Director of Public Prosecutions v Warr
[2023] VCC 100
•2 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR 22-01861
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BROCK WARR |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2022 |
DATE OF SENTENCE: | 2 February 2023 |
CASE MAY BE CITED AS: | DPP v Warr |
MEDIUM NEUTRAL CITATION: | [2023] VCC 100 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Koori Court jurisdiction – Aboriginal offender – Reckless conduct endangering life – Theft of a motor vehicle – Resisting an emergency worker on duty – Application of Bugmy Principles
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Bugmy v TheQueen (2013) 249 CLR 57
Sentence:Total effective sentence of 28 months’ imprisonment in combination with an 18 month community corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
For the Accused | Ms R. George | Papa Hughes Lawyers |
HIS HONOUR:
1Brock Warr, you have pleaded guilty in the Koori Court before me to theft of a motor vehicle, theft and reckless conduct endangering life on indictment. The maximum penalty for each of these offences is 10 years' ’imprisonment. You have also pleaded guilty to relevant summary offences, failing to stop and render assistance, failing an oral fluid test and assaulting an emergency worker and I have also had regard to the maximum penalties in relation to those offences. You have admitted relevant prior convictions.
2You are only 22 and were 21 at the time of offending but you have a lengthy and serious criminal history including serious offences such as armed robbery but of particular concern to this court and the community is a driving record with numerous appearances for driving whilst disqualified, driving in a manner dangerous and reckless conduct placing others in danger of serious injury.
3A charge of reckless conduct endangering life on the indictment before me encompasses an extremely serious episode of driving, and outrageous example of the community being put at extreme risk by your actions.
4The circumstances of your offending are set out in the summary of prosecution opening which was Exhibit A on the plea and which forms part of these reasons. I will now refer to some of those matters, I will not cover the circumstances in the detail that it is in the prosecution opening however it is a lengthy episode of driving and there is a significant amount of detail to cover.
5I will not go over the thefts of the motor vehicles but they are serious examples of that offence particularly given your history of driving.
Circumstances of Offending
6On 26 May 2022 around 4.50 am, you had an interaction with your sister and police were notified. At 2.40 pm on that day, you can be seen driving a stolen Ford Raptor along Donnybrook Road in Mickleham. The Police Air Wing became involved. Around 2.43 pm, you were driving on the Hume Freeway, which is a 100-kilometre zone, and at times you reaching speeds of near 160 kilometres an hour. You used the left shoulder emergency lane on at least six occasions to pass civilian vehicles. There were a number of passengers inside the vehicle you were driving as you drove along Metropolitan Ring Road towards Greensborough.
7You took the off ramp to Edgars Road. You entered the intersection in Edgars Road against red traffic control signals and turned south causing several vehicles to brake to avoid collision. You continued along Edgars Road to the intersection of Wolsey Place where you were going into the intersection against a red traffic control signal. Due to the number of civilian vehicles at that intersection, you drove on the grass median strip to make your way through the intersection.
8At the end of Edgars Road, you turned left to travel along Mahoneys Road. You increased speeds to overtake civilian vehicles. As Mahoneys Road became Keon Parade, your speed approached 100 kilometres in what is a 70-kilometre an hour zone. At the intersection of Keon Parade and Dalton Road, you entered the intersection against the red traffic light and turned left onto Dalton Road. You approached a roundabout at the intersection of Wood Street, you crossed onto the wrong side of the road to drive north in southbound lanes and you continued to enter the roundabout on the incorrect side of the road. You then drove on the wrong side through the roundabout almost colliding with a white van and a truck before taking the eastbound Wood Street exit. You drove the vehicle along Wood Street to the intersection of Settlement Road. You entered that intersection against the red light and continued.
9Whilst on Settlement Road, you went through red lights at Brand Drive and again at Apex Court. You veered onto the wrong side of the road on three occasions into oncoming traffic to overtake civilian vehicles travelling eastbound. You took a left turn into Cook Street, Bundoora and then again in Nixon Street. You followed that street at it looped back to Settlement Road and then onto Settlement Road, when you turned out of Nixon Street onto Settlement Road, you almost had a head-on collision with a vehicle.
10You drove the vehicle on the wrong side of Settlement Road travelling east in the westbound lanes doing that for a couple of 100 metres before getting to the intersection of Plenty Road. You were still on the wrong side of the road when you entered that intersection and through a red light in front of large truck which was making its way through the intersection. You then drove along the tram tracks.
