Director of Public Prosecutions v Townley

[2019] VCC 1825

guj

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

CRIMINAL DIVISION

CR-19-00821

Indictment No: J11756890

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA TOWNLEY

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2019
DATE OF SENTENCE:	8 November 2019
CASE MAY BE CITED AS:	DPP v Townley
MEDIUM NEUTRAL CITATION:	[2019] VCC 1825

REASONS FOR SENTENCE

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Subject:         Criminal Law
Catchwords: Plea of guilty-reckless expose emergency worker to risk by driving-reckless conduct placing persons in danger of serious injury-summary offences- general detterence-social deprivation- protection of emergency workers
Legislation Cited: Crimes Act 1958; Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017; Summary Offences Act 1966; Sentencing Act 1991
Cases Cited: Bugmy v R [2013] HCA 37; DPP v Nelson [2019] VCC 392; DPP v Jaeger [2019] VCC 526
Sentence: Convicted and Sentenced to a total effective sentence of three years’ and two months’ imprisonment with non parole period of 22 months. Licence cancelled and disqualified for 24 months. 

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D Plummer	OPP
For the Accused	D Gibson	VLA

HER HONOUR

1.    Joshua Townley, on the evening of Wednesday 19 December 2018 you were the subject of a police pursuit through suburban Melbourne.  The pursuit only came to an end when your car became undriveable, at which point you and your passenger fled on foot into surrounding properties.  You were arrested shortly thereafter.    

2.    Your driving exposed not only the police officers, but ordinary members of the community, to serious danger.  Not only that, you were on two sets of bail for other offences.  Further, when the police searched your car they found a single round of ammunition inside a bag belonging to you.

3. On 20 June 2019, you pleaded guilty in the County Court to one charge of recklessly exposing emergency workers, being three police officers, to risk by driving, contrary to section 317 AE (1) of the Crimes Act 1958 and one charge of reckless conduct placing persons in danger of serious injury, contrary to section 23 of the Crimes Act 1958, offences which carry maximum penalties of 10 years and 5 years respectively.

4. Section 317AE(1) came into effect on 5 April 2018 as a result of the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Act 2017 which introduced Division 8A into the Crimes Act 1958. Division 8A created new serious driving offences focused on the safety of emergency workers, custodial officers, youth justice custodial workers and emergency service vehicles. The rationale was to address the prevalence of offenders using motor vehicles to harm police and emergency workers and to recognise that violence towards police and emergency workers in the line of duty is unacceptable and will not be tolerated.[1]

[1] Victoria, Parliamentary Debates, Legislative Assembly, 2 November 2017, at 3667-3668 (Ms Neville, Minister for Police).

5.    Before me, you also pleaded guilty to related summary offences, being two charges of trespass (punishable by a maximum term of 6 months imprisonment), commit an indictable offence whilst on bail (punishable by a maximum term of 3 months imprisonment) and possess cartridge ammunition (punishable by a maximum of 40 penalty units).

6.    As the sentencing Judge, I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act 1991 to arrive at an appropriate sentence for your conduct. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails. Rather, I must have regard to them all, giving each the weight it deserves in order to arrive at a just sentence.

Circumstances of your offending

7.    The events of 19 December unfolded as follows.  At about 7pm you were driving on the Tullamarine Freeway in Essendon when, unknown to you, three uniformed police in an unmarked police car noticed that your car had a stolen number plate and decided to follow you.  At the time you had a single passenger in the front seat, Ashley Steel. 

8.    Soon after, you were stationary at the intersection of Footscray Road and Whitehall Street, Footscray, about to turn right, when the police car pulled up on the median strip beside you.  This was the first you knew of the police presence.  

9.    As the police officer in the front passenger seat opened his door in order to place a device called a terminator stop stick on the ground between your front and rear driver side tyres, you immediately reversed your car at great speed, almost colliding with his door, and actually colliding with a van that was stopped behind you.  In the process you ran over the stop stick, which was designed to puncture tyres, and your front tyre deflated immediately.

