DPP v Cox

[2021] VCC 1942

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02044

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADY COX

‑‑‑

JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF SENTENCE:	26 November 2021
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2021] VCC 1942

REASONS FOR SENTENCE
‑‑‑

Subject:Criminal law – sentence

Catchwords:              Theft; handle stolen goods; aggravated offence of recklessly exposing an emergency worker to risk by driving; possession of a drug of dependence; attempted theft; fail to stop on police request

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  TES: 2 years 9 months; NPP: 1 year 10 months

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Brown	Solicitor for Office of Public Prosecutions
For the Accused	Ms L Dubroja	Victoria Legal Aid

HER HONOUR:

1Brady Cox, you have pleaded guilty to the following offences, that were committed between 20 and 28 May 2021:

Indictment M11100680
Charges	Offence	Maximum Penalty
1, 2, 8	Theft	10 years
3	Handle stolen goods	15 years
4, 5	Aggravated offence of recklessly exposing an emergency worker to risk by driving	10 years
6	Possession of a drug of dependence	1 year or 30 PU
7	Attempted theft	5 years

2You have also pleaded guilty to related summary offences that were committed between 1 April and 28 May 2021.

Charges	Offence	Maximum Penalty
2, 4, 31	Fail to stop on police request	6 months and/or 60 PU

3The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

Summary Charge 2

4On 1 April 2021, just after 5.00am, you were driving in Shepparton.  Two police officers patrolling the area noticed that your car appeared to have a ground clearance issue.  They moved into position behind you and activated their red and blue flashing lights, to indicate to you to pull over.  You failed to stop, speeding away from police, and travelled through a give way sign, at approximately 85-90 kilometres per hour.  Police discontinued their pursuit, due to concerns for the safety of other road users.  

Summary Charge 4

5On 30 April 2021, at approximately 8.00am, you were driving near Cobram in a 100 kilometre per hour zone, and overtook an unmarked police vehicle.  You were travelling at approximately 140 kilometres per hour.  You continued to drive at this speed, overtaking other vehicles.  

6You approached Cobram, entering an 80 kilometre per hour zone and maintained your speed.  Two other police officers pursued you and attempted to intercept you.  You failed to stop and continued to drive at that speed, while weaving in and out of traffic.  Police did not pursue you further.  

Charge 1

7On 20 May 2021, you were a passenger in a Ford sedan, which was driven by its owner.  Police intercepted the vehicle and the owner got out of the car to speak to them.  You moved into the driver’s seat and drove away.  You did not have permission to take the vehicle, and you did not return it. 

Charges 2 and 3

8On 27 May 2021, you drove a Toyota Hilux into a service station in Strathmerton.  The vehicle had been stolen between 25 and 26 May 2021.  You put $101.48 of fuel into the vehicle, and drove away without making any attempt to pay. 

Charges 4, 5 and 6, and summary charge 31

9On 28 May 2021, at approximately 4.00am, two police detectives observed the Ford sedan that you stole on 20 May, parked at a service station in Cobram.  They parked their vehicle, an unmarked Toyota Landcruiser, in front of the stolen vehicle and approached it, observing you to be asleep in the driver’s seat.  They placed tyre-deflating devices under the tyres of the stolen car.  

10At approximately 4.40am, two additional police officers attended in separate marked police cars, with one parking in front of you and the other, behind.  The driver of the vehicle parked behind you remained in the car.  As the other police approached the stolen Ford, you began to wake up.  Two officers approached the driver’s side and one officer approached the passenger’s side.  They yelled out, telling you that they were police and not to move.  You ignored them and started the vehicle’s ignition, revving the engine loudly.  

11Before the police could arrest you, you drove forward and collided with the Toyota Landcruiser.  You then reversed and collided with the driver’s side of the police vehicle parked behind you, while the police officer was still seated inside the car.  You manoeuvred the stolen Ford between the police cars and drove away at speed. 

12The three police officers who were standing next to the stolen car had to take evasive action to avoid being hit or run over.  The two police vehicles sustained minor damage.  

13The two detectives got back into the Landcruiser and pursued you along the highway, with their lights and sirens activated.  After a while, you slowed down and stopped on the gravel shoulder of the highway.  The detectives stopped their vehicle approximately 30-40 metres behind you.  They believed that your car had been disabled by the tyre-deflating devices they had deployed.  Before they got out of their vehicle, you reversed at speed and struck their car.  You then drove away.  At this point, police discontinued their active pursuit of you.  

