Director of Public Prosecutions v Wright
[2023] VCC 1512
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00567
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB WRIGHT |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2023 | |
DATE OF SENTENCE: | 24 August 2023 | |
CASE MAY BE CITED AS: | DPP v Wright | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1512 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty plea after sentence indication - recklessly place emergency services worker at risk by driving – possession of drugs - fail to stop - drive disqualified - youthful offender on bail at time of offending - relevant criminal history - significant period of pre-sentence detention - reasonable prospects of rehabilitation.
Cases cited: Worboyes v The Queen [2021] VSCA 169
Sentence: 587 days declared as pre-sentence detention on reckless exposure offence and bail offences – community correction order for 12 months on other offences.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr L. Hocking | Michael J Gleeson & Associates |
HIS HONOUR:
1 Jacob Wright, you have pleaded guilty to a rolled‑up offence of aggravated recklessly exposing an emergency service worker to risk by driving.
2
The offence covers two police officers, Acting Sergeant James McLachlan and Senior Constable Santos de la Cruz. The maximum penalty is 10 years, but the offence is a category 2 offence, which means that in the absence of
meeting a statutory exception, I must impose a term of imprisonment. In this case, no argument has been made that you fall within any of the statutory exceptions, but you have served now some 587 days in custody in relation to that matter.
3 You also pleaded guilty to possession of a drug of dependence, for which the maximum penalty is one year, and knowingly deal with the proceeds of crime, for which the maximum penalty is 15 years.
4 The related summary offences are as follows:
(a) Charge 8, committing an indictable offence on bail, which was the reckless exposure offence, maximum three months;
(b) Charge 9, contravening a conduct condition, which was the breach of curfew when you were out in the middle of the night, maximum three months;
(c) Charge 10, failing to stop on request, six months;
(d) Charge 12, drive whilst disqualified, two years;
(e) Charge 13, fraudulently using a registration label, two months;
(f) Charge 14, dangerous article, the baseball bat, six months;
(g) Charge 15, possession of a controlled weapon, brass knuckles, maximum 12 months;
(h) Charge 16, driving an unregistered vehicle, maximum penalty ‑ 25 penalty units.
5 You were 21 years old at the time of the offending. You are now 23 years old.
6 The facts of the offences are set out in the prosecution document entitled Summary of Prosecution Opening for Sentence Indication Hearing. That document was read today by Mr Batten, the prosecutor, in open court. I do not propose to summarise every detail of it, but the central facts are as follows.
7
At around 2 am on 15 January, you drove through the Melbourne CBD
in the Holden Commodore you were in possession of. The two police, Acting Sergeant McLachlan and Senior Constable de la Cruz, were performing their duties in the city when they saw your car and connected it to a D24 report that you had been evading police and had earlier failed to stop. As I understand it, that relates to an earlier incident in La Trobe Street where you also failed to stop when police requested you to do so. That is part of the summary offence of failing to stop.
8 Police then tried to intercept you by putting the police lights on, but you did not stop. They maintained sight of your vehicle but did not pursue you. They lost sight of you on Victoria Parade. Eventually, they drove into an underground carpark in McDonald's on Victoria Parade, and there was your vehicle driving through. They parked their vehicle into position to block yours, and what followed was captured on CCTV and on mobile phone footage.
9 The two police prepared to get out of their vehicle to speak to you, and you drove at the front of their car. Senior Constable de la Cruz thought you were going to ram the vehicle. You then tried to drive past the vehicle or push it out of the way. You collided with the left‑hand side of the police car. You then reversed a short distance and drove at the vehicle again, attempting to get past. You damaged the front passenger door.
10 Senior Constable de la Cruz warned Acting Sergeant McLachlan to brace himself in anticipation of the contact from your vehicle. You then reversed your vehicle about 10 to 15 metres back along the drive through, hitting a metal pole and breaking the left rear tail lights. You accelerated towards the police vehicle, tyres screeching, ramming into the police vehicle, causing it to travel several metres from where it had stopped, resulting in further damage. The air bags activated in the vehicle you were driving. That incident is clearly shown on the mobile phone footage that was played in court when this plea started the other day.
11
The two police officers anticipated that you were going to ram their car,
and they got out, fearing they were at risk of serious injury.
Senior Constable de la Cruz had to climb over the centre console to get out of the driver's door because of the damage you had earlier caused to the passenger door. Once they got out of the car, they ran out of the line of your vehicle. The impact occurred seconds later, which was the third time you had impacted the police vehicle.
12 The two police then approached your vehicle and asked you to get out. You refused. You reached for and consumed a small glass bottle containing GHB which you had in the car. That is the basis of the possession charge. Police used capsicum spray, and you were arrested at that time.
