Director of Public Prosecutions v Whittaker

[2021] VCC 299

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-20-01453

DIRECTOR OF PUBLIC PROSECUTIONS

v

Bradley WHITTAKER

---

JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2021
DATE OF SENTENCE:	18 March 2021
CASE MAY BE CITED AS:	DPP v Whittaker
MEDIUM NEUTRAL CITATION:	[2021] VCC 299

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Theft – Receive stolen goods – attempted theft – carjacking – dangerous driving while pursued by police – conduct endangering persons – robbery - Aggravated Reckless Exposure of Emergency Worker to Risk by Driving – Resist emergency worker on duty - Category 2 offence - appropriate vehicle for general deterrence – early guilty plea.

Legislation Cited:     Sentencing Act 1991.
Cases Cited:            DPP v Nelson [2020] VSCA 219; DPP v Clarke [2019] VCC 528.

Sentence:                 4 years and six months' imprisonment and I direct that you serve a period of three years and six months before you are eligible for parole.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown (For plea) Ms J. Hotchkin (For Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A. Hancock	Balmer & Associates

HIS HONOUR:

1Bradley Whittaker you have pleaded guilty to an indictment comprising nine charges.  In addition you consented to having six summary offences dealt with in this court and you also entered a plea of guilty to those.

Summary of Offending

2The circumstances of these offences were the subject of a summary of Prosecution Opening which was not the subject of any challenge.[1]  For present purposes however, I will provide a somewhat abbreviated version of that  summary of the offences for which you are to be sentenced.

[1]Exhibit P4.

3You were 22 years old at the time you committed the offences, and are now 23 years old.  You were living  with your  mother and older brother in Mount Waverley at the time.  On 19 May 2020, you drove a stolen 2010 Ford utility in the Noble Park area with two female passengers.  

4At about 9.00 am you stopped the utility outside an address in Noble Park and approached a 2010 Nissan Pulsar hatchback that was parked on the street.  You attempted to steal the Pulsar Hatchback by smashing its rear window with a hammer.  This constitutes Charge 3, attempted theft which carries a maximum penalty of five years' imprisonment.

5The owner of the Pulsar hatchback heard the sound of smashing glass and came out to investigate.  He observed you at his car and confronted you about the damage to his car.  After a verbal altercation, you got back into the utility and drove off quickly with your female passengers on board.  As you were driving away from the scene, you lost control of the utility at the intersection of Crescent Street and Corrigan Road and collided into a brick fence at 71 Corrigan Road.  This constitutes Summary Charge 6, careless driving.  This offence carries a maximum fine for a subsequent offence of 12 penalty units.  This is applicable to you because you had been previously convicted of careless driving in 2013.  At the time you were disqualified from holding a driver’s licence.  This is the subject of Summary Charge 31.  The offence of driving whilst disqualified carries a maximum penalty of a fine of 240 penalty units or imprisonment for two years.  

6The utility was embedded in the fence and you put the utility into reverse and attempted to free the vehicle from the brick fence.  Eventually, you managed to free the car but it was undriveable.  You abandoned the utility on the street, you and the two female passengers ran off towards Ross Reserve.  This is the subject of Summary Charge 7, namely failing to provide your name and address when property was damaged.  This offence carries a maximum penalty for a subsequent offence of imprisonment of not less than 14 days and not more than a month or a fine of 10 penalty units.  This maximum penalty is applicable to you because you were previously convicted of this offence in 2013.

7Police attended the scene and at the time the utility was fitted with registration plates 'PSI.' Investigation revealed that the Ford utility belonged to Robert Urquhart and that it was stolen from the driveway of a premises in Malvern East on 10 or 11 May 2020. This is the subject of Charge 1, theft. The maximum penalty for theft is 10 years' imprisonment and pursuant to s 89 (4) of the Sentencing Act 1991, upon conviction of an offence of theft of a motor car I must either cancel your license or disqualify you from obtaining a driver’s license for a period of time.

