Director of Public Prosecutions v Wagstaff (a pseudonym)
[2022] VCC 1644
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY JAMES WAGSTAFF (a pseudonym) |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2022 | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | DPP v Wagstaff (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1644 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Conduct endangering life – Handling stolen goods – Aggravated offence of recklessly exposing an emergency worker to risk by driving – Related summary offences – Driving whilst disqualified – Driving whilst more than prescribed concentration of drugs present in oral fluid – Commit indictable offences whilst on bail – Use vehicle on a highway without bearing number plates affixed and displayed in accordance with Regulations – Three incidents of offending by driving – Offender under influence of Methamphetamine and Gamma-Hydroxybutyrate at time of offending – Third incident of driving involving police pursuit – Offender’s driving erratic and dangerous – failing to stop until collided with rear of police vehicle – Sentencing considerations – Guilty pleas following case conference and sentence indication hearing – Reframed Indictment reducing number of charges – Relevance of COVID-19 to weight of guilty plea – Disadvantaged background – Mild intellectual disability and possible acquired brain injury from history of drug addiction – Whether self-induced intoxication reduces moral culpability – Applicability of principles in R v Verdins & Ors (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; and R v McKee & Anor (2003) 138 A Crim R 88 – Prior convictions – Significance of protection of the community – Remorse – Delay – Prospects of rehabilitation guarded – Principle of totality – Avoidance of double punishment
Legislation Cited: s30B Bail Act 1977; ss22, 88, 317AF(1)(b) Crimes Act 1958; ss145, 242 Criminal Procedure Act 2009; ss30(1), s49(1)(bb) Road Safety Act 1986; reg49(1) Road Safety (Vehicles) Interim Regulations 2020; ss3(1), 5(2H), 6AAA, 16(3D), 18(4), 87P(ba), 89 and 89C Sentencing Act 1991
Cases Cited:Brown v The Queen [2020] VSCA 60; Bugmy v The Queen (2013) 249 CLR 571; Douglas v The Queen (1995) 56 FCR 465; DPP v Grabovac [1998] 1 VR 664; DPP v Johnstone (2006) 16 VR 75; DPP v Josefski (2005) 13 VR 85; McGrath v The Queen (2018) 84 MVR 189; Nelson v The Queen [2020] VSCA 219; R v Henry (1999) 46 NSWLR 346; R v Horne [1999] NSWCCA 391; R v Jarman [2001] NSWCCA 178; R v Ma (1999) 107 A Crim R 252; R v McKee & Anor (2003) 138 A Crim R 88; R v O’Rourke [1997] 1 VR 246; R v Payne (2002) 131 A Crim R 432; R v Whyte (2002) 55 NSWLR 252; R v Verdins & Ors (2007) 16 VR 269; R v Valentini (1989) 46 A Crim R 23; R v Halewyn (1984) 12 A Crim R 202; R v Lawrence (1988) 10 Cr App R (S) 563; R v Spiero (1979) 22 SASR 543; Stephens v The Queen [2016] VSCA 121; The Queen v Madex [2020] VSC 145; Worboyes v The Queen [2021] VSCA 169
Sentence: Sentenced to a total effective sentence of four (4) years’ imprisonment, with a minimum non-parole period of two (2) years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z Petric | Office Of Public Prosecutions |
| For the Accused | Mr M Habib | Leanne Warren & Associates |
HER HONOUR:
1ZACHARY JAMES WAGSTAFF,[1] you are to be sentenced in respect of two charges of Conduct Endangering Life contrary to s22 of the Crimes Act 1958 (“the Act”) – charges 1 and 3; one charge of Handling Stolen Goods contrary to s88 of the Act – charge 2; and one charge of the Aggravated offence of Recklessly Exposing an Emergency Worker to Risk by Driving contrary to s317AF(1)(b) of the Act – charge 4. These charges are contained in Indictment No. M10016085.1.
[1]A pseudonym
2The maximum applicable penalties for these charges are:
(a) Conduct Endangering Life – 10 years’ imprisonment;
(b) Handling Stolen Goods – 15 years’ imprisonment; and
(c) The Aggravated offence of Recklessly Exposing an Emergency Worker to Risk by Driving – 10 years’ imprisonment.
3You pleaded guilty when arraigned before me on 26 September 2022. That day you also pleaded guilty to a number of related summary offences brought before this Court under sections 145 and 242 of the Criminal Procedure Act 2009. The related summary offences to which you pleaded guilty are:
(a) Three charges of drive whilst disqualified contrary to s30(1) of the Road Safety Act 1986 – charges 6, 25 and 30;
(b) One charge of drive a motor vehicle whilst more than the prescribed concentration of drugs was present in your oral fluid contrary to s49(1)(bb) of the Road Safety Act – charge 7;
(c) Two charges of commit an indictable offence whilst on bail contrary to s30B of the Bail Act 1977 – charges 9 and 26; and
(d) One charge of use a vehicle on a highway without such vehicle bearing number plates affixed and displayed in accordance with the Regulations contrary to Regulation 49(1) of the Road Safety (Vehicles) Interim Regulations 2020 – charge 18.
4The maximum applicable penalties for the related summary offences are:
(a) Drive whilst disqualified – 240 penalty units or imprisonment for two years;
(b) Drive a motor vehicle whilst more than the prescribed concentration of drugs present in oral fluid – because this is a subsequent offence, a fine of not more than 60 penalty units;
(c) Commit an indictable offence whilst on bail – 30 penalty units or three months’ imprisonment; and
(d) Use a vehicle on a highway without displaying affixed number plates in accordance with the Regulations – two penalty units.
Circumstances of offending
5All but two of the charges before me relate to three separate incidents involving your driving. Charge 2 on the Indictment, the handling stolen goods charge, relates to your possession and use of stolen number plates on a car that you were driving. I shall first deal with that charge together with the related summary offence of drive vehicle without number plates affixed in accordance with the Regulations, related summary charge 18.
6On 13 October 2020 the front and rear Victorian registration plates 1HF 8YP were stolen from a vehicle parked in Bendigo. On 21 December 2020 you were seen driving a vehicle to which the stolen number plates had been affixed. Your fingerprints were subsequently detected on the rear of one of the number plates.[2] Although when questioned by police about the stolen number plates you had no recollection of how they came to be in your possession,[3] by your plea you have accepted that you dishonestly handled the stolen number plates knowing or believing that they were stolen goods.
[2]Statement of Leading Senior Constable Richard Webster, Deposition (D) 71
[3]Record of Interview Question (Q) and Answer (A) 171-175, T319-392
First incident – charge 1 on Indictment; related summary charges 18, 25 and 26
7At approximately 12.50am on 21 December 2020, Senior Constables Veronica Walker and Rebecca Naylor were travelling in a southerly direction along Heartbreak Lane, Flora Hill, in an unmarked police vehicle. At approximately 12.57am they saw you driving a gold-coloured Mitsubishi Magna bearing the stolen registration plates 1HF 8YP. They saw you turn in an easterly direction along Ellis Street from Heartbreak Lane. There was a female passenger in the front seat of the car.
8Police then saw you turn into Neale Street and continue in a northerly direction turning west onto Condon Street. You continued through a large roundabout and turned north-west onto Williamson Street. You were travelling at a speed of approximately 120 kilometres an hour in a 60 kilometre an hour zone along Williamson Street, overtaking a vehicle travelling in the same direction. Another vehicle was travelling in a south-easterly direction towards you. You narrowly missed the oncoming vehicle before swerving back into the left-hand lane. This driving is the subject of charge 1 on the Indictment, conduct endangering life.
9At the time of the incident you were disqualified from driving, your license having been cancelled on 28 February 2019 at the Bendigo Magistrates’ Court where you were also disqualified from driving for a period of two years. Driving whilst disqualified on this occasion is the subject of related summary offence 25.
10At the relevant time you were on bail in relation to unrelated matters. You had entered into such undertakings on 19 and 20 November 2020 respectively at the Bendigo Magistrates’ Court. You committed the indictable offence of conduct endangering life, charge 1 on the indictment, whilst on bail. That is the subject of related summary offence 26, commit indictable offence whilst on bail.
11Driving the vehicle with the stolen registration plates affixed is the subject of related summary offence 18.