11One member of the public was driving his Toyota HiAce van, was stationary in a U-Turn lane and waiting a green traffic signal, it got the green light and started his U-Turn. As he was halfway across the tracks, you collided with the driver's side of his vehicle causing to spin 90 degrees resulting in damage to both vehicles, the one you were driving and the HiAce van. You kept driving. You drove along the tram tracks making no attempt to stop and check on the welfare of the driver of the van.
12Minutes later, another bystander was travelling in a Toyota Land Cruiser in Plenty Road near the intersection of Taunton Drive. As that driver drove through the intersection, you tried to drive around him to the right and sideswiped the front driver's quarter of his vehicle. You kept driving north making no attempt to stop and check on the welfare of the driver.
13You entered the next intersection of Plenty Road and Western Ring Road. You drove through a red light. You encountered heavy traffic so you drove up on the footpath and drove along the footpath as it went under the Western Ring Road overpass. Police had positioned themselves at the end of the Plenty Road offramp. You drove off the footpath then and back onto Plenty Road. There were attempts by police then to deploy an immobilising device onto your vehicle but that was unsuccessful at that time.
14On the other side of the Western Ring Road you drove off the tram tracks transferring across to northbound lanes against oncoming northbound traffic. You were travelling in those lanes for about 100 metres and then returned to the tram tracks in the middle of Plenty Road. You then approached the intersection of McLeans Road, Bundoora, all lines of traffic were blocked by vehicles, you drove along the footpath. On the eastern side, you entered the intersection again through a red light. You turned right onto McLeans Road and you drove from McLeans Road to the intersection of Settlement Road. Again, you went through a red light at that intersection and you crossed onto the wrong side of the road on two occasions to overtake vehicles travelling along west on Settlement Road.
15Police were attempting to position themselves to bring about an end to your horrific driving. Through your driving, you approached where Senior Constable Edwards from the Highway Patrol and Acting Sergeant Lane had positioned themselves. They deployed a vehicle immobilising device which successfully punctured all four tyres on the vehicle you were driving. That did not deter you. You increased your speed to near 100 kilometres an hour on Settlement Road which is a 70 kilometre zone. The tyres were deflating but you continued driving, came through a roundabout narrowly missing a collision with another utility.
16You approached the intersection of Dalton Road and Metropolitan Ring Road. You entered that intersection through a red light and continued driving north on Dalton Road. There was heavy traffic so you chose to drive on the footpath on the western side of Dalton Road just prior to the intersection of Spencer Street and from the footpath, you entered the intersection again through a red light. With all four tyres severely deflated, you were still able to travel at speeds near 40 kilometres an hour but this was of course having a significant effect on the management of the vehicle, which has been described a crab walk motion. You entered the intersection of Alexander Avenue against the red traffic control signal. You approached the intersection of The Boulevard, Thomastown and entered from the left turning lane again against the red signal. You approached Lalor Secondary College on Dalton Road, Lalor, which at the time was a
40-kilometre zone. There were children present outside the schoolgrounds both on the western side footpath and a group of approximately 15 children standing in the centre pedestrian crossing located on the median strip of Dalton Road.17One victim of your reckless conduct was driving slowly with her niece approaching the school pedestrian crossing. She was in the far-right lane of traffic when your vehicle collided into the rear driver side quarter panel of her vehicle causing damage. You made no attempt to stop as you continued to pass her vehicle mounting the centre median strip at approximately 60 kilometres an hour. You crossed over the median strip within 10 metres of where the 15 children I have described were standing in the centre pedestrian endangering those children and also those in oncoming traffic as you then crossed over to the incorrect side of the road driving north in the southbound lanes of Dalton Road.
18A pursuit was commenced of your vehicle with police taking up position behind. Lights and sirens were activated. You remained on the wrong side of Dalton Road for approximately 200 metres resulting in a number of civilian vehicles having to take evasive action to avoid colliding with your vehicle head on. All four wheels of your vehicle were severely deflated. You merged back over the median strip to the correct side of Dalton Road. Police were attempting to manoeuvre their vehicle on a number of occasions in order to make contact with your vehicle but these attempts were not enough for you to come to a stop. You continued to avoid stopping for police. An unmarked police vehicle unsuccessfully attempted to intercept the stolen vehicle you were travelling in at the intersection of Queen Street but you continued on at 40 kilometres an hour on the footpath on the western side of Dalton Road. More school children were present on the footpath.
19To the north of your location, your vehicle slowed on the footpath to about 20 kilometres an hour and at that time, a marked police vehicle made impact with the rear driver side door of your vehicle causing it to be immobilised against a tree outside 261 Dalton Road, Lalor. That brought about an end to the driving.
