Director of Public Prosecutions v Tracey
[2015] VCC 1730
•27 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-01053
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD TRACEY |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 September 2015 |
| DATE OF SENTENCE: | 27 November 2015 |
| CASE MAY BE CITED AS: | DPP v Tracey |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1730 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to charges of burglary, theft, reckless conduct endanger serious injury, recklessly cause injury and others
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Criminal Procedure Act 2009 (Vic), Road Safety Act 1986 (Vic), Summary Offences Act 1966 (Vic)
Cases Cited:R v Terrick & Ors [2009] VSCA 220
Sentence:Convicted and sentenced to 3 years imprisonment with a non-parole period of 14 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Bhai (Plea) Ms C. Swinden (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr A. Halphen | Lethbridges |
HIS HONOUR:
1In this plea, Ms Bhai, appeared for the Director, and Mr Ashley Halphen appeared on behalf of Mr Tracey. The plea was heard on 2 September 2015. Ms Swinden appears on behalf of the Director today.
2Mr Tracey is 43 having been born on 27 June 1972. He came before the Court, as I said, on 2 September 2015 and pleaded guilty to a five-charge Indictment No.F10755989. These crimes happened on 3 March 2015 in South Melbourne when he was aged 42.
3The first charge relates to a charge of burglary committed at 200 Ferrars Street, South Melbourne. That is an offence under s.76(1) of the Crimes Act 1958. The maximum penalty imposed for such an offence by the Legislature is ten years. Charge 2 relates to a charge of theft under s.74 of the Crimes Act 1958. Again that occurred on the same day, 3 March 2015, and that related to jewellery and cash at the property owned by Helena Klapas who was the owner of the property and who had returned to the premises while Mr Tracey was still there. Her coming back led to him leaving the premises. The maximum penalty proscribed for theft is ten years. That penalty also, and section, applies to Charge 3, which was the theft of the V8 Holden ute of Adam Cooks. That was the car that was, I suppose to use the word, decimated is sufficient, by what thereafter happened on that day.
4Charge 4 on the Indictment is one of reckless conduct endangering persons. This was the driving in South Melbourne to which I will come to in due course, driving down the wrong side of the road of York Street. It involved Mr Musket and a Lynne Seabrook being placed in danger. The maximum penalty proscribed for such offence, being an offence under s.23 of the Crimes Act 1958, is one of five years.
5Insofar as the last charge on the Indictment, that is a charge of recklessly cause injury. In this instance the victim was a member of the police force, who identified by his operator number. Again this was the end of the escapade, so to speak, when there was a collision with the Special Operations vehicle. As a result of that, operator 58, received an injury. It requiring some 27 stitches to his head. However fortunately he was not left with any long term injury.
6Mr Tracey also pleaded guilty to five summary charges and asked for those matters to be heard before this Court pursuant to s.145 of the Criminal Procedure Act 2009. They were all related, they relate to the circumstances thereafter, Charges 7 and 12 are assault charges brought about by disagreements, between him and the police who were arresting him and subsequently dealt with him after he had been taken to hospital. Such offences are under the Summary Offences Act 1966. Both being s.52(1) for which the penalty is either three months' gaol plus or minus 15 penalty units.
7Summary Charge 9 was driving a car without a licence in York Street. As I understand, Mr Tracey has never held a licence so there was no issue about that. The penalty under the Road Safety Act 1986 for that is one of three months' gaol and 25 penalty units.
8The final charges relate to his state while driving. He was recorded, subsequent to this driving, to have a blood alcohol reading of .043 which is an offence under s.41(1)(g) of the Road Safety Act 1986 on the basis that he is a person without any licence at all in those circumstances, on any reading, is an offence for which a maximum penalty is imposed of 20 penalty units. Equally Summary Charge 30 was drive above the proscribed concentration of drugs, there was a concentration of both methylamphetamine and amphetamines.
9Insofar as the circumstances of this case are concerned Mr Halphen consented to the tendering of Exhibit A, which was the prosecution summary and accepted that those are the facts upon which I am to sentence Mr Tracey. To fully understand Mr Tracey's exploits on this day Exhibit D was tendered which was a series of photos of the escapade, so to speak. To fully understand it there was also a map produced tracing Mr Tracey's path and detailing where he came into contact, one way or other, with the various victims.
