Director of Public Prosecutions v Witeri
[2021] VCC 1026
•23 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01701
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDINN WITERI |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February, 12 July 2021 |
DATE OF SENTENCE: | 23 July 2021 |
CASE MAY BE CITED AS: | DPP v Witeri |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1026 |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Theft; attempted theft; damage property; reckless conduct endanger serious injury; dangerous or negligent driving in police pursuit
Legislation Cited: Sentencing Act 1991
Cases Cited:Azzopardi v R [2011] VSCA 372; Worboyes v The Queen [2021] VSCA 169
Sentence:Community Corrections Order (2 years, drug & alcohol treatment, programs to reduce re-offending); fine of $2,500.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hannan | Office of Public Prosecutions |
For the Offender | Ms M. Walker | Melinda Walker Criminal Law |
HER HONOUR:
1Braydinn Witeri, you have pleaded guilty on Indictment to charges of theft, attempted theft, intentionally damage property, reckless conduct endangering serious injury and dangerous or negligent driving whilst being pursued by Police.
2In sentencing you for your crimes I must have regard to the maximum sentences for each of the offences that you have committed. Theft and damage property each carry a maximum penalty of ten years imprisonment; the charges of attempted theft and reckless conduct endangering serious injury each carry a maximum penalty of five years imprisonment; and dangerous or negligent driving whilst being pursued by police carries a maximum penalty of three years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
The Offending
3The offending that gives rise to your charges occurred on the night of 2 June and early morning of 3 June 2020, when you were aged 20 years.
4The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening", dated 8 February 2021 but filed 19 February 2021. It is a detailed document and represents an acceptance by you of all of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
5In short compass, on 2 June 2020 between 6 pm and 8:30 pm, you and your co-offender, Mr Samuel Vicario, attended in Bolton View, Derrimut. There the two of you approached a red uninsured Nissan Navara. You or Mr Vicario smashed a side window to the Navara and you each gained entry, before manipulating the ignition and driving from the scene. These facts form the basis for Charge 1, theft of motorcar.
6The Navara was then driven throughout the night of 2 June and early morning of 3 June 2020 by Mr Vicario, with you, Mr Witeri, as passenger. I accept the submission that Mr Vicario's culpability is greater and that he was the primary offender.
7At about 3 am on 3 June 2020, both you and Mr Vicario attended Dingley Street, Templestowe Lower. You smashed the rear driver's-side window of a Mitsubishi Evo. When the victim heard his car alarm sound he ran out, noticed the smashed window, and the Navara then speeding off. You have pleaded guilty to Charge 2, attempted theft from motor car, and Charge 3, damage property, arising from this event. Both of these represent relatively low-level offending and pale in comparison to the driving offences I am about to describe.
8The two of you continued driving in the Navara around various places in Melbourne. Mr Vicario drove, whilst you remained the willing and encouraging passenger. At various times you took video footage of your actions on your mobile phone. I have had access to that footage, which was retrieved by the police. It shows the Navara driving along train tracks at an unknown location at about 11:37 pm on 2 June 2020 and driving over, around, and into a street sign on a roundabout in an unknown location at 1:45 am on 3 June 2020.
9At some time before 4 am on 3 June 2020, the Navara sustained significant damage, resulting in the complete loss of the right front wheel and tyre, yet you both continued to drive the Navara in that condition, causing sparks from the damaged area.
10At about 4:08 am on 3 June 2020, a road user driving towards the city on the Eastern Freeway called 000 and reported seeing the Navara driving in the emergency lane without the front rim and with sparks flying from beneath. She continued her observations, describing the erratic nature of the driving, the fact that the car did not have headlights on and was travelling at around 60 km/h. At the off-ramp at Bulleen the Navara veered sharply from the right emergency lane and crossed all lanes to exit. Fortunately, there was very little traffic on the freeway at that time.
11Another road user contacted 000 at 4:15 am, describing the Navara driving along Manningham Road. By this stage police members were following and had activated their emergency lights. Police described the Navara constantly changing lanes and driving erratically, and, on occasions, driving on the wrong side of the road.
12By about 4:30 am on 3 June 2020 the Navara was being followed by four police units along Greensborough Road. Another police unit blocked traffic further ahead at the intersection with Grimshaw Street and Greensborough Road
bypass.13At 4:30 am road user Steve Kazonis was driving to work along Greensborough Road when he suddenly saw the Navara driving straight towards him on the wrong side of the road. He managed to brake and swerved to avoid an imminent collision, forming the basis of Charge 4, reckless conduct endangering serious injury to Mr Kazonis. Mr Kazonis noticed the Navara turn its lights off after passing him.