13 A fire had started under the bonnet of your car, which was extinguished by other police who were at the scene. Neither police officer sustained injuries. You were taken to hospital because of your agitated state, accompanied by police. You were released from hospital on 16 January 2022 and taken to Melbourne West Police Station for a record of interview.
14 When police searched your car, they found a Trek Mountain bike, a visa card in the name of Anna Cameron, and registration plates QHR888, which you knew to be the proceeds of crime. That is the basis of Charge 3 on the Indictment.
15
The related summary offences, which I have dealt with to some extent,
are as follows. The bail offences relate to bail granted at Broadmeadows Court on 28 October 2021. The failing to stop encompasses the earlier attempt to stop you in La Trobe Street and the attempt of Acting Sergeant McLachlan and Senior Constable de la Cruz to stop you. The drive while suspended relates to a traffic infringement notice from 27 August 2021. The registration plates were cloned, and the registration number belonged to return plates for a similar vehicle. The dangerous article was a wooden baseball bat found in the driver's seat footwell of the car. The controlled weapon was brass knuckles in the rear of the vehicle, and the drive unregistered relates to fact that the vehicle was not registered.
16 You pleaded guilty to the charges on the Indictment after I gave a sentence indication. The matter came before me earlier this year and was adjourned for a neuropsychological report to be prepared, which I have now received from Mr Martin Jackson. This plea cannot be characterised as an early plea, but there are multiple charges here and securing a resolution obviously took some negotiation after a case conference.
17 I accept your plea is indicative of some remorse, although the extent of that is hard to gauge, and also of a willingness to facilitate the course of justice to an extent. You have spared the witnesses and the court the time and resources involved in conducting a trial. I accept the utilitarian value of your plea is still greater in the current environment where this court faces a backlog of trials as a result of the suspension of its operation during the pandemic. There must be a reduction in sentence by reason of your plea of guilty, and the Worboyes principles still apply.[1] You have been in custody now for these offences for over 19 months. In fact, you have been in custody for 587 days.
[1] Worboyes v The Queen [2021] VSCA 169
18 You do have a criminal history. You were convicted of criminal damage in the Children's Court on 10 April 2018, which seems to have been your first appearance. A further Children's Court appearance followed in August 2018 for behaving offensively in a public place, using threatening words or resisting a police officer and failing to answer bail. You received an adjourned undertaking on one occasion and an accountable undertaking for your second appearance.
19 In March 2019 you were sentenced to 30 days' imprisonment at the Broadmeadows Magistrates' Court, which was time served for theft and intentionally destroying property. You received another sentence of imprisonment, of three months, with 95 days reckoned as pre‑sentence detention, for criminal damage, unlawful assault, burglary, aggravated burglary, reckless conduct endangering serious injury, negligent driving whilst pursued by police, and theft of a car.
20 You seem to have stayed out of trouble for some time prior to the offending in this case, but there are some similarities, particularly between the last prior conviction and the offending in this case. It is apparent from your history and your offences here that you have been exhibiting antisocial conduct for some time now. Your prior convictions are relevant to your moral culpability for this offending, the need for specific deterrence, the assessment of your prospects of rehabilitation, and also, given the nature of this outrageous driving, community protection as well.
21 The offence of aggravated recklessly exposing an emergency services worker to risk by driving is a serious offence, as reflected in the maximum penalty of 10 years' imprisonment and by the fact that it is classified as a category 2 offence. Emergency services workers ‑ in this case, police ‑ must be free to perform their work on behalf of the community without being placed in danger. This charge here was a rolled‑up charge. You placed not one but two police officers who were justifiably seeking to intercept you at significant risk. You failed to stop in the city, and then when cornered in the McDonald's you behaved dangerously and entirely recklessly. The footage shows you back away and then line up the police vehicle, attempting to provide a pathway to your escape when any rational thinking would have dictated submission and cooperation with the police. Police performing their duties must be protected.
22 For these reasons, general deterrence is important in deciding the appropriate sentence. Similarly, I must denounce your conduct on behalf of the community through the sentence that I impose. In your case, there is also a need to deter you from such conduct in the future. The remaining charges, it seems to me, are indicative of your ongoing immersion in drugs and criminality at that time.
23 You are 23 years old. You were born in Victoria. You are the second of three children. The report indicates your upbringing was unstable, marred by conflict between your parents. You had an unsatisfactory and unstable relationship with your father when you were young and what is described as a volatile relationship with him overall. Your parents separated, and after that you lived with your mother. You have had transient periods when you have been using drugs, but your mother remains highly supportive of you and you continue to have a close relationship with her. She is here today with your father and your partner to support you, which is a positive in the assessment of your prospects of rehabilitation.
