Director of Public Prosecutions v Van Her Werden

[2022] VCC 1065

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02153

AP-21-1556

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES THOMAS VAN HER WERDEN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2022
DATE OF SENTENCE:	12 July 2022
CASE MAY BE CITED AS:	DPP v VAN HER WERDEN
MEDIUM NEUTRAL CITATION:	[2022] VCC 1065

REASONS FOR SENTENCE

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Subject:Plea – appeal – sentencing

Catchwords:          Theft - aggravated offence of recklessly exposing emergency worker to risk by driving - handling stolen goods - persistent contravention of a family violence safety notice - unlicensed driving - going equipped to steal - appeal against sentence

Legislation Cited:  Sentencing Act 1991

Cases Cited:

Sentence:3 years and 9 months' imprisonment, 2 years and 3 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tan	Office of Public Prosecutions
For the Accused	Mr W. May	May Lawyers

HIS HONOUR:  

1James Thomas Van Her Werden, you have pleaded guilty to an indictment charging you with two offences of theft, for which the maximum term of imprisonment is 10 years, to an aggravated offence of recklessly exposing an emergency worker to risk by driving, for which the maximum penalty is 10 years' imprisonment, to an offence of handling stolen goods and two offences of handling stolen goods, for each of which the maximum term of imprisonment is 15 years, and to persistent contravention of a family violence safety notice, for which the maximum term of imprisonment is five years.

2You have also pleaded guilty to two related summary offences: one of unlicensed driving, for which the maximum penalty is six months' imprisonment or 60 penalty units or both; and an offence of going equipped to steal, for which the maximum term of imprisonment in summary jurisdiction is two years' imprisonment.

3You have also asked me to deal with an appeal against sentence arising from convictions at the Magistrates' Court in Melbourne on 8 December 2021 involving a total of 23 offences.  Charge 24 is the last one, but I see there is no Charge 8. 

4The purpose of the appeal against sentence was, as I understand it, to enable me to combine the sentence that is appropriate on the offences subject to the indictment and the related summary offences with the sentences of imprisonment that were imposed in the Magistrates' Court and then to fix a single non-parole period for all of the offending.

5It seems to me an entirely appropriate way to proceed, given that all of the offending is apparently part of a crime spree in which you engaged between about 7 December 2020 and the end of January 2021.  That resulted in the combination of the offences the subject of the appeal and those charged on the indictment and the subject of the two further related summary offences.

6You have also admitted a prior criminal history which goes back to 2017 and has a number of relevant convictions for offences of dishonesty, although none for the aggravated offence of recklessly exposing an emergency worker to risk by driving, which is the most serious of the offences with which I had to deal.

7The facts of the offences the subject of the indictment and the related summary offences are set out in a written document headed 'Prosecution Opening' dated 25 February 2022, which is Exhibit A on the plea hearing.  Mr Tan for the Crown took me through that in detail.  Suffice to say that the offending the subject of the indictment arose on 26 January 2021, when police officers were in an unmarked patrol car at the Shoppingtown Hotel carpark at 19 Williamsons Road, Doncaster and observed a white Holden Statesman vehicle, bearing registration plates which turned out to be stolen, having been stolen between 24 January and 25 January from a property at Knoxfield.  That in itself is the subject of Charge 4, handling stolen goods.

8The officers then observed that two people were in the vehicle.  It was parked close to a wall in the carpark and they, rather than approach the vehicle at that stage, called for reinforcements.  Two other police vehicles arrived and between the two further vehicles and the vehicle driven by the first police officers in attendance, the vehicle that you were in was effectively sandwiched against the wall close to the front of your vehicle.  There was another vehicle to your near side and you were in the driver's seat and your passenger was in the front passenger seat.  Once the three police vehicles had got into place and boxed you in, one or more of those vehicles operated emergency lights and two officers approached the vehicle.

9Once you realised that police officers were approaching and had effectively boxed you in, you started your vehicle, put it into reverse and reversed into two of the police vehicles that were at the rear of your vehicle.  That caused minor damage to the front of both police vehicles.  You then put your vehicle into drive and accelerated forwards, turning the vehicle towards the third police vehicle, which was to your offside.  The force of the impact that you created with the third police vehicle was sufficient to push that vehicle back by approximately half a metre.  The impact caused damage to the front end, driver's side panels and the rear driver's side panel of the police vehicle and the registration plate was also ripped from the vehicle.