Second incident – related summary charge 30
12At approximately 1.58pm on 31 December 2020 you were seen driving a white-coloured Mitsubishi Lancer out of a multi-storey car park at Hargreaves Street Bendigo. At the time of driving your license had been cancelled and you were disqualified from driving for a period of two years. The driving on this occasion is the subject of related summary offence 30, drive whilst disqualified.
Third incident – charges 3 and 4 on Indictment; related summary charges 6, 7 and 9
13On 3 January 2021 you drove in such a manner as to endanger life and to recklessly expose emergency workers to risk by your driving.
14At the time of driving you were disqualified from driving, your licence having been cancelled. That is the subject of related summary offence 6. You were also on bail, which you breached by committing charge 3 on the Indictment, the offence of conduct endangering life. That is the subject of related summary offence 9. You were subsequently detected with methylamphetamine in your system.[4] That is the subject of related summary offence 7, fail oral fluid test (drugs). You also admitted to taking Gamma-Hydroxybutyrate (“GHB”) prior to driving.
[4]Toxicology Certificate of Approved Analyst dated 19 January 2021, D150
15I now turn to the detail of your driving that resulted in the rolled-up charges of conduct endangering life – charge 3 on the Indictment, and the aggravated offence of recklessly exposing an emergency worker to risk by driving, charge 4 on the Indictment.
16On 3 January 2021 you drove on the McIvor Highway, Junortoun, for a distance of approximately 13 kilometres. The road runs in a south-east direction and in most sections comprises a single lane road with marked white lines and vegetation on either side. The posted speed limits for this stretch of roadway vary between 80 kilometres an hour and 100 kilometres an hour.
17At approximately 2.17pm you were seen travelling in an easterly direction along the highway in a black-coloured Nissan Tiida sedan, a vehicle that belonged to your friend. You were seen travelling between Atlas Road and Homebush Drive at speeds between 30 to 40 kilometres an hour in an 80-kilometre-an-hour zone. You consistently swerved between oncoming lanes and off to the left-hand shoulder of the highway for about three kilometres. At the time there were approximately six vehicles travelling behind you and there was oncoming traffic. A number of oncoming vehicles had to take evasive action to avoid colliding with you. They veered off to the shoulder of the road to do so. You were then seen to pull off to the left-hand shoulder of the road and continue to travel there at a speed of approximately 20 kilometres an hour. Other road users passed you, and when they did you would suddenly swerve back into the left-hand lane and continue on your path in an easterly direction at a speed of approximately 50 to 60 kilometres an hour in a 100-kilometre-an-hour zone. Vehicles travelling behind you turned their hazard lights on to warn other motorists.
18You continued in an easterly direction, travelling at speeds of approximately 40 to 60 kilometres an hour, continually slowing and then speeding up. You continued on the left-hand shoulder of the road, hitting guideposts and swerving onto the wrong side of the road into the path of oncoming traffic.
19A number of witnesses called triple zero to report your erratic driving. As a result, at approximately 2.27pm Leading Senior Constable Stewart Probst and Sergeant Matthew Hunt were tasked with intercepting your vehicle. Meanwhile, at the Farmers Arms Hotel and Hopes Road intersection, a four-wheel-drive vehicle passed you and slowed, forcing you to stop your vehicle on the left-hand shoulder of the road. You got out of the vehicle and began shouting and waving your hands before re-entering the vehicle and continuing on in an easterly direction.
20At approximately 2.40pm the driver of an ambulance, Lee Knight, who had a patient on board, noticed that you were driving erratically at about 20 to 30 kilometres an hour over both lanes. Your windscreen wipers and right-hand indicator were operating. Knight attempted to warn other vehicles by activating the flashing lights on the ambulance. Knight also attempted to intercept you. You continued to swerve across both lanes of traffic, then stopped the vehicle and began reversing towards the ambulance before changing direction and travelling forwards. You then slowed down and, as Knight attempted to talk to you, you accelerated, almost colliding with another vehicle.
21At approximately 2.45pm Leading Senior Constable Probst and Sergeant Hunt arrived on scene and took up a position next to your vehicle at the intersection of Giris Road and McIvor Highway. The police vehicle had its red and blue flashing lights operating. The officers were yelling out of their window, directing you to pull your vehicle over. You looked at them and waved before accelerating and crossing onto the wrong side of the road. In doing so you almost collided with a vehicle ahead of you. Police continued to follow you with their sirens now operating. Despite this, you continued travelling at a speed of approximately 70 kilometres an hour towards Axedale. You then slowed your vehicle down to below 40 kilometres an hour, driving on a grass embankment where you performed a U‑turn, almost colliding with the police vehicle in which Leading Senior Constable Probst and Sergeant Hunt were travelling.
22You then began travelling in a westerly direction away from the police, increasing your speed to approximately 130 kilometres an hour in a 100-kilometre-an-hour zone before slowing down to approximately 60 kilometres an hour.
23Using a radar device, Leading Senior Constables Niall King and Brianna Scarff detected you driving at a speed of 152 kilometres an hour in a 100-kilometre-an-hour zone. At Giris Road, Leading Senior Constable King laid stop sticks in an attempt to intercept you. You swerved onto the wrong side of the road in an unsuccessful attempt to avoid the stop sticks. In the process, you damaged all four tyres. But that did not stop you. You continued driving.
24Leading Senior Constable Probst and Sergeant Hunt took up a position behind your vehicle, which was still travelling at speeds varying between 40 kilometres an hour and 90 kilometres an hour in a 100-kilometre-an-hour zone. They followed you for approximately eight kilometres. During this time you continued to swerve over both lanes of traffic.
25Leading Senior Constables Scarff and King, who were in a marked Highway Patrol vehicle, took up a position behind you. Their vehicle’s sirens and lights were activated. Your tyres began to shred and began spraying off your vehicle’s rims.
26You approached the intersection of McIvor Highway and Wilkie Road where you travelled at speeds of 100 kilometres an hour in an 80-kilometre-an-hour zone for approximately three kilometres. You attempted to pass the police vehicle containing Leading Senior Constable Probst and Sergeant Hunt. You did so on a number of occasions on the gravel left-hand side shoulder of the road. At this time all four of the tyres on your vehicle were damaged severely.
27Leading Senior Constable Probst and Sergeant Hunt attempted to intercept you by slowing their vehicle to about 40 kilometres an hour. In an attempt to avoid interception you swerved onto the gravel left-hand shoulder of the road and accelerated to approximately 80 kilometres an hour, passing the passenger side of the police vehicle. Leading Senior Constable Probst manoeuvred the police vehicle towards you, again in an attempt to stop you. In the process he collided with the driver’s side of your vehicle. Not even this collision stopped you. Instead, you continued to accelerate on the grass shoulder of the road past the police vehicle. By now a number of oncoming vehicles were pulling off the road to avoid colliding with you.
28You approached the township of Junortoun travelling at a speed of approximately 90 kilometres an hour in an 80-kilometre-an-hour zone. Leading Senior Constables Scarff and King accelerated and took up a position in front of your vehicle. Their red and blue lights were flashing and the siren was operating. Leading Senior Constable Probst and Sergeant Hunt took up a position behind your vehicle. Travelling behind their vehicle was another marked police vehicle containing Leading Senior Constable Lawrence Mueck, Senior Constable Nathan Bailey and Constable Cameron Milliner. All police vehicles had the red and blue lights flashing to warn oncoming vehicles. You then began travelling in the right-hand lane in the face of oncoming traffic in an attempt to pass police. During this time a number of oncoming vehicles pulled off to the shoulder of the road to avoid you.
29At approximately 2.56pm you continued to travel in a westerly direction at speeds of 90 kilometres an hour in an 80-kilometre-an-hour zone. Leading Senior Constables Scarff and King were travelling in front of you and attempted to slow their vehicle in an effort to intercept you. You now travelled in the right-hand lane, again towards oncoming traffic. You did not stop driving, and collided with the police vehicle, causing extensive damage. You continued to travel on the wrong side of the road for about another 20 metres.
30Approximately a minute later, at about 2.57pm, Leading Senior Constable Mueck collided with the rear of your vehicle in an attempt to stop you. Leading Senior Constable Probst and Sergeant Hunt collided with the driver’s side rear quarter panel of your car, also in an attempt to stop you. Senior Constable Bailey and Constable Milliner stopped in front of your vehicle to prevent you from driving off.
