Director of Public Prosecutions v Taylor

[2020] VCC 1594

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00851

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT TAYLOR

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2020
DATE OF SENTENCE:	5 October 2020
CASE MAY BE CITED AS:	DPP v TAYLOR
MEDIUM NEUTRAL CITATION:	[2020] VCC 1594

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:DPP v Bragagnolo [2020] VCC 1507; DPP v O’Sullivan [2020] VCC 1449; DPP v Bullard [2020] VCC 243; DPP v Roberts [2020] VCC 1195

Sentence:Total effective sentence of 21 months imprisonment; 14 months non-parole period. Licence cancelled and disqualified for 24 months.

s 6AAA: 3 years imprisonment, non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Mr J. Williams	Victoria Legal Aid

HIS HONOUR:

1Robert Taylor, you have pleaded guilty to the following offences which carry the following maximum penalties:

Charge Nos.	Charge	Max Penalty
1	Using a carriage service to menace, harass or cause offence	3 years
2, 4, 5	Aggravated offence of recklessly exposing an emergency worker to risk by driving	10 years
3	Dangerous or negligent driving while pursued by police	3 years

2Charges 2, 4 and 5 are Category 2 offences.  The Sentencing Act provides that, except in limited circumstances, a Category 2 offence carries a mandatory period of imprisonment (excluding a combination sentence of imprisonment with a community corrections order).  Mr Williams, who appeared on your behalf, agreed that you faced a period of imprisonment on these charges.  He did not argue that any of the exceptions applied in your case.  I shall say more about this later in these remarks.

3Moreover, the presumption of concurrency does not apply to the sentences I impose on Charges 2, 4, and 5.  Rather, the law provides that the sentences for those charges should, unless I direct otherwise, be served cumulatively.

4Charge 3, dangerous driving whilst pursued by police, carries a mandatory minimum licence disqualification of 12 months.  Your admitted offending on Charges 2, 4, and 5 carries a mandatory minimum licence disqualification of two years.

5You have admitted a number of prior convictions.  I will return to these later in the sentencing remarks also.

6The Crown tendered the prosecution opening for plea as Exhibit A.  A summary of your offending is as follows.

7On 9 November 2019 you went to the house of Alexis Smith. Ms Smith let you into the house and you injected methylamphetamine whilst inside.  Whilst at
Ms Smith's house you made a call to the Police Assistance Line.  You spoke to an operator, June.  During this conversation you told June that if they were to 'Take any of (your) members' you would 'Gang rush your fucken face and with whips, chains and bash and more. . . we'll fucken get ya with a gang rush shortly bitch', amongst other things.  This call was recorded. June asked for your name, but you hung up without identifying yourself. (Charge 1 – Using a carriage service to menace, harass or cause offence)

8After this call, you left the address in a white Ford Econovan.  Police identified the phone number as coming from Ms Smith's house and attended there around 2:50 am.  Police spoke to Ms Smith, who confirmed you had been at her house, that you had used ice, she had heard you making a call to the police, and you had since left.

9At 5:50 am police returned again to Ms Smith's address to see if you had returned.  Whilst there, Senior Constable Williams saw you drive past in your white van, heading west.  Senior Constable Williams followed you in an unmarked police car.  During this time you were driving normally, and Senior Constable Williams had not activated the lights or sirens on his car.

10At 6:00 am Senior Constable Williams remained behind your car at the intersection of High St, Barrabool Road and Barwon Heads Road.  
Detective Senior Constable Beaumont pulled up in front of your van in an unmarked police car.  Once positioned in front of you, DSC Beaumont turned on the lights and sirens, and Senior Constable Williams did the same behind you. Senior Constable Williams got out of his car to arrest you.  As he did so, you reversed your van, ramming into the front of Senior Constable Williams' vehicle. (Charge 2 – Aggravated offence of recklessly exposing an emergency worker to risk by driving)

11     You then drove off at high speed.  Senior Constable Williams followed you onto Moorabool St, and then as the pursuit progressed, three marked police cars approached from the other direction.  You attempted to turn right into Barwon Terrace, however, you lost control, your van slid, and you ended up turning around the way you had come, facing towards Senior Constable Williams' vehicle. (Charge 3 – Dangerous driving whilst pursued by police) 

12You then placed your van into reverse, ramming into a police car positioned behind you, in which Leading Senior Constable Pierce was driving and Sergeant Constance was a passenger.  As you rammed the car, Sergeant Constance's head was thrown against the front passenger window.
(Charges 4 and 5 – Aggravated offence of recklessly exposing an emergency worker to risk by driving)

13Three other police cars were positioned around you to stop you driving away. You drove forward and rammed a police car.  It was observed that the tyres on your van were spinning and smoking as you moved back and forth between the police vehicles.

