Director of Public Prosecutions v Taylor
[2021] VCC 287
•24 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01482
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARLEY TAYLOR |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2021 (Plea hearing) | |
DATE OF SENTENCE: | 24 March 2021 | |
CASE MAY BE CITED AS: | DPP v TAYLOR | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 287 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty – Koori Court Jurisdiction – one charge theft – one charge attempt theft - one charge dangerous driving while pursued by police – two charges engage in conduct endangering persons – one charge conduct endangering life – one charge aggravated offence of recklessly exposing an emergency worker to risk by driving – childhood of deprivation – remorse – admissions - circumstances of COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 27 DPP v Roberts [2020] VCC 1195 ; Honeysett v The Queen VSCA 214
Sentence: Total effective sentence of 44 months (or 3 years and 8 months) imprisonment with a non-parole period of 2 years ad 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. O’Toole | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1 Marley Taylor you have entered a plea of guilty to the charge of theft of a motor vehicle, an offence which carries a maximum term of imprisonment of 10 years, to dangerous driving whilst pursued by police an offence which carries a maximum term of imprisonment of three years. You have also pleaded guilty to attempted theft (of petrol), an offence which carries a maximum term of five years imprisonment, and to two charges of reckless conduct endangering serious injury, an offence which carries a maximum term of imprisonment of five years.
2 You have also pleaded guilty to the charge of reckless conduct endangering life, an offence with a maximum penalty of 10 years imprisonment, and to an aggravated offence of recklessly exposing an emergency worker to risk by driving, which carries a maximum penalty of 10 years imprisonment.
3 You have also pleaded guilty to three related summary charges: driving in a dangerous manner, which carries a term of two years imprisonment or 240 penalty units; to a charge of unlicensed driving, which has a maximum penalty of six months imprisonment or 60 penalty units; and to a charge of driving under the influence of a drug, which has a maximum of 18 months imprisonment or 180 penalty units.
Circumstances of the offending
4 The circumstances of your offending are set out in the Prosecution Opening for Plea, dated 12 February 2021. That document became Exhibit A on the Plea and is attached to and forms part of these reasons. I will not repeat it here but refer to some parts of it in summary.
Charge 1: Theft of a motor vehicle
5 On 16 September 2019 at approximately 5.30 am you were driving on the Western Freeway and in the car with you were Ashley Carter and Frances Brennan, a former partner. You pulled into a 7-Eleven Service Station off the Freeway at Rockbank after blowing a tyre.
6 At the service station you abandoned your car and got into the driver’s seat of a white Nissan ute that was parked at the bowser. Ms Carter and Ms Brennan got in too. This car belonged to Beau Godden, he was inside paying for petrol. You then drove the ute out of the Service Station, and this gives rise to Charge 1: theft of a motor vehicle.
7 Mr Godden reported the theft and began pursuing you with a colleague.
8 At about 6.08 am the Police Airwing found you driving the ute on Coburns Road, Brookfield. The cameras attached to the Airwing filmed you driving the ute for approximately one hour and twenty minutes before you were intercepted and arrested by Police.
Summary Charge 20: drive in a manner dangerous
9 While driving the stolen ute south on Coburns Road you overtook a vehicle on the right-hand side, as a truck was approaching from the other direction.
10 You then overtook ten vehicles while driving in the bike lane on their left, and then mounted the nature strip to finish overtaking the stationary vehicles in front of you. You then used the right-hand turning lane to overtake a further four vehicles on their right.
11 You then performed an unsafe U-turn, in the path of two oncoming vehicles before turning left onto the Western Freeway, travelling at speeds of approximately 125 kilometres per hour.