8The registration plates, 'PSI' affixed to the utility had been stolen from a Toyota Hilux parked in Vermont between 16 and 18 May 2020.  Police searched the utility and located a set of stolen number plates, 'RXP 316' wedged on the left-hand side of the steering wheel panel in the stolen utility.  Those registration plates were stolen from a Ford Falcon in Vermont on either 17 or 18 May 2020.  This is the subject of Charge 2, handling stolen goods.  The maximum penalty for this offence is 15 years' imprisonment.

9At about 9.15 am that morning, a disability support worker was attending a block of units in Noble Park to pick up a client.  He parked his Toyota Tarago van in the driveway and lowered the rear disability ramp prior going to the front door to meet the client.  Whilst the worker was at the front door you approached him and forcefully demanded the keys to his van.

10The worker was taken aback, and you twice repeated, 'Give me the fucking keys' before he reached into his pocket to get the keys.  You reached into the wrong pocket and the worker got the keys out from his other pocket.  You snatched the keys out of the worker’s hand, ran towards the van and got in the driver’s seat. This is the subject of Charge 4, carjacking.  The maximum penalty for this offence is 15 years' imprisonment.  I also note that this charge is designated as a Category 2 offence for the purposes of the Sentencing Act 1991.  Section 5 (2H) of that Act is applicable in that a period of imprisonment must be imposed for this offence in the absence of any of the statutory exceptions being made out.  None of those exceptions apply in this case.

11Around the same time a police unit drove past and noticed a female standing in the driveway who matched the description of the female from the stolen utility.  As the police were talking to this female, you reversed the Tarago van out of the driveway and drove off.  You failed to realise that the rear disability ramp was down, and it scraped along the road until you stopped about 500 metres down the road to put the ramp back up.  You then sped away, and the police lost sight of you.

12Police searched the driveway area where the Tarago had been and located a Fila bum bag by the fence.  The bag contained cards bearing the name Bradley Whittaker.  The bag also contained a Mercedes car key, $187.15 AUD, $20 NZD, 200 Italian lire, 25 Philippine Sentimo and two Philippine Peso.  This was the subject of Summary Charge 30, dealing with property suspected of being the proceeds of crime.  The maximum penalty for this offence is two years' imprisonment.

13Police also located a bag of tools including screwdrivers, scissors and other tools to be used in connection with theft.  This is the subject of Summary Charge 27 going equipped to steal.  The maximum penalty for this offence is a fine of 240 penalty units or two years' imprisonment.

14Senior Constable Baggio who was patrolling the area observed the stolen Tarago van on Springvale Road and took up a position behind the van.  The Tarago van sped away from the police vehicle and Senior Constable Baggio activated his emergency lights and sirens at 9.26 am.  You continued to drive the van at a constant speed of 120 kph in an 80 kph zone and only slowed down slightly as you passed through a red light at the intersection of Springvale and Heatherton Roads. Police continued to pursue the van to Cheltenham Road where you turned left and reached speeds of 140 kph in an 80 kph zone.  

15Police decided to call off the pursuit at 9.29 am and Senior Constable Baggio lost sight of the stolen van as it sped away.  This is the subject of Charge 5, namely dangerous or negligent driving whilst pursued by police. The offence carries a maximum penalty of three years' imprisonment.  

16Upon a finding of guilt, it is mandatory for the court to cancel any driver's licences held by the offender and to disqualify him from obtaining a licence for a period of not less than 12 months.

17I note at this time that the driving the subject of Charge 5 is, I am instructed, a separate and distinct incident from the driving that is the subject of Charge 6, namely reckless conduct endangering persons.  The circumstances of that offence concern a number of separate aspects of your driving as observed between 9.52 am and 12.11 pm on 19 May 2020.  The offence of reckless conduct endangering persons carries a maximum penalty of five years' imprisonment.  I am advised that this charge is put on the basis that over the time period described you were driving the Tarago and on a number of separate occasions drove in a manner that placed other road users in danger of serious injury.  The exact details of your driving during this period are set out in an appendix attached to the Prosecution Opening. I do, however, note that the following aspects of that driving are specifically noted to be the subject of the offence.