31You got out of the vehicle and put your hands in the air. You were arrested and handcuffed.
32Charge 3 on the Indictment is a rolled-up charge of conduct endangering life. The acts the subject of this charge comprise your reckless erratic driving, including onto the wrong side of the road into the path of oncoming vehicles on numerous occasions, and driving at high speeds that placed or may have placed other road users in danger of death.
33Charge 4 on the Indictment is also a rolled-up charge, comprising multiple acts that constitute the aggravated offence of recklessly exposing emergency workers on duty, namely police members King, Scarff, Probst, Hunt, Mueck, Bailey and Milliner, to a risk to safety by your driving.
34There is an element of overlap between these two charges, in that aspects of your erratic driving which are the subject of charge 3 also posed a risk to the safety of the emergency workers named in charge 4. For this reason I must ensure that no double punishment is imposed.
Arrest and interview
35You were arrested at the scene on 3 January 2021. After a brief stay in hospital you were taken to the Bendigo Police Station where you were interviewed.
36In the record of interview, in relation to the bail conditions by which you were then bound, you told police:
“I was on bail, I got bailed to a rehab and it – the – rehab didn’t work out and I’m currently waiting to get into the bridge program to go back and just over the Christmas holidays I’ve relapsed and I got back onto the drugs and – and it’s just sent me into a psychosis to where yesterday I ended up driving a friends car and I don’t even know where I was going to be honest. I was just in – in – in – in a psychosis to where I – I don’t know what I was doing and – and then once – once I seen the police and that I just panicked and I didn’t what I – what to do I didn’t know how to stop and I – I was trying not to speed I was – I was trying to do the – the hundred I just wanted to – wanted it all to go away I was thinking that I was in a dream.
…
And then – and then all of a sudden I start getting hit by cars and so I just – I just stopped the car and got out and laid on the ground.”[5]
[5]Record of Interview questions (Q) and answers (A) 14-15
37You expressed remorse, telling police:
“… it was all just a blur, like, like I – I – I can tell you right now I regret it so much, like, I’m – I’m not going to be able to see my kids for – for, like, a long time. Do you know what I mean? Like I regret it that much, like, like, I literally feel that much of a fucking dickhead, like, I don’t know – I don’t know what I can to do, you know, like, I’ve already – It’s all done now drugs have, like, pretty much fucked my life. Do you know what I mean? Like – – –…
– – – if I could take back time, like, I’d do it in a heartbeat, like, I – I literally don’t know what to do, like, I – I know that I’m fucked I know that I can’t do nothin’ now, like, I’m fucked, like there’s no – like everything that’s happened there’s only me to blame – – –
..
– – – do you know what I mean? Like and that’s all because of drugs, like, and I don’t know what I can – what I – what I can do except – except for just plead guilty to everything”[6]
[6]Ibid, Q and A 111-113; 93-95
38You also said:
“Like I – I appreciate everyone trying to – trying to stop, like, I’m – I’m actually glad that I stopped so I didn’t hurt no one, no one got – no one got seriously hurt, like, you know, like, I’m glad that it all happened. Like, like, no one was, like, it could have, could have turned out a lot worse. Like, I – I know that it’s pretty bad on my for me but it could have turned out a lot worse, like, you know, like, no one was seriously hurt. I know that there was cars that were damaged…”[7]
[7]Ibid, Q and A 290
39You explained to police that you had little recollection of your offending because of the effects of the “ice” (methylamphetamine) and “GHB” (Gamma-Hydroxybutyrate) you had taken before driving.[8]
[8]Ibid, Q and A 128-138
40When asked by police whether there was anything else you wanted to say about the incident, you replied:
“No because I don’t remember nothin’, like, all I know is that I’ve – I’ve fucked up.”[9]
[9]Ibid, Q and A 149
41You agreed that your driving put other road users at risk and that it would have been a frightening experience for them.[10]
[10]Ibid, Q and A 139–141
Effect on victims
42No Victim Impact Statements were tendered. Even so you have acknowledged that it would have been a frightening experience for those concerned.
43Leading Senior Constables Scarff and King were taken to hospital where they received treatment for whiplash sustained in the incident. They each had three days off work due to neck soreness. Thankfully, no one was injured more seriously.
Damage to police vehicles
44The damage to the Heathcote police vehicle is estimated at $6,164.40. The damage to the Axedale police vehicle is estimated at $3,237.69. The damage to the Bendigo Highway police vehicle is estimated at $27,371.59.
Gravity of offending
45Ordinarily in cases involving serious driving offences such as those contained in the Indictment, as well as the charges of driving whilst disqualified, the principle of general deterrence is a dominant sentencing factor. In McGrath v The Queen,[11] a case involving culpable driving and causing serious injury negligently, in their joint judgment Osborn and Priest JJA observed:
“68. Insofar as general deterrence is concerned the appellant was, like many who commit offences of the type in question, an immature man affected by alcohol, driving at excessive speed. These characteristics give rise to a need for the Court to send a clear message by way of general deterrence of similar behaviour. That message must be that no matter who is driving a car the community will not tolerate driving by a person under the influence of alcohol or driving at excessive speed….”[12]
[11](2018) 84 MVR 189
[12]Ibid, at paragraph [68]
46As I shall later discuss, your case is distinguishable because your addiction to illicit drugs and their effect on your cognitive functioning occurred well before your adulthood.
47In McGrath the Court also observed that the offender had suffered a mild to moderate brain injury as a result of the collision he caused while offending, and that he also had various mental health conditions and relatively low intelligence. Their Honours found that the offender’s underlying capacity to reason consequentially, which fell below average, gave rise “to a correlative ongoing risk of repeat offending. In turn, that risk [gave] rise to a need for protection of the community.”[13]
[13]Ibid, at paragraph [67]
48R v Whyte[14] was a case involving driving causing death. Spigelman CJ, with whom the four other members of the Court of Criminal Appeal of New South Wales agreed,[15] identified a non-exhaustive list of the matters that a sentencing court should take into account in serious driving cases. These include:
[14](2002) 55 NSWLR 252
[15]Mason P, and Barr, Bell and McClellan JJ
“(i)Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic [or aggressive] driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
…
(x) Degree of sleep deprivation.
(xi) Failing to stop.”[16]
[16]Ibid, at paragraphs [216]-[217]
49While noting that a list of potential aggravating features in serious driving cases does not constitute a “check list”,[17] the Victorian Court of Appeal has cited Whyte with approval[18] and has identified additional factors to be considered, including:
(a) driving experience;
(b) familiarity with the vehicle driven;
(c) familiarity with the terrain driven;
(d) degree of protection given to passengers;[19] and
(e) use of a mobile phone while driving.[20]
[17]Stephens v The Queen [2016] VSCA 121 at paragraph [25]
[18]Ibid, at paragraph [23]
[19]Ibid
[20]DPP v Johnstone (2006) 16 VR 75
50Many of the factors identified in these lists are present in your case and must be taken into account, although care must be taken to avoid counting an element of the offences as an additional aggravating factor.
51The only case to which the parties referred involving charges to those similar to the ones you committed was Nelson v The Queen.[21]
[21][2020] VSCA 219
Plea in mitigation of penalty
52Your counsel, Mr Habib, conceded the gravity of your offending and that the only appropriate response to your offending is the imposition of a term of imprisonment. He identified a number of features which he submitted combine to justify moderating the sentences to be imposed. I now turn to the matters raised in mitigation of penalty.
Guilty plea
53You have pleaded guilty to the charges and are entitled to have that fact taken into account in your favour. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your guilty plea I take into account the following factors:
· the timing of your plea – a contested committal was held on 16 September 2021. Police members Fleming, Hunt, Walker, Probst, Scarff, King, Mueck and Milliner were called to give evidence, as was the civilian witness whose car you had driven.
· your plea was offered after a case conference conducted on 25 February 2022 and 6 April 2022, followed by a sentence indication hearing conducted on 22 June 2022.