14Police units continued to follow the Navara. Mr Vicario drove erratically, on the wrong side of the road, near Grimshaw Street and he spun out of control at one stage before continuing on the wrong side of the road with the headlights still off. The Navara narrowly missed an ambulance at one stage and another car driving on the Greensborough Bypass, forming part of Charge 5, dangerous/negligent driving whilst pursued by police. That offence was ongoing until your arrest.
15The Navara drove along the Greensborough Bypass on the wrong side of the road, before crossing onto the correct side of the road, but over a grass median strip. Police decided to attempt to intercept the Navara. Police officers tried to pull up alongside the Navara in a 4WD vehicle. Each time they got close the Navara swerved or "fish-tailed" in a way which prevented their intended intercept. On the last attempt, the Navara swerved into the side of the police 4WD, colliding with it. Those police members deemed it too unsafe to continue. The Crown do not allege that the swerving or fishtailing was a deliberate act.
16Mr Vicario continued along the Ring Road at speed and "overtaking" another car from the emergency lane travelling in the same direction whilst still being pursued by a number of police units. One police unit was driving behind with its lights flashing and managed to get alongside the Navara before it swerved towards it and collided with its passenger side. Again, this is not said to have been a deliberate act, but it does highlight the dangerousness of the driving.
17Footage retrieved from your mobile phone from within the Navara at about
4:37 am shows you and Mr Vicario laughing and describing with some enthusiasm that so many police units were in fact in pursuit.18Another police unit pulled up alongside the Navara then manoeuvred to position in front of it, in an attempt to slow it down. The police unit slowed down but the Navara then collided into its rear, causing it to shunt forward and allowing the Navara to go around, before continuing along the Ring Road. Further footage from your mobile phone at 4:39 am shows both of you laughing at being chased by police.
19The Navara exited the Ring Road at Edgars Road and drove straight through a red light without any regard to potential oncoming traffic. It turned right and then left over a grass median strip onto the "off-ramp" of the Ring Road. The Navara drove the wrong way down the ramp towards oncoming traffic. Recognising the significant risk that it would be travelling the wrong way down the 100km/h Ring Road, police members used their police car to impact the rear driver's side of the Navara. That caused it to spin in a clockwise rotation, before another police unit rammed its rear side such that it was then facing the correct way on the off-ramp.
20The Navara collided with an unmarked police vehicle containing Leading Senior Constable Barry travelling the correct way up the exit ramp. The force of that collision caused the tray of the Navara to mount directly over the full length of the bonnet of the police car, causing extensive damage and minor soft tissue injury to the police officer's knee. It is certainly more by good fortune than good management that the injury to Leading Senior Constable Barry was not more serious.
21This led to a lack of traction on the Navara which then enabled police to arrest you and Mr Vicario. You were interviewed by police shortly thereafter and, as is your right, gave "No comment" answers to the questions asked.
Offence Gravity
22This is obviously shocking offending which is unfortunately commonly in the domain of young male offenders. The driving offences are the most serious with which you are charged, despite the relatively low maximum penalty.
23I do accept that you played a lesser role than Mr Vicario as his passenger, but your active support of him in this escapade placed you both, police members, members of the public, and others at risk of serious harm. Rather than quieten his resolve, you actively encouraged him. It is sheer luck that the consequences for yourself and others were not more severe.
24There is good reason, in sentencing, to send a message to what amounts to ‘hoon drivers’ that such behaviour will not be tolerated because of the very severe risk with which it presents.
25It can be seen from your personal circumstances, to which I will shortly refer, that there is limited explanation for your offending other than your boredom, immaturity, poor associations, and your then drug use.
Victim Impact Statements
26Before I turn to those matters, I have had recourse to four victim impact statements tendered by the prosecution and as authored by police officers Andrew Gosnold, Ash Barry, Lachlan Webb, and Georgia McNamara.
27The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice system process by informing the court about the effects of your crime upon them.
28Andrew Gosnold spoke of his significant anxiety for several months afterwards and struggling to sleep.
29Ash Barry, after 15 years in the police force, states that this is the first time that he had real and genuine fears of being seriously injured - he literally thought he was going to die, he worried about his children being orphans, he worried about his de facto wife becoming a widow. He does state that he has not experienced ongoing emotional distress or trauma.
30Georgia McNamara states that the events that unfolded are still haunting her to the day of her victim impact statement, as do her thoughts that on 3 June 2020 that "someone was going to die". She does not believe that she is suffering any psychological or emotional distress or trauma from the incident, but clearly has recollection of the events and emotions she felt at the time.
