DPP v Jaeger

[2019] VCC 526

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02373

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW JAEGER

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Jaeger
MEDIUM NEUTRAL CITATION:	[2019] VCC 526

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Mr M. Reardon

HER HONOUR:

1Matthew Jaeger, you have pleaded guilty to one charge of the aggravated offence of intentionally exposing an emergency worker to risk by driving contrary to s.317AD of the Crimes Act.  The maximum penalty for that offence is 20 years' imprisonment.

2You have further pleaded guilty to two charges of theft.  The maximum penalty for each offence is ten years' imprisonment.

3You have further consented to the uplifting of two summary charges:  one charge of failing to obey an applicable speed limit, the maximum penalty for that offence is ten penalty units, and; one charge of failing to render assistance.  The maximum penalty for that offence relevant to you is a fine of 240 penalty units or imprisonment for not less than four months and not more than two years.  This is a result of being a subsequent offence following your 2014 conviction for failing to exchange names and addresses after an accident, an offence under the same section.

4The facts which found your offending are set out in the prosecution opening, dated 7 February 2019.  That document represents the agreed factual basis upon which you have pleaded.

5As regards Charge 1, theft, on 19 July 2018 you stole a 1999 Holden Jackaroo from outside premises in Coomoora.  You had particularly targeted this area as you knew it to be semi-rural and were aware that keys were often left in vehicles.  You stole both the vehicle and the attached trailer, which were valued at some $9,000.  You also stole several items from the vehicle, including a socket set, a street directory, a map, glasses, tools, binoculars, blankets, umbrella, padlocks and a hipflask, with an estimated total value of $1,980.

6As regards Charge 2, on Friday 20 July you drove the stolen vehicle to a service station in Bacchus Marsh where you filled both the vehicle and a jerry can with diesel fuel.  You then drove off without making any attempt to pay.

7On Saturday 21 July you were sighted driving the stolen vehicle in Melton South.  Police attempted to intercept you by activating emergency lights, but you drove off along a train track inaccessible to the police vehicle.  As police were following the vehicle your co-offender commenced filming.  There is audio of what is being said in the vehicle contained on that recording, amongst other things you are heard to say, "I'm gonna ram ya", referring to the police vehicle.  You and your co-offender were both then heard to laugh.

8As regards the summary charge of exceeding the speed limit, at 12.27 am on 21 July police were conducting a patrol looking for the stolen vehicle.  Senior Constable Hutton observed the vehicle with the headlights off travelling in a residential street with a speed limit of 50 kph.  First Constable Dunn observed the vehicle to accelerate to approximately 100 kph.  He then observed the vehicle go the wrong way around a roundabout.  Police were in pursuit and a radar check revealed that the vehicle was travelling at 130 kph in a 60 zone (alleged speed 128 kph).

9As regards Charge 3, the aggravated offence of intentionally exposing emergency worker to risk by driving.  At approximately 1.05 am, on 21 July, victims First Constable Webster and Constable Bromley were driving a marked police sedan along the Western Freeway near Rockbank.  First Constable Webster was driving and Constable Bromley was sitting in the front passenger seat.  At this time you drove the stolen vehicle across the westbound lanes of the Western Freeway and continued over the wide grassy median strip and into the emergency lane for eastbound traffic.  You then pulled out in front of the police vehicle and continued travelling east.

10As First Constable Webster and Constable Bromley followed the stolen vehicle your passenger lent out the window with a torch in his hand and he began shinning the torch beam directly into first Constable Webster's eyes, blinding her momentarily.  You were observed by a number of other road users.  Your driving was described as erratic and all over the road.  Your speed was estimated at 120 kph, noting that at this point it is a 110 kph zone.

11As police were behind you trying to intercept you braked suddenly and came to a complete stop on the freeway.  This forced First Constable Webster to also brake heavily and also come to a complete stop some 30 metres behind you.  Fortunately other vehicles were able to take action and did not hit the police vehicle from behind.  You then placed your car in reverse and drove at the police car, ramming the front of the car with sufficient force to cause the airbags to deploy.

12As a result of the collision, First Constable Webster suffered redness, swelling, minor lacerations and a sore wrist.  Constable Bromley suffered a muscular ligamentous strain to his neck.  In addition, there has been a psychological sequelae for both victims, which I shall turn to in due course.

13You failed to stop or render assistance, you sped off and your failure to render assistance founds the summary charge.  You hid the vehicle in an attempt to avoid detection by police.

14Other road users stopped to assist police.  The driver's side door was stuck and force had to be used to open it.  Both police were described as appearing to be distressed and in shock.  They were conveyed to Sunshine Hospital for treatment.