10. You then accelerated forward, mounted the median strip, and drove directly at a second police officer who had exited his car, forcing him to move onto the road and into the path of oncoming traffic to avoid you.  You drove between that police officer and the police car onto the wrong side of the road, striking the officer’s right hand as you did so. 

11. Thereafter, operating only on three tyres and dragging a loose bumper bar, you drove through the streets of West Footscray, Tottenham and Sunshine West with the police car in pursuit, lights and sirens activated.  

12. You drove through three sets of red lights, causing vehicles to swerve out of the way and narrowly avoiding a collision.  You travelled at speeds ranging between 60 and 120 kph, in a zone where the limit was 60 and you swerved across lanes.  

13. Just after the intersection of Sunshine Road and Ashley Street in Tottenham, you braked suddenly.  There was no warning since your brake lights had stopped working after you reversed into the van.  The police car swerved to your left to avoid you whereupon you turned your car sharply towards it, forcing it to take evasive action by almost mounting the footpath and narrowly missing a power pole.

14. You then set off again at speed, eventually driving for over 500 metres on the ‘Derrimut Trail’, a nature reserve in Sunshine West used by pedestrians and their dogs.   When you attempted to exit the reserve, your car was so damaged it came to a stop. 

15. You and Mr Steel then ran into a private property by kicking a fence panel and then a gate before being confronted by the owner.  The two of you then climbed several other fences into other properties before running inside a house.  The elderly residents of that house alerted police as to your whereabouts.  You were arrested after being located in a cupboard in the main bedroom.

16. You were not interviewed or drug tested because of safety concerns arising out of your aggressive behaviour.  

Background and personal circumstances

17.Your background and personal circumstances were set out in submissions tendered on your plea and elaborated upon by your counsel and your mother, who gave evidence.  You are now 23 years of age, having been born in 1996. You were raised primarily by your mother, Cheryl, in Airport West.  Your parents separated when you were about two years of age, there being family violence in that relationship.   Your mother re-partnered when you were aged three and you were again exposed to physical and psychological family violence at the hands of your step-father.  On occasions he dragged you by your hair to your room, kicked you until you wet your pants and perpetrated violence against your mother in your presence. 

18.Your mother separated from this partner when you were about 10 or 11 and you moved in with your paternal grandparents in Ballarat.   You were good at primary school but went ‘off the rails 'when you returned to Airport West to live with your mother and her new partner at about age 13 and you fell in with the ‘wrong crowd’.

19.At 15 you left school and moved in with your new step-father’s parents in Croydon.  From the age of 15 through to 20, you stayed out of trouble and worked consistently.  You were a housepainter for two years with your step-father’s father, did a partial apprenticeship as a roof tiler for two years, and spent one and a half years as an apprentice carpenter. 

20.All this came to an end when, at the age of 20, you became addicted to ‘ice’.  You moved in with your father in Melton and once again fell in with a ‘bad crowd’.  You were seriously assaulted and your jaw was broken.  You had a daily ice habit until the day of your offending.  

21.Your criminal history consists of three Children’s Court appearances for driving offences, criminal damage and possessing a dangerous article, and one Magistrates Court appearance on 9 November 2018, where you were convicted and fined for possessing drugs, a controlled weapon and cartridge ammunition, and also for committing an indictable offence whilst on bail.  Corresponding with the period of stability between the ages of 15 and 20, there is a notable gap in your offending between your last Children’s Court matter in 2013 and your single Magistrates Court appearance. 

22.You have a number of outstanding charges.  These are not prior, nor subsequent convictions, but they place your offending in a chronological context.  The two separate matters for which you were on bail at the time of this offending comprise theft and weapons charges allegedly committed on 20 October 2018 and another possess ammunition and cannabis and commit indictable offence whilst on bail, allegedly committed on 23 November 2018. 

23.You have been remanded in custody since your arrest.  This is your first time in prison.  There have been no incidents in custody and you are endeavouring to improve yourself.  You have done courses on substance abuse and have returned 8 clear urine screens.

