Director of Public Prosecutions v White
[2022] VCC 285
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE CRIMINAL JURISDICTION
CR 21-01590
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY WHITE |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2022 |
DATE OF SENTENCE: | 11 March 2022 |
CASE MAY BE CITED AS: | DPP v White |
MEDIUM NEUTRAL CITATION: | [2022] VCC 285 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - Theft - Reckless conduct endangering life - Dangerous driving while pursued by police - Possess drug of dependence - Appalling driving in fairly brief period - Offences committed whilst on bail - Disqualified driver at the time of offending - Relatively short but dense and relevant criminal history - History of drug abuse - Suffers from ADHD, Autism and substance abuse disorder
Legislation Cited: Sentencing Act 1991
Cases: Worboyes [2021] VSCA 169
Sentence:Convicted and sentenced to Total Effective Sentence of 3 years and 3 months’ imprisonment with a non-parole period of 17 month’s imprisonment - 335 days pre-sentence detention declared as already having been served as part of sentence imposed - s.6AAA Sentencing Act 1991 declaration - Ancillary orders - Disposal and Licence cancellation and disqualification - Pursuant to s.89C Sentencing Act 1991 finding made driving offences occurred whilst under the influence of a drug contributing to these offences
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Solicitor for Public Prosecutions |
For the Accused | Ms N. Low | Victoria Legal Aid |
HER HONOUR:
Charges
1Zachary White, you have pleaded guilty to the following offences on the indictment: one count of theft, one count of reckless conduct endangering life, each of which have a maximum penalty of 10 years imprisonment; one count of dangerous driving while pursued by police which has a maximum penalty of three years' imprisonment; and one count of possession of a drug of dependence, namely methylamphetamine which has a maximum penalty of one year imprisonment.
2You have also pleaded guilty to three related summary offences, being one charge of drive whilst disqualified which has a maximum penalty of two years' imprisonment, and two charges of commit an indictable offence whilst on bail, each of which have a maximum penalty of three months' imprisonment.
3In sentencing you, I must take these maximum penalties into account.
Circumstances of offending
4I was told by the learned prosecutor that on 15 December 2020, you were bailed from the Narre Warren Police Station for charges of affray, intentionally and recklessly causing injury and unlawful assault, to appear on 5 May 2021 at the Dandenong Magistrates' Court. This relates to the summary offences Charges 10 and 13 – commit indictable offences whilst on bail.
5On Monday 22 February 2021, sometime between the hours of 4 am and 7 am, a 2019 yellow-coloured BMW wagon, (registered BBX 501) was stolen from a residential property in Doncaster. This vehicle is valued at about $100,000. This gives rise to Charge 1 – theft.
6The vehicle also contained various items, including a Chanel bag, Beats earphones, Ray-Ban sunglasses, a Ferrari car key and other assorted keys belonging to the Victim.[1] And this is also encompassed by Charge 1 - theft.
[1]See Exhibit 19 and Statement of Wenxin ZHANG, Depositions Page 31.
7At about 9.21 am the victim of the theft, via GPS tracking data, was able to detect that the stolen vehicle was in the vicinity of Dixon Avenue, Croydon.
8At approximately 9.53 am, Victoria Police patrolling units observed the stolen BMW travelling along Dorset Road in Croydon. At the same time, the Police Air Wing picked up observation of the vehicle, which was being driven by you.[2]No one else was in the car.
[2]See Exhibit 7
9The stolen vehicle, driven by you, was then observed to drive through various streets in Croydon, Mooroolbark and Chirnside Park, remaining under observation by the Police Air Wing at all times.[3]
[3]See Exhibit 7
10At about 10.08 am, you were observed to briefly stop the vehicle outside a residential address in Lilydale, which was where your cousin lived. You appeared to be looking to hide the car within the property, however, you moved off a short time later, apparently after becoming aware that you were being observed by the Police Air Wing.
11At approximately 10.11 am, you entered the underground car park of the Lilydale Market Place Shopping Centre located in Castella Street, Lilydale, in an effort to avoid police detection.