(a)   At 9.52 am at the intersection of Lonsdale and Webster Streets in Dandenong when you were detected doing 94 kph in a 70 zone.

(b)   You were also captured by a red light camera at the intersection of Waverley and Blackburn Roads at 11.55 am.  The camera recorded you entering the intersection 60 seconds after the lights turned red.

(c)   Footage taken from the Police Air Wing showed you on numerous occasions driving onto the incorrect side of the road and on occasions crossing over a solid white line to do so.[2]  On numerous occasions other drivers had to take evasive action to avoid a collision with you.  You are also captured driving through several intersections against a red light.

(d)   At about 11:34:47 am you were driving north along Teck Street, Ashwood when you turned right onto a footpath to avoid stop sticks that police had placed on the road and continued north at a fast rate of speed until you reached High Street.  On two other occasions at 11.50 and 11.51 am you were travelling south along Stephensons Road you moved onto the incorrect side of the road to avoid stop sticks that police had placed on the roadway.

(e)   At approximately 11.58 am you were observed travelling north on Gallaghers Road, Glen Waverley when you stopped in the running lane at the intersection of Lansell Road and reversed towards two police officers.  You reversed for about 60 metres.  A white car had to take evasive action whilst other cars came to a stop apparently waiting to see what you were going to do next.

[2]Exhibit P1.

18Once you entered The Glen Shopping Centre carpark you parked the stolen Tarago van in the bay next to a Mazda CX5 owned by a 71 year old woman who was returning to her car at the time.  As you were getting out of the Tarago van, the 71 year old woman told you off for driving too fast in the carpark.

19You approached her in an aggressive manner and demanded that she give you her keys.  She did not hand over her keys and you ripped her handbag out of her hands causing the strap on the handbag to break and for the 71 year old woman to fall to the ground striking her hip and elbow on the concrete. Her handbag contained her wallet, bank cards, mobile phone and car keys.  This is the subject of Charge 7, robbery.  This offence carries a maximum penalty of 15 years' imprisonment.

20You returned to the driver’s seat of the Tarago van with her handbag and she got up off the ground and approached the open driver’s side door of the van to retrieve her handbag.  You were revving the engine loudly and she was sounding the horn to draw attention to her situation.

21At around that time, Sergeant Edwards and Senior Constable Naidu entered the carpark and approached the Tarago van.  The police told the woman to step back and they tried to arrest you and demanded that you get out of the car.  You continued to rev the engine but the van was not moving.  Sergeant Edwards sprayed you with OC spray and the police tried to drag you out of the car.

22Other police units were quickly on the scene to assist with the arrest.  Police officers struck you with their batons and deployed further OC spray in an attempt to get you out of the van, but you continued to keep your foot depressed on the accelerator.  Whilst the police officers were at the driver’s door trying to get you out of the van, you put the van into reverse and reversed quickly and suddenly causing the police officers to have to jump out of the way to avoid being struck by the van or being pinned between the van and a concrete pillar.

23You then put the van into drive and drove towards police members who had to move out of the way to avoid being hit by the van. This is the subject of Charge 8, aggravated recklessly exposing an emergency worker to risk by driving. This offence carries a maximum penalty of 10 years' imprisonment and upon conviction it is mandatory for the court to cancel any driver's licenses and disqualify you from obtaining a licence for a period of not less than 24 months. This offence is also designated as a Category 2 offence and so s 5(2H) of the Sentencing Act 1991 is applicable.

24When manoeuvring the van within the carpark, you caused the van to collide into the rear of a parked car causing minor damage to the rear bumper of that car (some of this incident is caught on Sergeant Edward’s bodycam which she activated when she was first approaching the Tarago van).