· although your plea did not come at the earliest opportunity, I take into account that there were negotiations between the parties resulting in a significantly different form of indictment to the 20-count indictment originally filed.[22] That indictment alleged two charges of Conduct Endangering Life (charges 1 and 4), two charges of Conduct Endangering Persons (charges 2 and 5 – presumably alternative charges to charges 1 and 4), one charge of Handling Stolen Goods (charge 3), two charges of the Aggravated offence of Intentionally Exposing an Emergency Worker to Risk by Driving (charges 6 and 8), two charges of the Aggravated offence of Recklessly Exposing an Emergency Worker to Risk by Driving (charges 7 and 9 – presumably alternative charges to charges 6 and 8), one charge of Damaging an Emergency Service Vehicle (charge 10), five charges of Intentionally Exposing an Emergency Worker to Risk by Driving (charges 11, 13, 15, 17 and 19), and five charges of Recklessly Exposing an Emergency Worker to Risk by Driving (charges 12, 14, 16, 18, and 20 – presumably alternative charges to charges 11, 13, 15, 17 and 19).
· you are entitled to a statutory sentencing discount;
· although it was not suggested that your plea evidences any degree of remorse, I am satisfied that there is evidence of it: Ms Jane Lofthouse, Clinical Neuropsychologist, reported that you were able to express a degree of remorse.[23] There is also evidence of your remorse in Ms Lechner’s report.[24] Also, as mentioned earlier, you expressed remorse when interviewed by police, adding that you would “plead guilty to everything”;[25]
· you have avoided the cost of a trial and, more significantly, you have spared the victims and other witnesses the inconvenience and ordeal of giving evidence at trial; and
· there is social utility inherent in your pleas of guilty. This factor must be given additional weight during the current period of the COVID-19 crisis, which has had considerable negative impact upon the justice system.[26]
[22]Indictment No. M10016085
[23]Exhibit 2, page 3
[24]Exhibit 3, page 5
[25]Record of Interview Q and A 95
[26]Worboyes v The Queen [2021] VSCA 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
54In addition to the extra weight that your guilty plea must attract because of COVID‑19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i) You may face a higher risk of contracting the disease whilst in custody;[27]
(ii) There is an increased likelihood of periods of quarantine or isolation; and
(iii) The pandemic may cause additional stress and concern for prisoners and their families, as it is for every member of the community.[28]
[27]The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
[28]Brown v The Queen [2020] VSCA 60 at paragraph [48]
55You have spent well over a year in custody, 649 days, and have no doubt experienced some of the disadvantages attributable to the pandemic.
Personal history
56Your personal history is well set out in the reports of Ms Carla Lechner, Clinical Psychologist,[29] and Ms Jane Lofthouse, Clinical Neuropsychologist.[30]
[29]Exhibit 3, report dated 23 May 2022
[30]Exhibit 2, report dated 30 May 2022
57You were born in Ballarat and are the only child of Doreen Wagstaff[31] and David Wagstaff[32] (deceased), although you have a number of half-siblings on both your mother and father’s side. Your aunt cared for you until you were aged two years as your mother was worried that your siblings would “kill” you.[33] You were then relocated to Bendigo to live with your mother and four older half-siblings.
[31] A pseudonym
[32] A pseudonym
[33]Exhibit 2, page 5
58Your parents separated around the time you were born. You had no contact with your father until you were eighteen years, and only met him “a few times” prior to his death.[34] You maintain ongoing contact with your mother and siblings, all of whom live in Bendigo.
[34]Exhibit 3, page 2
59You have had a difficult upbringing, recounting to Ms Lofthouse that your mother struggled to provide appropriate care for her children and had “always” been too busy to provide basic requirements such as food.[35] You suffered no domestic violence or substance abuse while living in the family home.
[35]Exhibit 2, page 5
60You recall being placed in foster care at the age of about nine or ten years “for a couple of months, I don’t know why”.[36]
[36]Exhibit 3, page 2
61You attended three local primary schools where you struggled with your education. You had difficulty with reading, you had a short attention span, and you would often play up at school resulting in numerous suspensions. You told Ms Lechner that “the teachers reckoned I had ADHD, but mum wouldn’t get me tested”.[37] You attended Weeroona Secondary College until part-way through Year 9 when you were expelled. You subsequently transferred to TAFE where you studied VCAL.
[37]Ibid
62When you were aged about seven years, you and your brothers were sexually assaulted by a “family friend”. You disclosed the sexual assaults to your sister, who told your mother, who in turn informed the police. You told Ms Lechner that the perpetrator was convicted of child sex offences and sent to prison for seven years.[38]
[38]Ibid
63You told Ms Lechner that the sexual abuse had a profound impact on you. You described it as “big ... it affected everything ... having sex was hard at the start ... I still think about it a little bit ... small things can trigger me off, like his name or nationality”.[39]
[39]Ibid
64You first left home at the age of twelve and lived on the streets of Bendigo until you were aged fifteen years. During this time, you commenced abusing drugs and alcohol. At age twelve you started using cannabis. There is conflicting evidence about the amount of cannabis you used daily during this time. Ms Lofthouse reports that you smoked around 2 grams per day, while Ms Lechner reports you smoked 7 grams a day. In any event, your daily consumption of cannabis continued until your early twenties.
65There is further conflicting evidence around your use of heroin. Whilst Ms Lofthouse reports that you began smoking heroin at age twelve and that by fifteen years it had turned into a daily habit, Ms Lechner reports that you denied ever using heroin.
66There are further inconsistencies between the expert reports on the subject of alcohol abuse. On the one hand, Ms Lofthouse reports that at the age of fifteen you commenced drinking alcohol and would drink a slab of beer over a weekend, a pattern that continued up until your late adolescence; on the other hand, Ms Lechner reports that you do not drink, and alcohol has never been a problem for you.
67Despite the apparent inconsistencies found in the two reports, I accept that you have a prolonged history of drug abuse in general. You stated to Ms Lofthouse that in addition to cannabis, heroin, and alcohol you had used “heaps of other drugs” in the past on an “every now and then basis”.[40] Both reports agree that in your early twenties you began smoking crystal methamphetamine (“ice”) and consuming Gamma-Hydroxybutyrate (“GHB”) on a daily basis. Ms Lechner reports that you would consume about 50mls of GHB per day and up to 1.7 grams of ice per day in your twenties. You described your use of these drugs as an “addict[ion]” and recalled numerous blowouts and one hospitalisation as a result of your drug abuse.[41] While on remand in relation to the matters before me you have participated in the methadone program in an effort to promote your rehabilitation.
[40]Exhibit 2, page 4
[41]Exhibit 3, page 3
68At fifteen years of age, you returned to live with your mother, where you remained until the age of eighteen. You then left home and lived in private rental properties around the Bendigo area for five or six years with your then partner Wendy.[42]
[42]A pseudonym
69You have had two significant relationships. You were in a relationship with Wendy between the ages of sixteen and twenty-five. You described this relationship to Ms Lofthouse in a positive light and indicated that you had separated because Wendy could not cope with your drug abuse. You have two children with Wendy, a daughter and a son who were aged nine years as at 22 May 2022. You maintain contact with your children.
70You were involved in a subsequent relationship with a woman named Delilah.[43] You described the relationship as toxic because you were both abusing drugs and were constantly arguing. You separated from Delilah after your incarceration.
[43]A pseudonym
71With regard to your employment history, again there is conflicting evidence found in the reports of Ms Lofthouse and Ms Lechner. Whilst Ms Lechner reports that since leaving school you have been employed on one occasion, in the insulation industry, when you were around twenty-five years of age, Ms Lofthouse reports that you have never been employed. There is consistency, however, in the fact that you are currently in receipt of the Disability Support Pension.[44]
[44]Mr Wagstaff’s disability has been described in general terms as an intellectual disability. Mr Wagstaff’s specific disability was not identified by his counsel.
Prior criminal history
72You have admitted to a lengthy history of prior court appearances and convictions.
73You have amassed many prior convictions, which are documented in your criminal record dated 16 September 2022. The majority of your criminal record is related to driving and drug offences.
74I note that you have been given many opportunities in the past to rehabilitate yourself. These efforts have failed.
75On 17 March 2014 you appeared in the Magistrates’ Court at Bendigo on two charges of use cannabis and two charges of possess cannabis. You were placed on a six-month good behaviour bond which you successfully completed. These charges were dismissed without conviction on 17 September 2014.