20You and some of the occupants of the vehicle attempted to escape. Once your vehicle was stuck up against the tree but escape on foot I mean, that you were apprehended. In the course of being apprehended, you assaulted Detective Senior Constable Brown, assaulted that officer who was simply performing his lawful duty to try and apprehend you, you, who had engaged in this outrageous conduct which threatened the safety of a great many people, members of the public.
Objective Gravity of Offending
21The gravity of the offending - the facts speak for themselves. It is outrageous offending, extremely dangerous, placing lives in danger throughout the entire episode, there was a high risk of death being occasioned at several points. Reckless conduct endangering life is a serious offence with a 10-year maximum penalty.
22The serious aspects of your offending are the speed of driving over the limit, the excess over the limit that you were driving at, the running of red lights on multiple occasions, driving at speed on the wrong side of the road, a number of vehicles and road users were at risk, there were actual collisions dotted along this episode of driving, you had been using methylamphetamine, you were on a community corrections order having been released from a lengthy period of custody only days prior and of course you were being pursued by police in a stolen vehicle driving in this outrageous manner in order to evade police who were doing everything in their power to halt your vehicle.
23The protection of the community is a significant concern in your case and it is a very important factor in the sentencing synthesis. Young men such as yourself with a driving history such as yours often from traumatic backgrounds, often suffering disorders such as attention deficit hyperactivity disorder and possibly borderline personality as in your case, often using ice, methylamphetamine, as you were, are a danger to the community and you are a danger to the community in those circumstances because you resort to illegal and high-risk vehicle use in times of stress and anxiety.
24You fall into the age demographic and category of a young offender who poses a risk to the community when you have access to a vehicle, particularly when using methylamphetamine and particularly when in company with others.
25I am satisfied that you understand that it is simply good fortune that no one was killed or seriously injured or both as a result of your conduct. During the Koori Court sentencing conversation, you volunteered that you had a friend who had killed a passenger in a vehicle not long prior to your criminal conduct. It was pointed out to you that that offender sat in the same chair as you the day before your Koori Court hearing. It was a deep concern to the Elders present in your case and to the court that your knowledge of that tragic event did not deter you in May last year.
Personal Circumstances
26Turning to your personal circumstances, I have touched on your background of disadvantage and trauma. You are the youngest of a sibship of nine. I was told an older sister passed away when you were in custody some years ago. Your father attended your hearing and he participated in the sentencing conversation and he also provided a letter of support. Your father provided evidentiary support for a finding as to your exposure to trauma, violence and substance abuse from a young age and in particular the impact upon you due to the circumstances of your sister's passing at that time.
27I will not recite in detail your childhood history. A report from Claire McInerney was exhibited on your plea and I have had regard to the contents of that report in particular in relation to your antecedence and your personal history.
28In brief terms, both parents were methamphetamine users in your tender years and had problems with alcohol abuse during your formative years and your father spoke to that during the sentencing conversation. At the age of 11, you were living with your mother but she asked you to leave the home due to your contact with your father, your parents having been long estranged by that stage.
29You were prescribed Ritalin for ADHD at a young age and I was told that your mother prevented you from having access to your medication. Certainly at the age of 11, I was informed by your father during the sentencing conversation and in his written letter as to that position. That clearly had an effect on you in those formative years.
30You commenced using cannabis from the age of 11 and methylamphetamine from the age of 13. You have also reported being subjected to physical violence at the hands of your elder siblings during your formative years. Your subjective culpability for gravitating towards illicit substance abuse and negative peers from a young age is negligible, virtually non-existent, in my view, due to your environment and the influences upon you in the context of your psychological makeup.
31Your education was limited due to behavioural issues linked to your functioning and your environment. Your employment, aside from four months labouring, has been non-existent. Homeless has followed the list of dysfunction I have referred to. It is not surprising given the range of criminogenic factors I have referred to that were present in your early years that you commenced offending from a young age coming into contact with the juvenile justice system and experiencing periods of detention most recently prior to your current remand in adult custody for 432 days.
32I have concluded that the Bugmy v The Queen (“Bugmy”) principles apply with full effect to your circumstances.[1] The prosecution accept the application of Bugmy in your case. In her excellent written and oral submissions on your behalf, Ms George set out the basis for the application of the Bugmy principle and I accept those submissions.
[1]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 57.