12At about 10.13 am, an unmarked police unit entered the car park and police observed the stolen vehicle. They then attempted to intercept you with activated flashing blue and red lights and audible sirens engaged. You, however, evaded the police unit and ended up back out onto Castella Street. In your attempt to escape, you mounted a median strip and the footpath to break through traffic before turning into Beresford Road at a fast rate of speed, driving on the wrong side of the road.
13The pursuit was terminated at this point, due to the danger created by the erratic driving by you, where you were observed to be overtaking vehicles via the painted centre median strip.
14You were then observed turning South into Victoria Street, Lilydale, where you increased your speed to approximately 120 kilometres per hour in a 60 kilometre per hour zone. You were observed overtaking on the wrong side of the road, creating a dangerous situation for other road users.
15You then turned west onto the Maroondah Highway, through the intersection and against the red traffic control signals, where you increased your speed to approximately 130 to 140 kilometres per hour, whilst driving dangerously, weaving in and out of traffic.
16You continued to drive at approximately 140 kilometres per hour southwest along Maroondah Highway, before disobeying a red left turn traffic signal at the intersection of Manchester Road and continued straight along Maroondah Highway.
17You approached the intersection of Maroondah Highway and Exeter Road, where you drove straight through a red light from the right-hand turning lane, at about 60 to 70 kilometres per hour. You were then observed to narrowly avoid colliding with vehicles entering the intersection from the other direction.
18You continued west along Maroondah Highway, before driving through a red light at the intersection with Kent Road. You continued to duck and weave through moderate traffic at speeds between 90 and 140 kilometres per hour.
19You then continued west through the intersection of Maroondah Highway and Ringwood Street, against another red traffic light, before continuing through yet another at a speed of approximately 100 kilometres per hour, driving through moderate to heavy traffic at the Market Street intersection.
20You continued west along Maroondah Highway, driving in a dangerous manner, continuing to duck and weave through moderate to heavy traffic at speeds reaching 130 kilometres per hour.
21At approximately 10.28 am, police members deployed stop sticks at the stolen vehicle on Maroondah Highway, Nunawading just before Springvale Road. However, these were unsuccessful however and did not impact the car you were driving.
22You made a right-hand turn from Maroondah Highway onto Surrey Road, through a red traffic light and continued to travel through Blackburn.
23At approximately 10.33 am, you were observed to mount a curb and drove along the footpath, to get past three stationary vehicles, in order to make a left-hand turn against a red light, at the intersection of Springfield and Springvale Roads. You narrowly avoided colliding with another vehicle that was in this intersection before continuing in a northerly direction along Springvale Road.
24You then travelled east, onto Eastlink in Donvale, driving through a red light, at about 70 kilometres per hour. You drove outbound through the Mullum Mullum tunnel. You activated the speed camera in the tunnel, where you were detected travelling at 169 kilometres per hour in the applicable 80 kilometre per hour zone.
25You then exited the tunnel and continued to travel at speeds of approximately 160 to 170 kilometres per hour, as you approached Canterbury Road on Eastlink. You continued to travel south along Eastlink, where you were observed driving in the emergency stopping lanes, in order to pass other vehicles at high speed.
26You continued to manoeuvre through moderate traffic on Eastlink in an extremely reckless and dangerous manner, increasing your speed to approximately 180 kilometres per hour, as you went under the Wellington Road bridge in Mulgrave, activating the speed camera.
27You were observed continuing southbound on Eastlink, travelling at approximately 154 kilometres per hour at the Dandenong Bypass bridge in Keysborough, again activating the speed camera.
28You continued at speed, before cutting across three lanes of traffic, in front of a truck on Eastlink, exiting onto Thompsons Road, Cranbourne at approximately 10.47 am. You immediately did a U-turn and re-entered Eastlink to travel north.