76On 1 December 2017 at the Magistrates’ Court at Bendigo you were convicted on a number of charges including:
(i) one charge of fail oral fluid test within three hours of driving. This is a relevant prior conviction for the purposes of sentencing you today in relation to related summary offence 7;
(ii) one charge of fail to answer bail;
(iii) one charge of deposit litter;
(iv) one charge of contravention of a family violence interim intervention order;
(v) six charges of contravene family violence intervention order;
(vi) two charges of fail to stop vehicle on police direction;
(vii) five charges of driving whilst suspended;
(viii) two charges of using an unregistered motor vehicle;
(ix) one charge of fraudulently using identifying driving documentation;
(x) one charge of unlicensed driving;
(xi) one charge of recklessly causing injury;
(xii) four charges of unlawful assault;
(xiii) one charge of exceeding a 70 speed zone by more than 10km/h but less than 25km/h; and
(xiv) one charge of possess methylamphetamine.
77You were convicted on all charges and released on an 18-month Community Correction Order.
78You subsequently breached the terms of the order and were called upon to answer for the breach in the Magistrates’ Court at Bendigo on 28 February 2019. The breach was found proved and the order was cancelled. No further orders were made.
79On 24 July 2018 at the Magistrates’ Court at Bendigo you were convicted of:
(i) one charge of using an unregistered motor vehicle;
(ii) one charge of displaying false number plates on a vehicle; and
(iii) one charge of dangerous/negligent driving whilst being pursued by police.
80You were released on a 12-month Community Correction Order in respect of those charges.
81On 28 February 2019 in the Magistrates’ Court at Bendigo, the day upon which you were called upon to answer for the breach of the Community Correction order made 1 December 2017, you were convicted of the following charges:
(i)two charges of theft;
(ii)two charges of intentionally damage property;
(iii)one charge of unlawful assault;
(iv)two charges of criminal damage (intent to damage/destroy);
(v)one charge of make false report to police;
(vi)two charges of handling stolen goods;
(vii)four charges of obtaining property by deception;
(viii)one charge of obtaining financial advantage by deception;
(ix)two charges of contravening a family violence intervention order;
(x)one charge of disposing of stolen goods;
(xi)two charges of possessing methylamphetamine;
(xii)one charge of possess a schedule 4 poison;
(xiii)one charge of attempting to obtain property by deception;
(xiv)one charge of driving whilst suspended;
(xv)four charges of failing to stop on police direction;
(xvi)eight charges of driving whilst disqualified;
(xvii)one charge of refusing preliminary breath test;
(xviii)one charge of dangerous driving while being pursued by police;
(xix)one charge of reckless conduct endangering serious injury;
(xx)one charge of trafficking a drug of dependence;
(xxi)one charge of exceeding a 60km/h speed zone by 45km/h or more;
(xxii)two charges of driving vehicle without numberplates;
(xxiii)one charge of exceed a 60km/h speed zone by more than 10km/h but less than 25km/h;
(xxiv)one charge of entering an intersection through a red traffic light;
(xxv)one charge of using an unregistered motor vehicle;
(xxvi)one charge of displaying altered number plates.
82You were fined in respect of some of the driving-related charges. On the remaining charges, you were convicted and sentenced to a total effective sentence of one year of imprisonment with a minimum non-parole period of six months. Ninety-six days of pre-sentence detention were declared as a period of imprisonment already served. You were disqualified from driving for a period of two years, effective from 28 February 2019. Custody management issues were noted on your record because of your withdrawal from drug addiction and because of your potential vulnerability due to your age, appearance and intellectual disability.
83You appealed against the severity of the sentences. On 3 May 2019 in the County Court at Bendigo the appeal was allowed. You were re-sentenced to a total effective sentence of one year of imprisonment, fined $750, and you were disqualified from obtaining any licence for a period of two years, effective from 28 February 2019.
84It is evident from your criminal record that you have demonstrated a difficulty in, and/or an unwillingness to comply with, court orders, many of which were designed to address your underlying problems so as to rehabilitate you and prevent or reduce the risk of your re-offending.
85As I shall soon discuss, your prior criminal record notwithstanding, your disadvantaged background is a matter that must be taken into account when sentencing you today.[45]
[45]Bugmy v The Queen (2013) 249 CLR 571
Moral culpability
86Your counsel submits that the application of the principles enunciated in the cases of R v Verdins & Ors,[46] Bugmy v The Queen[47] and R v McKee & Anor[48] combine to reduce your moral culpability.
Mental health and Verdins[49] factors
[46]R v Verdins & Ors (2007) 16 VR 269
[47](2013) 249 CLR 571
[48](2003) 138 A Crim R 88
[49]Supra
87In R v Verdins & Ors,[50] the Court of Appeal observed:
“32. Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[51]
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”[52]
[50]Supra
[51]See for example R v Payne (2002) 131 A Crim R 432 at paragraph [43]
[52]Ibid, at paragraph 32
88Your counsel submits that limbs 1, 3 and 5 of Verdins are relevant to my task of sentencing you today.
89I have referred to the reports of Ms Jane Lofthouse,[53] Clinical Neuropsychologist, and Ms Carla Lechner, Clinical Psychologist.[54] Whilst there are some inconsistencies between the reports, some of which I have earlier identified, both experts agree that you suffer from a mild intellectual disability with the possibility that you have an acquired brain injury caused by your drug and alcohol abuse. Both agree that there is a causal nexus between your criminal history, your mild intellectual disability and your long-standing drug abuse.
[53]Exhibit 2, report dated 30 May 2022
[54]Exhibit 3
90In her report of 23 May 2022,[55] Ms Lechner observed that your criminal history has occurred in the context of your “long-standing and chronic drug addiction”. During the assessment, she noted that your poor judgment and decision-making skills were further compromised by your drug use, and that your verbal comprehension skills fall into the “mildly intellectually disabled” range, which was confirmed through formal (although limited) testing.[56]
[55]Exhibit 3
[56]Ibid, pages 1 and 3
91Ms Lechner noted that despite the absence of documentation establishing the grounds upon which you were granted a Disability Support Pension, you have been in receipt of this pension since you were 16 years of age. You have also had the benefit of Justice Plans in the past directed at addressing the underlying causes of your offending.[57]
[57]Ibid, page 1
92Your mother confirmed that you had been diagnosed with a learning disability “a long time ago” during your adolescence.[58]
[58]Ibid, page 5; Exhibit 2, page 6
93Ms Lofthouse found your Full Scale IQ to be 67, placing you in the extremely low range. In perceptual reasoning tests your results are also in the below average range,[59] while your attention scores fall into the extremely low range (at the second percentile).[60] Ms Lofthouse’s testing also found you to have a significant memory disorder, with results falling into the extremely low and borderline ranges.