33The application of Bugmy does not resolve the concern I have in relation to the protection of the community. The criminogenic factors I have referred to underpin my conclusion that you are a high risk of being a danger to the community whilst at large. I have to balance this risk alongside other factors including the application of Bugmy but also including general and specific deterrence and denunciation in arriving at the appropriate sentence in your case.
Participation in Koori Court
34You are a proud a Jardwadjali man and have a strong interest in connection to your Aboriginal culture and history. You participated fully in the sentencing conversation and I take your engagement and participation with your Elders, Aunty Yvonne and Uncle Trevor, into account. Your father participated in the conversation as I have mentioned and provided insight into your circumstances and background. This was helpful. It was helpful to inform the court as to the factors that have shaped you.
35You expressed remorse and I accept that your remorse is genuine. You also expressed a desire for change and a plan for change. I accept your expressed intentions were genuine. You have a one-year-old son and a meaningful connection with him is a motivating factor for you at present.
36You spoke with your Elders about the lethal danger your driving posed to members of the community and I am satisfied that you understand the gravity of your offending. You understand the danger you posed when sober. The challenge for you is to develop strategies for dealing with feelings of being overwhelmed or feelings of helplessness or peer pressure when you are in the community that leads you to consume illicit substances. The use of ice or methylamphetamine opens the doorway to poor judgment and impulsive decision making in your case and many others of course which often leads to this sort of dangerous behaviour, for you in particular. If you reoffend in a serious way, longer periods of incarceration await you. That is a matter which should play upon your mind upon your release.
Other Sentencing Considerations
37I have had regard to the fact that you spent over 400 days in custody only days before your offending and your remand on the matters before me. Principally, that matter raises concerns as to the risk you pose in the community and concerns as to specific deterrence, you were on a community corrections order but it is also a matter I need to keep in mind in terms of the brief period of time you have been at large over the past in excess of two years.
38I take into account your youth. You are still only 22 and you were 21 at the time of this offending. I take that into account in combination with the significant matters I have observed in relation to Bugmy and other mitigation which I accept. I have taken into account your plea of guilty and the significance of this plea of guilty in the context of the pandemic and the state of trial lists in this court. I have taken into account the impact of the COVID restrictions on the time in custody you have spent on remand in relation to this matter.
39I have also had to have regard of course to the importance of general deterrence, particularly for the offence of reckless conduct, also assault emergency worker, failing to render assistance, theft but in particular the reckless conduct charge and the serious example of that offence. Your driving reflects general deterrence is significant. It is also important that I impose a sentence which appropriately denounces your conduct on behalf of the community and also which addresses the need for specific deterrence and as I have already expressed, the protection of the community is a factor which I have to consider which does not exclude but pulls in the opposite direction from the application of Bugmy.
40I had you assessed for a community corrections order with a view to a combination sentence. I am satisfied that you have some prospects of rehabilitation. They are currently guarded to bleak given the history and the experience at the last occasion you were released on a community corrections order but due to your participation in the Koori Court sentencing conversation, the way you presented, and the matters which I have accepted on your behalf, I am satisfied that with the right support and the right attitude you do have prospects of rehabilitation and there is a community benefit in this court supporting those prospects in the future.
41I had you assessed for a community corrections order and you were assessed as suitable.
42There are a number of matters raised in that assessment under the 'Comments' page that reflected your engagement with the assessor in a positive light and demonstrating insight into the offending and appropriate remorse. You acknowledged the triggers and the factors which led to you using illicit substances which in turn was a factor in the driving episode which I have described as an outrageous episode. You told the assessor that you have been using methylamphetamine for a number of days prior to your offending and was at its peak. You were using approximately 7 grams of methylamphetamine daily, smoking cannabis and consuming three to four bottles of spirits daily. That is an extremely dangerous level and it poses great concerns for the community moving forward, also for your prospects of rehabilitation but your insight into those problems and your apparent willingness to address them provide some cause for optimism that with the appropriate support, you will be able to address those issues as you mature.
43I have concluded that I will impose a combination sentence but it will be a sentence which requires you to serve a further period in custody of some significance beyond what you have on remand to date in order to reflect the factors I have described, general deterrence, denunciation, specific deterrence and the consideration of community protection.
Sentence
44So I sentence you as follows, Mr Warr.
45In relation to Charge 1 on the indictment, you are sentenced to 6 months' imprisonment.
46In relation to Charge 2, 2 months' imprisonment.
47In relation to Charge 3, you are sentenced to 550 days' imprisonment in combination with a 18-month community corrections order.
48In relation to fail to render assistance, 10 days' imprisonment.
