Director of Public Prosecutions v Stewart, Shannon
[2013] VCC 16
•23 January 2013
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01865
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON STEWART |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 January 2013 | |
CASE MAY BE CITED AS: | DPP v Stewart, Shannon | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 16 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O'Halloran | |
| For the Accused | Mr S. Tovey |
HER HONOUR:
1 Shannon Stewart, you have pleaded guilty before me to one charge of attempting to pervert the course of justice and one charge of conduct endangering persons. You have also, pursuant to Section 145 of the Criminal Procedure Act, consented to my hearing a number of summary charges, they being a charge of evading police, a charge of driving an unregistered vehicle, a charge of driving an un-roadworthy vehicle and a charge of driving whilst authorisation is suspended.
2 The facts underlying your offending were outlined in detail in the prosecution opening which is annexed to my sentencing remarks. However, in short compass the fact scenario was one where on 16 June 2011 you were driving an unregistered vehicle which you had purchased and apparently, your counsel informed me, a vehicle that you were in the process of renovating. You decided to take it for a drive with some friends to work out how it was running and in the process took that car (although it was driven at one stage by another passenger) to McDonalds in Roxburgh Park Shopping Centre at which time you came to the notice of police because there were no number plates on your vehicle. You saw police and then drove away at what was described as a fast rate of speed through the Roxburgh Park Shopping Centre.
3 You were then pursued over a distance of about 900 metres during which time you increased your speed which peaked at an estimate of something over 100 kilometres per hour. The actions by you in driving away from police underlie Charge 8 of the summary charges, evade police.
4 During the driving one of your passengers asked you to pull over because he thought you were driving too fast and were going to crash. You kept driving on in a fairly reckless fashion and eventually lost control of your car and collided with a letterbox situated at 1 Dozey Court as well as the fence of the adjoining property at 3 Dozey Crescent before then driving away. Your actions impacting the car in that fashion and driving away underlie the summary charge of failing to stop after an accident.
5 Eventually you parked the car at the end of the crescent and ran off. Police located the abandoned vehicle and saw that the tyres were not in a roadworthy condition and this underlies the summary charge of using a vehicle which was neither safe nor roadworthy.
6 One of your passengers approached police and stated that a person called Jarrod White, who had run off, was the driver. Following this, you and another passenger, Patelli, approached police also stating that Jarrod White was the driver and the three of you were all photographed at the scene. Then on 17 June 2011 you swore a statement to police identifying Jarrod as the driver, as did Mr Patelli. Then on 19 July 2011 you attended the Craigieburn police station after being asked to do so and conducted a record of interview where primarily you answered "no comment' to questions put to you but did agree that the vehicle that was driven on that night, a Commodore, was yours, was unregistered, that your license was suspended and that the signature to the false statement you had made about Jarrod White being the driver was yours but otherwise were not particularly helpful to the police.
7 Your actions in making the false police statement underlie the charge of attempting to pervert the course of justice in that you sought to deflect blame from yourself. The driving that you undertook during the police chase underlie Charge 2 on the indictment, that is, the charge of conduct endangering persons, that is, the passengers in your vehicle. The car of course was not registered and at the time of this driving your license had been suspended for a period of six months.
8 At the time of this offending you were 20 years of age. You are one of twin brothers born to your parents. You are the eldest by some 20 minutes and you have a younger brother aged 17 and an 8 year old sister. Your parents have had a long term but disrupted relationship. They are not married and their relationship has been marked by periods of residence together and then periods of separation. Whilst your parents are separated I note that they both appeared in court with you.
9 You and your brother were diagnosed as suffering from Attention Deficit Hyperactivity Disorder when you were very young. There have been, in line with the instability in your parents' relationship, financial problems and housing problems along the way and in that context your maternal grandfather has been important in that he and your grandmother have been the port of call for your mother and the four children, although ultimately it appears that your mother, who has always been the primary caregiver, has obtained stable accommodation.
10 You received a brief amount of medication in relation to your ADHD condition as did your brother, although your mother decided not to continue with it. It would appear, according to psychologist Pamela Matthews, whose report was tendered on the plea, that you are not strong academically and in terms of academic ability, fall very much into the lower category. Obviously this is a scenario that is added to by your ADHD condition which the court is well aware comprises of difficulty with staying still and with focusing.
11 Nevertheless, ultimately you completed VCAL at Year 11 level and then immediately began work as a spray painter which work you undertook for about 12 months. However, in 2011 you became involved in some offending which is the only prior matter that has been presented to me which was the situation where you went with a friend to buy a car who, against your advice, purchased the vehicle although it had no numberplates or registration, and on the way home the car was driven. Your friend stole numberplates whilst you stopped the car to put on his car and you were pulled over by police. You were dealt with on that occasion with fines without conviction. As a result, however, of this conviction you then became unemployed which I am satisfied was a major factor in the offending which has brought you here before this court. I was informed by your counsel that you are obsessed with cars. You particularly began an interest in that with an uncle in your early teens who repaired cars and motorbikes for a living and you became involved in that on a voluntary basis; that really cars are your passion and when you became unemployed as a result of that previous offending were at a loose end, continued to work on cars but led directly to your offending in that you purchased the vehicle which you were driving on this particular night and had, as I have said earlier, if I can put it in parlance, taking it out for a spin because you had been working on it earlier that day.