12 Your driving continued in this fashion for the next 1 ¼ hours. You were filmed the whole time. Some of your other driving included:
· overtaking a truck and another car, using the left hand emergency lane;
· overtaking three cars over double solid white lines;
· overtaking at 120 kilometres per hour, forcing oncoming vehicles to take evasive action to avoid a collision with you;
· travelling at speeds between 130 kilometres per hour and 150 kilometres per hour while overtaking on roads with wet surfaces;
· driving at 120 kilometres per hour and 90 kilometres per hour in a roadworks zone where the speed limit was 60 kilometres per hour; and
· driving your car close to a steep drop-off on the side of the road.
The full content of this summary charge, of driving in a manner dangerous, is set out in paragraphs [10] - [23] of the Prosecution Opening.
Charge 2: Dangerous driving whilst pursued by police
13 At around this point the police had put down ‘stop sticks’ in an effort to arrest you. You avoided them by overtaking a car and narrowly missing an oncoming one.
14 I note that this charge, Charge 2, is cast to encompass all of your driving (except some discrete conduct identified separately)[1] from the time you avoided the ‘stop sticks’ at 6:49 am. It is particularised on the Indictment, under Charge 2 sub-sections (a) to (h).
[1] See Prosecution submissions at [6].
Charge 3: attempted theft (fuel)
15 You then drove into a service station, where one of your associates got out of the car and attempted to put fuel into the car that you were driving. This effort was abandoned when police cars entered the service station. You drove away. This conduct gives rise to Charge 3: attempted theft.
Charge 4: reckless conduct endangering serious injury
16 As you left the service station you crossed onto the wrong side of the road, into the path of an oncoming car, causing it to take evasive action by swerving onto the footpath. You then nearly collided with a second oncoming vehicle, which also steered away from you; you passed it on the right-hand side of the road. This conduct gives rise to Charge 4: reckless conduct endangering serious injury.
(Dangerous driving while being pursued by police continued)
17 This is now the continuation of the conduct of dangerous driving while being pursued by police.
18 The conduct captured by the dangerous driving while being pursued by police now continues. In summary the charge encompasses further, and again refer to matters (a) to (h) on the indictment:
1. driving under the influence of drugs;
2. driving on the wrong side of the road;
3. colliding with a number of vehicles;
4. disobeying, or ignoring traffic signs and signals;
5. overtaking numerous vehicles, which were forced to stop, slow or take other action to avoid a head-on collision with you;
6. driving towards oncoming traffic on the wrong side of the freeway;
7. driving at a dangerous speed including driving at 135 kilometres per hour in an area where the designated speed limit was 100 kilometres per hour and driving at 106 kilometres per hour where the designated speed limit was 80 kilometres per hour; and
8. continuing to drive at speeds up to 100 kilometres per hour with pepper spray in your eyes.
19 Again, I refer to the Prosecution summary for the detail of these events. The totality of your driving as it relates to this charge occurs over approximately 26 minutes from the time that you avoided the ‘stop sticks’ put out by Victoria Police.[2]
[2] Prosecution sentencing submissions at [8].
Charge 5: reckless conduct endangering life
20 Charge 5: reckless conduct endangering life encompasses the three ‘near misses’ of three passing cars, as you are travelling on the wrong side of the freeway, at approximately 100 kilometres per hour. This is perhaps the most frightening episode to watch. After approximately one hour and ten minutes when, travelling north past two ‘do not enter’ signs onto a freeway, you then drove on the wrong side of the freeway, against the traffic. You then travelled at speeds of about 100 kilometres per hour in the emergency lane and passed into the lanes of oncoming cars, who were also travelling at approximately 100 kilometres per hour. Charge 5 is a rolled up charge, taking into account the three near misses set out in the Prosecution Opening at paragraphs [30] to [32].
21 During this terrible episode your driving caused another car to take evasive action and veer towards the middle of the lane, to avoid a head-on collision with you. Again and again your driving caused other cars to have to swerve, to avoid colliding with you or with other cars. You drove on the wrong side of the freeway for approximately six minutes before you did a U-turn across three lanes of the road, causing oncoming vehicles to slow and stop.