[59]Ibid, pages 8-9
[60]Ibid, page 9
94Through cognitive testing using the Wechsler Abbreviated Scale of Intelligence[61] you were placed at the “extremely low/mildly intellectually disabled” range of verbal intelligence, which is in the bottom one per cent of adults. Ms Lechner found your verbal skills were poor in all areas, including comprehension, expression and abstract reasoning. It is difficult for you to see the “bigger picture” or appreciate perspectives other than your own.[62] Consistent with this, Ms Lofthouse found your reading age to be similar to that of a ten year old, and in her assessment of you noted that:
“Although [Mr Wagstaff’s] speech appeared to be of the correct intonation and pace he was noted to converse in short and simple sentences that were often lacking in detail.”[63]
[61]Exhibit 3, page 4
[62]Ibid, page 4
[63]Exhibit 2, pages 2 and 9
95Although during assessment Ms Lechner found your mood lowered, she found this did not fulfil a diagnosis of a major depressive disorder, and while you have had thoughts of suicide, you have not engaged in any acts of self-harm or made any suicide attempts. You indicted to Ms Lechner that you feel depressed in prison, but not when you are not incarcerated. Testing by Ms Lechner indicated you are “likely to be mildly psychologically distressed.”[64]
[64]Exhibit 3, page 4
96Ms Lofthouse identified symptoms of a severe level of anxiety,[65] consistent with a finding “in the moderate range for depression, the mild range for stress and severe range for anxiety.”[66] Given your personal history, Ms Lofthouse concluded that:
“it is more than likely that [Mr Wagstaff’s] psychological symptoms date back to childhood and would have been present to a lesser or greater extent at the time of the criminal offending that resulted in his current charges. [Mr Wagstaff’s] psychological issues will continue to impact on his function until he receives appropriate assessment, treatment and support.”[67]
[65]Exhibit 2, page 12
[66]Ibid, page 14
[67]Ibid
97In relation to the trauma you have experienced as a child, Ms Lechner found evidence of symptoms of both Post-Traumatic Stress Disorder (“PTSD”) and Complex Post-Traumatic Stress Disorder, and “long-term symptoms of depression and anxiety, with associated low self-esteem.”[68] Her opinion was based on your disclosure that you suffered from some symptoms of PTSD such as hyper-vigilance. You told her that these symptoms are problematic for you while in prison but that they do not trouble you otherwise. On the other hand you told Ms Lofthouse that you experienced issues with depression and anxiety “dating back to adolescence.”[69] You also described symptoms such as panic attacks, bad dreams, flashbacks, and an elevated heart rate as a consequence of the sexual abuse you experienced.[70]
[68]Exhibit 3, page 5
[69]Exhibit 2, page 11
[70]Exhibit 2, page 11
98Referring to your decision-making, Ms Lechner observed that “[You are] easily overwhelmed by too much or complex information. [You have] … limited problem-solving, judgement and decision-making skills, especially when substance affected.” She opined that it is difficult for you to identify triggers for negative feelings, and you have used drugs from an early age to “block out” distress.[71]
[71]Exhibit 3, page 3
99Your drug use commenced when you were aged 12 years and has escalated ever since. Although there is inconsistency in the reports as to the precise drugs you have used, I am satisfied that ever since your teenage years you have abused a variety of illicit substances including cannabis, heroin, methamphetamine and Gamma Hydroxybutyrate (“GHB”). While in custody you have become dependent on Buprenorphine and are now on a methadone program (approximately 70mls).[72] Prior to your current period of remand, you were smoking crystal methamphetamine (“ice”) on a daily basis.[73] You explained to Ms Lofthouse that you have suffered two drug-induced psychotic episodes, and believe you were experiencing psychotic symptoms around the time of your current incarceration. The paranoia which you say is worsened if you use ice is currently treated successfully with 15mg Olanzapine.[74][75]
[72]Exhibit 3, page 4
[73]Exhibit 2, page 4
[74]Exhibit 3, page 4
100An attempt at a residential rehabilitation for approximately two to three months prior to your current period of remand ended when you were visited by a friend and given the drug GHB. According to your mother, you had an argument with a fellow resident resulting in your discharge from the program after approximately one week. Unfortunately, you achieved no period of abstinence from this program.[76] You now claim that you would willingly accept help to address your drug use,[77] and you “would like to participate in another residential program.”[78]
[76]Exhibit 3, page 5; Exhibit 2, pages 5, 15-16
[77]Exhibit 2, page 6
[78]Exhibit 3, page 4
101Ms Lechner opined that you showed some insight into the fact that your drug use relates to your offending. You told her that you have not been able to “stay out of trouble … it’s because of drugs.”[79]
[79]Ibid, page 5
102Your mother also expressed concern about the impact of your drug use and stated that you are otherwise a “beautiful dad”.[80]
[80]Ibid
103I am satisfied to the requisite degree that your drug use is a major problem for you. It has affected not only your life, but it has also had an adverse effect on your relationships with others.[81] Your drug problem has also affected the safety of the broader community, as I find there is a direct nexus between your addiction and your offending.
[81]Exhibit 2, page 5
104Ms Lechner diagnosed you with Stimulant Use Disorder, GHB Disorder and Opioid Use Disorder, which are all DSM-5 diagnoses.[82] In summary, in addition to your issues with drug use, she concluded:
“[Mr Wagstaff has] a likely intellectual disability and struggles with emotional and behavioural regulation. He has some residual post-trauma symptoms. [Mr. Wagstaff] would benefit from a multi-disciplinary approach to treatment that is facilitated by a case manager. He may be assisted by registration with the NDIS who can co-ordinate the supports that he needs in the community. Developing a treatment plan prior to his release from custody is strongly recommended. He would benefit from an up-to-date neuropsychological evaluation so that treatment can be tailored to his cognitive strengths and keep in mind his deficits. A skills-based learning approach to intervention is likely to be most helpful to [Mr. Wagstaff].”[83]
[82]Exhibit 3, pages 5-6
[83]Ibid, page 5
105Ms Lechner’s opinion is that multidisciplinary intervention is required to minimise the risk of you using drugs and to prevent further offending. She states:
“[Mr Wagstaff’s] adult years have been characterized by low mood, drug use, association with negative peers, offending and jail time. In order to break this cycle, [Mr. Wagstaff] needs assistance to remain abstinent from drugs, to develop some vocational skills and to also develop more adaptive stress and mood management skills.
…
Further, [Mr. Wagstaff] impressed as cognitively, socially and emotionally immature with a limited capacity for reflective and consequential thinking. His already limited reasoning, judgment, problem-solving and decision-making skills would be further undermined by drug abuse.”[84]
[84]Ibid, page 6
Verdins – limb 1
106The expert evidence is unchallenged. Based on the opinions of Ms Lofthouse and Ms Lechner, I am satisfied on the balance of probabilities that there is a direct nexus between your drug use and your offending, both in the past and in relation to the charges before me. Accordingly, the first limb of Verdins applies.
107Ms Lechner opined that your drug use commenced at an age when you were young and vulnerable, after having suffered sexual abuse, and you have ongoing, now-diagnosed, drug disorders.[85]
[85]R v McKee & Anor (2003) 138 A Crim R 88; Exhibit 1, at pages 8-9
108Ms Lofthouse opined:
“[Mr Wagstaff’s] intellectual impairment would have been a contributing factor in the criminal offending that resulted in his current charges.
…
Psychological issues would have been a contributing factor in the criminal offending that resulted in his current charges.
…
[Mr Wagstaff’s] drug use will accentuate his intellectual deficits and psychological issues and further destabilise his behaviour and impinge on his capacity for controlled and reasoned problem solving. [Mr Wagstaff] believes that his drug use is a factor to be considered in his criminal offending. [Mr Wagstaff’s] drug use should also be considered as a factor that has contributed to the criminal offending that resulted in his current charges.”[86]
[86]Exhibit 2, page 15
109In these circumstances, your drug abuse combines with your intellectual disability to reduce your moral culpability in relation to this offending.
Verdins – limb 3
110Whether the need for general deterrence should be moderated because of your drug abuse and mental health issues is bound up with the principles referred to in Bugmy v The Queen[87] and in R v McKee & Anor.[88]
[87](2013) 249 CLR 571
[88](2003) 138 A Crim R 88
111In Bugmy v The Queen[89] the High Court observed that the effects of profound childhood deprivation do not diminish with the passage of time or repeated offending. That background is to be given full weight: it may point in one direction in relation to one of the purposes of punishment, such as moral culpability, and a different direction in relation to another, such as the importance of protecting the community.[90]
[89]Ibid
[90]Per French CJ, Hayne, Crennan, Kiefel (as her Honour then was), Bell and Keane JJ
112In R v McKee & Anor[91] Buchanan JA observed:
“12. The motive for the commission of the crimes was the appellants’ need of money with which to buy heroin to feed their addiction. According to the Court of Criminal Appeal in New South Wales it has been “said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence”[92]. While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts’ refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R. v. Henry[93], Spigelman, C.J. said:
“[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.”
13.The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman, C.J. acknowledged[94]. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated[95]. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.”
[91]Supra
[92]R v Valentini (1989) 46 A Crim R 23 at 25. See also R v Halewyn (1984) 12 A Crim R 202 at 203 per Young CJ; R v Lawrence (1988) 10 Cr App R (S) 563 at 564 per Simon Brown J; R v Spiero (1979) 22 SASR 543 at 549 per King CJ, where similar submissions were made.