14Shortly afterwards, police located the stolen Ford, which had been abandoned in Yarroweyah.  Police searched the vehicle and located approximately 1 gram of methylamphetamine in a Ziplock bag.  

Charges 7 and 8

15At approximately 6.45am on the same day, you were captured on CCTV footage entering a carport in Yarroweyah.  A Toyota Landcruiser was parked in the carport, and you unsuccessfully attempted to open the locked driver’s door.  You then continued to walk along the street.  

16Approximately 15 minutes later, you entered a Mazda Bravo utility vehicle parked in the front yard of a Yarroweyah property.  The owner’s son heard the engine start and ran out to see you reverse the vehicle out of the driveway, at speed.  He was unable to prevent you from taking the vehicle.  

17Police located the stolen Mazda approximately 30 minutes later at an address in Numurkah.  You were arrested inside the house without incident and taken to the Shepparton Police Station, where you declined to be interviewed.  You were charged, remanded in custody, and have now spent 182 days of pre-sentence detention. 

18The offences on the indictment and one summary offence relate to a course of criminal conduct that occurred over a nine-day period. The remaining summary offences were committed several weeks earlier.  

19At the time of your offending, you were subject to parole for an offence in New South Wales.  Your parole was revoked on 9 June 2021 and you owe a balance of just over seven months imprisonment.  A prison warrant has been issued.  There is a prospect that you may be extradited to New South Wales upon the completion of this sentence, although there is no certainty in that regard.  

20You have pleaded guilty to committing two aggravated offences of recklessly exposing emergency workers to risk by driving, one incident occurring immediately after the other.  You used your car to place police members on duty at risk of harm.  This type of violence is unacceptable. 

21In relation to the first incident, there had been no previous interaction between you and the police on that night.  You appeared to be asleep and woke up as they approached your vehicle.  Two of the three cars parked around your car were marked police vehicles.  When the police members called out to you, you ignored their directions.  You started the engine of the car and drove forward, making impact with the Toyota Landcruiser.  You then reversed and collided with a marked police car, the point of impact being near to where a police officer was seated.  You then drove away at speed. 

22Three of the police officers were standing outside your vehicle; one of them had opened the passenger door.  You used your car to place them at real risk of harm.  Your driving was inherently dangerous.  The police members were on foot, very close to the stolen car and at risk of being struck.  They had to move quickly to avoid being hit by you as you fled the scene, to avoid arrest.  This threat of violence is unacceptable.  Your conduct was reckless, as you exposed the police to the risks associated with your dangerous driving. 

23Images taken from CCTV footage contained in the depositions depict that your vehicle was effectively boxed in by the police officers.  Their vehicles were a short distance away, limiting the momentum you could gain when you drove forward and backwards, so your capacity to cause damage to the police vehicles was relatively limited.  Your counsel submitted that the level of damage is indicative that you initially drove at a relatively low speed, until you managed to get away.  The CCTV images also depict the close proximity of the police to your car, confirming that the risk to their safety was significant. 

24In relation to the second incident, you were immediately pursued by the detectives, in the Landcruiser.  You must have been aware that it was a police vehicle behind you, as the red and blue lights and sirens were activated.  After you pulled over, they also stopped and you reversed at speed into their vehicle.  Both police officers were seated in the car at that time.  Your reckless conduct presented a further clear risk to two of the police officers who had just been involved in the earlier incident.  Unlike the first incident, this was more premediated.  The only damage that you caused was to the bull-bar on the police car. 

25All of the police vehicles that were involved in the collisions remained operational.  No airbags were deployed and none of the engines were affected.  The damage that you caused was not extensive.  It is most fortunate that no one suffered any injury as a result of your behaviour.  

26While no Victim Impact Statement has been provided by any of the police members, it is clear that these would have been frightening experiences. 

27I am told that your memory of this event is limited, as you were affected by methylamphetamine at the time.  Your explanation for your conduct is that you were attempting to evade police as you had outstanding criminal matters, you were in a stolen vehicle at the time and you were subject to parole in another State.  You did not want to return to gaol.  This explanation is also applicable to the other summary offences of failing to stop on police request. 

28Your counsel has submitted that the level of seriousness of each of these offences is moderate.  It is conceded, however, that your overall criminal offending is serious.  I consider that when viewed as a continuing course of conduct, it is serious.  Your conduct was impulsive or ill-considered and, perhaps, not surprising, given that you admit that you were drug affected. 