24.You have also done vocational courses and obtained work in the prison kitchen.   You have reconnected with your mother, step-father and brother, who visit you regularly.   Your mother attests to your change in appearance and attitude since you have stopped using drugs whilst incarcerated.  You plan on living with your mother and her partner in Eildon upon your release and have been promised work on houseboats.

Gravity of the offending and moral culpability

25.The conduct which comprised your offence of recklessly exposing emergency workers to risk (Charge 1) was your driving at the police officer at the initial attempted intercept and then you later swerving towards the police car after you had braked suddenly.  The conduct comprising your offence of reckless endangering serious injury (Charge 2) comprised your reversing into the van behind you and the balance of your driving during the police pursuit not covered in Charge 1. 

26.In my view your conduct was a serious example of each offence. Your counsel conceded that the police acted entirely appropriately in their attempted intercept of you.  Your response was extreme and protracted.  Your driving towards the police was inherently dangerous, both because of the risk of collision with your car, but also because it forced them to take evasive action which itself was dangerous.  On the first occasion you drove so close to the police officer that your car made contact with his hand.  

27.Your driving during the pursuit was exceedingly dangerous, especially since your control must have been affected by the fact your car had one flat tyre and a dislodged bumper bar.  Further, you drove in this way for approximately 8 kilometres and more than 8 minutes in a populated area on relatively busy roads and through a park used by pedestrians.  In your desire to get away, you completely disregarded the safety of other road users and pedestrians, and in so doing, you displayed a high degree of recklessness. 

28.Whilst conceding that you were drug-affected at the time of your arrest, your counsel specifically disavowed reliance on drugs as the reason for your driving or your poor decision making.  Rather, he submitted, impulse and panic was the explanation for your behaviour.  In the absence of you being drug tested I am simply unable to decide what role, if any, drugs did play in your driving.  In any event, being substance affected would not have been mitigatory, and to the extent your voluntary ingestion of drugs may have been aggravating, I cannot reach that conclusion.    

29.I also regard the circumstances of you entering the two properties as serious examples of trespass.  In regard to Charge 6, you forced your way into the property, which was occupied at the time, by kicking a fence and a gate.  In relation to Charge 7, you actually entered the house of an elderly couple and hid inside. 

30.I regard your moral culpability for all offences as high.  You were not deterred by the fact that in the two months prior to this night you were arrested and bailed on two separate occasions and sentenced on one occasion.  Indeed, you were both bailed and sentenced for possessing ammunition.  You were also not deterred by a serious motor vehicle accident you had in 2011 which resulted in charges and serious injuries, albeit you were only about 15. 

31.Whilst acknowledging a corresponding downside in terms of your prospects of rehabilitation, your counsel submitted that your moral culpability was reduced by your disadvantaged background in accordance with the principles espoused in Bugmy v R [2013] HCA 37. The court in Bugmy clarified that the effects of profound deprivation do not diminish over time, but also emphasised the need for individualised justice according to the circumstances of the case. 

32.I have taken into account the fact you were subjected to family violence and experienced upheaval when you were young, but I am not satisfied on the evidence before me that your social deprivation was such as to significantly reduce your moral culpability.  Whilst your history may help to explain various matters, for example your resort to drugs, it is difficult to see how it explains your actions on this night, particularly when you do not attribute your offending to drug taking.  Further, the fact you were able to stay out of trouble for a considerable period of your life suggests your criminal offending may be more a matter of choice than the consequences of your upbringing.   

Plea of Guilty, co-operation and remorse

33.I accept that you have pleaded guilty at an early stage.  Although there was a contested committal, the charges to which you pleaded guilty in this court were not acceptable to the prosecution at that time.  You offered to plead to the present charges on 22 May 2019, and on 20 June 2019, you did so.  In pleading guilty at that early stage you facilitated the course of justice and took legal responsibility for your crimes.  Your co-operation and early plea of guilty entitle you to a utilitarian discount in sentence.