Charge 6 : aggravated offence of recklessly exposing an emergency worker to risk by driving
22 At one stage, you and your passengers got out of the car you were driving and ran towards another car. Constable Alex Flight approached the front open passenger door of the car you had been driving and asked you to get out. You then put the car into reverse, Constable Flight was standing inside the open passenger door; helpfully he was able to move out of the way without injury. You were sprayed with capsicum spray during this incident.
Charge 7: reckless conduct endangering serious injury
23
You then appear to deliberately ram the right-hand side of another car, a
Ford Ranger, as it was travelling approximately 100 kph. You appear to deliberately ram the right-hand side of another car, a Hyundai Accent, pushing it into the left-hand lane, ramming it a second time. I again refer to the Prosecution Summary of Opening for the full details of your offending. I refer to the Airwing footage tendered as Exhibit D on the plea. Your driving has to be seen to be believed. Charge 7 is a rolled up count encompassing the ramming of these two vehicles.
Apprehension
24 Ultimately, the police had to shut down all lanes of the freeway in both directions to apprehend you. The police then performed something called a ‘pit manoeuvre,’ in which the rear of your car was deliberately clipped by a police vehicle at speed, causing your car to spin and come to a stop in between multiple police cars on the freeway. This is caught on camera. It looks difficult and dangerous; in this way police were able to stop you from putting the lives of yourself and others in further danger.
25 Blood samples taken later that day at the Geelong Hospital would show that you were under the influence of methylamphetamine (approximately 0.59 mg/L) and MDMA (approximately 0.18 mg/L). This gives rise to Summary Charge 33: driving under the influence of a drug.
26 You did not hold a drivers licence at the time of your driving and this gives rise to Summary Charge 23: driving while unlicenced.
Arrest and interview
27 You were arrested and taken to Geelong Hospital complaining of difficulty breathing and of pain in your neck.
28 The next day, on 17 September 2019, you participated in a record of interview, where you made full admissions to the allegations. You took responsibility for committing the theft of the Navara, to being the driver of it from the time of the theft until your arrest; to driving dangerously; to knowing that, on occasion, your actions could have caused death or serious injury; and to driving under the influence of a drug and evading Police during the pursuit.
29 After your record of interview you were remanded into custody and have remained in custody since that time.
Prior criminal history
30 You have admitted a prior criminal record. You have been dealt with in both Victoria and New South Wales. Very broadly, you have received a combination of short prison terms and community corrections orders in the past. Most relevantly, you have prior convictions for unlicensed driving, theft of a motor vehicle, and failing oral fluid test within three hours of being in charge of a vehicle. In New South Wales you were found guilty on a number of occasions of breaking and entering. Some of your offending arises in the Children’s Court and I give it little weight.
31 It is significant that you were on a community corrections order at the time you committed these offences and I take that into account.
Procedural history
32 You made an application for bail on 16 May 2020, which was refused.
33 The matter resolved on the night before the committal hearing with you pleading guilty the morning of the committal hearing, prior to any witnesses being called.
34 You were remanded in custody on 16 September 2019 and have remained in custody since then.
Nature and gravity of the offending
35 I have to address the nature and gravity of the offending in your case.
36 I note that Charge 2, although it is an offence that carries a maximum penalty of only three years, encompasses the totality of your driving after the event of avoiding the ‘stop sticks’ deployed by Victoria Police at 6:49 am, and the conduct giving rise to this charge unfolds over approximately 26 minutes. I accept the Prosecution submission that this is a serious example of driving dangerously while pursued by police.
37 Charge 5 is a rolled up charge of reckless conduct endangering life; it encompasses the three ‘near misses’ of passing cars whilst travelling on the wrong side of the freeway at approximately 100 kilometres per hour; the degree of recklessness there is high and is a serious example of this charge.
38 Charge 6 relates to the police officer, who found himself standing in the open passenger door of your car at one point and being forced to move with the car and then step away as it increased in speed; this is the charge that attracts the mandatory sentencing provision. The Prosecution submitted that this is a mid-level example of this offence, and I am inclined to agree.[3]
[3] See [12] of Prosecution submissions.