[93](1999) 46 NSWLR 346 at 383
[94]See also Douglas v The Queen (1995) 56 FCR 465 at 470 per von Doussa, Higgins and Nicholson JJ
[95]See, for example, R v Ma (1999) 107 A Crim R 252 at 255; R v Jarman [2001] NSWCCA 178; R v Horne [1999] NSWCCA 391 at [13] per Greg James J
113In the same case, Vincent JA observed:
“21. In the course of presenting their respective submissions, counsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan, J.A. has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender’s prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.”
114The unchallenged evidence before me confirms that you have had a deprived background, that as a child you were the victim of sexual abuse, and that in your formative years emotional and behavioural difficulties became evident. You left home at 12 years of age, lived on the streets, and while still aged 12 years commenced a substance-abuse habit that escalated and has burdened you ever since. True it is that on this occasion your drug-use behaviour was “self-induced”, but you have a mild intellectual disability, compromised decision-making, poor judgment and have difficulty learning from your mistakes. There is also a possibility that as a result of your drug abuse you have an acquired brain injury. These factors lead me to conclude that the role that general deterrence should play in your case must be moderated. That said, I consider that the need to protect the community from you is an important factor in sentencing you.
Verdins – limb 5
115Ms Lofthouse opined:
“Although [Mr Wagstaff’s] intellectual function is unlikely to deteriorate during a period of incarceration it will place him at risk of misunderstanding situations and may result in impulsive and ill-considered responses and possible confusion. [Mr Wagstaff’s] intellectual impairment is likely to impinge on his ability to complete a term of imprisonment in comparison to persons who do not suffer from intellectual impairment.
[Mr Wagstaff] currently identifies with significant psychological issues of depression and anxiety and also reports suffering from panic attacks. [Mr Wagstaff’s] psychological symptoms, may at times, destabilise his behaviour and his anxiety may result in impulsive and aggressive responses in the presence of real and/or perceived threats. These types of reactions will impinge on his ability to complete a period of incarceration in comparison to persons who do not suffer from these conditions.
In addition, [Mr Wagstaff] will need to engage in specialised long term and intensive treatment programs and this might be difficult to achieve during a period of incarceration.”[96]
[96]Exhibit 2, pages 16-17
116Ms Lechner opined:
“On account of his immaturity, remaining in custody for a lengthy period is likely to be counter-productive for [Mr. Wagstaff] as he is vulnerable to the influence of other inmates.”[97]
[97]Exhibit 3, page 7
117In all the circumstances I am satisfied that a period of imprisonment will be more onerous for you than it would be for a prisoner unencumbered with the types of difficulties you face as a result of your intellectual and other difficulties.
Remorse
118You told police, Ms Lechner, and Ms Lofthouse that because of your drug-induced state you have little recall of the events the subject of the charges before me.
119As mentioned, you admitted responsibility for your conduct during the record of interview. You also agreed that your offending would have been “scary” for other road users.[98]
[98]Record of Interview, Q and A 111-113
120Ms Lechner reported:
“At the outset of our meeting, [Mr. Wagstaff] stated, “I haven’t picked up how to stay out of trouble … it’s because of drugs”. [Mr. Wagstaff] has limited memory of his offending. He stated, “it was just because I was on the drugs … I didn’t stop because I was stupid”. He stated that he had consumed both Ice and GHB. He added, “I regret everything … it was stupidity and now I’m in jail … it would have been horrible for the victims, scary”. He stated that he can best stay out of trouble by attending a rehabilitation program again “and staying off drugs”.”[99]
[99]Ibid, page 5
121You made similar observations to Ms Lofthouse, who reported:
“[Mr Wagstaff] was able to express a degree of remorse for the criminal offending that led to his current charges and indicated that he felt “bad for what had happened”.”[100]
[100]Exhibit 2, page 3
122I am satisfied that your answers to police when interviewed and your statements to Ms Lechner and Ms Lofthouse demonstrate a degree of insight into your offending and an element of remorse.
Delay
123You were arrested on 3 January 2021, and following a brief stay in hospital you were interviewed and remanded in custody. You have remained on remand since then.
124You have had the charges hanging over your head for a considerable period of time. As mentioned, although there was a contested committal hearing resulting in some delay, ultimately, the indictment was re-framed substantially.
125What is important is what you have done during the period of delay. It is to your credit that you have gained some insight into the reasons why you offend, and you are participating in a methadone program and you are taking prescribed medication to alleviate symptoms of paranoia.
Mandatory sentencing requirements
126Section 5(2H) of the Sentencing Act 1991 provides:
“(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—[certain exceptions apply].”
127Section 3(1) of the Sentencing Act defines what is meant by a category 2 offence. Subparagraph (k) of the definition includes s317AF of the Crimes Act, the aggravated offence of recklessly exposing an emergency worker to risk by driving, charge 4 on the Indictment.
128The section prohibits the Court from combining a sentence of imprisonment with a Community Correction Order unless the specified exceptions apply. Both the learned prosecutor, Mr Petric, and your counsel agree that it is not open to make the type of order referred to in the provision. With respect, I agree. In sentencing you today, I will have no option but to impose a total effective sentence that will require your immediate imprisonment without combining it with a Community Correction Order.
Prospects of rehabilitation
129You have acknowledged that your abuse of illicit drugs is the cause of your offending and that you need help to achieve rehabilitation.
130Although you have taken some positive steps towards your rehabilitation, you still have a long way to go.
131In her report Ms Lechner opined:
“[Mr. Wagstaff] would benefit from involvement with treatment services as outlined above. Comprehensive assessment of his cognitive skills would allow intervention to be tailored to his needs. Registration with the NDIS, to be facilitated by a case manager, is strongly recommended. [Mr. Wagstaff] is not likely to be able to access the assistance that he needs in a custodial setting. A return to a residential drug rehabilitation facility and ongoing skill-based learning therapeutic support is recommended.”[101]
[101]Exhibit 3, page 7
132Ms Lofthouse opined:
“[Mr Wagstaff’s] scores at this assessment typically fell significantly below average and due to intellectual deficits he will struggle to benefit from mainstream rehabilitation. [Mr Wagstaff] will be better able to undertake one to one treatment programs that can make allowances for his intellectual deficits.
[Mr Wagstaff] will benefit from addressing his psychological issues as his high level of anxiety will place him at risk of impulsive and aggressive responses to real and/or perceived threats. [Mr Wagstaff] describes enduring significant psychological events growing up and if he is able to engage in assessment and psychological interventions he might be able to achieve some stability in his emotional state. [Mr Wagstaff’s] high levels of depression and anxiety are likely to place him at risk of ongoing drug use as a means of self-medication and contribute to an escalation in his pattern of negative behavioural responses.
[Mr Wagstaff] requires long term treatment to further understand his inappropriate and sometimes aggressive behavioural responses and the impact of his drug use in contributing to his criminal offending. … [Mr Wagstaff] will benefit from assistance to secure and complete a long term residential drug program as his risk of reoffending will be reduced if he can complete such a program.
[Mr Wagstaff] will also benefit from feedback with respect to his intellectual deficits so he can further understand how these deficits impinge on his behaviour and contribute to his propensity to reach poorly considered solutions. [Mr Wagstaff] will also benefit from receiving tuition in strategies that might begin to ameliorate some of the effects of his intellectual impairment. As part of his rehabilitation [Mr Wagstaff] also requires stable housing.
[Mr Wagstaff] expressed a desire to make changes in his life so, he does [not] return to prison. If [Mr Wagstaff] is able to engage in treatment and further expand his understanding of how his drug use, intellectual impairment and psychological issues impact on his function and contribute to poor behavioural control and criminal offending his risk of reoffending is likely to be reduced. [Mr Wagstaff] stated that he has been accepted as a client of the National Disability Insurance Agency (NDIA) and will be able to access support funded through the National Disability Insurance Scheme (NDIS). As well as supporting [Mr Wagstaff] in his day to day life he requires ongoing monitoring so changes can be made prior [to] an escalation in [Mr Wagstaff’s] negative behaviours. It would be helpful if some of this funding can be allocated to address [Mr Wagstaff’s] drug addiction.”[102]
[102]Exhibit 2, pages 15-16
133You have children and want to set a better example for them.
134Without receiving and embracing the assistance you need, your prospects of rehabilitation must be considered to be guarded. It is the hope of the Court that you commit to your rehabilitation, which I daresay will take some time to achieve.