24 Your education was disrupted. You had trouble focusing and concentrating, and you disengaged from school. Your results were unsatisfactory, and you had learning difficulties. You also had behavioural issues. You left school in Year 9. You then went to a technical college, but you only stayed there a few days due to your drug use.
25 You had some casual work in plumbing, but your drug use also interfered with that. You did complete a residential rehabilitation program, and then you worked in the rehabilitation centre as a mentor for approximately a year. You ultimately relapsed and left rehabilitation. Your last employment was in scaffolding in 2021 for a few weeks before another relapse, which seems to have led to further offending in the middle of 2021. Your main source of income has been Centrelink, but while you have been in custody you have been working.
26 You have a four‑year‑old son with a female friend with whom you had one sexual encounter. That child visits you weekly in custody. You have had one serious intimate relationship with your partner, Bethany McGarry, who is also present in court. You and Ms McGarry have a two‑year‑old son named Jackson. The material indicates that the relationship commenced while you were in rehabilitation, but there was a separation when you relapsed. It is a significant positive for you that the two of you have reconciled. As I understand the material, you intend to live with her when you are released today pursuant to a community correction order.
27 Broadly, you have abused a wide array of drugs, including methylamphetamine, GHB, and benzodiazepines. You have been using methylamphetamine since you were 15 years old and intravenously since you were 17 years old. You have also been a user of GHB and Xanax, and you have experimented with cannabis, cocaine, and opiates, as well abusing alcohol.
28 Turning then to your efforts at rehabilitation, in September 2018 you went to Queensland to a rehabilitation centre in Hervey Bay and stayed there for 12 months before coming back to Melbourne and entering into Hoppers Crossing Dreambuilders. This was part of the Transformations Program, which was a 12‑month intensive rehabilitation program. You were abstinent from drugs for a period of three years. You also attended the Transformation Program ‑ Bayside, which I assume is a different location as well. The fact that you were able to stay abstinent for three years gives me some significant hope that you will be able to lead a drug‑free lifestyle, and I think if you can do that you can cease offending in the serious way that you offended in this case.
29 I am told and I accept that in the lead‑up to the current offences you were unemployed and transient. You had been on CISP bail from the middle of 2021, but you ultimately disengaged due to homelessness, substance abuse, and other problems. Your last contact with CISP was on 30 December 2021. This offending occurred not long after that.
30
At the time of the offending, you had relapsed into polysubstance abuse
and you were living out of your car. The psychological report from
Ms Naomi Cameron suggests that when the offending occurred you were experiencing symptoms of drug‑induced psychosis, extreme paranoia, panicked thoughts, persecutory ideation, and fears police would harm you.
Ms Cameron suggests that this is consistent with the police summary that you became increasingly erratic and you were taken to hospital for observation. You had to be physically restrained and sedated due to your erratic behaviour. You told Ms Cameron you are not able to remember the events that gave rise to these charges.
31
Mr Hocking submitted that you have good prospects of rehabilitation.
He relied on your youth as a mitigating factor. That is an important sentencing matter in this case. You were just 21 when you offended in this way. He referred to your history as a leader at Bayside Transformations and earlier at Hoppers Crossing Transformations, and he referred to your time in the program at Hervey Bay. He also relied on your abstinence from illicit substances for over two years and that there were no offences committed between the middle of 2018 and, I think, realistically, until sometime in the middle of 2021.
32 I am told you have employment available to you on release through the YMCA Bridge Project as a crew member working on projects such as landscaping, carpentry, painting, and gardening. You have been engaged in that work in the prison. I have a letter from the YMCA Bridge Project that I have had regard to. You have ties to the community in that you are the father of two children and you have the support of your partner and your parents.
33 In the end, I think you are a risk of reoffending and that your rehabilitation will depend entirely on whether you can stop using drugs in the way that you have for some time, but you have demonstrated in the past you have that capacity, and so there is some significant hope for you. Your future will be determined by whether you can lead a drug and alcohol‑free life.
34 I take into account you were in custody during the pandemic when conditions were more onerous and that you made the best use, as far as I can see, of your time in custody, completing rehabilitative programs and courses. Various certificates were tendered and which I take into account. It seems to me you have done everything you can while you have been imprisoned to further your rehabilitation.
35 Mr Hocking made a submission that principles 5 and 6 of Verdins apply, but I am not convinced that in the time you have been in custody your mental health has deteriorated compared to how you were faring in the community at the time you went into prison. I am not sending you back to prison, so I think those principles only have limited application in any case here and I do not take them into account as mitigating.
