Director of Public Prosecutions v Tate

[2017] VCC 415

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00626

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAYAL TATE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2017
DATE OF SENTENCE:	7 April 2017
CASE MAY BE CITED AS:	DPP v Tate
MEDIUM NEUTRAL CITATION:	[2017] VCC 415

REASONS FOR SENTENCE
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Subject: Pleaded guilty in front of jury to  reckless conduct endangering serious injury; directed acquittal on other charges; pleaded guilty to summary charges of  driving unregistered vehicle, driving vehicle with number plate not registered to vehicle, driving an unroadworthy vehicle.
Catchwords: offence committed at “skid meeting”; 18 years at time of offence now 20 years old; early plea of guilty; general and personal deterrence important; low self-esteem, mild chronic depressive symptoms.

Sentence: 3 year CCO with drug, mental health, programs to assist non-reoffending, 60 hours unpaid work, judicial monitoring;  $1500 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	OPP
For the Accused	Mr J. Kantor	Paul Maginn

HER HONOUR:

1Dayal Tate, you have pleaded guilty to one charge of reckless conduct endangering serious injury, and three summary charges:  driving an unregistered vehicle, driving with a numberplate that was not registered to the vehicle, and driving an unroadworthy vehicle.

2You pleaded guilty to the indictable charge at the commencement of the recent trial, where the indictment included a number of other charges arising from an incident on 13 May 2014 in Campellfield.  During the trial it was declared on behalf of the prosecution that no further evidence would be led and that an acquittal should be directed in relation to the other charges on the indictment, and that is what occurred.

3In fact you had made an offer to plead guilty from very early on, following the admissions you made when interviewed by the police after your arrest.  That plea means you are entitled to a discount on your sentence because of its assistance to the procedures of the criminal justice system, and because it is an indication of remorse.

4It seems that being charged and having to undergo all the obligations imposed by the process has had a salutary effect upon you, and I shall return to that later.

5The background to your being charged is that on 13 May 2014, almost three years ago, you went to what is called a "skid meeting" at an intersection in Campellfield.  There were a large number of cars there, and many people observing.  You entered the intersection in your car, revved the engine, and performed a burnout by way of the rear tyres of the car losing traction on the road surface.  It resulted in a loud noise and smoke emanating from the rear tyres.  The car circled in an anticlockwise direction.  You then performed a second burnout in the same way.

6The smoke produced by these burnouts meant visibility in the area was very poor, affecting the safety of people present as cars were driving away when the police arrived.

7A bystander, Ryan Middlebrook, was injured that night when struck by a departing car which was alleged to have been yours, but that charge was one that resulted in an acquittal at the trial.

8These circumstances clearly demonstrate the extreme danger inherent in this sort of driving activity.  It is highly irresponsible behaviour and must be condemned in the strongest terms.  It is very fortunate that no one was seriously injured that night.

9At the trial a number of young witnesses who had been present at the scene gave evidence and had seemed to be oblivious to the danger that they had placed themselves in by attending.  Those who take cars to such events and drive in the manner that you did should understand the role that they play in exposing people to such risks and should be deterred from participating.

10You were aged 18 at the time, and you are now 20, still a young man, so your chances for rehabilitation are very important.  That factor must be balanced against the need for deterrence, both in general and for you in particular. 

11Having said that, once appropriate punishment is imposed, the best way to protect the public from any further offending by you is to provide opportunities for your rehabilitation.  I have heard this morning that you have been in trouble in the past for driving offences, but you have no previous convictions or appearances for other sorts of crime.

12A few months before this incident, you were dealt with in the Magistrates' Court for doing a burnout, and you were fined without conviction.  The magistrate ordered you to take part in a safe driving program, but you did not do that until last August.

13When you were charged with the present offence, your car was impounded and destroyed, and you did not drive again until you had completed the safe driving program. 

14The details of your background bear some relevance as to why as a teenager you began to offend on the roads, and indeed why you were guilty of some antisocial behaviour which brought you before the court in 2015, resulting in a Community Correction Order.  That of course is not a prior conviction, but it is an indication of an attitude which needs addressing.

15You are one of five children in your family, brought up by both your parents, and you continue to have their support.  Your father attended the trial every day, and your parents have been struggling with the ramifications of your situation for the last three years or so.  That includes your use of illicit drugs in a recreational sense, and the behaviour and criminal involvement I have described.  All this has been a great worry for them, exacerbated by the publicity given to your case.

16In 2015, you were assessed by a psychologist, Dr Dan Riddle, who noted that you are of superior intelligence, but you have had behaviour problems at secondary school, and you left after Year 10.  You then did a pre-apprenticeship course, and it is your ambition to obtain an apprenticeship as a mechanic.  In the meantime, you are working full-time, six days a week as a tyre-fitter, and your employer has confirmed that.