10Insofar as the victim impact statements that were tendered, both of which seemed to me to be quite reasonable and I will come to those. First is Exhibit B, which is the owner of the premises to which Charges 1 and 2 relate. She refers to the financial losses. She refers to the emotional trauma of having "a stranger in your premises," especially in the circumstances where her daughter was home at the time. It seems to me none of what she set out in that statement can be seen as unreasonable. The second victim impact statement is of Ms Digham and again refers to those circumstances and does not seem to me, again, to be anything unreasonable in that matter.
11The matter came before the Magistrates' Court by way of hand up brief on 16 June this year. On that day indication was given to the Court that there was to be a plea of guilty to all matters. To date, as agreed, there has been service by way of remand of a period of some 269 days.
12In looking at Exhibit A, the summary, and looking at the photographs and the plan suffice to say, of course, it is very fortunate that no-one was more seriously injured or perhaps even killed during the manner and circumstances of Mr Tracey's driving on that day.
13Objectively one can only assess this criminality as quite serious albeit somewhat bizarre. In taking account of the appropriate matters relevant to sentence one, of course, does not only take into account the serious objective assessment in regard to all of these crimes, but of course to matters put forward by Mr Halphen being firstly his written submission, Exhibit 1, of 1 September 2015 and indeed Mr Tracey's letter that he has delivered to the Court, Exhibit 2.
14I must say, reading Mr Tracey's letter, leaves one somewhat sad. It is very disconcerting to have before you in a Court someone who is so institutionalised as Mr Tracey. It certainly does not reflect well upon our justice system. However that is a lot to do with his own actions and unfortunately we get to a stage where there is not much that can be done but to simply re-warehouse him into gaol and that is essentially what is going to happen today.
15In the submission of Mr Halphen he set out at paragraphs 1-7 the background of Mr Tracey and the deprivation that comes about thereof. He spoke of the priors and I am not going to go into those. Essentially those priors go back many, many years. They relate to dishonesty and burglaries. I think what was pointed out, insofar as such history was that the burglaries never got, any stage, to aggravated burglaries. There has been an armed robbery of course. I think the point being made was, it was most unfortunate certainly as far as Mr Tracey was concerned and part of his apology that that young girl was present at the premises on that day.
16What is, of course, disconcerting about Mr Tracey's life is that he had, in fact, been released from a long term of imprisonment in January of this year. Thereafter steps made for his, what might be called, normal housing within the community seemed to fall away and by the time of this offending in March he was not only on the streets but also using methamphetamine to the extent that he recalls little of these circumstances on this particular day.
17Mr Halphen in his submission stressed that there has been, as expressed in the letter, genuine remorse for his offences. That he pleaded guilty at the earliest time. While his history is relevant and he accepts all of his priors the point was made that there has never been any aggravated burglary. The unsavoury factor is that from about 2001 Mr Tracey has been in gaol for all but some 12 weeks.
18Also pointed out by Mr Halphen is despite such a history, that this is only the second occasion he comes before this Court. On the first occasion of which I was handed the sentencing remarks of Judge Smallwood made in 2010 it was hoped in that determination that there would be, perhaps, some chance of rehabilitation. Certainly that was the view of the Judge albeit with some question marks. He actually gave a sentence to Mr Tracey which encouraged that.
19However, unfortunately, having got out early this year Mr Tracey demonstrated again that he just cannot cope in society. Unfortunately the chances now of him rehabilitating muse be seen as very, very limited. Insofar as Judge Smallwood's sentence in fact, as I understand it, the whole of the five years maximum term was served by him and that is the term he was coming out from shortly before these events took place.
20As I say the whole circumstances are somewhat unsavoury. Firstly the bizarre criminality, the grave risk to life and limb of the community by Mr Tracey's behaviour. The fact that this driving took place while he is affected by both alcohol and drugs and the injuries and damage rendered to persons as a result of this binge.
21The compensation orders give some example. I take it, Madam Prosecutor, the large amount is the damage to the big police car is it?
22MS SWINDEN: That's right, Your Honour.
23HIS HONOUR: That was the sum of some $50,303. The Musket car was $3,338 and the $11,000 Wfi insurance, is that for the house?
24MS SWINDEN: No that was in relation to another police car.
25HIS HONOUR: That was the unmarked police car?
26MS SWINDEN: That's correct, Your Honour.
27HIS HONOUR: Exactly. So by almost unerring direction I think it has to be remarked at the plea Mr Tracey was able to smash up two police cars, albeit that he might not have necessarily known what he was doing at the time. At any rate I have made all those orders. However the reality is that none of orders will ever be paid unfortunately.
