them to ensure that the final sentence is no more than is necessary to satisfy the various objectives of sentencing. As a result, I consider I am, particularly for the charges of negligently causing serious injury and the other serious driving offences, bound to impose artificially inadequate sentences. I consider too that I am, in respect of the driving charges other than the negligently causing serious injury and failing to render assistance charges, and on the burglary and associated offences, forced to make inadequate orders for cumulation.
53 Whilst I think I am bound to follow this approach in this case, I am only too aware that this solution creates a problem when the sentences for each individual offence are lifted, without explanation of these unusual circumstances, into the sentencing statistics which are relied upon to inform courts of sentencing range and current sentencing practices. Following this approach artificially lowers the sentencing statistics for the individual offences. This is a particularly acute problem when considering the offence of negligently causing serious injury because, as the analysis of the Court of Appeal in Miller[7] demonstrates, there are few such cases. There is a real risk, in my view, that the actual sentence imposed for those charges will send the wrong message, will send a message that driving whilst impaired by a mix of heroin, amphetamines and alcohol in a 60 kilometre per hour two‑lane suburban thoroughfare, at speeds of up to 200 kilometres per hour, at times on the wrong side of the road, driving over the crest of a hill and colliding with a car at a speed, two and a half seconds before impact, at 145 kilometres an hour and causing serious injury to two people is worthy only of the sentences that I have had to fix on here by applying that totality principle.
[7] Miller v R [2012] VSCA 265.
54 Nevertheless, whilst current sentencing practices as defined and applied may inappropriately constrain the imposition of a just sentence in another case, that concern cannot divert me from what I understand and accept must be the proper course here.
55 I accept Ms Broughton's submissions in relation to fixing a significant gap between the head sentence and the nonparole period. As your history generally has indicated and as the history of your last release on parole has indicated, your vulnerability to relapse into substance abuse or into greater substance abuse is much greater upon your release from imprisonment and your prospect of successful living in the community without abusing substances and committing offences is going to be greatly enhanced if you are able to be subjected to a strict and long‑term supervision regime on parole.
56 I am about to sentence you now, Mr Stewart. Again, do you need a break before I start that? He does?
57 MS BROUGHTON: No, he doesn't, Your Honour.
58 HER HONOUR: All right. I am going to give you the schedule. Please try not to read ahead but follow it as I go through.
59 David Stewart, on all charges to which you have pleaded guilty, you are convicted. On Charge 40, of negligently causing serious injury to Ms Ly, you are sentenced to a period of imprisonment of four years, and I make that the base sentence.
60 On Charge 41, of negligently causing serious injury to Mr Franklin, you are sentenced to a period of imprisonment of four years and I direct that 12 months of that be served cumulatively upon the base sentence and all other partial cumulation orders.
61 I am going to make a number of other partial cumulation orders and each of them will be directed to be served cumulatively upon the base sentence and the other partial cumulation orders but I will not say it specifically or individually for each of these successive sentences.
62 On Charge 42, a fail to render assistance, imprisoned for three years, and six months cumulation. All licences are cancelled and you are disqualified from driving for a period of four years.
63 On the uplifted summary offence 95, of failing to stop on request, to be imprisoned for two months.
64 On Charge 52, of reckless conduct endangering persons, to be imprisoned for two years, six months cumulative.
65 On Charges 20, 24, 35 and 51, the four charges of dangerous driving whilst police were in pursuit, you are sentenced to an aggregate sentence of one year and six months, six months cumulative.
66 On uplifted summary offences 70 and 94, the two charges of dangerous driving, you are sentenced to an aggregate term of imprisonment of one year, three months cumulative.
67 On uplifted summary offence 43, unlicensed driving, you are sentenced to be imprisoned for a period of three months, and uplifted summary offence 91, of use heroin, you are sentenced to be imprisoned for a period of one month.
68 Dealing then with the dishonesty offences, on the burglary charges, that is, Charges 1, 4, 5, 7, 8, 11, 12, 16, 17, 18, 21, 25, 26, 27, 29, 31, 33, 36, 43, 45, 47 and 50, you are sentenced to an aggregate sentence of 12 months, the whole of that to be served cumulatively.
69 On the car theft charges, Charges 3, 6, 9, 19, 28, 44 and 46, you are sentenced to an aggregate sentence of 12 months, three months cumulative.