12 I accept that the way in which you reacted to police detecting you, and really you might as well have had a neon light on your car saying "I haven't got a license and this car is unregistered", was a panic reaction, an extremely stupid reaction and that really everything snowballed from there. Part of the prosecution summary was that you said to one of the passengers once you had got to the point where the car had crashed and you were leaving, say "A bloke called Jarrod White", or words to that effect, was driving, and "I can't afford to get in trouble with police."
13 Indeed, for a young man like you, whose passion is cars, you could not afford to get into trouble with police because all the trouble you have ever been in relates to the very passion that you have. I have no doubt that once you settle down and carve your way out in an occupation that so interests you, you will have a very prosperous career. But the problem with being interested in cars is that what comes with that is a whole host of very strict laws conducting how you go about driving them and using them and that is where you have run into trouble.
14 Fortunately for you, you were then able to pick up on a voluntary basis work at a local mechanic who was so impressed with your efforts that he recommended you to your current employer and in August 2011 you commenced a motor mechanics apprenticeship, which employment you still hold and I received an extremely positive reference from your employer as to the way in which you conduct yourself.
15 Very much not to your credit is the fact that on two subsequent occasions you engaged in illegal driving behaviour which brought you before the notice of the courts. One was committed in June 2011 and involved some speeding, another one was simply driving when you should not have been in July of 2012 and you were essentially dealt with by way of fines. I have already spoken to you, Mr Stewart, about the fact that if you continue to disobey the road laws you are going to end up in gaol, so you need to be extremely careful.
16 However, the situation is that you are now gainfully employed. You have not re-offended for some time. It is very much the situation that you are a young offender, you have got a future and that your rehabilitation is not just in your best interests but in the community's best interests. It was proposed by your counsel that the best way I could deal with you was by way of a Community Corrections Order. This was not a course which was disagreed to by the prosecution and in all the circumstances it is my view that this is the best way to deal with you. You have been assessed as suitable for placement on a Community Corrections Order and I propose to deal with you in that way.
17 I explained to you before you went off to be assessed, and I have already mentioned this in my sentencing remarks, that even though it might be seen to you that you have had, if I can say it, a win in court because you have ended on a Community Corrections Order, you are very much on a knife's edge over the next period of time that that order runs for. As I have said to you, if you offend in the 15 months which is the length I propose to attach to the order, you will be brought back before me on breach of Community Corrections Order which is an offence in itself and which is an offence which can also comprise you not sticking to the conditions of the order. If I see you again in front of me for breaching the order after I have given you this opportunity and I am asked to reconsider and re-sentence you on these charges all over again because you have taken advantage of this opportunity, you need to be aware that I will be considering gaol. Is that clear?
18 PRISONER: Yes.
19 HER HONOUR: Very well. Before I can place you on a Community Corrections Order I need to explain to you what the core conditions of that order are. They are that you must report to your local Community Corrections Office within two working days of receiving this order, that is, by Friday. Whilst the order is in place you must obey all the lawful directions of the Community Corrections Office. Further, whilst the order is in place you must not commit any offence punishable by imprisonment either inside or outside Victoria. You may not leave Victoria without permission of the Community Corrections Office. You must notify the Community Corrections Office of any change of address or employment within 48 hours of that change of address or employment. You must report to and receive visits from the Community Corrections Office.
20 In addition, I am going to order that you undertake 140 hours of unpaid community work which you will probably have to do on the weekends. I am going to order that there be supervision. I am going to order that I receive a report about your progress every three months, so I will be keeping an eye on you, Mr Stewart. I will be getting a report from the Community Corrections Office every three months as to how you are progressing. I am also going to order that you receive assessment and treatment for mental health issues not because I think there is anything particularly wrong with you but it is quite clear along the way that you have encountered a number of difficulties. You have had a number of deaths in your family. You have got this difficulty with the ADHD condition, even though it tends to subside as a person gets older and I would like you I think to attend for some sort of assessment and treatment just so you can understand how to deal with the sort of impulsive reaction that accompanied your decision making on that night. Do you understand why I am doing that?
21 PRISONER: Yes.
22 HER HONOUR: You are a young man so you are not going to enjoy it very much. I have never known a young bloke to go along to a psychologist and go "This is a chance for me to talk." Nevertheless, I am going to insist that you do it. You need to have a little bit of insight about how your head works, Mr Stewart, so that we can make sure that it does not happen again. In fact, it is a form of punishment in itself, really, is it not, making you go to a psychologist and say "Hi I'm Shannon and I'm now going to talk all about my family and my feelings."