15On 21 July, at 8.45 am, you drove the stolen vehicle to the Melton railway station car park.  You were captured on CCTV at this time.  Within five minutes police had located the stolen vehicle at that location.

16On Monday, 23 July, police downloaded the airbag control module from the police vehicle.  Data analysis shows that at the time of the collision the police vehicle was stationary and your vehicle was travelling between 15 and 19 kph in reverse at the point of impact.

17On 21 July you were contacted by investigators on your mobile phone.  You refused to divulge your whereabouts, nor make any arrangements to surrender yourself.  At 3.50 that afternoon you were observed by police in Melton.  You were identified as being wanted in relation to the incident I have described.  You were arrested and taken to Melton police station.  Your phone was seized which revealed messages in which you admit the ramming of the police vehicle.

18You were interviewed and you made what can only be described as full admissions.  Amongst other things, you said you had consumed 30 alcoholic drinks over the preceding two days, you had used approximately 2 grams of ice leading up to the ramming, you had cannabis in the day proceeding the ramming and you had not slept for two days.  You admitted to stealing the vehicle and trailer, you admitted stealing the diesel fuel, you recalled your co-offender making a video recording on his phone, you admitted you pulled out in front of the marked police vehicle, you admitted you had slammed on your brakes, you admitted intentionally ramming the police vehicle to stop it from following you; knowing of course you were about to be arrested.

19Your offending, as it relates to the ramming of the police vehicle is very serious, as is demonstrated by the maximum penalty for the offence of aggravated offence of intentionally exposing an emergency worker to risk by driving, which as I have already noted carries a maximum term of 20 years' imprisonment.

20There are a number of features of your offending which make it a serious example of the offence; you were involved, effectively, in a police pursuit.  Your conduct had a number of aspects, you were on a busy highway.  Your conduct involved stopping dead in a 110 kilometre freeway and then reversing, ramming a police vehicle which caused injury to the occupants.  Both these actions are highly dangerous and the fact that tragedy did not result was simply a matter of luck.  Your intention was at all times to impede your arrest, with absolutely no regard for the welfare or safety of the victims or the community at large.  The message must be clear and consistent that conduct of this type simply will not be tolerated and condign punishment will result in appropriate circumstances.

21Section 10AE(1) requires that a term of imprisonment be imposed on this charge and that a non-parole period of not less than two years be fixed under s.11 of the Sentencing Act if, relevant to this matter, an emergency worker on duty is injured unless the court finds under s.10A that ‘special reasons’ exist.  Some very limited submissions were made by your counsel, but in my view there is absolutely no basis upon which ‘special reasons’ were established.

22This is further, a category two offence and s.5AH of the Sentencing Act requires that a custodial sentence be imposed, unless an exception as per that section applies.  I note that your counsel conceded that there is no application of any exception relevant to this matter.

23In addition, s.16(1) requires that any sentence on this charge be served cumulatively unless otherwise ordered.

24I was taken to a sentence of my brother Judge McInerney in relation to a charge under s.317AE, which is a different section relating to the reckless form of the offence to which you have pleaded.  That offence carries a maximum penalty of ten years' imprisonment and is of course to be distinguished on that basis.  The criminal history and personal circumstances of that offender are also very different from yours.  What that sentence does perhaps illustrate is the serious nature of offending under these sections globally.

25I have received two victim impact statements.  The first is from Constable Bromley, dated 29 March 2019.  He says that your criminal acts have affected the way he sees policing and his enjoyment of his work and his life.  At the time of the offending he only recently graduated from the police academy and was in his first six months of service.  He describes himself at that time as being energetic and enthusiastic.  He said he was excited to be out amongst the community and helping to serve a purpose.  After this incident he had difficulty sleeping and he has questioned whether he should remain in the police force.  Constable Bromley says that he has had difficulty at home due to sleep deprivation.  He said that, you have made his enjoyment of his work ‘disappear in an action that took seconds’.

26As regards his physical injuries he notes that the whiplash and bruising were fortunately superficial only.

27I also received a victim impact statement from First Constable Webster.  She notes that initially that she could not move her wrist and was taken to hospital in an ambulance.  She said she feared that she was going to be killed.  She says the moment of impact replays in her head.  She notes that she is anxious driving a motor vehicle and has thus lost confidence at work.  She has been having treatment as she continues to struggle to sleep.  She understandably says she is angry that this all happened because she was simply ‘doing her job’.

28You have one prior criminal matter which was a matter of dishonesty.  On
26 November 2014 at the Melbourne Magistrates' Court you were without conviction fined $500 in relation to theft and obtaining by deception.  In addition you have a relevant driving history which includes driving under the influence of a drug in July 2017, two prior matters for speeding and in 2014 the failing to exchange name and address, to which I have already referred.