29You again increased your speed to approximately 180 kilometres per hour, before exiting Eastlink at Princes Highway and driving on the painted lines at the intersection to pass stationary vehicles, before driving through a red traffic control signal, to drive west on Heatherton Road in Dandenong.
30At approximately 10.54 am, you were observed travelling west on Heatherton Road, driving on the wrong side of the road, in order to overtake stationary vehicles at the intersection of Chandler Road, before driving through a red traffic control signal.
31You continued to duck and weave through slow-moving traffic, overtaking on the wrong side of the road at speeds between 60 to 70 kilometres per hour into oncoming traffic, requiring other road users to take evasive action to avoid collisions.
32At about 10.55 am, you stopped the vehicle in a side street car park off Heatherton Road and got out of the car for a short time. You were observed to be wearing black-coloured gloves,[4] a small black cross-body satchel bag, a grey‑coloured hooded jumper with black print or motif on the left breast area and back,[5] red-coloured shorts and a distinct pair of black-coloured runners, with a bright orange coloured heel.[6]
[4]See Exhibit 15
[5]See Exhibit 13
[6]See Exhibit 14
33You then got back into the car and commenced driving at high speed east along Heatherton Road towards Noble Park. At about 10.59 am, the car was impacted by stop sticks, as you drove at speed along Heatherton Road, Springvale. The stop sticks impacted two tyres.
34Despite two tyres being spiked, you again increased your speed to approximately 120 kilometres per hour. Police members immediately engaged in a pursuit, due to the significant safety risk the vehicle posed to the public because of the damage to the tyres in circumstances where you were travelling at speed.
35You turned left onto Stud Road, driving in a northerly direction at about 160 kilometres per hour, continuing to drive in an extremely reckless and dangerous manner. The police were forced to stop pursuing you, as you were travelling at speeds between 160 and 190 kilometres per hour and crossing onto the wrong side of Heatherton Road into oncoming traffic, again requiring multiple cars to take evasive action to avoid head on collisions.
36The front drivers' side tyre began shredding rubber, however, you continued to weave in and out of traffic. You used the bus lane at high speed in order to pass other cars.
37You continued north on Stud Road. In order to go through the intersection of Ferntree Gully Road, you cut off a ute, requiring that car to take evasive action. You continued at a high rate of speed on Stud Road, before going through red traffic control signals at the intersections with High Street Road and Burwood Highway. The traffic level at both of these intersections was moderate.
38You then made a right-hand turn from the straight-ahead lanes at the Boronia Road intersection, cutting off a vehicle, again narrowly avoiding a serious collision. By this time, you were travelling only on the metal rim of the front driver's side tyre. The rear driver's wheel was also deflated, and the vehicle was emitting a large quantity of grey smoke.
39At about 11.08 am, you drove the car into the underground car park at the Woolworths Shopping Centre where you abandoned it in the middle of the driving lane and fled on foot, leaving one of the black-coloured gloves you were wearing on the driver's seat of the vehicle.[7]
[7] See Exhibit 15
40You then ran from the car towards the Boronia Railway Station. As you were running, you were observed to throw the other black glove you were wearing into some bushes.[8] This was later recovered by police.
[8] See Exhibits 7 and 15
41You then ran into the Boronia Railway Station out of view from the Police Air Wing, however, CCTV footage from the Railway Station depicted you in the same clothing as you wore when you exited the car in Springvale.
42At about 11.10 am, you boarded a Belgrave Line train, which pulled up to the platform, just as police began to converge. You then took the train one stop, to the Ferntree Gully Railway Station. During this trip, you were seen to remove your grey hooded jumper and leave it on the train. This was later seized by police and your conduct was captured on CCTV footage.[9] You then exited the Ferntree Gully station in just your T-shirt.
[9] See Exhibits 10, 13 and 17
43At about 11.12 am, you were observed on CCTV footage entering a taxi parked in the taxi rank at the Ferntree Gully Railway Station. You caught this taxi to 81 Surrey Road, Blackburn North.