23 I think that is all. Are you prepared to enter the order?
24 PRISONER: Yes.
25 HIS HONOUR: Yes, very well. So in relation to Charge 1 you are placed on a Community Corrections Order for 15 months and under the terms I have indicated.
26 In relation to Charge 2 you are placed on a Community Corrections Order in the same terms as that which I have indicated to you. They will run concurrently, that is, at the same time.
27 In relation to your other offences, that is the summary offences, I propose to sentence you $100 on each of those charges which will give you a total fine of $400 and I know you have given an indication that you would like that transformed to community hours. That is a matter for you to arrange. One way I which you can deal with fines, and it is a good way, is if you pay them off on a regular basis. So what I am going to do is I am going to put a stay of six months on those fines. So that means that really if you put $20 a week aside to pay those fines they will be paid off in the six months.
28 The Community Corrections Order will be a conviction. Pursuant to Section 6AAA I declare that had you not pleaded to these charges I would have placed you on a suspended sentence for a period of 18 months with a suspended period of three years.
29 This better be your last outing, Mr Stewart, in court. Do you understand clearly?
30 PRISONER: Yes.
31 HER HONOUR: You are running into trouble. Any more offending with a car and the courts are going to say "bad luck" and put you in. Your trouble is you have come into the big league now. This is not a Magistrates Court appearance, this is a County Court appearance. Quite apart from what I might do to you if you offend again whilst you are on the Community Corrections Order, next time you appear in front of a court on anything else they are going to look at your priors and priors are really important.
32 So the next time if you ever come before a court again they are going to see, number one, the prior you have got for 2011, number two, the prior you have got for June 2011, number three, the prior you have got for July 2012 and number four, the prior you have got for this offending which is serious offending and attempt to pervert the course of justice which is what brought you before this court and conduct endangering persons. They will know that you have offended so seriously that you have been brought before the County Court and they will know that you have been given an opportunity. Every time you appear before a court the reason that a judge or magistrate looks at prior convictions is to see if this person someone who is going to obey the law? The more priors you have got the less likely a judge or magistrate is going to think yes, they will obey the law and the more likely they are to think we are not going to waste time rehabilitating this person; we have got the community to think of, that person is a danger, he or she can go away to gaol for a while and give the community a bit of peace. So you have pretty much reached the end of the road. You are in danger of a gaol sentence from now on. Is that very, very clear?
33 PRISONER: Yes.
34 HER HONOUR: Good, very well. But if you keep you nose clean, Mr Stewart, I think you are going to do very well. You are very lucky you are working in an area that you are passionate in and not many people get to do that.
35 Yes, I know I have got all these millions of orders, I am aware of that, Mr Prosecutor, is that you were rising to your feet about?
36 I order that you pay compensation to Ja Fen Ling of 1 Dozey Court, Roxburgh in the sum of $965.80 and I am going to give you 12 months to pay that off.
37 You are not going to have a lot of money to take your girlfriend out I do not think for the next 12 months.
38 I also order that you pay compensation in the sum of $636.35 to Paul Carbas of 3 Dozey Court, Roxburgh and again, 12 months in relation to that as well.
39 There were no other orders sought, were there?
40 MR O'HALLORAN: Your Honour, just in terms of Your Honour's minded in terms of license disqualification? It is just that it may be - - -
41 HER HONOUR: Yes - I know it's mandatory in relation to - - -
42 MR O'HALLORAN: The subsequent offence for evade police. He's got a charge before you of evade police and he has a prior for each.
43 HER HONOUR: I have not looked at your very helpful summary. What is the minimum - - - ?
44 MR O'HALLORAN: Mandated for 12 months. If you look at 29(c), 132 - - -
45 HER HONOUR: Yes, very well. In relation to the charge of evading police any licenses you have are cancelled and you are disqualified from obtaining a further license for 12 months. I wish I did not have to do that because I would rather you had your license because a lot of this trouble would end. But I have got no discretion. People think judges are a lot more powerful than they really are, actually. I have to do what the legislation says and the law says that if you are found guilty of evading police, as you did on that occasion, that is, driving away, I must, I have got no choice, make you lose your license for six months. you should be very familiar with this because it has already happened to you once, the first time you do it and 12 months the second time you do it.
46 So I am afraid you cannot apply for another license until January next year. Can you live with that?
47 PRISONER: Yes.
48 HER HONOUR: You are going to have to. So I certainly hope you can. So do not put a toenail inside a car to drive it, all right? I think that is everything.
49 I will get you to sign the Community Corrections form, thank you. We will get a copy of that and give that to you, Mr Tovey. Thank you very much to counsel for their assistance and we will now adjourn.
50 COUNSEL: As Your Honour pleases.
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