25Police then moved a police car behind the Tarago van preventing it from moving from its' stationary position.  Police physically dragged you out of the car and wrestled you to the ground.  You continued to resist police by kicking out at the officers and refused to comply with requests to place your hands behind your back. You were struck several times with police batons before police managed to handcuff and arrest you.  This is the subject of Charge 9, resisting emergency workers on duty.  This offence carries a maximum penalty of five years imprisonment.

26After you were arrested, you were searched and police located a high powered laser pointer concealed in your underwear.  This is the subject of Summary Charge 29, possess a prohibited weapon.  This offence carries a maximum penalty of a fine of 240 penalty units or two years' imprisonment.

27Police conducted a record of interview with you on 20 May 2020 at the Dandenong Police Station.  During the interview you answered 'no comment' in relation to questions regarding the events of the previous day.

Gravity of Offending

28It is necessary as part of the sentencing process to make an individual assessment of the gravity of the offences, and then to make some assessment as to the overall criminality represented by the matters before the court.

29In relation to Charge 1, theft, this relates to the Ford utility you stole about a week before the events of 19 May 2020.  It would seem that the utility was recovered and I am not instructed about the scope of any damage that may have been done to it.  

30Charge 2 relates to your possession of the stolen number-plates. They are not particularly valuable in and of themselves but I can infer that your possession of them seemed to be motivated by an intent to attach those number-plates to stolen vehicles.

31Charge 3 is the attempted theft of the Pulsar.  This seems to have been an opportunistic offence but did involve you damaging the vehicle by smashing its rear window with a hammer.

32Charge 4 was the carjacking.  That this offence is inherently serious is evident both from its maximum penalty of 15 years' imprisonment and by its designation as a Category 2 offence.  In this case you have obtained the vehicle by a forceful demand of the driver, who was a disability worker in the process of picking up a client.  Whilst you committed this offence alone and without the use or threat of a weapon, your conduct was still very serious and was intended to put the driver of the vehicle in fear of his safety in order to comply with your demands.  

33Whilst your counsel was correct to say that worse examples of this offence are readily conceivable, that should not detract from the fact that this was a serious offence.

34Charge 5, dangerous or negligent driving while pursued by police, involved you driving in the Tarago at high speeds and, self-evidently, unsafe speeds of  up to 140 kph over a period of approximately three minutes whilst you knew that police with activated emergency lights and sirens were in pursuit.

35Charge 6, reckless conduct endangering persons, is an offence made worse in these circumstances by the fact that the offence encompasses multiple separate acts that placed other road users at risk of serious injury over a period of time of more than two hours.  

36The conduct itself, namely driving at speed, through red lights and on the wrong side of the road, was clearly conduct that puts others at risk and yet you did not desist until forced to do so by police. Your driving exposed other road users to a significant danger on multiple occasions over an extended period.  Whilst no injuries resulted from your actions, this is an offence of risk, not outcome.  In assessing that level of risk I have had the opportunity to view the video footage of your driving. 

37The best that can be said of your reckless driving is that you appear to exhibit at least some desire to avoid collisions.  You did however, repeatedly pose a danger to others by the manner and speed of your driving and your actions created a substantial possibility that others would be seriously injured.

38Charge 7 was a serious example of the inherently serious offence of robbery.  I note the fact that the victim was a 71-year-old woman, and also that the commission of the offence resulted in her falling to the ground and striking her hip and elbow on the concrete.  This was not simply a theft enabled by the threat of force, force was actually used and I take that into account.

39Charge 8, is an especially serious offence on a number of levels.  First I note its designation by Parliament as a Category 2 offence.  Second, I note that this offence has occurred in circumstances where you have driven a car in a space where a number of police officers were in close proximity, whilst you were restricted in your ability to control the vehicle as a result of the OC spray you had been subjected to.

40It was readily imaginable that driving your car in that car park in those circumstances could easily have had very serious consequences for those police officers attempting to do their job to protect the public at that time.  It was only good fortune and their evasive action that meant no police officers were either run over by the vehicle or crushed between the vehicle and another object such as a pylon.