14Police got out of their cars and shouted for you to get out of your van.  You ignored them.  A police dog was deployed, and Detective Senior Constable Beaumont smashed the driver's side window of your van as you continued to ram Senior Constable Williams' car.  Sergeant Constance tasered you, and Detective Senior Constable Beaumont was able to reach through the broken window and remove the keys from the ignition.  After a struggle, you were removed from the car and arrested.

15You underwent a preliminary oral fluid test which tested positive for amphetamine, although you denied having used illicit drugs.  You were assessed as unfit to participate in a record of interview.

16You were remanded in custody and you have now served 309 days
(excluding today) by way of pre-sentence detention.  That period will be reckoned as already served.

17No police officers sustained any physical injuries as a result of your actions. You were not charged with damage to the police vehicles, as a number were driven into your van, rather than you driving into them, in an attempt to stop you driving away.

18You pleaded guilty to these offences on 10 July 2020 at the fourth committal mention in these matters.

19I turn now to consider the objective seriousness of, and your moral culpability for, your offending.

20The aggravated offence of recklessly exposing an emergency worker to risk by driving is, by its name and nature, obviously a serious offence.  This is confirmed by the maximum penalty set by Parliament, and for the fact that it must prima facie attract a period of imprisonment, excluding a combination sentence.

21Emergency workers perform vital and critical work to ensure the well-being of members of our community.  In this case, the police tried to intercept you in order to protect road users and members of the community generally from your dangerous and erratic driving at a time when you were both drug-affected and apparently psychotic.

22For your part, you used your car as a battering ram in an effort to evade arrest when your car was hemmed in.

23Fortunately, as I say, no police officer was physically injured by your conduct. Nevertheless, I have the victim impact statement of leading Senior Constable Pierce – an officer of 18 years' experience.  I have been asked to respect his privacy and I will.  I can say, however, that it takes no imagination to envisage how frightening it must have been to have a moving car used as a weapon against him and his vehicle.  I am certain that the images will stay with Leading Senior Constable Pierce for a long time to come.

24Equally, your dangerous driving is constituted by driving at high speed through the main streets of the city of Geelong.  The driving is mitigated only by the time of day at which your offending occurred, and for the fact that the video footage played in court showed that the traffic was relatively light at that time of day.

25Nevertheless, after a careful consideration of all of the circumstances,
Mr Cameron on behalf of the Crown submitted that I should assess your offending on these three charges and the charge of dangerous driving as falling towards the lower end of the spectrum of seriousness for this type of offending.  Mr Williams made the same submission on your behalf.

26After making my own assessment of the circumstances of your offending, I agree with this submission.  In doing so, I want to make clear that my conclusion does not demean or detract from the statement of Leading Senior Constable Pierce or the work of the other officers who chased and intercepted you on that night.

27As I have said, your offending still remains serious.

28I shall return to the question of your moral culpability for your offending after I have outlined your personal circumstances.

29I turn now to consider your personal circumstances.

30You are 48 years old and were born on 16 August 1972.

31You come from a large family, with nine siblings and two half-siblings.  Your father was an army officer and often absent, however, you maintained a good relationship with your family.  You grew up in Mornington and completed high school with no issues.

32After high school you trained as a truck mechanic, an industry you worked in for five years before retraining as a carpenter.  Since your schizophrenia diagnosis in 2000 you have not been in regular employment, undertaking only some occasional home maintenance work, and you receive the Disability Support Pension.

33     At age 28 you married Rachel Bell, and you had two children with her, now aged 14 and 20.  This marriage ended in 2000, with issues arising from your wife's drinking, however, you maintained contact with your daughter and your granddaughter.  In 2014 you commenced a relationship with Alexis Smith and together you have one child, who is now six years old and lives with Ms Smith's sister in Sunbury.  Ms Smith has bi-polar disorder, and although your relationship has been on and off over the years, you are now separated from her. 