44On Wednesday 24 February 2020 at about 4.48 pm, you were arrested at a hotel in Ringwood, as you were playing the pokies. At the time of your arrest, you were wearing the same clothing depicted in the CCTV footage from the offending on 2 February 2021.[10]
[10] See Exhibits 14 and 19
45A search of your backpack revealed the Chanel bag containing Beats earphones, a pair of Ray-Ban sunglasses, a Ferrari car key and assorted other keys that were stolen from the victim's BMW. These items are valued at about $700.
46You stated to arresting police officers that you were in possession of methylamphetamine. A further search of your backpack located a clear snap lock bag containing approximately 0.5 grams of methylamphetamine[11], giving rise to Charge 4 – possess a drug of dependence.
[11]See Exhibit 19
47Your driver's licence was cancelled and you were disqualified for a period of four years on 16 July 2020 at the Ringwood Magistrates' Court, for charges of driving at a dangerous speed. Therefore, you were disqualified at the time of the offending which gives rise to Summary Charge 9 - drive whilst disqualified.
Record of interview
48Police took you to the Doncaster Police Station where you were interviewed. You gave no comment answers to all questions put to you.
49After a number of queries raised with the prosecution at the plea hearing and following the hearing as to the precise factual basis for Charges 2 and 3, I was told that the factual basis for Charge 2 was that which is set out in the schedule to the indictment and that the basis for Charge 3 is all the driving from approximately 10.13 am to when you abandoned the car in the underground carpark.
50Schedule 1 gives a detailed account of the pieces of driving relied upon in support of Charge 2 and, as I understand the position, must be read in conjunction with the prosecution opening which paints the facts with a slightly broader brush. I was shown footage in respect of each of the pieces of driving referred to in the schedule. So the factual basis on which I sentence you in respect of Charge 2, as amplified by the schedule, is as follows:
51SCHEDULE 1 – The act referred to as Act:
Act
Particulars
1, from 10:39:27 am
Weaving in and out of traffic, breaking rapidly to avoid a collision, causing another car to take evasive action to avoid collision, and rapidly braking from 176 kilometres per hour to 58 kilometres per hour to tailgate a car, causing the car to take evasive action.
2, from 10:39:47 am
Weaving between traffic and changing lanes at a speed of 120 kilometres per hour, narrowly avoiding a collision and causing another car to take evasive action to avoid a collision.
3, from 10:52:24 am
Travelling at a speed of approximately 210 kilometres per hour on the Eastlink freeway where the speed limit is 100 kilometres per hour, before braking suddenly to a speed of 68 kilometres per hour in congested traffic while approaching a bridge, then driving within a very short distance of another vehicle, causing that vehicle to take evasive action to avoid a collision.
And the fourth act relied on, from 10:52:46 am,
Cutting across three lanes of traffic on the Eastlink freeway at 172 kilometres per hour where the speed limit is 100 kilometres per hour, across painted road markings in front of and close to a heavy vehicle whilst exiting the Eastlink freeway to Heatherton Road in Victoria.
52Mr White, your offending is very serious and warrants a punishment which is just in all of the circumstances. Your conduct must be firmly denounced. Your driving on the occasion for which I now sentence you was nothing short of outrageous. It was also protracted and had the real potential to kill other people who were simply going about their business and were entitled to feel safe in doing so. By your plea of guilty to Charge 2, you admit that when you engaged in the conduct that you did, you foresaw the probability that members of the public would be placed in danger of death, however, you went ahead anyway.
53Your counsel pointed to the fact that there were no injuries sustained by other road users, which, thankfully, is true; if you had hurt or killed someone, you would be facing even more serious charges. In any event, it is apparent that on a number of occasions, other road users needed to get out of your way- so, it was little thanks to you or your driving skills that no one was hurt, in my view. It must have been most frightening for other motorists who were driving in your vicinity, as you careered all over the place on multiple major roadways, through red lights, and on one occasion onto a footpath. It beggars belief that you continued to drive and, in fact accelerated after two tyres of the car were spiked, heightening the danger even further.