29As regards your personal circumstances.  You are now aged 25, having been born on 22 January 1994.  You were 24 at the date of this offending.  You were born in Sunshine and have lived most of your life in the Melton area.  You were the only child of your parents union, but you have a number of half siblings on either side.  Your parents separated before you born and you grew up in the care of your mother and subsequently her partner.

30Your mother is a nurse and your stepfather is a mechanic.  You remain close to your mother who has visited you regularly in custody.  You describe your relationship on your father's side as "strained" due to issues arising from childhood, which included you being sexually abused by an older half sibling from age 4 to 13.

31You enjoy the support of your maternal grandparents, with whom you resided at various times.  Indeed, your grandmother attended court upon your plea in support of you.

32You have had one significant relationship with the mother of your now two year old daughter. You are separated.  Your daughter was removed at birth and placed in care, as were her older half siblings.  She is now placed with her maternal grandmother. Before your arrest you were actively involved in her care as your mother cares for her for half of each week by agreement with her other grandmother.

33As regards your education, you left school after Year 10, but I was told upon your plea that you had barely attended that year.  There had been issues both academically and it seems as a result of what you describe as being bullied.

34Initially upon leaving school you worked for your grandfather in his furniture business from about the age of 15 to 19.  Over this period you also completed a number of pre-apprenticeships in mechanics, spray painting, panel beating and engineering.

35From about 18 or 19 to aged 22 you have been engaged in a number of unskilled forms of employment, largely as a removalist.  You report that in more recent times your drug use created difficulties with you maintaining employment.  Your longest period with any one employer was two years.  You last worked approximately two years ago.

I have received letters in support from your mother and grandmother.  They both confirm aspects of your history and express ongoing support and confidence as regard to your future.  It is clear that the man they describe is at significant odds with the person who committed these offences.  I had the advantage of having your mother give evidence in relation to these matters.  As well as her observations of behavioural change she now attributes to sexual abuse she was unaware of until you exited rehabilitation aged 22 or 23.

36I received a large bundle of certificates you have obtained in custody.  It is clear that you have actively sought to advance your rehabilitation, specifically in relation to drug abuse, job prospects and further education.

37As regards substances you commenced smoking cannabis at about 12.  You report smoking a gram a day by the age of 14 and 2 grams’ a day prior to your arrest.  Ms Ferrari, whose report I shall turn to, opines that this was an attempt to self-medicate in relation to the matters which form the context of the sexual abuse and you being bullied.  Whatever the genesis, this is an early use of drugs and your pattern thereafter shows the all too familiar entrenchment of drug and alcohol abuse in formative years, which is relevant to your development as a member of our community and perhaps explains some aspects of your poor decision making.  Your difficulties with alcohol commenced at 15 and there have been intermittent periods of excessive drinking.

38Your drug and alcohol use on the day of this offending, I wish to make clear, is not mitigatory and I am sentencing you on that basis.

39You report being introduced to MDMA at aged 15 by a friend's uncle.  You describe yourself as addicted by age 16.  Your methylamphetamine use has seen you homeless, including in the period of three months leading up to this offending.  As I have said, you report that you were smoking 2 grams a day.  Your mother noted real changes when you had started using ice, which she became aware of as a result of you suffering a drug induced seizure at 18.  It was at this time you moved out of your mother's home, largely as a result of ongoing conflict in relation to your drug use.  Despite that your mother remains a major support in your life.

40You have made some attempts at rehabilitation.  Indeed, between November 2017 and February 2018 your mother and grandmother jointly funded a private rehabilitation program.  Unfortunately, you formed a relationship with a co-resident, you relapsed and self-discharged prior to completion.  After leaving rehabilitation you continued to use drugs with friends you had met at that facility.  Your grandmother tried to assist and provided accommodation in Daylesford, but it all proved insufficient to curb what was to become the spiral, which sees you before this court this day.

41Your remand, I am told, is the longest period you have been drug free in many years.  You report that you have a new perspective and want, after your release, to be a part of your daughter's life.

42I received a report dated 29 March 2019 from Ms Carla Ferrari, psychologist, who you saw for the purposes of assessment and report on 18 March this year.  Ms Ferrari conducted a number of psychometric tests.  She says the results indicated severe levels of depression and anxiety, and mild elevations of stress.  She says your symptomology is likely to worsen on the outcome of sentencing and could result in further deterioration of your mental state.  She recommends immediate commencement of psychological treatment to address these factors.

43As regards the clinical disorders Ms Ferrari's opinion is that you meet the criteria for a major depressive disorder, recurrent and moderate amphetamine type substance use disorder, severe alcohol use disorder, mild ADHD, combined type.  In her opinion the sexual and physical abuse at the hands of your older sibling resulted in you developing depression and anxiety symptoms, as well as post-traumatic symptoms, which you have managed, in her view, through self-medication with substances.