39 Overall what you did was an extended and breathtakingly dangerous episode of driving. It caused a freeway to be closed; many, many people to be at best inconvenienced and at worst seriously endangered. That no one was actually injured or killed is just the result of dumb luck.
Victim Impact
40 I am required to consider victim impact.
41
Although no victim impact statements have been made in your case I am sentencing you on the basis that you caused many fellow drivers significant fear and anguish when they encountered you on the road. I am also sentencing you on the basis that emergency workers, particularly
Constable Flight, and those involved in the business of stopping your driving, would have experienced, at the very least, alarm at what you were doing.
Personal circumstances
42 You were born in Casino, New South Wales. You are one of seven children. You were aged 25 at the time of your offending. You are now 26 years old.
43 Between the ages of 10-12 you and your brother suffered persistent sexual abuse by your mother. You regularly fled from the family home. You lived on the streets at times.
44 You commenced your primary school education late, at approximately grade 5. Shortly after this you reported the abuse and were removed from your family home and placed into foster care. At this foster home you suffered further sexual abuse by another foster child several years older than you. After disclosing this to a case worker you were again moved.
45 You then completed your primary education at Tweed Heads Public School and attended Tweed River High School. Your education appears to have commenced very late. You left secondary education during Year 7 without completing the year. You only returned to secondary education while in youth detention and finally completed Year 10.
46 At 14 you had a positive fostering experience that ended unexpectedly for reasons out of your control and you were placed in a 24-hour care home in Paramatta.
47 At 13 you commenced cannabis and alcohol use.
48 At 17 you returned to Casino to visit your older brother and he injected you with amphetamines and exposed you to methylamphetamine. You told Professor Carroll (a psychiatrist and I refer to his report in more detail later in these reasons) that you were using ice intravenously every day for several months prior to your arrest. You also told Professor Carroll that you have been abusing solvents sometimes to the point of losing consciousness from approximately the age of 16.
49 During this time you were in and out of youth detention. You would later say that you sometimes deliberately offended as a child in order to be recommitted to youth custody. You made several attempts to return to the care of your father between 14 and 17 years old. Due to your father’s criminal history the authorities would not allow you to live with him.
50 Whilst at Baxter Juvenile Justice Centre you completed a Year 10 equivalency and obtained some qualifications. You successfully completed commercial cookery studies and have worked as a chef at various locations in the Ballarat region. At one stage you were employed as a head chef at La Porchetta and other restaurants in Ballarat.
51 You were in a relationship for a time and two sons were born, Jet and Chase; they are now aged five and three years old. For a time Jet was in your sole care while your previous partner was unable to care for him. At one stage you obtained an intervention order against Jet’s mother.
52 At the time of the offending you did not have a fixed address and moved between the Melbourne and Melton areas. You had recently been the victim of an attempted stabbing. Your father passed away in September 2019. Your use of methamphetamines spiralled out of control during the first months of that year.
53 You are now engaged to Mariah Roach. Although the relationship was in disarray just prior to these events she remains supportive of you. I have taken the contents of her letters to the court into account. A child of this relationship did not survive, which caused you both significant grief during 2019.
54 After your arrest, you made an attempt to end your own life.
Matters in mitigation
Plea of guilty
55 You pleaded guilty to these offences and this plea saves the community the very significant costs of a trial. Your plea indicates your acceptance of responsibility and willingness to facilitate the course of justice. Moreover, you have pleaded guilty at a time when the Victorian court system faces significant backlogs in the listing of trials on account of the health measures taken during the COVID-19 pandemic, so your plea of guilty is particularly valuable at this time and this will be reflected in your sentence.
Admissions
56 You made full and frank admissions to police during your record of interview. You also provided police with an explanation of your offending. You gave police evidence they did not possess, particularly in relation to your state of mind and endangerment offences.