54Not only did you behave in this terrifying manner, but you did so driving someone else's car, a car that you had stolen and which was worth a considerable sum, as were the items in the car that you also stole from this victim.
55It is an aggravating feature of your offending that you committed the offences now before me whilst on bail for other offences. You were not entitled to drive at the time as you were a disqualified driver. Having said this, there are summary offences in respect of each of these aspects and I must be careful not to impose a double punishment upon you.
56I am also most mindful of the fact that there is a degree of overlap between the driving giving rise to Charges 2 and 3, albeit that there are different elements involved in each of these offences.
57In assessing the objective gravity of your offending, I have factored in that the driving offences occurred over a relatively short period of time, especially the facts giving rise to Charge 2; on the other hand, you managed to pack a good deal of appalling driving into a fairly brief period because you were often driving so quickly. I have factored in that the driving took place after peak hour but the traffic was at a moderate level and at times it was heavy. I have factored in that no one was actually injured but as I have said, this had a good deal to do with the behaviour of other motorists rather than you. Your counsel also submitted that you appeared to be in control of the car at all times in that you did not fishtail or lose control of it in any way, or control with other vehicles. This might all be so but again, on a number of occasions, other cars had to take evasive action because of your dreadful driving. The matters raised by your counsel have fairly limited weight in the scheme of things but I have taken them into account.
58You have a criminal history of a most concerning nature which commences in February 2018 when you appeared at the Ringwood Magistrates Court for numerous offences including two charges of aggravated burglary - person present, three charges of theft of a motor vehicle, 13 charges of obtaining property by deception, dangerous driving while pursued by police, possess methylamphetamine, driving a vehicle causing loss of traction, fail to signal and driving without P plates, as well as other driving offences, use threatening words, four charges of committing an indictable offence whilst on bail, and other bail and theft offences, as well as drive whilst disqualified and resist emergency worker on duty. You were convicted and sentenced to an aggregate 87 days in custody which was declared as already served and ordered to undertake a community corrections order with supervision, drug and alcohol treatment conditions, offending behaviour and judicial monitoring conditions.
59You were before the Ringwood Magistrates Court on 20 July 2018 in respect of breaching that community corrections order, and the order was varied such that you were required to undertake a community corrections order for 18 months with similar conditions to the previous one but which also included unpaid community work. You were dealt with for other offences on that day, being going equipped to steal or cheat, intentionally destroying property, contravene a bail condition and intentionally destroying property. You were sentenced to an aggregate term of imprisonment of three months with that time effectively being declared as already been served.
60On 13 September 2018, you were convicted of 18 charges of intentionally damaging property, theft of a motor vehicle, going equipped to steal or cheat, retaining stolen goods, 17 charges of theft from a motor vehicle, two charges of theft, as well as a number of other dishonesty charges, bail offences, drive whilst disqualified and possess methylamphetamine. You were sentenced to an aggregate term of 88 days' imprisonment with 21 days declared already served.
61On 15 February 2019, you were convicted of breaching the community corrections order previously imposed on 20 July 2018; the community corrections order was cancelled and you were sentenced to an aggregate term of six months' imprisonment in relation to the offences to which it related. You were also convicted of further offences being theft from a motor vehicle, drive whilst disqualified, theft of a motor vehicle, going equipped to steal or cheat, deal with property suspected to be proceeds of crime, and you were sentenced to an aggregate term of three months' imprisonment which was to be served partly concurrent with the other sentence to the extent of two months. So, on my reckoning you were sentenced to a total effective sentence of seven months with 63 days pre-sentence detention. You were also fined for breaching the community corrections order.
62On 1 October 2019, you were convicted of contravening a bail condition, theft of a motor vehicle, two charges of possess methamphetamine, possess a drug of dependence which was not named, two charges of going equipped to steal or cheat, dealing with property suspected of being proceeds of crime, retaining stolen goods, and you were sentenced to an aggregate term of 80 days' imprisonment, with 57 days declared as already served.