31Lachlan Webb's victim impact statement was read to the court, so at least the impact of your offending upon him cannot be lost upon you. He had only been in the police force six weeks at the time of your offending. He feared for police members, he feared for other members of the public. He says he has chosen to use these events as a learning outcome and to give him understanding of how something has the potential to be life altering.
32It is important through this process that you do have an understanding of how your actions impact on others besides yourself. The victim impact statements tendered serve to highlight some of those effects.
Plea of Guilty
33To your credit you have taken responsibility for your offending through your pleas of guilty.
34You entered your plea of guilty to Charges 1-4 on the indictment prior to committal mention on 20 August 2020 and entered your plea to Charge 5, dangerous driving whilst being pursued by police, when it was laid on
3 December 2020 at committal proceedings.35I accept that your plea of guilty has occurred at an early stage.
36Your plea has utilitarian value in saving the court the time and expense of contested proceedings. More importantly, it has saved the witnesses the need to give evidence and re-live the distressing events of June 2020.
37Your plea commenced in February of this year, and in the context of the
COVID-19 pandemic. It has additional utilitarian value in that it provides certainty to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.38In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph [39], the Court of Appeal said:
"For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time."
39All of the factors to which I have just referred will be taken into account in your favour.
Personal Circumstances
40You are now aged 21 years and were 20 by about three months at the time of your offending.
41You were born in New Zealand and your family relocated to Australia whilst you were still a child.
42You are the second youngest in a sibship of five.
43You presently reside with your parents. Your mother works in childcare and your father as a factory driver. Your home environment is described as both stable and positive.
44You obtained a Year 10 education and left school to commence a carpentry apprenticeship, which you left after 12 months. You then worked for your father's employer for a short period. You were not working at the time of your offending.
45You commenced smoking cannabis daily from the age of 15 years and have drunk alcohol socially from the age of about 18 years. You occasionally used cocaine. You have also experimented with MDMA and some prescription medications.
(At a later stage.)
46HER HONOUR: All right, we have got Mr Witeri back, thank you. These are the things that do unfortunately trouble us during these virtual times. I am not 100 per cent sure where I was up to unfortunately, everybody. So, there might be a slight degree of backtracking.
47At the time of your offending, you were unemployed and bored. You describe being under the influence of alcohol and Xanax at the time and felt some peer pressure to participate. I note from the video footage you appeared to be a very willing participant. As I said earlier, there is little, if any, real explanation for your offending and certainly no excuse for it.
48You have no prior criminal history alleged against you but are said to have been involved in offending on 11 August 2020 and 8 December 2020 which is yet to be finalised. Your alleged offending on both occasions correlated with a return to drug use after abstinence post your release on bail in June 2020. You now draw the connection between drug use and offending behaviour. There have been no further allegations of offending since December of last year.
Parity
49The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.
50Samuel Vicario was sentenced by me on 31 March 2021 to a total effective sentence of 2 years and 8 months in a Youth Justice Centre. Mr Vicario was younger than you by some 12 months and had a recognised intellectual disability. However, as stated, he was the principal offender. In addition, he faced charges over and above those to which you have entered your guilty pleas. He was on two sets of bail at the time of his offending and had six prior appearances in the Children's Court.
51There is a basis for difference in sentencing outcome. Part of this lies in your response to supervised bail, which I will refer to shortly.
Court Processes and Delay
52As referred to earlier, your plea hearing commenced on 22 February 2021, at which time your counsel sought that you be the subject of a deferral pursuant to section 83A of the Sentencing Act in order to allow me to better assess your prospects of rehabilitation.
53This was in the context of you already being subject to supervised bail with Youth Justice, having been released onto bail on 5 June 2020 after having spent some two days in adult custody.
Youth and Rehabilitation
54Youth of an offender has obvious relevance to your sentencing mix.
55In Azzopardi; Baltatzis; Gabrielv R (2011) 35 VR 43; at [34]-[36] Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that:
a.Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
b.It is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is in the public interest; and
c.Incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.
56I do accept that these considerations all have application to your particular case.
57Whilst there are occasions on which the sentencing principles as they relate to youth can take a "back seat", this is not one of those cases and your youth should be given both proper consideration and proper weight in the sentencing mix – indeed, some primacy in it. Arguably, the community is better served, indeed better protected, by steering young offenders away from a life of crime and contamination from the adult gaol system.