34You have a long list of prior convictions dating back to 1992.  Your offending includes numerous offences of dishonesty, assault, public order offences, property damage, resist police, possession of weapons and ammunition, threats, family violence, and driving offences.  The most serious offending was a charge of kidnapping for which you received a wholly suspended sentence of two and a half years after you had spent 307 days on remand, to the date of sentence.  In that instance, you broke into your ex-wife's house where she lived with your infant daughter and your newborn baby daughter.  You threatened her with a knife and took her into your car.  You stated that you were going to kill them.  Your wife and children eventually escaped unharmed.  You were unfit to be interviewed on that occasion.  On your reception to the MAP you were noted to have 'had a long history of psycho-affective disorder with multiple previous inpatient admissions'.  You spent months in custody receiving treatment for your illness; these symptoms of psychosis eventually settled.

35In his sentencing remarks, Judge Anderson noted 'it is recognised that the defendant will significantly put at risk his well-being if he abuses alcohol or illicit drugs'.  It was not suggested in those sentencing remarks that you were under the influence of illicit drugs at the time of your offending, but it cannot be denied that you have been provided with clear warnings that illicit drugs may exacerbate your schizophrenia.

36I note also that in 2015 you were convicted of using a carriage service to menace.  I point out that no offending was recorded between June 2007 up to your appearance at the Castlemaine Magistrates' Court on 30 October 2015 on the charge of using a carriage service.

37Until your imprisonment in November 2019 you lived in Breakwater, where you moved in order to be closer to mental health facilities; I am told, however, this house is no longer habitable.  I was told that upon your release this house will be sold, and another purchased for you to live in.

38You still enjoy considerable support from your family.

39Upon your initial release from custody, you intend to live with your parents at Riddells Creek.  This area is preferred by your parents over other country areas as it puts you in close proximity to mental health services in Sunbury.

40I have read the two psychiatric reports of Dr Adam Deacon and the report of
Dr Louisa Du Toit from Barwon Health.

41Your mental health problems commenced when you were 19 years of age; you initially suffered from cannabis-induced psychosis.  Since that time, you have had an increase in your psychiatric illness.

42The Barwon Health report of Dr Du Toit reports you have been under the care of Barwon Health since April 2017.  Your health was managed under a mental health order until you were imprisoned in November 2019.

43In that period of time, you had 3 - 4 admissions to hospital to treat your psychotic illness.  In the community, you were treated with anti-psychotic depot medication.  Your compliance was reported as inconsistent.

44Dr Du Toit records your diagnosis as treatment-resistant schizophrenia complicated by substance abuse disorder/dependence.

45Your last depot injection of antipsychotic medication before your offending was on 14 October 2019.  This means that at the time of your offending, you were due to be re-medicated in another approximately seven to ten days.

46Dr Deacon notes that after a long period of abstinence, you had recommenced using cannabis years ago and, up to the date of your offending, you were still use cannabis on a daily basis.  You had injected one point of methylamphetamine just prior to making the offending phone call and driving.  Dr Deacon concludes that you appear to have experienced psychotic symptoms in response to the methylamphetamine use.  He notes that cannabis may have also been a contributing influence.

47In his assessment (and based on that of the attending forensic medical officer's opinion at the time of your arrest) your voluntary use of methylamphetamine deprived you of the defence of mental impairment; nevertheless at the time of your offending, Dr Deacon concludes you experienced considerable thought disorganisation and your judgment was likely to have been significantly compromised.

48You told Dr Deacon that you had never previously experienced a psychotic response to the use of methylamphetamines.  Dr Deacon was somewhat sceptical when you stated you 'didn't consider the likely adverse response', given your long history of schizophrenia management that
'presumably included psychoeducation relating to the risks of using psychogenic illicit drugs'.

49I note that it is obvious that you have been given previous stern warnings about the dangers of using drugs given the nature of your illness.  However, it is not as simple as that.  This is partly because I cannot make any assessment about the quality of your judgement and decision-making processes on 9 November 2019.

50This is important because, as I have already stated, you were previously diagnosed with 'treatment-resistant schizophrenia'.  As Dr Deacon observed, this suggests, and I quote from his report:

'His response to antipsychotic medication has been partial and incomplete.  It is likely that he is chronically mildly psychotic even when functioning at his optimum'.

51Because you made the decision to inject methylamphetamines, you cannot expect your moral culpability to be reduced altogether for your offending. Nevertheless, the material I have just referred to raises the likelihood that even that decision was likely to have been compromised by your underlying mental illness.  In this way, I consider that drug use and your mental illness ran at least as concurrent issues at the time of your offending.