Remorse
57 The Prosecutor, at least initially, urged me to find that you were regretful rather than remorseful. I have read the letter that your lawyers forwarded to the court. I saw you participate in the Koori Court sentencing conversation and after that event the Prosecutor’s earlier submission on this point was not maintained. I find that you are remorseful for what you did.
Psychological material
58
Professor Andrew Carroll, a psychiatrist, examined you in custody on
17 February 2021 and provided a report to the court dated 22 February 2021. I take into account the contents of Professor Carroll's report.
59 Professor Carroll records that, looking back at the driving, you now recognise that you were in a severely paranoid state, in large part due to a high level of methamphetamine use.
60 Professor Carroll notes your report of a childhood, marked by profound emotional neglect and your almost complete lack of any healthy adult attachment figure in your early life. Apparently some female officers in juvenile detention facilities were perhaps the first attachments that were supportive of you. Tragically, you deliberately report offending to be recommitted to custody there. Professor Carroll notes that it is unsurprising you developed significant problems with substance misuse from your childhood onwards given the history.
61 Professor Carroll notes that from time to time your substance abuse causes symptoms of psychosis to manifest, however Professor Carroll also noted that you also give a very clear account of symptoms consistent with clinical post-traumatic stress disorder (PTSD), which has likely, in Professor Carroll's opinion, been present from adolescence onwards. Professor Carroll notes that you suffer from intrusion symptoms, avoidance symptoms, altered emotional functioning and chronic hyper arousal. This last feature taking the form of hypervigilance, or what you experience as ‘paranoia’.
62 At paragraph 106 of his report Professor Carroll notes:
“he currently presents as free of psychotic symptoms but displays clear evidence of ongoing PTSD. Unfortunately, an evidence based treatment for PTSD (the antidepressant mirtazapine) has been denied to him at Raven Hall correctional Centre.”
(I note here that this drug had been of benefit to you previously)
63 Professor Carroll continues:
“he is currently prescribed the antidepressant Amitriptyline, an agent rarely used nowadays as it is very dangerous in overdose. I note also his history of attempted suicide.”
64 Professor Carroll concludes that while you did indeed suffer with impaired mental functioning at the time of the offending, which affected your judgment and self-control, this thinking was in part due to your background of chronic hypervigilance, secondary to PTSD, but was caused substantially by your self-induced intoxication with methamphetamine and other substances.
65 Professor Carroll writes:[4]
“The primary proximal causal factor of the offending appears to have been his delusional belief that he was at imminent risk of death from the police. In turn that was a product of his psychotic state, which was triggered by his usage of methamphetamine.
…His long-standing propensity to use methamphetamine in turn appears to be related to his complex post-traumatic stress disorder and his attempts to obtain some short-term relief from the chronic distress which arises as a result of that - ultimately of course, methamphetamine has the reverse effect and worsens his anxiety and persecutory thinking.”
[4] Psychiatric report of Professor Andrew Carroll at [117].
66 Professor Carroll notes that the optimal antidepressant for your condition is not made available to prisoners, because of concerns about it being diverted in the prison system. He also notes that prison based mental health services for men do not routinely provide evidence-based sustained treatment for complex PTSD.
67 It was conceded in your case by the Prosecutor that the principles in Bugmy are relevant, in the context of your particular background of childhood deprivation. This deprivation included profound emotional neglect and an almost complete lack of stability. In that context, the roles for personal and general deterrence will be moderated.
68 In your case, I take into account the complex interaction of your background of deprivation, leaving you vulnerable to substance abuse, your exposure to traumatic events and the manifestation of those experiences in PTSD, which you combined with the use of methamphetamine on the day of this offending. I do not purport to be able to separate these coexistent difficulties. I take their combination into account in mitigation of your sentence where it is warranted to do so.
Prospects of rehabilitation
69 I am obliged to have regard to your prospects of rehabilitation.
70 You have a relevant criminal history, though it is perhaps less extensive than what is sometimes seen in people with similar backgrounds. While in custody you participated in the Marumali healing program. You have the continued support and affection of Ms Roach, your partner.