34.Because you were not interviewed at any stage, it is hard to gauge your remorse.  I accept that you have displayed a contrite attitude to your mother and regret your actions, but it is not clear to me that you have truly appreciated how dangerous and frightening your driving was. 

Purposes of Sentencing

35.In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community from you. A custodial sentence must only be imposed as a last resort.

36.I have had regard to the only three sentences that I could find for offending under Division 8A, being DPP v Nelson [2019] VCC 392, DPP v Jaeger [2019] VCC 526 and DPP v Kenyon, 4 April 2010.  Of course, no two cases are the same.  However, those cases do serve to highlight the serious nature of your offending.

37.Your counsel accepted that general deterrence is a major sentencing consideration.  There is also a need to denounce your actions, protect the community and specifically deter you from committing further offences. 

38.That said, you are still a young man.  You have the support of your family.  This is your first time in custody and the experience appears to have had a sobering effect, both literally and metaphorically, on you.  You have a demonstrated ability to be a law abiding and worthwhile member of society, and providing you can remain drug-free, I consider your prospects of rehabilitation to be reasonable.

39.Your counsel submitted that if I considered a combination sentence to be out of range, which I do, that I should consider imposing a lower non-parole period than I would otherwise to recognise and promote your prospects of rehabilitation. The prosecutor did not cavil with that approach, and in my view, it has merit. Unlike other provisions under Division 8A of the Crimes Act, section 317AE does not require the setting of a mandatory minimum non-parole period.

40.I have had regard to the purposes for which Division 8A of the Crimes Act was introduced and to the presumption of cumulation created by section 16 (3D) of the Sentencing Act 1991 in respect of my sentence on Charge 1. However, I have also had regard to the principles of totality and parsimony in fixing the total effective sentence.

Sentence

41.Mr Townley, please stand.

42.On the charge of recklessly exposing emergency workers to danger, Charge 1, I convict and sentence you to a term of imprisonment of 2 years and 6 months.  This is the base sentence.

43.On the charge of conduct endangering, Charge 2, I convict and sentence you to two years' imprisonment, six months of which is to be cumulative on Charge 1 and the other sentences imposed in this case.  

44.On the two summary charges of trespass, I convict and sentence you to an aggregate of two months, one month of which is to be cumulative upon Charge 1 and the other sentences imposed in this case.

45.On the summary charge of commit an indictable offence whilst on bail, I convict and sentence you to one month, cumulative upon Charge 1 and the other sentences imposed in this case.  

46.That makes a total effective sentence of 3 years and 2 months, or 38 months.  I set a non-parole period of 22 months.  I declare that you have already served 324 days of that sentence.

47.In relation to the possess ammunition, given it is your second offence, I convict and fine you $1000. 

48.If you had not pleaded guilty to the offences, I would have sentenced you to a total effective sentence of 4 years 2 months, with a non-parole period of 3 years. 

49.As Charge 1 is categorised as a serious motor vehicle offence, I am obliged under section 89 of the Sentencing Act to cancel and disqualify your licence for a minimum of 24 months.  I accept the submissions on your behalf that I should not exceed that time.  Accordingly, on Charge 1, I order that your licence is cancelled and you are disqualified for a period of 24 months commencing today.

50.There are a number of ancillary orders which you have consented to and which I will make.  The first one is a 464ZF order, which is an order that you provide a forensic sample.  I am making that order, and that will consist of, unless you do not cooperate, and there is a reason not to do this, it will simply consist of them taking a scraping from your mouth, and that will be used to extract DNA.  I am making the order because of the seriousness of the circumstances of the offending and your prior convictions.  The order is by consent and in my view, it is in the public interest.

51.And the other order I make is the forfeiture order in relation to the ammunition.

52.All right, thank you.  No other orders that I need to make, I do not believe?

53.MR PLUMMER:  No, Your Honour.

54.HER HONOUR:  Yes, thank you very much, counsel.  If Mr Townley could be removed?  Thank you.  I will leave the Bench now.

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