29The remaining offences on the indictment relate to the theft or use of stolen cars, theft of fuel and possession of methylamphetamine.  You describe that throughout the period of your offending, you were continuously having negative thoughts about your life.  You would numb these with substance abuse or driving. 

30You were charged on 28 May 2021.  Your case proceeded as a straight hand‑up brief with a plea of guilty entered at a very early stage, on 21 September 2021.  Your plea hearing has proceeded within six months of the date of your offending.  That plea has a significant utilitarian benefit.  You have saved the Court and the community the time and expense of running a trial.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant given the delay in jury trials that has resulted from the COVID‑19 pandemic.  I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered during the pandemic.  There is no dispute that a plea of guilty entered at the current time should attract a more pronounced amelioration of sentence than at another time. 

31Your plea of guilty also demonstrates an acceptance of responsibility for your offending.  Your counsel has submitted that your early admission to your offending is consistent with remorse.  I accept that submission and will return to the aspect of remorse later in these reasons. 

32You have admitted your criminal history, in both Victoria and New South Wales.  Your first contact with the criminal justice system was in 2007.  You have regularly appeared before the Courts since 2015.  While you have prior convictions for violence, dishonesty and driving matters, you have not previously targeted or acted violently towards police.  You have, however, previously failed to stop your vehicle on police direction. 

33You were first sentenced to a term of imprisonment in March 2016 for the offence of armed robbery.  You have been sentenced to several terms of imprisonment since that time. 

34On 29 September 2020, you were sentenced in New South Wales to 30 months’ imprisonment with a minimum term of 17 months, for the offence of assault with intent to take/drive a motor vehicle.  You were released from custody on 23 December 2020.  At the time of this incident, you were subject to parole.   

35Despite being subject to parole, you say that your drug use recommenced within a short period of your release and soon became out of control.  It was in this context that these offences occurred.  The fact that you were on parole at the time is an aggravating feature of your offending.  Overall, I regard your moral culpability for the offending as high. 

36You were born in July 1989 in Koo Wee Rup, Victoria and are now 32 years of age.  You have an older brother and an older sister.  Your parents separated when you were two years of age, and you have not maintained a close relationship with your father.  Your mother re‑partnered and you have a close relationship with your stepfather. 

37You enjoyed a positive upbringing in your family and have maintained a good relationship with your mother and your sister.  It is proposed that you will return to New South Wales, to live with your mother, when you are released from custody.  You are not currently in a relationship. 

38At the age of 13 years, you were a passenger in two traumatic vehicle accidents.  The first was in a four-wheel drive buggy, where another passenger was ejected and suffered critical injuries, causing death.  The second was on a motorbike that crashed, where the adult driver suffered serious injuries. 

39Your education was disrupted and you attended a number of primary schools.  As a result of truancy, you were required to repeat Year 7 and you were then expelled from school in Year 8.  You enrolled in a community learning centre and completed a general certificate TAFE course, being a Year 11 equivalent, at the age of 16.  Your work history has involved various forms of employment, including commencing a butcher’s apprenticeship, plastering, installation of water tanks and work in abattoirs.  Your capacity to engage in employment was relatively consistent until you received your first term of imprisonment.  You then remained unemployed for approximately five years.  Upon your recent release from custody in New South Wales, you engaged in full-time employment, for around three months.  You were unemployed at the time of this offending. 

40You have previously been involved in a long-term relationship and you have one daughter together, who was born in 2010.  That relationship ended in 2015, when your partner decided to abstain from drug use.  The breakdown of your family, however, resulted in an escalation in your drug use.  You have not had any contact with your daughter since she turned six.  Intervention Orders have been in place since November 2016, where your ex‑partner and your daughter are the protected persons and you are the respondent.  The current intervention order is an indefinite order.  You have been found guilty of breaching these orders and sentenced to imprisonment. 

41You have a lengthy history of illicit substance use, which began when you were around 10 or 11 years old, by sneaking alcohol and cannabis from your parents, with your peers.  At the age of 14, you commenced using amphetamine and ecstasy.  At the age of 17, you started to regularly use methylamphetamine, developing an addiction.  

42Within a short time of your most recent release from custody, you regrettably relapsed into illicit drug use.  You lost your job soon after this and your drug use became out of control.  At the time of your arrest, you were using two grams of methylamphetamine per day.  It was in that context that these offences occurred.   The drugs that were located by police in the stolen Ford that was abandoned by you, were for your own use. 