71 You have also had a significant amount of experience as a chef in the hospitality industry, having held positions of responsibility in that context. You are not keen to return to hospitality and the temptations for drug use that, in your experience, go with it, however you do have a template for responsible positions that can deliver you the self-respect and economic benefits of work.
72 You have been drug free in custody, and clean screens were tendered on the plea. You have participated in courses where possible. You enrolled in the methadone programme when it became known to you in custody that drugs were re-entering the prison system. You have stated in various ways that you are now quite resolved to change the way you live and grapple with your problems of addiction. Despite everything, I am still prepared to be optimistic about your prospects for rehabilitation.
Community support
Youth
73 You were 25 at the time you committed these offences and now you are 26. The community still has a long-term stake in your rehabilitation. Although your chronological age is now well into adulthood, I also regard the various disadvantages you have encountered to have contributed to an immature outlook and a less developed capacity to appreciate the seriousness of the possible consequences for the other people driving their cars near you on the road that day. An appreciation of that comes with maturity.
Participation in Koori Court
74 Now I am going to acknowledge your participation in the County Koori Court.
75 Your mother’s family are of the Bundjalung people. You identify as an aboriginal man and you participated in a plea in the Koori County Court.
76 At the hearing you were confronted by two Aboriginal Elders who shamed you with an authority unique to their age, culture, and position. Both Elders spoke to you in very direct terms about your behaviour and brought you to personal account. I watched and listened. They were relatively relentless in pushing you to accept responsibility and to imagine the potential consequences for others.
77 During that hearing, you described your vulnerable life as a child. The impression I gained was that you had become so low that you had succumbed to being very self-centred, but you also expressed a very clear and practical intention to change how you live. For now you are on the methadone program in gaol, but your ambition is to “stay off drugs”. It is probably as simple, and as difficult as that. You appreciate that this goal will require a lot of assistance but your intention is there and it starts with that.
78 You have repeatedly expressed an ambition to go into residential drug rehabilitation. You have never had a parole sentence before. You have never had residential treatment for your drug addiction before. I note that entry into residential treatment would need careful preparation; it is unlikely you would be accepted somewhere before you had worked your way off the methadone program.
79 You did not have to participate in the Koori Court conversation.[5] You might have sat silently behind your barrister but you did not. You submitted yourself and were vulnerable there to the articulate and authoritative demands of the Elders. In my assessment, this required some considerable courage on your part and I take that into account, meaning your participation in the sentencing conversation.
[5]Honeysett v The Queen VSCA 214 [54].
80 I have also had regard to the letters of Ms Beck, tendered on the plea that set out your engagement with the Aboriginal cultural programs that you have participated in during your time in custody.
Hardship in custody
81 You have been classified as a protection prisoner. It was unclear how you gained that particular status but it is clear from the remand summary tendered on your plea that you have been subject to the protection prisoner regime. That regime is generally to impose additional hardships on prisoners.
82 Moreover, you have, as a result of the COVID-19 pandemic spent an entire year incarcerated in more restrictive circumstances that have been brought about as a result of measures taken to reduce risk in prisons. For you, this has meant that you have had no personal visits from your sons. You have been on a waiting list for various courses, which have been heavily restricted or entirely suspended. Between late July and October 2020 you were locked down in your cell and only allowed out for 15 minutes a day to make a phone call. Some prisoners and guards in the gaol where you were held at some stage tested positive and this caused you significant concern. I take all this into account when I impose sentence on you.
General deterrence, specific deterrence, just punishment, denunciation, community protection
83 I now address the questions of general and specific deterrence, punishment, denunciation and the protection of the community.
84 The Prosecution urged specific weight attached to specific deterrence in context of your poor driving record and being on a community corrections order at the time of the offending. Your counsel conceded that offending of this nature does attract those principles.