41Charge 9, resisting an emergency worker, is captured almost in its entirety on the Sergeant Edwards bodycam video.  You admit through your plea that you were not compliant with their demands for you to place your hands behind your back. This necessitated your arrest being achieved through the use of considerable force that would not otherwise have been required.

42In relation to the summary offences, I do not propose to say anything particular about them.  There was nothing especially notable about any of them to elevate them as especially serious examples of any of the particular offences.

43Collectively these charges represent a sustained period of conduct by yourself that had the effect of placing both members of the public and emergency services workers in considerable danger.

44It was fortunate indeed that no member of the public nor any police officer was seriously physically injured as a result of your actions.  You also caused distress to the two people who were the victims of the robbery and the carjacking.  Your offending only ceased as a result of dramatic intervention by the police.

45I also take into account the victim impact statements provided by Detective Senior Constable Singh and Sergeant Edwards.[3]  Both statements outline the emotional and psychological effect that your actions had even on two experienced police officers.

[3]Exhibits P2 and P3.

Personal History

46I now turn to your personal history.

47You are now 23 years old.  You were 22 years old at the time of these offences. You are the youngest of two siblings raised in Melbourne.  I note at this time that your parents were both present (by video link) for your plea hearing.  I am also instructed that you have a positive relationship with your parents despite some past issues concerning your father’s alcohol use and violence towards your mother.

48You are single and have no children.

49By way of education, you left school after completing only to Year 8 level in your early teens.  You struggled at school and reported both learning difficulties and having been the subject of bullying.  You were then enrolled in a school designed to cater for children who suffer emotional and/or learning difficulties.  This ceased upon your first period of Youth Detention in 2013 at age 15.  Beyond that time the only formal education you have had is what has occurred within that Youth Detention environment.

50You have apparently had a history with drug and alcohol use that goes back a decade despite your young age.  You first consumed alcohol at age 12 which developed into daily drinking by age 14.  A reduction in your drinking around age 15 was only due to your commencement of the use of methyl amphetamine. I am also told that you were a cannabis user from as young as age 13.

51By age 18, your methylamphetamine use had progressed to the point that you were using intravenously.  At 17, you began using the drug GHB.  Your use of this drug reached up to 70 milligrams a day at its peak.  From age 20, you would also become an intravenous user of heroin.

52It is in this context that you have been involved in the criminal justice system since a first appearance in the Children’s Court in May 2012.  Your criminal history now extends over 36 pages.  It must be remembered that the bulk of this criminal history were offences committed whilst you were a child.  Even having regard for that matter, however, your criminal history is prolific.  Whilst you do not get any further punishment for your prior history, it does reveal in very stark terms the challenges that are faced in seeing a path to your ultimate rehabilitation.  It also highlights that the protection of the community is a very significant sentencing consideration in this case.

53Your criminal history shows that you have been subject to some kind of court imposed order for close to the entirety of the period since you have been 14.  The persistence of some types of offending is particularly notable.  

54On seven previous occasions you have been dealt with by a court for incidents in which you placed others at risk whilst driving.  It is fortunate indeed that to this point in time none of those incidents have resulted in death or serious injury.  It is a mathematical reality, however, that neither your luck nor the luck of the community can last forever if you continue offending in that manner.  The community has for that reason, a deeply vested interest in fostering your rehabilitation.  You are still a young man and no matter what sentence is imposed for these matters you will be a young man upon your release.  Whilst at present there are not many reasons to be especially optimistic about your prospects of rehabilitation, you are far too young for them to be dismissed as hopeless, nor regarded as unimportant to the sentencing process.

55The nature of the offences before the court today, when viewed in the context of that criminal history, means however, that general and specific deterrence, protection of the community, the need to denounce your conduct and impose a just punishment are all important sentencing purposes.