52The presence of your mental illness as an influence and at least partial underlying factor at the time of your offending leads me to conclude that the principles of deterrence should be somewhat moderated and your moral culpability somewhat reduced in respect to the whole of your offending.

53Your illness operates to moderate the principles of general deterrence, but it does not operate to entirely extinguish either general or specific deterrence.  Further, I must still take into account the need to protect the community.

54     Dr Deacon's most recent report of 8 September 2020 reports that your mental health issues have been managed whilst in prison and that you are medicated. Dr Deacon states that you are coping reasonably well in prison and you are relatively mentally stable, although you remain subtly thought-disordered. Nevertheless, Dr Deacon considers it difficult to gauge your independent living skills level and he considers it is unlikely that your compromised mental state will improve appreciably in the future.  Dr Deacon expresses concerns that you may not be able to comply with all of the directions and requirements of a CCO or a parole order and that non-compliance may not be intentional on your part. 

55Dr Deacon states:

'Mr Taylor will require indefinite psychiatric treatment.  His treating psychiatrist, Dr Louisa Du Toit, has recommended community treatment under the Mental Health Act when he returns to the community.

Mr Taylor's rehabilitation prospects are contingent on his capacity to remain drug free and comply with prescribed medication'.

56Dr Du Toit provided the following opinion and recommendation for future treatment:

'In my opinion Mr Taylor does not have the ability to voluntarily consent (or refuse) to treatment due to profound lack of insight.  I propose that he be considered for treatment under the Mental Health Act again as soon as he is released from custody, and treated assertively with depot medication.  It seems that haloperidol has been reasonable in containing symptoms and I suggest it continues indefinitely. 

As ongoing substance abuse makes assessment in the community very difficult, I would propose assessment by mental health services while still in custody to get a better idea of his symptomology/baseline functioning when not acutely substance affected'.

57I am struck by the similarity of your situation now to that whilst you were in custody in the lead up to the sentence imposed by Judge Anderson in February 2007.  In that case, the period of imprisonment you had served on remand
(just over 300 days) in a confined environment and under close medical management and medication provided an opportunity for your condition to stabilise.  Dr Deacon reports that much the same has occurred on this occasion.

58I raise this comparison only on the question of your prospects of rehabilitation. I will return to the issue of rehabilitation in a few minutes.

59Mr Williams submitted on your behalf that the following matters should mitigate the sentence I impose upon you:

1.Your plea of guilty in this matter has utilitarian benefit and also facilitates the course of justice;

2.You have exhibited some remorse for your offending;

3.Principles (1) – (4) of Verdins are enlivened in this matter;

4.Your mental stability has increased whilst you have been in custody;

5.I must take into account the effects of the lockdown on the conditions in prison due to the COVID-19 pandemic;

6.Although your prospects for your rehabilitation are guarded, you have demonstrated some insight into your illness and offending and have good pro-social supports which will assist you on your return to the community; and

7.I must have regard to the principles of parsimony and totality.

60Ultimately, Mr Williams submitted that I should sentence you to no more than the time you have already served.  As I have already indicated, Mr Williams did not seek to argue that any of the exceptions to the category 2 provisions have been established.

61Mr Cameron submitted on behalf of the Crown:

1.The Crown accepts your plea of guilty was entered at an early time and warrants moderation of your sentence;

2.That you have expressed remorse;

3.The Crown accepts that principles (1) – (4) of Verdins are enlivened in this matter;

4.That your prospects of rehabilitation are guarded.  Whilst your family's support operates as a relevant protective factor, your relevant criminal history increases the need for protection of the community as a sentencing purpose.  Given the reports of Dr Deacon, the provision of relevant area mental health services upon your release will be critical to you;

5.That the impact of lockdown on correctional facilities in Victoria provides a basis for reduction of the sentence; and

6.The Crown provided a list of cases where the aggravated offence of recklessly exposing an emergency worker to risk by driving has been considered.

62In reality, and as both Mr Williams and Mr Cameron agreed during the plea hearing, the submissions of both parties are not that far apart.

63For my part, I consider that your plea of guilty should mitigate the sentence I impose upon you, and it facilitates the course of justice in that it, and your expressions to Dr Deacon, demonstrate some remorse for your offending, notwithstanding the difficult conditions presented by your mental health.

64Similarly I accept that principles (1) – (4) of Verdins are enlivened in this matter.  That is:

Your illness reduces your moral culpability for the offending conduct, as distinct from excusing your legal responsibility.  Further in this respect, principles of just punishment and denunciation are less relevant to the sentencing objectives;1.   