43In the past, you have had the opportunity to address your rehabilitation in the community, being sentenced to Community Correction Orders with conditions for treatment and rehabilitation.  You have also undertaken relevant courses while in custody. 

44I am told that you have not used drugs of dependence while on remand for these offences.  You intend to undertake further courses in relation to drug rehabilitation, although you have not had access to these at the moment, in light of measures taken by Corrections to deal with the COVID‑19 pandemic. 

45I accept that your drug use provides a context for your ongoing offending.  Your goal is to cease substance abuse, return to employment and re-establish a relationship with your daughter. Successful drug rehabilitation is essential if you are to improve your prospects.  Your family would support you in establishing a better life.  You are most fortunate in that regard.  Upon your release from custody, you will have stable accommodation available with them. 

46This pro-social support will certainly be of assistance to you in avoiding re-offending, although maintaining a drug-free lifestyle is critical if you are to be successful.  A period of supervision provided by parole will form part of this sentence, which will be of benefit both to you and to the community. 

47At the request of your solicitor, you were assessed by Ms Laura Fleming, forensic psychologist.  In a report prepared for the Court, dated 8 November 2021, she made the following findings: 

·        You present with a diagnosis of Persistent Depressive Disorder and Substance Misuse Disorder.  These disorders have not been treated appropriately for a long period of time. 

·        Your poor achievement at school was complicated by the two traumatic experiences relating to vehicle accidents and by your early onset substance use. 

·        Your depression and substance use has continued in a cyclical manner, each worsening the other and it is difficult to determine which occurred first.  It is likely that you experimented with substance use prior to the traumatic experiences.  You have come to rely on illicit substances to escape from your subsequent depression and anxiety symptoms. 

·        Your complex profile is complicated by your chronic polysubstance use which has emerged as a form of self-medication, due to difficulty engaging in treatment for depression and anxiety symptoms. 

·        Your drug addiction has clearly contributed to your offences.

·        Your complex chronically ill and untreated mental health, isolation, and lack of willingness to engage in available support, have also played a significant underlying role in the incidents and your self-medicating. 

·        You need to engage in treatment for your depression and substance misuse simultaneously. 

·        Any custodial sentence imposed should incorporate a period of support and supervision upon your release to support your transition back into the community. 

48You expressed remorse to Ms Fleming, recognising the illegal nature of your conduct.  You have undertaken a period of self-reflection while in custody.  You understand that your conduct has had an impact on others, particularly the risk of danger to the police officers.  I accept that you have shown remorse for your conduct and that this is consistent with your early plea of guilty.  I am prepared to moderate your sentence to reflect that. 

49Ms Fleming has assessed your risk of recidivism as moderate.  However, your criminal history was not provided to her and was based on self-report.  She notes that this may have affected her rating.  

50I consider that your prior matters are highly relevant when assessing your prospects, particularly as you were on parole at the time of offending.  You have ongoing depression and the duration of your drug addiction has increased your risk of criminal misconduct. Further, you have maintained family support throughout your life, yet this has not deterred you from offending.  I am cautious of your prospects for rehabilitation.  In my view, they are no better than reasonable and depend on your capacity to avoid drug use. 

51An offence under s 317AF of the Crimes Act is a Category 2 offence, pursuant to the Sentencing Act.  The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment unless one or more criteria outlined in s 5(2H) are established.[1] Your counsel did not seek to persuade the Court that any of those criteria could be applied in your case. A term of imprisonment therefore is the only appropriate disposition. There is also a presumption of cumulation for any sentence imposed under s 317AF in light of s 16(3D) of the Sentencing Act.[2]  It is conceded by the prosecution, however, that in formulating a sentence, the principle of totality is relevant and not wholly ousted by this sentencing consideration. 

[1] Sentencing Act 1991 (Vic).

[2] Sentencing Act 1991 (Vic) s 16(3D).

52It is conceded that the principle of general deterrence looms large.  In my view, it is the principal sentencing factor here, while specific deterrence, denunciation, just punishment and protection of the community are relevant.  Rehabilitation also remains relevant. 

53I take into account that measures taken by Corrections to deal with the COVID‑19 pandemic have added to your hardship as a prisoner.  The prosecution concedes as much. 