58Tendered on your behalf was a confidential psychological report authored by
Ms Sandra Cokorilo. In her assessment, although not particularly with reference to her expertise, she describes you as genuinely remorseful for your offending. She indicates that you have good insight and judgement in understanding the connection between peer influences, drug use and your then involvement in offending behaviour.59In terms of the more clinical aspects of her assessment, Ms Cokorilo is of the opinion that at the time of your offending you met the criteria for cannabis use disorder. You do not present with any diagnosable mental health disorder and she attributes your offending to your immaturity and negative peer influences, to which you were susceptible due to your use of alcohol, Xanax, and lack of general direction, and cannabis usage. She assessed your risk of re-offending as low. This assessment is important in the sense that there does not appear to be any impediment to your rehabilitation if you can remove yourself from drug use and peer associations, something you yourself now appear to recognise.
60You are assisted with positive supports at home in the context of your parents and siblings. It does appear to me that you have learnt some lessons from the events of June 2020.
61A supervised bail progress report dated 16 February 2021 tells me that you had been subject at that time to Youth Justice Supervised Bail from June 2020. Your engagement with that program was described as positive. You were referred to the Youth Support and Advocacy Service for additional support given allegations of alleged re-offending whilst intoxicated in December 2020. You attended weekly appointments as required with that service. During this period you began working for "Breathe Fresh Australia" where you were described by your employer as completing "outstanding work". It was recommended at that time that you be referred to a private psychologist and complete a road trauma awareness course. This was to take place during the period of the deferral to which I have referred.
62You were placed on that deferral and an updated supervised bail progress report, dated 6 July 2021, details that during that deferral period you were supervised again by Youth Justice. A report authored by Ms Amanda Giordano tells me that your engagement with that service continues to be positive. You apparently engaged in a polite and respectful manner. During your sessions you acknowledged the significant risk of harm to yourself, victims, and the wider community in your offending behaviour. Your work with the Youth Support and Advocacy Service ceased in April 2021 because you had completed all treatment goals and were maintaining abstinence from drug and alcohol use.
63You did complete a road trauma awareness seminar and a certificate confirming this was tendered on your behalf. The knowledge gained from this is likely to have furthered your rehabilitative prospects.
64In addition, you did attend on Christine Harding, psychologist. A letter authored by her dated 8 July 2021 indicates that her intervention was to support you to develop skills to assist with your emotional regulation and impulsivity, to explore your goals and to recognise the incongruence between your aspirations and further offending behaviours. She describes your participation as engaged and enthusiastic. It would appear she has been of some assistance to you.
65Importantly, you maintained your employment with "Breathe Fresh Australia". Whilst you have had trouble finding your feet in the employment sphere, you are presently gainfully employed and well regarded in that context.
66You have insight as to what has contributed to your decision to offend and made concerted efforts to change those things.
67You have no drug abuse issues at present and there are no issues with your mental health.
68In essence, you are in the best position to move forward with a positive approach to your life. In this context, there is less need to give weight to specific deterrence or protection of the community.
Sentencing
69The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
70I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.
71I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality.
72Your Counsel submits that all relevant sentencing considerations can be reflected in the imposition of a Community Corrections Order. The Crown submit that any corrections order should be combined with a period of imprisonment, noting that section 44 of the Sentencing Act would restrict the imprisonment portion of any combination sentence to 12 months or less.
73With those submissions in mind, I have had you assessed as to your suitability for a Community Corrections Order.
74An assessment outcome report dated 13 July 2021 tells me that you engaged well with the assessment process and that you are open and forthcoming and demonstrate insight into your offending behaviour and the precursors to it. This has been a consistent theme in the matters before me. You are assessed as suitable for a Community Corrections Order.
75Courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in what I describe as a coherent and balanced way, in preference to the option of imprisonment, which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.
76I do see your path of rehabilitation as one which is presently well-trodden, but that there is still work to do. It seems your ability to access appropriate services has had a valuable role to play and can continue to support your rehabilitation, thereby providing the community with protection. A corrections order can be punitive, can achieve deterrence and is suitable in cases of relatively serious offences which might otherwise attract a term of imprisonment.
77I make the ancillary order as sought for forfeiture as discussed prior to proceeding to sentence.
78I take into account that you did spend two days in adult custody before your grant of bail.
79 You are to be sentenced as follows.
80On Charges 2 and 3 you are fined an aggregate of $2,500, as I am satisfied that those two offences are founded on the same facts, or form, or are part of a series of offences of same or similar character.