63On 16 July 2020, you were convicted of four charges of theft of a motor vehicle, three charges of assisting in the retention of stolen goods, nine charges of driving whist disqualified, seven charges of theft, six charges of obtain property by deception, three charges of attempt to commit an indictable offence, one charge of failing to stop a vehicle on police direction, two charges of theft from a motor vehicle, two charges of shop theft, two charges of handling or retention of stolen goods, and two charges of driving at a speed dangerous, possess methylamphetamine, two charges of possessing an unknown drug, possess housebreaking implements, possess controlled weapon without excuse, possess dangerous article in a public place as well as two driving related offences. In relation to all but the last mentioned driving offences, you were sentenced to an aggregate sentence of 106 days' imprisonment with that period being declared as already served.
64It is more than apparent that your criminal history is recent and relevant to the offending before me and is a matter that I must take into account when determining your prospects of rehabilitation, specific deterrence and protection of the community. I do note that your criminal history spans a fairly short period of time, but it is certainly a fairly dense one.
65In your favour, you were prepared to plead guilty to appropriate charges in this matter at a fairly early stage. You wished to call evidence at a committal hearing, however, this was refused and the hearing proceeded on a submissions only basis. I understand that the main issue was whether your conduct amounted to endangerment of death rather than a lesser charge. It was not long after this hearing that you entered your pleas of guilty to the charges now before me. In those circumstances, I allow for a fairly substantial discount in the sentence that you would otherwise receive as witnesses were saved the time and trouble of giving evidence at committal and trial and the community was spared the time and expense of a fully contested committal hearing and a trial. I make a further allowance in your favour in circumstances where you were prepared to plead guilty during the COVID pandemic, which has helped ease the backlog of trials that the court has had to deal with. Now, I am mindful of the authority of Worboyes and what is said there about the discount having to be patently reflected in the sentence that is imposed.
66It was submitted that you are also remorseful for your conduct. Certainly, your letter to the court expresses remorse and some insight into how your offending must have affected the victims. You have also expressed remorse to your family who have stood by you. As against this, you have committed serious offences, a number of which are similar in nature to offending in the past so your words of regret ought also be seen in that context. At the end of the day, I accept that you are sorry that you found yourself in prison once again and that you are developing - and I (indistinct) also - you are developing some insight into the seriousness of your offending and how it affects others. However, in my view, you have a good way to go in this regard.
67I take into account your background. You are an only child to your biological parents. Your parents separated when you were only five years old. You spent a short time with your mother but eventually you moved in with your father and his new partner. Your stepmother became your primary carer as your father worked as an interstate truck driver. You enjoy a close relationship with your father and stepmother which is evident from a letter of support that I have received from Ms Whelan. You have not seen your natural mother for some years. I agree with Ms Whelan that this has probably had a negative impact on you despite your close relationship with Ms Whelan and your father.
68When you were at primary school, you were diagnosed with ADHD and autism. You were prescribed Ritalin for a number of years.
69You required a teacher's aide throughout your secondary schooling and completed Year 10. You worked at a takeaway food chain from the age of 15 till you were 18, then as a sheet metal factory worker for three years. Ironically, your last full-time job was in traffic control which you held prior to the offences which you committed in 2018.
70Before being remanded into custody for the offences before me, you were unemployed and receiving JobSeeker payments.
71You started using methamphetamine when you were 17. As is so often the case, your use commenced with occasional weekend use then escalated to daily use, with some periods of abstinence by the time you were 21. This situation has endured until your remand for the offences before me. You started taking GHB when you were 23 which went from occasional to daily use between the ages of 24 and 25. You told Ms Cidoni, psychologist, that you overdosed on GHB on several occasions although you never went to hospital.
72You were psychologically examined by Ms Gina Cidoni on 19 and 20 August last year. She said that you suffer from ADHD, anxiety disorder and chronic substance abuse disorder. The last mentioned affliction is now in enforced remission due to your incarceration. She was of the view that you have reduced psychological resources for coping with stress, immaturity and poor judgment. By that I take it, she meant that you were lacking in maturity and the ability to make good judgments. She said that your ADHD would create a tendency in you to engage in risk-taking behaviours, drug taking and criminal activity.