56In the course of the plea, your counsel relied upon two very comprehensive reports, one from psychologist Sandra Cokorilo and one from neuropsychologist Dr Loretta Evans.[4]

[4]Exhibits D2 and D3.

57Ms Cokorilo conducted formal testing and made diagnoses of severe stimulant use disorder, sedative hypnotic or anxiolytic use disorder, opioid use disorder in early remission, severe major depressive disorder and recurrent episode generalised anxiety disorder.  These findings were not the subject of any challenge from the prosecution in the course of the plea hearing.  The range and complexity of these diagnoses, as well as their persistence over a substantial period of your young life, confirms that you will require substantial periods of assistance to meet your mental health needs.  

58The reports reveal a complex web of mental health issues, ongoing polysubstance abuse issues and social issues that are the context in which your decision to engage in such reckless criminal behaviour was made.

59The report of Dr Loretta Evans investigated as to whether you were suffering from a cognitive impairment.  She concluded that there was no evidence of you suffering from such an impairment but she did confirm similar matters as to that which was revealed in Ms Cokorilo’s report.

60In relation to the sentence imposed today, I consider that your major depressive disorder and generalised anxiety disorder do represent matters that make imprisonment more burdensome for you than they would be for someone not subject to those disorders.

61Based on the material before me, I cannot, however, conclude that I should moderate the weight I would otherwise place on specific and general deterrence, as was submitted by your counsel.  

62There is simply no evidence in the available material to conclude that you are not an appropriate vehicle for general deterrence nor that specific deterrence should not occupy its normal position in a matter of this nature.

Matters in Mitigation

63I do note the following matters in mitigation of sentence.

64You have pleaded guilty at the very earliest opportunity.  Your plea of guilty has had the effect of sparing what would have been a substantial number of witnesses the inconvenience of attending Court.  You have spared what would otherwise have been the significant amount of court resources that would have been expended had you contested any of the charges.  The utilitarian value of a plea is heightened during these times of pandemic restriction with the consequent pressures this has placed on court listings.  Given the range and volume of charges arising from this incident, it is very much to your credit that you have been able to resolve all matters within a very short time and I take that into account on sentence.

65I also accept that your plea of guilty reveals some remorse for the matter.  Apart from the fact of the plea itself, you have made direct expressions of regret and remorse to both Dr Evans and Ms Cokorilo.

66I also take into account that you are before the court as a still relatively young man, if at the older end of what might be properly described as a youthful offender.  There is a strong community interest in fostering your rehabilitation and avoiding your descent into institutionalisation.

67That said, the prospects of you successfully rehabilitating will depend very much upon your ability to access and then fully engage with the extensive drug treatment, mental health treatment and social supports that it is clear you require. As the circumstances presently exist, however, there is unfortunately little to avoid the conclusion that your prospects of rehabilitation are currently poor.

68I also take into account that you have, since being remanded on these matters, been subjected to an increased level of restriction in the custodial environment as a result of the pandemic.  It is likely that these restrictions will persist at some level for the foreseeable future.  I note this as increasing the burden of imprisonment as compared to what might otherwise be the case and take this into account as some mitigation of sentence. 

69I must also be conscious in structuring this sentence to both impose appropriate sentences for each individual charge, and then to have regard for both totality and proportionality in making orders as to cumulation.  I have endeavoured to do this in order to arrive at a total effective sentence that is, in my view, appropriate in all the circumstances of the case.

70Your counsel very helpfully referred me to the cases of DPP v Nelson[5] and DPP v Clarke.[6]  Whilst the task of comparing different cases is always fraught, and both cases have both substantial similarities and stark differences with your case, I have found reference to those cases of some use in relation to getting some rough guidance as to current sentencing practices for very broadly comparable matters that have come before the courts relatively recently.

[5][2020] VSCA 219 (‘Nelson’).

[6][2019] VCC 528 (‘Clarke’).