70 On the charges of petrol theft, 13, 23, 30, 32 and 38, you are sentenced to an aggregate sentence of six months.
71 On the charges of obtaining by deception, 22, 37 and 49, you are sentenced to an aggregate sentence of six months.
72 On Charge 53, the rolled-up charge of theft, you are sentenced to be imprisoned for a period of 12 months and three months of that to be served cumulatively.
73 On Charge 48, the charge of theft from a car, sentenced to be imprisoned for six months. On the two charges of aggravated burglary, Charges 2 and 15, you are sentenced to an aggregate sentence of 15 months imprisonment, three months cumulative.
74 On Charges 10, 14, 34 and 39, the attempted burglaries, you are sentenced to an aggregate sentence of 12 months.
75 On the uplifted summary offences 58, 64 and 86 of unlawfully on the premises, you are sentenced to be imprisoned for a period of one month on each of those charges. Those charges are cumulative upon each other, so it is three separate one-month periods of imprisonment, but there is no cumulation order in respect of them on the other cumulation orders I have made, just one month, one month, one month.
76 That makes a total effective sentence of eight years and six months and I fix a nonparole period of five years as the time you must serve before being eligible for parole.
77 I declare pursuant to s.6AAA that but for your pleas of guilty, I would have sentenced you to a period of imprisonment of 11 years and I would have fixed a nonparole period of eight years. I declare that you have spent 182 days in pre‑sentence detention and direct that that be counted and reckoned as part of the sentence already served.
78 In respect of the licence disqualification on Charge 42, I must declare a commencement date and that is today, but it is to take effect from the first date of release, so that means four years disqualification, the time will actually start to run from the date of release.
79 You can take a seat if you want to, Mr Stewart, whilst counsel just check the arithmetic and make sure there aren't any further orders that are required to be made and make sure that I have covered every charge on the Indictment and every one of the uplifted summary offences.
80 PRISONER: Excuse me, miss?
81 HER HONOUR: Yes.
82 PRISONER: Can I claim my clothes and shoes back? They've said that I don't wish to claim them but that is wrong, I want to claim them.
83 HER HONOUR: Yes. I will ask Ms Broughton to come down and speak to you about that in a minute. Is there a forfeiture or disposal order that that relates to?
84 MS BROUGHTON: No. There's no ‑ ‑ ‑
85 PRISONER: I've seen paperwork saying I don't wish to claim for some reason.
86 MS BROUGHTON: Okay. If I may very briefly ‑ ‑ ‑
87 HER HONOUR: Yes. If there's something that needs to be sorted out and I can do it, I'll do it.
88 MS BROUGHTON: As Your Honour pleases. Thank you.
89 HER HONOUR: Ms Harris, can the informant be of any assistance about that?
90 MS HARRIS: Yes, Your Honour. We're more than happy to return his clothes.
91 HER HONOUR: Mr Stewart, the prosecutor has just spoken to the informant and she has advised that they are more than happy to return your clothing to you.
92 PRISONER: Yeah, it's mainly me shoes. I'm not too worried about the clothes.
93 HER HONOUR: Okay. Just to set his mind at rest, are you able to explain to me what process that will be to get his clothes or his shoes back to him?
94 MS HARRIS: Your Honour, it will be bagged up and dropped off at the prison.
95 HER HONOUR: All right, thank you. If you wouldn't mind perhaps making sure Ms Broughton knows about that, so that if they don't find their way easily through the system to Mr Stewart, she at least knows what the informant has done so it can be followed up from Mr Stewart's lawyer's end if he can't trace it.
96 MS HARRIS: Yes, Your Honour.
97 HER HONOUR: Thank you. So that will happen; the informant will bag them and take them to the prison and he will let Ms Broughton know about that, so that if they don't find their way through to you, there will be a means of following that through.
98 PRISONER: Thank you.
99 HER HONOUR: All right. Take a seat again just while we're checking the form of the orders.
100 MS BROUGHTON: I'm content, Your Honour. There is nothing that seems to be missed at all.
101 MS HARRIS: Yes, Your Honour, I concur.
102 HER HONOUR: No further orders, Ms Harris?
103 MS HARRIS: No, Your Honour.
104 HER HONOUR: All right. I thank you for your assistance. Can you remove Mr Stewart, please.
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