Submissions as to penalty
Defence
135In summary, your counsel conceded the gravity of your offending and that there is no alternative to the imposition of a term of imprisonment. He agreed that a combination sentence with a Community Correction Order is not open. He urged that I give weight to your personal problems and that the sentences should reflect a high degree of concurrency to take into account the overlap of charges.
Prosecution
136Mr Petric agreed that the only appropriate sentence is one of imprisonment, without combination with a Community Correction Order. He stressed the importance of both general and specific deterrence and that given your criminal history and apparent inability to learn from your mistakes, community protection should also be a sentencing objective.
137Mr Petric noted that charge 4 on the Indictment, the rolled-up charge of the aggravated offence of recklessly exposing an emergency worker to risk by driving, is a “Category 2 offence” requiring the court to impose a term of imprisonment unless the defined exceptions are established. There is no suggestion that an exception applies.
138Mr Petric submits that the aggravating features of your offending include the fact that you failed to stop when you knew that police were trying to intercept you, and that you collided with the rear of a police vehicle. You were on bail at the time and were disqualified from driving. As I mentioned earlier, you have been charged with committing indictable offences whilst on bail (related summary offences charges 9 and 26), and you have been charged with driving whilst disqualified (related summary offences charges 6, 25 and 30). You will be sentenced in respect of those charges and cannot be punished twice for the same criminal conduct.
139Mr Petric conceded that you have suffered a disadvantaged background warranting moderation of the sentences; however, he submitted that this must be balanced against the need to protect the community from you, given the gravity of your offending, your poor criminal record, and your failure to make the most of the opportunities for rehabilitation given to you in the past. He further submits that your intoxication with methylamphetamine and GHB was self-induced and played a significant role in your offending.
140Finally, Mr Petric agreed that over and above the sentencing discount to which you are entitled by reason of your guilty pleas, you are entitled to a further sentencing discount because of the effects of COVID-19 on the criminal justice system and the resulting hardship it has caused to prisoners.
Sentences to be imposed
141I take into account all of the matters personal to you to which I have referred, including your guarded prospects of rehabilitation. As mentioned, I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this, although this element will be moderated because of your mental health difficulties and troubled background. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
142I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
143Dealing first with the charges on Indictment:
144On charge 1, Conduct Endangering Life (committed in the first incident) – you are convicted and sentenced to twelve (12) months’ imprisonment;
145On charge 4, the rolled-up charge of the Aggravated offence of Recklessly Exposing an Emergency Worker to Risk by Driving (committed in the third incident) – you are convicted and sentenced to two and one half (2½) years’ imprisonment. That will be the base sentence.
146On charge 3, rolled-up charge of Conduct Endangering Life (also committed in the third incident) – you are convicted and sentenced to eighteen (18) months’ imprisonment;
147On charge 2, Handling Stolen Goods (the registration plates) – you are convicted and sentenced to two (2) months’ imprisonment.
148Turning to the related summary offences:
149On summary charge 25, drive whilst disqualified (during the first incident), you are convicted and sentenced to six (6) months’ imprisonment;
150On summary charge 30, drive whilst disqualified (during the second incident), you are convicted and sentenced to six (6) months’ imprisonment;
151On summary charge 6, drive whilst disqualified (during the third incident), you are convicted and sentenced to six (6) months’ imprisonment;
152On summary charge 7, drive a motor vehicle whilst more than the prescribed concentration of drugs present in oral fluid (detected following the third incident) – because this is a subsequent offence, you are sentenced to pay a fine in the amount of $750.00 (seven hundred and fifty dollars);
153On summary charge 26, commit an indictable offence whilst on bail (during the first incident) – you are convicted and sentenced to two (2) months’ imprisonment;
154On summary charge 9, commit an indictable offence whilst on bail (during the third incident) – you are convicted and sentenced to two (2) months’ imprisonment; and
155On summary charge 18, use a vehicle on a highway without displaying affixed number plates in accordance with the Regulations (during the first incident), you are convicted and sentenced to pay a fine of $100.00 (one hundred dollars).
Cumulation
156On the question of whether cumulation or concurrency is required, and, if so, how much, I take account of the fact that your offending spanned three discrete incidents, and that within each of the incidents there is a degree of overlap of conduct. The incidents were, however committed on separate occasions, and involved offending of such gravity that total concurrency would fail to do justice.[103] I must also pay regard to principles of totality and proportionality, and avoid imposing a crushing sentence.
[103]See R v O’Rourke [1997] 1 VR 246, at 253; DPP v Grabovac [1998] 1 VR 664, at 683-684
157Another matter I must take into account is s16(3D) of the Sentencing Act 1991, which provides:
“(3D) Every term of imprisonment imposed on a person for an offence against section … 317AF … of the Crimes Act 1958 must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.”
158As I have already observed, there is a degree of overlap between charges 1, 3 and 4 on the Indictment. There is also a degree of overlap with some of the related summary charges. The sentences to be imposed upon you must not contain any element of double punishment.
159Taking all of these factors into account, I consider it appropriate to order partial concurrency between the charges. I therefore direct that six months of the sentence imposed in respect of charge 3 on the Indictment; and four months of the sentence imposed in respect of charge 1 on the Indictment; and two months of each of the sentences imposed in respect of related summary offences charges 6, 30 and 25 and one month of each of the sentences imposed in respect of related summary offences charges 9 and 26 be served cumulatively upon the sentence imposed on charge 4 on the Indictment, the base sentence and with each other.
160That results in a total effective sentence of four years’ imprisonment.
Minimum non-parole period
161Accepting as I do that you would benefit from further rehabilitation and supervision in the community, I have considered whether I should fix a shorter than usual non-parole period. Although the courts have said from time to time in this regard that there is no two-thirds rule of thumb, a non-parole period may be assessed as unusual by comparison with other cases or having regard to the facts of the particular case. In determining the non-parole period in your case I am required to take into account the purpose of fixing a non-parole period, which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[104] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
“(a)that a non-parole period has a penal element;
(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[105]
[104]DPP v Josefski (2005) 13 VR 85 at paragraph [43]
[105]Ibid at paragraph [43]
162Taking all these matters into account, I consider that you would benefit from the opportunity of being supervised in the community such as might be afforded by a longer than usual period of parole. It is my hope that you will participate in programs directed at your rehabilitation. Accordingly, I direct that you serve a minimum period of two years before becoming eligible for parole.
163For the sake of clarity, I note that the total effective sentence and the non-parole period have been imposed in respect of all charges before the court today; that is, in respect of all charges on Indictment No. M10016085.1 and all charges pressed in the Notice of Related Summary Offences.
Presentence Declaration
164Under s18(4) of the Sentencing Act 1991, I declare that the period of 649 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.
Statement and direction under s6AAA of the Sentencing Act
165I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for your pleas of guilty. Therefore, pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty pleas I would have imposed a total effective sentence of six (6) years’ imprisonment.
166I would have directed that you serve a minimum of three and one half (3½) years before becoming eligible for parole.
167I direct pursuant to s6AAA that the sentences that would have been imposed but for the plea of guilty be noted in the Court’s records.
Ancillary orders
168Section 89 of the Sentencing Act provides that upon conviction for a “serious motor vehicle offence” as defined in s87P(ba) of that Act, the Court must cancel your licence (if you hold one) and must disqualify you from obtaining a further one for a period of not less than two years.
169That section applies to charge 4 on the Indictment, the aggravated offence of exposing an emergency worker to risk by driving. I am required to specify the period of disqualification in respect of that charge. Accordingly, under s89 of the Sentencing Act, I specify that any licence to drive that you hold is cancelled and you are hereby disqualified from obtaining a further one for a period of two and one half (2½) years, effective from today.
170Section 89C of the Sentencing Act provides that the court:
“… may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence.”
171I have been requested by Mr Petric to make such a finding. Your counsel does not oppose such a course. Accordingly, under s89C of the Sentencing Act, on the unchallenged evidence before me, I find that you committed charge 4 on the Indictment while under the influence of methylamphetamine and Gamma-Hydroxybutyrate. I direct that this finding be entered into the records of the Court.
[75]Exhibit 2, page 11
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