10To avoid further impact, the vehicle that you had just driven into was reversed out of the way, enabling you to escape.  You accelerated at a fast rate of speed through the locked boom gate into the lower carpark.  There your passenger exited your vehicle.  You then drove off, smashing through a secure bollard and chain and exiting the carpark, travelling into Williamsons Road, Doncaster.  Your passenger was apprehended by the attending police.  I note that your conduct in seeking to escape from the position in which your vehicle was trapped had the capacity to put a number of police officers, who were by that stage outside their vehicles, in danger.  It is that conduct that gives rise to Charge 3 on the indictment of the aggravated offence of recklessly exposing an emergency worker to risk by driving.

11You were unlicensed at that time.  That gives rise to the offence of unlicensed driving to which you have pleaded guilty.  Shortly after you left the scene, the sister of your passenger, who by that time had been arrested, attended the carpark.  She apparently was the owner of the vehicle that you had driven away in and she told police that you had contacted her via Facebook Messenger shortly beforehand and said, 'Rammed three cop cars' and also that 'They had [my brother]'.

12At that stage, you were still the subject of a full family violence intervention order issued by the Ringwood Magistrates' Court on 23 October 2018.  A condition of that order prohibited you from contacting the sister, with whom you had apparently had a brief relationship prior to the order being made.  That order was served on you on 26 October of 2018 and remained active, indeed, still remains active, until 31 October 2023.

13In addition to that breach of the intervention order by contacting her by Facebook Messenger on 26 January 2021, you sent numerous Facebook messages to her from 26 January 2021 through to 3 February.  There were something in the order of 100 messages, which added to the offence of persistent breach of a family violence safety notice which is the subject of Charge 5 on the indictment.

14You were arrested on 3 February 2021.  When arrested, you dropped a backpack and commenced running from police before you surrendered.  The backpack contained, amongst other things, a Westpac Mastercard in another name, which is referrable to Charge 6 on the indictment of handling stolen goods.

15Also located in the backpack were numerous tools, such as a lockpicking set, screwdriver, glass breakers and a copper pipe cutter.  Those items are the subject of the related summary charge of going equipped to steal to which you pleaded guilty last week.  A tablet device was also located amongst your possessions, which when examined, showed in excess of 100 Facebook messages from you to the protected person between 26 January 2021 and 3 February 2021 and as I say, those are the subject of Charge 5 on the indictment of breaching the intervention order to which I have referred.

16You were interviewed by police in relation to the activity in ramming the police vehicles and escaping from the carpark at the Doncaster Shoppingtown Hotel.  You said that you had freaked out, but that you had no intention to cause any injury to anyone.  You also admitted that the vehicle was unregistered and that you knew that the vehicle registration plates were stolen.

17I am not going to deal in great detail with the offences the subject of the appeal, save to say that they concern, in the main, offences of burglary and related offences of theft from the dwelling houses that were the subject of burglaries, theft from motor vehicles and other associated offences of dishonesty.  They took place between 7 December 2020 and 26 January 2021 and form part of a crime spree which occurred within a matter of two or three weeks of your release from your previous prison sentence.

18Turning to matters personal to you: your counsel has provided me with a written outline of submissions dated 4 July 2022, along with two participation certificates showing that you have endeavoured to make good use of your time whilst in custody and three letters of reference from your stepfather, your mother and your grandmother.

19You are now 35 years of age and I am told that you were raised as an only child, although you have a half-sibling who you have only met on one occasion.  Your biological father left your mother when you were an infant.  Your mother re-partnered with the person who you view as your stepfather, the author of one of the references to which I have referred.  It seems that your upbringing was loving and supportive.  Your stepfather worked as a builder and handyman and your mother was a stay-at-home caregiver.  You attended school until Year 10 with no major issues at school.  You left to enter the workforce, initially as a factory hand and then you commenced an apprenticeship as a painter and worked as a painter for a number of years until 2017.

20You had been a user of illicit drugs since your late teens and throughout your 20s.  You were initially a cannabis user and you used heroin mainly at weekends in your mid-20s.  You were a regular user of that drug for about six years.  You describe yourself during that period as a functioning addict, in the sense that you were always able to work and fund your habit through your earnings.  You began using methamphetamine in the early part of 2017 and, as your counsel submitted, that coincided with a period of offending which resulted in your having spent almost all of your time in prison.

21That coincided with a number of factors bearing upon your state of mind.  Your mother was diagnosed with multiple sclerosis.  You suffered the breakdown of a six-year-long romantic relationship.  Your car was destroyed in a motor vehicle accident, for which you were uninsured.  That created issues with your capacity to maintain employment.  A pet dog died during that same period.

22According to the submissions of your counsel, those factors led to an increase in heroin use and the commencement of use of methamphetamine when you could not get heroin.  By the early part of 2018 you were in custody, and you have largely remained there ever since.