Your conditions may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;2.   

General deterrence should be moderated;3.   

4.Specific deterrence should be moderated.  In the case of both general and specific deterrence, I am satisfied your illness operated at the time of your offending and, although it has somewhat stabilised, it still operates now and will into the future.

65The treatment resistant nature of your illness, your history of inconsistent compliance with its management, and your reported persistent use of illicit drugs, together with the opinions expressed by Dr Deacon and Dr Du Toit, in combination, lead me to conclude that your prospects for rehabilitation are at best guarded.

66In my view, the best chance for you to achieve rehabilitation comes from the offer of support from your parents and from the fact that have some insight into your illness and into your offending.  It will take a considerable effort of compulsory management under the Mental Health Act to keep your condition stable.  But for your part, you must cooperate with those offering you their support and services.  You must abstain from illicit drug use and you must do your best to comply with your medication and management regimes.

67I recognise the effect of the lockdown of correctional facilities on all prisoners in the Victorian prison system.  The lockdown has led to the cessation of all personal visits, restricted movements around the prison, a reduction in work available to prisoners to perform only essential services, the reduction of educational and vocational programs and the means by which they are delivered, and the severe reduction of many therapeutic programs.  
I acknowledge the stress and anxiety that these factors cause and the fear to prisoners of the introduction of the virus into the prison system.  All of these factors must operate to make your time in custody more burdensome.  The sentence I will impose recognises this fact and is mitigated by it.

68Finally, I accept that parsimony and totality must influence the sentence I impose.  In short, that means that I must not impose a sentence more severe than the circumstances warrant.  Totality simply means that I must not set an overall sentence that is crushing.  I can achieve this by moderation of the sentences I impose on a charge, or by somewhat moderating the periods of cumulation between sentences.

69I have read the table of cases provided by the Crown and the submissions made by Mr Cameron in this respect.  There are significant differences between the circumstances of your offending and the offending in each of the cases of Bragagnolo, O’Sullivan, and Bullard to your case.  Although there are some similarities between your personal circumstances and those of Roberts, found in the sentencing remarks of His Honour Judge Georgiou, I consider the circumstances of offending in Roberts more serious than those in this matter.

70In the end, as the Crown notes, I must not be unduly influenced by sentences imposed by other courts.  Rather, I must impose a sentence which takes into account the objective principles and the factors personal to you (so far as the law permits).  Also, given the circumstances of your illness, I must be careful taking into account sentences where the principles of deterrence, just punishment, and denunciation figure more prominently.

71In the end, I have considered that it is necessary in all the circumstances for you to serve a longer period of imprisonment than simply the time you have already served.  Further, although I have carefully considered the opinion of
Dr Deacon who concluded that you may have difficulty upon release complying with the period of parole, I consider a period of parole (in conjunction with the community treatment plan monitored by your area mental health service) to be critical to your reintegration back into the community.

72Mr Taylor, I sentence you as follows:

Charge Nos.	Charge	Sentence	Cumulation
1	Using a carriage service to menace, harass or cause offence	4 months	Commence today
2	Aggravated offence of recklessly exposing an emergency worker to risk by driving	16 months	3 months
3	Dangerous or negligent driving while pursued by police	9 months	2 months
4	Aggravated offence of recklessly exposing an emergency worker to risk by driving	16 months	Base sentence
5	Aggravated offence of recklessly exposing an emergency worker to risk by driving	16 months	Concurrent
TES	21 months
NPP	14 months

73That makes a total effective sentence of 21 months' imprisonment.  I order that you serve a non-parole period of 14 months before you are eligible for parole.

74     The period of 309 days pre-sentence detention is reckoned as already served. 

75     But for the plea of guilty, I would have imposed a sentence of three years with two years to serve. 

76You are disqualified from driving for a period of 24 months in respect to all of the driving charges, that is Charges 2, 3, 4, and 5.

77If I can start with you, Mr Williams; are you clear on the sentence that is imposed?  Do you need me to go back over it?

78MR WILLIAMS:  No, there is no problem with that sentence, Your Honour, from our point of view.

79HIS HONOUR:  All right.  Thank you.  Mr Cameron?

80MR CAMERON:  Similar, Your Honour.  No issue with the sentence.

81HIS HONOUR:  All right.  Is there anything else you need to raise, Mr Cameron.

82MR CAMERON:  No, Your Honour.

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