36 Mr Hocking drew my attention to statistics and some comparative cases for the reckless exposure, and I have had regard to those matters. Current sentencing practices are one of the many factors I must consider in deciding the appropriate sentence.
37 Ultimately, I have formed the view, which you understand from the sentence indication, that the period you have been in custody is a sufficient period to reflect general and specific deterrence as well as just punishment and denunciation. It seems to me that now your reintegration into the community and rehabilitation should be emphasised. I think you will benefit from a period of supervision via a community correction order, and I will make that order in respect of some of the offences other than the reckless exposure to risk offence because there are statutory exceptions that apply in relation to a combination order, none of which have been demonstrated in this case.
38 On Charge 1, I will make an aggregate order.. Charge 1, and summary offences 8 and 9 are a related series of events, and in fact the offence committing indictable offence on bail is constituted by the substantive offences. For those three charges, you are sentenced to 587 days imprisonment. I declare 587 days' pre‑sentence detention to be deducted from the sentence I have imposed.
39 On Charges 2 and 3 on the indictment and summary offences 10, 12, 13, 14, and 15, you are convicted and placed on a Community Corrections Order for 12 months with special conditions, which include supervision, drug and alcohol treatment, and mental health treatment.
40 I should add that I received an assessment report from Corrections which is very helpful and also an extremely helpful mental health assessment and I have taken into account the contents of those documents in sentencing in this case.
41 The Correction Order will be for 12 months. You will have to report to Melton Corrections within 48 hours.
42 Do you understand? That is the first condition. If you do not do that, you are in breach. All Corrections Orders have mandatory conditions. You have to receive visits from Corrections. You have to comply with their lawful instructions. You cannot change address without telling them. You cannot leave Victoria without telling them. You cannot change your job without telling them. All those things you have to tell Corrections, and if you do not, well, you have breached one of the core conditions. There are some other core conditions as well. I will let Mr Hocking go through those with you.
43 The special conditions are the supervision, treatment and rehabilitation for mental health as directed, treatment and rehabilitation for drugs as directed, so they will make arrangements for you to attend for rehabilitation and for mental health, and in the mental health document there is quite some detailed recommendations about what should happen, and I would expect that Corrections would take into account that document. You need to comply with all those things. If you do not, then you breach the order. If you reoffend during the period of the order, which is 12 months, you have also breached the order.
44 If you breach a Correction Order, the matter is brought back before me. One of the options that I have is to cancel the order and resentence you for those charges, and if that happened, well, you can anticipate some further period in prison.
45 Now do you consent to a Community Correction Order?
46 OFFENDER: Yes, Your Honour.
47 HIS HONOUR: All right, thank you. All right, just bear with me.
48 On Charge 1, any licence you hold is cancelled and you are disqualified for obtaining a further licence for a period of two years, which is the mandatory minimum.
49 On Charge 10, I make the same orders but for six months, which is concurrent with the two years, so cancellation and disqualification for six months. That starts today. You will just have to live with that. You cannot drive a vehicle. If you do, you are driving whilst disqualified. That is a breach of the correction order. So you will just have to manage that for the next two years.
50
All right, now we have the document there? 6AAA ‑ just bear with me;
40 months with 28 months. I should say that in plain English for you, Mr Wright. Had you not pleaded guilty, I would have sentenced you to a period of
40 months imprisonment with a minimum of 28 months non‑parole. All right, now I'll make the other orders when they come through, Mr Batten.
51 MR BATTEN: Thank you, Your Honour.
52 HIS HONOUR: Nothing else I need to do?
53 MR BATTEN: I think Your Honour has yet to announce the fine in respect of Charge 16.
54 HIS HONOUR: The fine, $200 on Charge 16. Thank you, Mr Batten. All right, now, Mr Hocking, can you have him sign the document.
55 MR HOCKING: Temporarily excused, Your Honour.
56 HIS HONOUR: Yes, certainly. All right. Mr Wright, if you keep going the way you have been going, with your history, you are going to end up getting years and years in prison, and even worse, if you keep driving like this, you will seriously injure someone, or you will kill someone, and you will have that on your conscience for the rest of your life, as well as receiving very lengthy jail sentences. You simply have to stop using methylamphetamine.
57 You have been in now for 19 months. As a 21‑year‑old, that is a long time. You need to make the most of this period on supervision.
58 OFFENDER: Yes, Your Honour.
59 HIS HONOUR: Yes. All right, thank you, Mr Batten, Mr Hocking. I'll adjourn till tomorrow, 11 o'clock.
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