85 Your counsel also argued that the combination of your traumatic upbringing, subsequent trauma, and mental illnesses reduces your moral culpability to a degree and, to a degree, I accept that submission. I have already considered submissions by your counsel, which support the proposition that general deterrence in a case that excites sympathy for these background difficulties may have less of a role to play, however sentencing factors still have some role.
86 You will be, and have been, punished for what you did. Through this sentence your offending is denounced. You just cannot put other people's lives at stake this way – it is unacceptable.
87 I have regard to current sentencing practices for other cases in a similar vein.
88 At the hearing I was referred to the case of DPP v Roberts [2020] VCC 1195 just as one example of a similar case. There is no case that is particularly like yours, but I sentence you in the overall landscape.
Risk of institutionalisation
89 It appears that since you were young you have sometimes actually sought to be incarcerated. Initially, it appears that this has happened because you had formed some positive attachments to prison guards. This is a tragic reflection of the fact that you had, it seems, no haven in the world where you were loved and supported in a consistent, safe and predictable environment.
90 Since the age of 16 you have spent more than five years in custody. Your counsel submitted that there is a risk of your institutionalisation. I share that concern. There is some danger that prison will serve for you as a place of retreat and stability. I bear this in mind when imposing sentence on you.
Totality and concurrency
91
In your case, I have had regard to the principle of totality in imposing sentence on you. Your conduct had to be the subject of structuring for appropriate charges and pleas of guilty. Some of these offences display some overlap such as the summary drug driving offence seems to have also been contemplated by the particulars of Charge 2. Similarly, events on the freeway at speed have been the subject of separate charges (Charge 7 and Charge 5) and are also overlapping to a degree with the events particularised in
Charge 2, such as driving at 100 kilometres per hour with capsicum spray in the eyes.
92 I have done my best to arrive at the appropriate individual sentences, then moderate via orders for concurrency or cumulation where appropriate, and then to step back and have regard to the overall sentence and the offending as a whole. It has not been simple. Where required, I have moderated individual sentences and made orders for cumulation in an effort to arrive at an appropriate disposition.
93 I am obliged to impose a sentence of imprisonment on Charge 6, but this was uncontroversial at the hearing.
Disposition
94 On Charge 1: theft of a motor vehicle, you are convicted and sentenced to four months imprisonment.
95 On Charge 2: dangerous driving while being pursued by police you are convicted and sentenced to 15 months imprisonment.
96 On Charge 3: attempted theft you are convicted and sentenced to one month imprisonment.
97 On Charge 4: reckless conduct endangering serious injury, you are convicted and sentenced to three months imprisonment.
98 On Charge 5: reckless conduct endangering life, you are convicted and sentenced to two years and two months imprisonment.
99 On Charge 6: recklessly exposing an emergency worker on duty, you are convicted and sentenced to 12 months imprisonment.
100 On Charge 7: reckless conduct endangering serious injury, you are convicted and sentenced to five months imprisonment.
101 On Summary Charge 20: driving in a manner dangerous, you are convicted and sentenced to six months imprisonment.
102 On Summary Charge 23: driving without a license, you are convicted and sentenced to one month imprisonment.
103 On Summary Charge 33: you are convicted and sentenced to two months imprisonment.
104 The sentence on Charge 5 is the base sentence. I direct that one month on Charge 1, five months on Charge 2, one month on Charge 4, six months on Charge 6, three months on Charge 7, and two months on the summary offence of driving in a manner dangerous, be served cumulatively upon the base sentence and upon one another. This results in a total effective sentence of 44 months or three years and eight months. I direct that you be required to serve two years and two months before becoming eligible for parole.
Pre-sentence detention
105 I declare pursuant to s.18 Sentencing Act that you have already served 555 days by way of pre-sentence detention.
Section 6AAA
106 Pursuant to s.6AAA of the Sentencing Act I note that had you not pleaded guilty but been found guilty after trial I would have imposed a sentence of four years and eight months, with a non-parole period of two years and 11 months before becoming eligible for parole.