Submissions on Sentence

71Both Mr Brown for the prosecution and your counsel Ms Hancock, provided written submissions on the plea which were then supplemented by oral argument.[7]

[7]Exhibits P5 and D1.

72The prosecution conceded that you have pleaded guilty at an early stage in proceedings and that the pandemic restrictions would make imprisonment more burdensome.  Mr Brown described the carjacking and robbery as 'spontaneous and unsophisticated' but that both put a member of the public in fear of physical violence.

73He submitted that the robbery was substantially aggravated by the fact its target was an elderly lady.  Mr Brown noted that the reckless conduct charge was a protracted offence and covered multiple driving incidents.  He noted that your actions in the car park placed police officers at a significantly increased risk by virtue of the confined space in which the offence occurred.

74The prosecution accepted that the nature of the offences as comprising one continuing episode meant that a degree of concurrency was appropriate, but that the sentence ought still reflect that there were a number of individual victims and that there was a substantial time between the commission of certain of the offences.

75The prosecution accepted that your time in custody was more burdensome by virtue of your diagnoses with major depressive disorder and generalised anxiety disorder.  They did not concede, however, that there was any basis for moderating the weight to be placed on either general or specific deterrence in this case.

76Ms Hancock conceded in her submissions that you are to be sentenced for serious offences, but submitted that no individual offence before the court could be said to be 'at the most serious end of the scale for like offending.'  She did also concede that the protracted nature of the offending added to its gravity.

77She submitted that your offending fell between the conduct outlined in the cases of Clarke and Nelson, and was in the 'low to medium range of offending.'

78Ms Hancock submitted that your plea of guilty was at the earliest opportunity.  She submitted that this plea, in combination with your direct expressions of remorse, regret and shame to Dr Evans, show that you are remorseful.  She submitted that your prospects of rehabilitation were 'guarded but reasonable with treatment.'  She also noted, as I accept, that your relative youth is still a significant matter to take into account on sentence.

79Both defence and prosecution submitted that the only appropriate sentence in this case involved a term of imprisonment with a non-parole period.

Sentence

80Mr Whittaker the charges for which you are to be sentenced today collectively amounts to a prolonged period of offending that comprised multiple occasions during which the safety of members of the public and emergency workers was put at risk.  Others were put in fear for their physical safety.  Your prior history of similar offending suggests you must have known these things and yet still chose to continue your actions until forcibly stopped by police intervention.  Your moral culpability for these offences is therefore high.

81It is also necessary to impose a sentence that has the effect of deterring others from offending in a similar manner.

82Specific deterrence is also relevant in your case as you have a very poor criminal history.

83I must also consider the need to protect the community.  You are a high risk of re-offending and this was confirmed in the report of Ms Cokorilo.  The sentence I impose must express the denunciation of the community for your offending and be a just punishment in all the circumstances.  I am, however, conscious that you are still only 23 and it is necessary to avoid the imposition of a crushing sentence.

84Taking all of these matters into account as best I can, I sentence you as follows:  

85On Charge 1, you are convicted and sentenced to six months' imprisonment.

86On Charge 2, you are convicted and sentenced to three months' imprisonment.

87On Charge 3, you are convicted and sentenced to three months' imprisonment.

88On Charge 4, you are convicted and sentenced to two years and six months' imprisonment.

89On Charge 5, you are convicted and sentenced to three months' imprisonment.

90On Charge 6, you are convicted and sentenced to 18 months' imprisonment.

91On Charge 7, you are convicted and sentenced to two years' imprisonment.

92On Charge 8, you are convicted and sentenced to two years' and six months' imprisonment.

93On Charge 9, you are convicted and sentenced to three months' imprisonment.

94On Summary Charge 6, you are convicted and fined $500.

95On Summary Charge 7, you are convicted and sentenced to 14 days' imprisonment.

96On Summary Charge 27, you are convicted and sentenced to one months’ imprisonment.

97On Summary Charge 29, you are convicted and sentenced to one months' imprisonment.

98On Summary Charge 30, you are convicted and sentenced to one month's imprisonment.