73At the time of the offending, you were not appropriately medicated for your ADHD. Apparently, you chose to self-medicate with drugs which in fact made your symptoms worse. I was told that you are now taking appropriate medication, which is a good thing, although somewhat at odds with Ms Cidoni's concern that your ADHD would not be appropriately managed whilst in gaol.
74In sentencing you, I have not been urged to find that at the time of your offending you were suffering from an impairment of mental function which meant that your moral culpability was reduced or that I ought reduce weight to other sentencing factors.
75However, I have taken into account in a general way that you do suffer from ADHD and anxiety disorder and these provide a relevant backdrop in respect of this offending and your background and factoring in the weight I must give to relevant sentencing principles.
76I was told by your counsel that after your release from custody on 16 July 2020, you returned to the family home and that you abstained from drugs for four to five months. Unfortunately, you reconnected with a gaol associate via Facebook and recommenced using GHB and methamphetamine. You then moved out of the family home and floated around, staying at friends' houses and hotel type accommodation. It was during this period that you committed the offences now before me.
77I was told that you are welcome to stay with your father and stepmother but they do not tolerate drug taking which has meant that, in the past you have left the family home when engaging in this.
78Your stepmother, who has been your main carer as you grew up, wrote a character reference in support of you and she is impressed by the changes she has seen in you over the months you have been on remand. She said that this is the last time that they will support you and you are aware of this. However, she has noticed that you have matured and are taking greater responsibility for yourself and a positive future. I have also taken into account the letter that you sent to the court which indicates your decision to be a contributing member of the community when you are released. You have decided to stay away from social media so you can stay away from negative influences, which has been part of your downfall in the past. I really do hope that you stick to your resolutions when you are back in the community, Mr White.
79I have also factored in that this is the longest time that you have been in gaol, and that your criminal record, although dense, has endured over a period of about two and a half years. On the other hand, it seems to me that the offences before me mark an escalation in the seriousness of your offending, which is a concern.
80In sentencing you, I have taken into account that time in gaol has been harsher than otherwise due to the COVID-19 restrictions which has seen you missing out of personal visits, a number of programs, and being subjected to 14-day quarantine as well as frequent lockdowns.
81To your credit, you have done very well whilst on remand. You have a job as an Orientation Prison Service worker which is a trusted and well-respected role and it involves you inducting new prisoners into the prison. It can mean that you work seven days a week. You have also enrolled in a number of lifestyle courses that have been available including the quite extensive eight-module ATLAS program, which teaches a number of important life skills and strategies, as set out in the letter from Ms Lazar dated 31 January 2022.
82You are 26 years old and you were 25 when you committed the offences for which I am sentencing you. You still have a degree of youthfulness although the sun is setting on that aspect as a matter which I can factor in. However, I do take this into account and the need to maximise your chances of rehabilitation but in your case, I cannot give this primary consideration at the cost of the weight I must give to other relevant sentencing principles.
83On the one hand, you are showing some signs of maturing and a level of remorse and insight; you have done well whilst on remand, you are now taking medication for your ADHD, and you have made some good decisions about the future; you have a fairly solid history of obtaining employment and you have good family support and the promise of accommodation from them so long as you abstain from drugs. On the other hand, your offending is most serious and marks an escalation against a background of a recent and relevant criminal history; you have some mental health difficulties and had a chronic substance abuse problem (albeit it is now in remission due to your incarceration), and you appear to have been susceptible to negative peer influence in the fairly recent past.
84In all these and other relevant circumstances to which I have previously referred, I assess your prospects of rehabilitation as guardedly less than fair. I place fairly strong weight on specific deterrence and protection of the community. I place strong weight on general deterrence in a bid to deter others from behaving as you have.