23Your counsel pointed out that you finished your last term of imprisonment prior to this offending on 15 November 2020.  The crime spree, covering the matters the subject of the appeal and the indictment, commenced on or about 7 December 2020.  I am told that upon your release from prison, you felt too ashamed to return to your family.  Instead, you chose to be housed at a motel in Box Hill.  You immediately fell back into drug use and it was in that setting that the offending with which I have to deal today occurred.

24I am told in relation to the offence the subject of Charge 3 on the indictment, that is, the recklessly putting emergency workers at risk, that you panicked and made a split-second decision to avoid apprehension.  You accept that your actions placed police members at significant risk.  That is a significant acknowledgment of criminal responsibility and it is to your credit.

25The victim of the persistent breach of the family violence safety order is a person with whom you had a brief relationship, but you resumed contact with her upon your release on the mistaken belief that she had the intervention order revoked whilst you were in custody.  Apparently that relationship is over and it seems that she does not want anything more to do with you.

26You have been in custody since 3 February of 2021 and no doubt during that period your life has been severely restricted through the COVID-19 pandemic and the additional restrictive environment that is imposed upon prisoners in those circumstances with frequent periods of lockdown, difficulty in accessing programs and difficulty in maintaining contact with persons dear to you.  You have been prescribed Methadone during your period of incarceration.  You have suffered from a hernia, but are making arrangements for that to be addressed through surgery.  Your counsel fairly concedes that the only available sentence that I can pass in all the circumstances is a period of imprisonment which requires a head sentence and a non-parole period.

27I take into account the fact that you were frank in admitting your offending to police, your early indication of a plea of guilty, your pleas of guilty in the Magistrates' Court, combined with the delay in this matter coming to fruition and having these matters hanging over your head for a quite significant period of time, and your ongoing support from family, which will no doubt assist your rehabilitation.  As of today, there are 524 days of presentence detention to be taken into account.

28As to your prospects of rehabilitation, I think that it would be optimistic in the extreme to put them as being anything other than guarded at this stage.  There is a real risk that, even for a 35-year-old, a prolonged period of imprisonment can lead to institutionalisation.  It seems that you were not ready to be released on parole from your previous prison sentence.  You served the full sentence, but were released into the community without any safeguards.

29It was an unfortunate decision that you determined not to go home where you would have enjoyed the support of your family.  However, there is by now a long and deep-seated period of drug abuse, which you have got to overcome before you are able to settle back into a normal and productive way of life, where you can get regular work and rely upon your earnings for your expenditure, rather than engaging in crime.

30The offence the subject of Charge 3 on the indictment, the aggravated offence of recklessly exposing an emergency worker to risk by driving, and the offence the subject of Charge 5 of persistent contravention of a family violence safety notice, are both offences for which the sentencing principle of general deterrence is a significant factor.  Offences similar to that the subject of Charge 3 are frequently before these courts, and there is a strong need for the court to offer the degree of protection to emergency workers who are exposed to crimes of that kind through the deterrent effect of a significant term of imprisonment.

31The offences of burglary and theft from dwelling houses are also serious offences.  As I indicated to your counsel, I have the power to increase sentence on the offences which are the subject of the appeal from the Magistrates' Court.  I have indicated that I do not propose to do that, at least not so far as the overall sentence is concerned.  Rather, my intention is to impose precisely the same overall sentence, albeit expressed slightly differently, as that imposed by the magistrate and I intend to impose an overall sentence which covers both sets of offending, that is the indictment and the subject of the appeal, and impose a single non-parole period.

32I am conscious of the need to impose a total sentence which is not crushing and one which pays proper regard to the principle of totality.  That has not been a particularly easy exercise in this case, but I have endeavoured to sentence you on the basis that the overall sentence is a just one, having regard to the number and the nature of offences with which I have to deal.

33I propose, in sentencing you, to deal with the offences the subject of the appeal first and then go to the sentencing the subject of the indictment. 

34In relation to the appeal against sentence, on each of the charges, that is, Charges 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, I order that the sentences imposed by the Magistrates' Court on 8 December 2021 be set aside and in their stead, I make the following orders.

35On Charge 1, you are convicted and sentenced to imprisonment for six months.

36On Charge 2, you are convicted and sentenced to imprisonment for six months.

37On Charge 3, you are convicted and sentenced to one month's imprisonment.

38On Charge 4, you are convicted and sentenced to one month's imprisonment.

39On Charge 5, you are convicted and sentenced to six months' imprisonment. 

40On Charge 6, you are convicted and sentenced to six months' imprisonment. 

41On Charge 7, you are convicted and sentenced to one month's imprisonment. 

42On Charge 9, you are convicted and sentenced to 14 days' imprisonment. 