17Dr Riddle identified low self-esteem and mild chronic depressive symptoms, which he considered stemmed from unaddressed early childhood problems, including oppositional defiance problems, and possibly attention deficit problems.  Testing for that was inconclusive, but nonetheless Dr Riddle considers that psychological treatment would be a great help to you in overcoming barriers to better behaviour.

18As I said earlier, you were placed on a Community Correction Order in 2015, and that would expire next month.  You had some difficulty in attending all appointments because of your work commitments, but it seems you are on track to complete that order satisfactorily. 

19Your good prospects for rehabilitation, including the steps that you have already taken, is a strong mitigating factor.  Added to that is the long delay between being charged and the trial, which was not due to any fault of yours, but it has provided uncertainty and stress over a long period.

20You have been assessed as suitable for a further Community Correction Order, and the prosecution position is that this is within range as a suitable disposition.  Its duration and conditions will impose an appropriate punishment upon you, although this will be combined with an order suspending your driving licence for a period.  That is necessary, not only as a punishment, but as a message of deterrence to other young people who might be tempted to drive their cars in this manner, and to be part of what seems to be a popular subculture.  The privilege of driving on the roads is abused by these drivers, and it must be understood that the courts will impose consequences.  Could you stand now please, Mr Tate?

21The Community Correction Order with conviction will begin today, and it will last for three years.  You will be under supervision, and you will be required to perform 60 hours of unpaid community work.  That is a modest amount, and it is included as part of your punishment. 

22You must also submit for drug assessment and treatment to make sure that your abstinence from the use of methamphetamines is sustained.  You must also be assessed, if necessary, for mental health treatment, because of the opinion provided by Dr Riddle.  If a mental health plan is put in place, that will be monitored by Corrections.

23You should also be assessed to see whether any further programs should be put in place to address your awareness and understanding of the risks inherent in poor driving.  I note that you have completed a course, and no doubt that will be considered by Corrections.

24I will require you to attend court from time to time as part of judicial monitoring, but if you make good progress, that will not continue to be necessary.  You must attend the Broadmeadows Corrections officer at 24-27 Dimboola Road before 4 o'clock on 11 April, which is next Tuesday.

25The prosecution has applied for an order for a forensic sample to be obtained under s.464ZF of the Crimes Act, and that is opposed by you through your counsel.  I take the view that your offending is serious, and that, although you have good prospects for rehabilitation, your history lends support for the making of the order.  I am satisfied that it is justified in all the circumstances, and I make the order.

26I must advise you, the police have the power to use reasonable force to obtain the sample of saliva, but I trust that will not be necessary.

27I order that your driving licence be suspended for six months from today.  That is a short period, taking into account that you did not drive after the incident for more than two years.  The other mitigating factors also apply in regard to this matter.

28Because your voluntary time off the road was not the result of an order by the court, it should be reinforced by an order of short duration, not only for punishment, but also for the important deterrent reasons I have already mentioned.

29Turning to the summary offences, you are convicted and fined $700 for Charge 13, $500 for Charge 15, and $300 for Charge 16.  That is a total of $1,500.  But I will talk to Mr Kantor about a stay for the payment of that fine.  Just take a seat for the moment please.

30MR HANNAN: Can I hand up triplicate forms of the s.464ZF order please, Your Honour?

31HER HONOUR:  We have them, yes.  They are already done.

32Mr Tate, that I have determined that judicial monitoring is appropriate. An appointment has been made on 22 June at 9.30 for you to speak to me in court.  You do not need anyone else here.  The prosecutor will not be here, you do not need your counsel with you.  You can bring anyone in your family if you wish to, but it is really a matter of a conversation.  There will be a Corrections officer, who will provide a report and will appear via the video link to tell me how you are getting on, all right?

33MR HANNAN:  Your Honour, I did not notice Your Honour giving a s.6AAA.  Of course, it is not mandatory, but it is common ‑ ‑ ‑

34HER HONOUR:  No, I considered that, but because it is not mandatory, I will not be doing it in this case.

35MR HANNAN:  Yes Your Honour.

36MR KANTOR:  Your Honour, in relation to - well, can I approach Mr Tate?

37HER HONOUR:  Yes, certainly.  My associate has the CCO form with her.  Anything further Mr Hannan?

38MR HANNAN:  No, not from me Your Honour.

39HER HONOUR:  Mr Kantor?

40MR KANTOR:  Yes, I would just be seeking a stay.

41HER HONOUR:  Yes.

42MR KANTOR:  A stay as long as possible, Your Honour.  I would be seeking six months, and the reason for that is given that his licence has now been suspended, there might be some issues in relation to his employment.

43HER HONOUR:  I understand that.  I will allow a six-month stay.

44MR KANTOR:  As Your Honour pleases.

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