85Your counsel submitted that I ought impose a community corrections order in combination with a term of imprisonment, with that term, as I understood her submission, largely or completely reflecting the period in gaol that you have already served. She acknowledged that you had previously breached community corrections orders but submitted that this was at a time in your life when you were a good deal younger and less mature than you now are. Her secondary submission was that I ought impose a head sentence with a substantial gap between this and the non-parole period.
86The learned prosecutor submitted that nothing short of a head sentence with a non-parole period was appropriate in your case.
87After considering your case and the weight that I need to attach to all relevant sentencing principles, and having taken into account all matters in mitigation, the only appropriate sentence in your case I am afraid is a head sentence and a non-parole period. In view of the gains that you have made over the time you have been on remand and matters put in mitigation on your behalf, I have done what I can in determining the non-parole period. In particular, I am also mindful of the principle of totality.
88You are convicted of all offences before me both on indictment and the summary charges.
89I make the disposal order sought by the Crown which is not opposed by you.
90The Crown submitted that I ought find pursuant to s89C Sentencing Act 1991 that at the time of your driving offences you were under the influence of a drug which contributed to the driving offences. Your counsel was not prepared to concede this. The letter that you sent to the court, Ms Cidoni's report and your counsel's submissions on instruction that you were a daily user of methamphetamine and GHB at the time of the offending, and that drug taking was the context in which your offending occurred leads me to conclude that you were under the influence of a drug or drugs at the time of the driving. If this were not the case, I would have expected a Verdins submission to the effect that your ADHD and anxiety disorder had impacted on you in a relevant way. In all the circumstances, I make the finding sought by the Crown.
91In relation to Charge 2, reckless conduct endangering life is a serious motor vehicle offence as defined by s87P of the Sentencing Act 1991. So pursuant to s89(1), I cancel all driving licences that might be held by you and you are disqualified from driving for a period of two years.
92You are sentenced to the following terms of imprisonment:
93Charge 1: 12 months;
94Charge 2: two years 10 months which will be the base sentence;
95Charge 3: 14 months;
96Charge 4: one month;
97Summary offence Charge 9: six months;
98Summary offences Charges 10 and 13: one month for each of these.
99I direct that one month from the sentence on Charge 1 and three months from the sentence on Charge 3 be served cumulatively with each other and with the base sentence but that otherwise the sentences I have imposes be served concurrently. This produces a total effective sentence of three years and two months. I direct that you serve 17 months before becoming eligible for parole.
100I declare that you have already served 335 days which will be deducted from this sentence.
101If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.
102Now, is there anything arising from those remarks, Madam Prosecutor?
103MS PAGANIS: No, nothing. Thank you, Your Honour.
104HER HONOUR: Ms Low?
105MS LOW: Your Honour, I just want to clarify the criminal priors. There was one instance where Your Honour mentioned there was a total effective sentence of seven months. I just wanted to clarify the date of that prior.
106HER HONOUR: That was a calculation by me going from the criminal history. I have not been correct about that? Yes, that is 15 February 2019. So there was an aggregate term of six months' imprisonment in relation to the offence which the community corrections order is being imposed for on my reading of it. And there were further offences.
107MS LOW: I understand. The contravention and the next entry with the further offences. Thank you, Your Honour.
108HER HONOUR: Yes, do you agree that that the part-concurrency was two months. So that means cumulative of one month. So that is seven months.
109MS LOW: Yes, Your Honour.
110HER HONOUR: All right. Is there anything further?
111MS LOW: No, Your Honour.
112HER HONOUR: All right. Now, did you want to talk to your client before we disconnect the audiovisual?
113MS LOW: If I could be granted that opportunity I will be grateful.
114HER HONOUR: All right. Well, Ms Low, I do have another matter coming up. I will grant you that opportunity. But if you would not mind, if you could be five or 10 minutes at the most please. But we will otherwise adjourn this hearing and I thank counsel for their assistance.
115MS PAGANIS: As Your Honour pleases. Thank you.
116MS LOW: (Indistinct words.).
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