81On the remaining Charges 1, 4 and 5, I also intend to impose an aggregate sentence for the same reasons. You are convicted and placed on a Community Corrections Order for a period of two years. This period has been shortened considerably from the one that I would have otherwise fixed given your compliance with the supervised bail program with Youth Justice.
82The Community Corrections order will include the following conditions:
a. 200 hours of community work;
b. treatment and rehabilitation for drug use and abuse;
c. treatment and rehabilitation for alcohol use and abuse;
d. programs to reduce risk of re-offending;
e. supervision by the Office of Corrections;
f.75 hours of treatment will be offset against the community work component.
83In addition to the conditions that I have imposed there are what we call standard conditions. The first and foremost of those is you must not commit any other offences during the 24-month period which could be punished by imprisonment. You need to report within two working days of your release to the nearest Corrections office, which in your case I understand to be Reservoir. You are required to advise your supervising Corrections officer of any change of address of where you are living or working and need to do so within two clear working days. It is a term of all Community Corrections Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission.
84In my view this order presents you with a chance to continue to change your life in a positive fashion should you choose to take up that opportunity and the supports that I intend to be made available. You should be aware that the order can be breached if you do not comply with it in terms of the conditions. It can be breached if you re-offend with offences punishable by imprisonment whilst it is in place. If that occurs, you will be required to come back before for contravening the order, and I may have to re-sentence you on the original charges, as well as to consider punishment for the breach.
85I can only place you on this order, Mr Witeri, if you consent to it. I will certainly give you the chance to speak to Ms Walker, should you wish to do so.
86MS WALKER: He is ready to respond, Your Honour.
87HER HONOUR: Mr Witeri, do you consent to being placed on that order?
88OFFENDER: Yes, Your Honour.
89HER HONOUR: Thank you. I note that section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to a total effective sentence of 12 months imprisonment, in combination with a 30-month corrections order.
90Mr Hannan, anything I have missed?
91MR HANNAN: Not that I can think of Your Honour. The confiscation or forfeiture order was made with the mobile phone extracted.
92HER HONOUR: Correct.
93MR HANNAN: No, nothing else, Your Honour.
94HER HONOUR: Ms Walker, anything else from your end?
95MS WALKER: There probably ought be some license, effect on license,
Your Honour.96MR HANNAN: Obviously.
97HER HONOUR: Totally missed that. Are there any mandatory provisions?
98MS WALKER: Yes. On Charge 5, there is a mandatory 12 months. In relation to Charge 2, it is the period as the court specifies. I would ask Your Honour, if you do make any order in relation to Charge 2, that it run concurrently.
99HER HONOUR: Look, I would do that in any event. In terms of the charge which has a mandatory disqualification, do you want to be heard in relation to that, Mr Hannan?
100MR HANNAN: No, Your Honour. I am just checking my opening about that. So, it was 12 months. I do not wish to make any submissions, Your Honour, about that, other than Your Honour obviously has recognised the seriousness of which this offence was committed.
101HER HONOUR: All right. So, in relation to the charge for which there is a mandatory disqualification, I will make the mandatory disqualification for the minimum period, which I am told is 12 months. That is so to further continue
Mr Witeri's rehabilitative prospects. It seems to me in relation to the theft of motorcar, I would have a discretion as well, would I not?102MR HANNAN: Yes.
103MS WALKER: Yes, Your Honour. So, can I just correct, it is not Charge 2, it is on Charge 1. Charge 2 is the attempt.
104HER HONOUR: Yes.
105MS WALKER: But it is Charge 1.
106HER HONOUR: So, in relation to that charge, I will also disqualify Mr Witeri for a period of six months, but it will be concurrent with the disqualification on the other charge. I apologise for my oversight, so thank you to each of you for your assistance, and to you Ms Walker, for your frankness in the circumstances, very much appreciated it.
107MS WALKER: I will explain it to Mr Witeri in a moment.
108HER HONOUR: Yes, a little bit of a shock. Now, Mr Witeri has given his verbal consent over the link, which is sufficient in their current purposes. But orders will be forthcoming. Sorry, Ms Walker?
109MS WALKER: I should be able to email them through to Mr Witeri, he is currently in his boss's office. So, I think he will be able to sign that and then email it back to me. So, I will forward it to the court as soon as it is signed.
110HER HONOUR: All right, well I will leave you to weave that magic, thank you very much.
111MS WALKER: Thank you.
112HER HONOUR: And unless there is anything further, I will stand down until 2.15.
113MR HANNAN: Thank you, Your Honour.,
114MS WALKER: As the court pleases.
115HER HONOUR: Thank you.
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