43On Charge 10, you are convicted and sentenced to one month's imprisonment.

44On Charge 11, you are convicted and sentenced to three months' imprisonment. 

45On Charge 12, you are convicted and sentenced to three months' imprisonment. 

46On Charge 13, you are convicted and sentenced to three months' imprisonment.

47On Charge 14, you are convicted and sentenced to four months' imprisonment. 

48On Charge 15, you are convicted and sentenced to four months' imprisonment. 

49On Charge 16, you are convicted and sentenced to four months' imprisonment. 

50On Charge 17, you are convicted and sentenced to four months' imprisonment. 

51On Charge 18, you are convicted and sentenced to four months' imprisonment. 

52On Charge 19, you are convicted and sentenced to two months' imprisonment. 

53On Charge 20, you are convicted and sentenced to two months' imprisonment. 

54On Charge 21, you are convicted and sentenced to six months' imprisonment. 

55On Charge 22, you are convicted and sentenced to six months' imprisonment. 

56On Charge 23, you are convicted and sentenced to six months' imprisonment.

57On Charge 24, you are convicted and sentenced to six months' imprisonment.

58So far as cumulation of sentence is concerned, the sentence of six months on Charge 1 is the base sentence.  I order that one month of the sentence on Charge 4, four months of the sentence on Charge 5, one month of the sentence on Charge 10, two months of the sentence on Charge 11, one month of the sentence on Charge 14, one month of the sentence on Charge 19, two months of the sentence on Charge 21 and two months of the sentence on Charge 22, be served cumulatively upon one another and upon the sentence of six months the subject of Charge 1, which gives rise to a total effective sentence of one year and eight months' imprisonment.  That is effectively the sentence that was imposed at the Magistrates' Court.

59In relation to the indictment, you are sentenced as follows. 

60On Charge 1, you are convicted and sentenced to imprisonment for three months. 

61On Charge 2, you are convicted and sentenced to imprisonment for four months. 

62On Charge 3, you are convicted and sentenced to imprisonment for three years and disqualified from obtaining or holding a driver's licence for a period of two years from today. 

63On Charge 4, you are convicted and sentenced to imprisonment for three months.

64On Charge 5, you are convicted and sentenced to imprisonment for nine months. 

65On Charge 6, you are convicted and sentenced to imprisonment for four months. 

66On related summary Charge 7, that is, unlicensed driving, you are convicted and sentenced to imprisonment for one month and you are disqualified from obtaining or holding a driver's licence for a period of 12 months from today. 

67On related summary Charge 15 of going equipped to steal, you are convicted sentenced to imprisonment for two months.

68So far as cumulation of sentence is concerned, I make the following orders.  The sentence of three years on Charge 3 on the indictment is the base sentence.  I order that one month of the sentence on Charge 1, one month of the sentence on Charge 2, one month of the sentence on Charge 4, five months of the sentence on Charge 5 and one month of the sentence on Charge 6 and one month of the sentence on related summary Charge 15 be served cumulatively upon one another and upon the sentence of three years that is the subject of the base sentence, which makes for the offences on the indictment a total effective sentence of three years and 10 months' imprisonment.

69I order that 10 months of the sentence the subject of the appeal be served cumulatively upon the sentence of three years and 10 months that I have imposed on the sentences the subject of the indictment, making a total overall effective sentence of four years and eight months' imprisonment.

70I order that you serve three years and two months before being eligible for parole.

71I declare 524 days’ pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from that sentence. 

72I also declare that but for your pleas of guilty, I would have sentenced you to an overall total effective sentence on both the indictment and the appeal of six years and six months' imprisonment, with a non-parole period of five years.

73There are some further orders that were made at the Magistrates' Court and I propose to make those orders.  In relation to Charge 10 I make a forfeiture order.  There is a compensation order on Charge 4, which I think I need to make, is that right, Mr Tan?

74MR TAN:  Yes Your Honour.

75HIS HONOUR:  Also a forfeiture order on the plea charges.  I take it you have got no objection to any of those orders being made?

76MR MAY:  No, Your Honour.

77HIS HONOUR:  All right, I shall sign those orders and make those orders accordingly.

78MR TAN:  If Your Honour pleases.

79HIS HONOUR:  Are there any other matters, or does anybody disagree with my arithmetic, or are we ad idem on the total effective sentences?

80MR TAN:  Yes.

81HIS HONOUR:  Yes.  Mr May, nothing that you've spotted?

82MR MAY:  No, no issues, Your Honour.  The arithmetic seemed to check out, as I was doing it then.

83HIS HONOUR:  Yes, all right.  Well, thank you both for your assistance.  Thank you.

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