54I am aware that the first 14 days you spent in custody were in 24 hour lockdown, due to quarantine requirements.  Since that time, you have served multiple periods in lockdown.  In October 2021, you spent all but four days being placed in lockdown.  You have had very restricted opportunities for contact with your family and friends.  Access to rehabilitation and vocational programs have been severely restricted.  The evolving nature of the pandemic indicates that these conditions will continue for the foreseeable future.  You are also likely to feel more vulnerable to the possibility of infection with the virus in light of your incarceration.  Overall, the circumstances render the prospect of imprisonment as even more unpalatable than it usually is.  There is no dispute that these hardships justify a sentencing benefit. 

55The offence of recklessly placing emergency workers’ safety at risk by driving and its aggravated form were incorporated into the Crimes Act on 5 April 2018.[3]  I have considered the cases referred to by both the prosecution and defence in the course of their submissions.  There are a limited number of relevant cases that have been dealt with by the Court of Appeal. 

[3] Crimes Act 1958 (Vic) ss 317AE and 317AF.

56When considering the appropriate sentence in your case, there is no dispute as to the seriousness of your offending.  In my view, the utilitarian benefits that flow from your pleas of guilty should be reflected in the overall sentence.  While there is a presumption of cumulation, the principle of totality also needs to be considered in relation to the offending overall.  

57Although there is a possibility that you may be required to serve the balance of the sentence outstanding in New South Wales, there is no certainty in that regard.  I am unable to take it into account when considering the totality of your sentence. 

58I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  In my view, in all the circumstances, I have reduced the level of cumulation and adjusted the sentence I have imposed to reflect the mitigating effect of your plea of guilty at the current time. 

59The commission of the aggravated offence of recklessly exposing an emergency worker to risk by driving, requires a mandatory licence disqualification for a period of not less than two years.[4] 

[4] Sentencing Act 1991 (Vic) s 89(2)(b).

60Failure to stop on police request requires a mandatory licence disqualification for a period of not less than six months. 

61Upon conviction for the offence of theft and attempted theft of a motor vehicle, the Court is also required to make an order against the offender’s licence. 

62Balancing these factors as best I can, I sentence you as follows. 

63Mr Cox, I’m going to outline the sentence in relation to each offence, then I will announce the level of cumulation and concurrency, then I will provide you with the total effective sentence and a non-parole period. 

Charge	Offence	Sentence	Cumulation
1	Theft	9 months’ imprisonment	2 months
2	Theft	1 month imprisonment	Nil
3	Handle stolen goods	9 months’ imprisonment	2 months
4	Aggravated offence of recklessly exposing an emergency worker to risk by driving	1 year and 8 months’ imprisonment	Base
5	Aggravated offence of recklessly exposing an emergency worker to risk by driving	1 year and 8 months’ imprisonment	6 months
6	Possession of a drug of dependence	1 month imprisonment	Nil
7	Attempted theft	4 months’ imprisonment	Nil
8	Theft	9 months’ imprisonment	2 months
Summary offence 2	Fail to stop on police request	2 months’ imprisonment	Nil
Summary offence 4	Fail to stop on police request	2 months’ imprisonment	Nil
Summary offence 31	Fail to stop on police request	3 months’ imprisonment	1 month
Total Effective Sentence:		2 years and 9 months’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-Sentence Detention:		182 days
s 6AAA[5] Statement:		3 years and 6 months’ imprisonment NPP: 2 years and 6 months
Other orders: Order for disposal and forfeiture of drugs granted.  Licence orders: ·     Charges 4 and 5: on each charge, your licence is cancelled, and you are disqualified from driving for a period of 3 years on each count.  These periods will run concurrently, and will commence on 28 May 2021, which was the date of your remand.  ·     Charges 1, 7 and 8: your licence is cancelled.  You are disqualified from driving for a period of 6 months on each charge.  Those periods will all run concurrently with all the other orders in relation to your licence, and again, commence on 28 May 2021.    ·     Summary offences: Your licence is cancelled, and you are disqualified on each summary offence for 6 months, and again, those periods will commence on 28 May 2021 and run concurrently.  ·     That is a total period of disqualification of 3 years, all of which commence on 28 May 2021.

[5] Sentencing Act 1991 (Vic).

64Ms Lulo, were there any other orders sought? 

65MS LULO:  No, Your Honour. 

66HER HONOUR:  Ms Dubroja is there anything else that you need to raise? 

67MS DUBROJA:  No, Your Honour. 

68HER HONOUR:  Thank you.  I’ll stand down.  If you would like my associate to just clarify the sentence, she can do that when I leave the bench. 

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