49In relation to failing the oral fluid test, you are fined $800.
50In relation to assaulting an emergency worker, you are sentenced to 2 months' imprisonment.
51All those sentences are to be served concurrently.
52I declare that pursuant to s18 of the Sentencing Act you have served by way of pre-sentence detention - is it 250 days or ‑ ‑ ‑
53MR ROPER: 252, Your Honour.
54MS GEORGE: Yes.
55HIS HONOUR: You have served 252 days as pre-sentence detention.
56In relation to the 18-month community corrections order, I impose an unpaid community work condition of 75 hours. I also impose a judicial monitoring condition; the first will be within three months or a day within three months from your release onto the community corrections order. You will be subject to supervision and I impose a treatment and rehabilitation condition, assessment and treatment for drug and alcohol. Up to 40 hours of treatment conditions can be credited against unpaid community work.
57I will not make it a condition but I will make note on the order that I urge you to pursue and I strongly recommend that Corrections pursue the Wulgunggo Ngalu Healing Place program as an opinion for you under the community corrections order to attend and complete that program and I indicate that if that program is available to you and you attend and complete that program, then I would look favourably upon an application to vary the order to remove work hours or any uncompleted work hours.
58I make orders against your licence. Now, just about each of the charges before me save for assault emergency worker carry with them provisions by which I can make orders against your licence. It is Charges 1, 2 and 3, s89A of the Sentencing Act provides for licence cancellation and disqualification in relation to those charges. Also Summary Charges 13 and 16 contain provisions in relation to cancellation and disqualification of the licence.
59For young people such as yourself, I am often loathed to impose lengthy cancellations because there is for rehabilitations to take place and work and programs and attending education and all those sorts of things often are easier if one has a licence but in your case, this driving is simply so extreme that I will attach a cancellation and disqualification order to Charge 3 on the indictment but it can be reflected against Charge 1 and 2 on the indictment and against the Summary Charges 13 and 16 also of a cancellation and disqualification of your licence for four years from today.
60Pursuant to s6AAA of the Sentencing Act if it was not for your pleas of guilty in relation to these matters, I would have sentenced you to a total effective sentence of 4-5 years' gaol with a non-parole period of 3 years.
61Now, the effect of all that, Mr Warr, is you have got 550 days of imprisonment less 250 days so that is a bit under a year.
62MS GEORGE: I believe that is just under 10 months, Your Honour.
63HIS HONOUR: Yes. And then if there is emergency management days, that is beyond my control but it is still a length of period ahead of you that is not insignificant for a young man but when you are released, you will be released on a community corrections order which principally is targeted at your ongoing rehabilitation and providing supports for that.
64So seize this opportunity, Mr Warr. I concluded that a sentence of this type will be a better way of supporting your rehabilitation into the future and in turn therefore protecting the community than a head sentence and a non-parole period. So embrace the opportunity and spend the next 10 plus months or however long it is to prepare yourself for doing your absolute best on a community corrections order.
65It will largely be up to you too if you can get down to Wulgunggo Ngalu, that will involve you being in a position by the end of your term of imprisonment to be free of any substances that are not allowed at Wulgunggo Ngalu, any suboxone or buprenorphine or anything like that methadone, none of those - people on those programs are not accepted into Wulgunggo Ngalu but you might have to drive some of this. Corrections will have a note that you have got a desire to go there, your legal representatives are aware of that and towards your time of release some referrals can be made and hopefully that can be put in place but it is not something I can order but if that is where you want to go, I would strongly recommend it and I would urge it because I think you would get a great benefit out of it and in turn so would the community if you could complete that program.
66All right. Ms George, nothing else that I need to cover?
67MS GEORGE: Your Honour, only just to confirm what the judicial monitoring date would be.
68HIS HONOUR: We do not have a date because I do not know what date he will be released but it will just be within three months.
69MS GEORGE: Yes, Your Honour.
70HIS HONOUR: We will get a date within three months of when he is released.
71Mr Roper, have I covered any other ancillary orders?
72MR ROPER: I think so, Your Honour. I believe there was - the declaration is 252 days, Your Honour.
73HIS HONOUR: 252 days PSD.
74MR ROPER: 252 just so that it is ‑ ‑ ‑
75HIS HONOUR: I make that declaration.
76Thank you everyone for your attendance and help with this matter.
77MS GEORGE: As the court pleases.
78HIS HONOUR: Mr Warr, good luck. Thank you, Ms Spencer.
79OFFENDER: Thank you, Your Honour.
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