28Insofar as the sentencing in this matter the principles set out in R v Terrick & Ors [2009] VSCA 220 were put to me by Mr Halphen. I do not know where Mr Tracey is going to end up but it seems to me, doing as best as I can, all I can do is sentence him upon these matters as I assess their seriousness and given the understanding that given his background there is simply no alternative but periods of gaol. Albeit that they do not seem to be of any effect whatsoever.
29If you would be good enough to stand up please.
30On the first charge of burglary, you will be sentenced to a period of imprisonment of two years.
31On the second charge of theft, a period of imprisonment of one year.
32On the third charge of theft being Mr Cook's V8 Holden, a charge of imprisonment of one year.
33On the fourth charge being reckless conduct endangering serious injury to the police officer, a period of 18 months.
34On the fifth charge being the recklessly cause injury to the operator, also a period of 18 months.
35Insofar as the ‑ ‑ ‑
36PRISONER: How long is that all up?
37HIS HONOUR: I am going to tell you, do not worry. Insofar as that first charge, I make the first charge, of two years, the base sentence. To that I add, in regard to Charges 4 and 5, six months each. Making a total of three years all up.
38PRISONER: All up.
39HIS HONOUR: Insofar as the summary matters are concerned, on Summary Charge 7, I order that you be sentenced to a period of imprisonment of one month.
40On Summary Charge 9, a period of imprisonment of one month.
41On Summary Charge 12, a period of imprisonment of one month.
42On Summary Charge 29, a fine in the sum of five penalty units.
43On Summary Charge 30, a fine in the sum of six penalty units.
44I will not, in any way, cumulate those summary figures insofar as you are concerned, Mr Tracey.
45In regard to the sentence at the top, a total effective sentence of three years imprisonment. I order that the minimum term that you are required to serve before being eligible for parole is a period of 14 months imprisonment.
46I also declare that pursuant to s.18 of the Sentencing Act 1991 that the period of time that you have served should be taken as service of this sentence and that period, being 269 days, I declare to be such service of this sentence and a declaration of that effect will be recorded in the records of this Court.
47I am required under the provisions of s.89(4) to disqualify you in regard to Charge 3 and which I do so, from obtaining a licence for period of six months. Effectively that is not going to worry you much and I have made the compensation orders that I have indicated.
48So, Mr Tracey, as far as you are concerned, three years with 14 months on the bottom, all right? You have done about - what has he done? Seven, nearly eight?
49MR HALPHEN: Well it seems his earliest possible release date would be 2 May next year.
50HIS HONOUR: Yes, it will take you through to about 2 May next year, all right?
51PRISONER: Thank you, Your Honour.
52HIS HONOUR: I do not know what the solution is but when you come out ‑ ‑ ‑
53PRISONER: Hopefully ‑ ‑ ‑
54HIS HONOUR: Sorry?
55PRISONER: Hopefully when I get out they give me something better than a motel for a week.
56HIS HONOUR: Let us hope they do something because it will be a great tragedy for the community if you came out and did the same things. And for you so let us hope someone tries to do something in gaol for you because the justice system, obviously, is not doing much for you at the moment.
57But, Mr Tracey, this must have been a pretty frightening experience for a lot of people in York Street, South Melbourne, so let us hope that you are not involved in such a thing again because with drugs and alcohol and a car and the manner in which you were driving, as I said, we are lucky that you are not across the road on a more serious charge.
58MS PRICE: Yeah I know.
59HIS HONOUR: All right well good luck. Thank you. Sorry, just before you go, is there anything I need to attend to?
60MS SWINDEN: Just 6AAA, Your Honour.
61HIS HONOUR: Well to the extent that Parliament requires a Court to suggest or determine what one might have done had there not been a plea of guilty, can I indicate that I would have sentenced, by way of total effective sentence, Mr Tracey to a period of imprisonment of four years with a minimum period to be served of 21 months. That is just to indicate the worth of your plea, Mr Tracey.
62PRISONER: What do you mean by that, Your Honour?
63HIS HONOUR: Well what the Parliament wants me to declare now is to say that had you not pleaded guilty I would have given you four years with a minimum of 21 months.
64PRISONER: (Indistinct).
65HIS HONOUR: All right, so the benefit to you of your plea is three years and 14 months, all right?
66PRISONER: All right.
67HIS HONOUR: All right, nothing else?
68MR HALPHEN: No, Your Honour.
69MS SWINDEN: Nothing else, Your Honour.
70PRISONER: (Indistinct) give me 14 months on the top?
71HIS HONOUR: Fourteen months on the bottom, all right?
72PRISONER: Thank you.
73HIS HONOUR: Right. See you later. Yes.
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