44In addition, in the period prior to this offending she says there was a deterioration in your mental health state due to your relationship breakdown and relapse into substance abuse.  Ms Ferrari opines that your alcohol and substance abuse itself perpetuates and can exacerbate impulsive, reckless behaviour, as can underlying ADHD, which often, in her view, impacts individuals emotional regulation, impulse control, ability to plan and organise ones self and has a high comorbidity with substance abuse as well as exacerbated depression and anxiety, particularly when under stress.  Ms Ferrari opines that these deficits can cause one's judgement, ability to make rational decisions and process information effectively and evaluate future outcomes impeded. 

45Ms Ferrari says in relation to your clinical and behavioural function at the time of the offending there is evidence of both depression and anxiety which remains operational now.  She says you still meet the criteria for ADHD, which would have been persistent and operational given you had never received treatment.  Further, she says it appears that your behaviour can be understood in the context of your deteriorating mental state, self-medication with substances and a self-destructive mindset, given your ability to regulate your emotions at the time.

46I note that it was not submitted that the principles in Verdins have application in your case.  It is conceded that the necessary causal connection cannot be established.

47Ms Ferrari assesses you as a moderate risk of reoffending on the basis of your persistent substance abuse, association with anti-social peer group and untreated psychological issues.  She does, however, say that these risks in your case can be ameliorated.

48Assessment of your prospects of rehabilitation is somewhat complex.  Your drug abuse, alcohol abuse and unmet psychological deficits are concerning as these are matters which underpin the offending and it seems you have not been able to adequately address these matters in the community.  On the other hand you have a very limited prior history, you have demonstrated remorse, you have the support of your mother and grandmother, you have been drug free in custody and you are still a youthful offender.  In these circumstances, I think your overall prognosis remains positive.

49The community must maintain a real interest in your rehabilitation as that is the community's best protection into the future.  It is to be hoped that the custodial sentence, which you are now undergoing, will have significant deterrent effect and will perhaps provide the motivation to make the necessary changes to ensure that you do not find yourself back in the criminal justice system.

50I take into account your plea of guilty, you pleaded guilty at any early stage.  You are entitled to the full benefit of that plea, not only as regard to utilitarian benefit, but in your case your plea is properly used as evidence of remorse.  You expressed remorse upon interview, you have consistently expressed remorse to both professionals who have engaged with you and it seems that you accept responsibility for what has occurred and have done so from an early stage.

51Like many prisoners, I think your depression will make custody more difficult.  You will need to actively address the matters relevant to your mental health, both for your own sake and to protect the community into the future.  The efforts you have made as regard to your own drug rehabilitation, absent the criminal justice system, are I think the cause for some confidence that you have real prospects in this regard.  In the end, it will come down to the choices that you ultimately determine.

52As well as matters personal to you I must also take into account other relevant sentencing considerations.  General deterrence is of considerable importance.  I must seek to deter not only you but others who may engage in like conduct.  The court and the community cannot and will not tolerate offending which places at risk the very people we as a community rely upon to protect us.  Your sentence must manifest the communities denunciation of your conduct and impose just punishment.

53Your counsel quite properly conceded that the only disposition open is an immediately servable term of imprisonment, the prosecution concur.

54In my view, there is no disposition open other than an immediately servable term of imprisonment.  Accordingly, you are convicted and sentenced as follows:  Charge 1, theft, 12 months; Charge 2, theft, two months; Charge 3, aggravated offence of intentionally exposing an emergency worker to risk by driving, five years.

55I direct that four months of the sentence on Charge 1 be served cumulatively with the sentence upon Charge 3, making a total effective sentence of five years and four months.  I otherwise direct that all sentences be served concurrently.

56I direct that you serve three years and one month before becoming eligible for parole.

57I direct that 262 days be reckoned as served.

58I direct it be noted in the records of the court that but for your plea of guilty I would have sentenced you to a total effective sentence of six years and six months, with a non-parole period of four years and three months.

59On the two summary charges you are convicted and fined an aggregate amount of $1,000.

60I make the disposal orders in terms of the draft order to which you have consented.  I make the forfeiture order in the terms of the draft order.

61On Charge 3 on the indictment your licence is cancelled, you are disqualified from driving in the state of Victoria for a period of four years, effective today.

62On the summary charge of speeding your licence is cancelled.  You are disqualified from driving in the state of Victoria for a period of 12 months, effective today.

63Counsel, is there any matter that arises?

64MR REARDON:  No, Your Honour.

65MR ROPER:  No, Your Honour.

66HER HONOUR:  Thank you, remove the prisoner please.

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