99On Summary Charge 31, you convicted and sentenced to one month's imprisonment.

100I order the following in relation to cumulation and concurrency. 

101Charge 8 is the base sentence; that is Charge 8 for which you received two and a half years' imprisonment.

102I direct that one month of Charge 1 be served cumulatively on Charge 8.

103I direct that one month of Charge 3 be served cumulatively on Charge 8.

104I direct that nine months of Charge 4 be served cumulatively on Charge 8.

105I direct that six months of Charge 6 be served cumulatively on Charge 8.

106I direct that six months of Charge 7 be served cumulatively on Charge 8.

107I direct that one month of Charge 9 be served cumulatively on Charge 8.

108For clarity, the orders for cumulation are upon the base sentence and upon each other.

109That results in a total effective sentence of 4 years and six months' imprisonment and I direct that you serve a period of three years and six months before you are eligible for parole.

110Pursuant to s 18(4) of the Sentencing Act 1991, I declare as already served 303 days of pre-sentence detention, which I calculate to be from your remand in custody on 19 May 2020, up to, but not including today’s date.

111Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, I would have imposed a total effective sentence of five years and six months' imprisonment with a four year and three month non-parole period.

112On Charges 1, 5, 8, the three charges on the Indictment, and Summary Charges 6 and 31, all licences are cancelled and you are disqualified from obtaining a licence for a period of five years from today’s date.

113The prosecution also made application for two forfeiture orders which were not opposed and I make those orders in the terms sought.

114I will just ask the parties, has the addition on that worked out?

115MS HANCOCK:  I might just check Your Honour.

116HIS HONOUR:  Yes, please do.

117MS VARDY:  I would appreciate a moment as well.

118HIS HONOUR:  Yes and also no-one has told me I am wrong about the pre-sentence detention calculation either. 

119MS VARDY:  That is correct, Your Honour.

120HIS HONOUR:  Yes, thanks.

121MS VARDY:  My calculation is that the cumulation adds up, Your Honour.

122HIS HONOUR:  Thank you. 

123MS HANCOCK:  Yes, likewise, Your Honour, thank you. 

124HIS HONOUR:  Thank you.  All right.  Now is there anything further required?

125MS VARDY:  No, Your Honour.

126MS HANCOCK:  No, Your Honour.

127HIS HONOUR:  Sorry, I understand there was a media request.  I am told that there is a media request for a copy of the opening and for the submissions.  I can say my inclination is that given that it was all done in open court, there would be no reason I would not be able to provide that.  It might help people report the matter accurately.  But unless anyone's got any objection to it. 

128MS VARDY:  Your Honour, the only objection that I raise via email yesterday afternoon was in relation to the body-worn camera footage, but if that is not sought, I will not make any submissions in that regard.

129HIS HONOUR:  Yes, well I have not received a request in relation to that, so this only applies to the submissions and the opening, so that is the extent of what is sought and the extent of any release that would be made.  Is there anything you wanted to say about that, Ms Hancock? 

130MS HANCOCK:  No, Your Honour, I just ask and I do not think it applies to this, but that the reports not be included. 

131HIS HONOUR:  No.  I think that is reasonable, albeit that you have quoted from the reports in your submissions to some extent, haven't you?

132MS HANCOCK:  I have, yes Your Honour.

133HIS HONOUR:  I mean and they were, I believe we talked about them fairly openly in court and it has been the subject of comment in the sentence as well.  I do not think your submissions went particularly further than what I did.  Is that right?

134MS HANCOCK:  Yes, that is right, Your Honour.  They are referenced in the submissions and so in so far as they are referenced in the submissions, those are matters that would have been discussed in open court in any event, so there is no objection, but just the actual reports are confidential. 

135HIS HONOUR:  Yes, okay, well they are not being sought so that is not covered by that order.  But unless there was anything further, I will adjourn the court until 9.30 tomorrow.  Thank you. 

- - -