Section 89C Sentencing Act finding
107 Pursuant to s.89C of the Sentencing Act and by reference to, amongst other things, the blood samples that were taken from you after the driving, I find that Charges 1-7 were committed while you were under the influence of methylamphetamine and MDMA, and this contributed to your offending.
Ancillary orders
Licence disqualification
108 In terms of ancillary orders, Charges 1, 2, 6 and summary offences 20 and 33 each carry with them some form of obligation for me to disqualify you from obtaining a driver’s licence for particular or discretionary periods. The periods vary from being completely discretionary to a mandatory four year disqualification. Summary Charge 33 carries a mandatory minimum disqualification of four years where this arises as a subsequent offence and is engaged in your case.
109 I will disqualify you from today, from obtaining a license for the minimum term of four years.
110 Are there any ancillary orders that I have missed, Mr O'Toole?
111 MR O'TOOLE: No, Your Honour, can I just confirm that the four years (indistinct words) across those five charges which require Your Honour to cancel or disqualify.
112 HER HONOUR: Well, I accept your submissions - frankly, Mr O'Toole, you broke up a little bit then. I will accept your - - -
113 MR O'TOOLE: Sorry, Your Honour.
114 HER HONOUR: - - - submissions about how to construct the licence disqualification orders. What I intend, what I mean to impose is that in effect there will be a four year disqualification and that if I am also required to make - perhaps I am - required to make the other orders they will be concurrent with that four year term.
115 MR O'TOOLE: Yes.
116 HER HONOUR: But making that the effective licence disqualification period.
117 MR O'TOOLE: Yes, as Your Honour pleases.
118 HER HONOUR: Unless I am told by you that that is not a lawful way of doing this that is what I intend to do.
119 MR O'TOOLE: As Your Honour pleases. Provided - no, Your Honour, I think that's correct. Provided that the period is referrable individually to those charges but do run concurrently, that's as I see it Your Honour's intentions.
120 HER HONOUR: Yes.
121 MR O'TOOLE: And a lawful outcome, Your Honour.
122
HER HONOUR: That will be reflected in the orders that I make.
Ms Conwell - - -
123 MS CONWELL: Your Honour, would it - - -
124 HER HONOUR: Yes?
125 MS CONWELL: Apologies, Your Honour.
126 HER HONOUR: That's all right.
127 MS CONWELL: It may assist with respect to each of the charges that do carry mandatory licence provisions, there are minimum periods, so if I can go through each of them so that you can impose that on each of those charges. And in pursuant to s.89D of the Sentencing Act unless the court otherwise orders they're to run concurrently. But certainly the four years must be attached to Charge 33.
128 HER HONOUR: Yes.
129 MS CONWELL: With Charge 1, the theft of the motor vehicle there's a mandatory disqualification but the period is discretionary.
130 HER HONOUR: Yes.
131 MS CONWELL: Charge 2 is a 12 month minimum.
132 HER HONOUR: Yes.
133 MS CONWELL: Charge 6 is a 24 month minimum.
134 HER HONOUR: Yes.
135 MS CONWELL: Summary Charge 20 is a 12 month minimum.
136 HER HONOUR: All right. Yes, thank you. So I'll make those orders consistent with those minimum periods and I will - and thank you for providing the section, that's helpful. I will order that they run, they are to be concurrent. All right.
137 MS CONWELL: As the court pleases.
138 HER HONOUR: Ms Conwell, do you speak a moment to speak to Mr Taylor or are you going to arrange that directly with him?
139 MS CONWELL: Your Honour, if the court can accommodate it, it would be helpful to briefly confirm the sentence with him.
140 HER HONOUR: I think we can do. I'll just check with my staff if that's possible practically. All right, but what I'll do, I won't return to the Bench. We will formerly adjourn the court and simply your communication with Mr Taylor will be facilitated, Ms Conwell.
141 MS CONWELL: I'm grateful, Your Honour.
142 HER HONOUR: Thank you, we'll adjourn until Friday, thanks.
143 MR O'TOOLE: The court pleases.
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