DPP v Massey
[2008] VSCA 254
•9 December 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 729 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE PETER RAYMOND MASSEY |
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JUDGES: | BUCHANAN and VINCENT JJA and ROBSON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 December 2008 | |
DATE OF JUDGMENT: | 3 December 2008 | |
DATE OF MENTION: | 9 December 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 254 | 1st revision 11 December 2008, Orders |
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Criminal law – Sentence – Driving offences – Recklessly causing serious injury – Youthful offender – Prior convictions – Sentence of three years’ detention in a youth justice centre manifestly inadequate – Offender re-sentenced to be imprisoned for a total effective term of four years and six months with a minimum term of two years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Trapnell SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr G J Thomas SC with Mr D A Langton | Greg Thomas, Solicitors |
BUCHANAN JA:
The respondent was arraigned and pleaded guilty in the County Court to a presentment containing two counts of theft (counts 1 and 2), two counts of reckless conduct that placed other persons in danger of serious injury (counts 3 and 4), one count of recklessly causing serious injury (count 5), and one count of failing to stop after an accident in which a person had been seriously injured (count 6). The respondent also pleaded guilty to summary charges of careless driving and unlicensed driving.
After a plea, the respondent was sentenced to be detained in a youth justice centre for a term of three years. The contributions made by each of the counts to that term were as follows: count 1 - one month; count 2 - six months; count 3 - 18 months; count 4 - 18 months; count 5 - 24 months; count 6 - 12 months. On the summary charge of careless driving the respondent was fined $500 and on the summary charge of unlicensed driving he was sentenced to be detained for a period of two months. It was directed that eight months of the sentence upon count 4 and four months of the sentence upon count 3 were to be served cumulatively upon the sentence upon count 5, making a total effective sentence of three years.
The Director has appealed against the sentence on two grounds. The first is that the sentences on counts 2, 3, 4, 5 and 6 and the total effective sentence were manifestly inadequate. The particulars of this ground allege that the sentencing judge failed to give sufficient weight to specified aggravating factors, and gave too much weight to specified mitigating factors. The second ground of appeal is that the direction that the total effective sentence be served in a youth justice centre was inadequate.
The offences occurred on 7 and 8 June 2007, when the respondent was aged 18 years. He had never held a driver's licence. On 7 June 2007 the respondent used a pair of scissors to break into a number of motor cars, from which he stole approximately $10 in loose change. A little after 10 pm that evening, the respondent stole a Chrysler Valiant parked outside a hotel in Reservoir. The West Heidelberg police received numerous telephone calls complaining that the car was performing burnouts and other dangerous manoeuvres in the vicinity of Ramu Parade, West Heidelberg. Shortly after midnight, the police attended and observed the car parked on the nature strip in Ramu Parade. The respondent, who was in the car, accelerated away when he saw the police. The respondent, with the police in pursuit, sped down a narrow laneway lined with high fences containing blind bends. The respondent returned to suburban streets. He drove at high speed, passed through a roundabout the wrong way and drove down the wrong side of the road. There were pedestrians on the footpaths. At one point he entered a dead-end street and drove into bushes at the end of the street, along a pedestrian access, and then across a footpath into another street.
The police abandoned their pursuit of the respondent, fearful for the safety of the respondent and other road users. The respondent drove into a McDonald's car park in Preston. He later told police that he there used the last of some amphetamine, called 'ice', which he had purchased earlier the previous evening. The respondent also said that he had consumed ice prior to driving, and said that using ice made him 'really angry, really easy'. The respondent left his car and went into the shop to buy food. He was approached by two men, John Davidson and Wayne Lovell, who asked the respondent for a lift. The respondent saw Crystal Morgan- Jones, the mother of the respondent's young child, sitting in a car in the McDonald's car park. The respondent knocked on the window of the car and abused her. He then returned to the stolen Valiant, drove out into St George's Road and then to Bell Street, where he performed a burnout, before returning to the McDonald's car park, revving the engine loudly and driving quickly.
The respondent parked his car next to the car of Crystal Morgan-Jones. He again yelled abuse at Ms Morgan-Jones. Davidson and Lovell again approached the respondent and spoke to him while they were standing between the Valiant and Ms Morgan-Jones's car. Davidson and Lovell again asked the respondent for a lift. The respondent suddenly reversed out of the parking bay and swung his car. The front right-hand side of the Valiant struck Davidson, throwing him on to his back. The car also struck Lovell. The respondent told the police that he heard a sound and knew that he had hit somebody. While Davidson was lying on the ground, the respondent revved the engine of his car loudly, spun the wheels, and accelerated towards Davidson and ran over him. Davidson was trapped underneath the car as the respondent accelerated towards St George's Road. Witnesses said that Davidson was screaming as he was dragged along. The respondent drove along St George's Road, continuing to drag Davidson, until he was dislodged and was run over by the front and rear wheels of the Valiant. In a police interview, the respondent described those events as follows:
I went to reverse out and the front end hit Davidson, because I turned the wheel too much, and then I quickly went on to take off, but I don't know what to do, I didn't know what to do. I quickly went to go and drive off and he got stuck under the car, I think, and then I drove to the lights and up the front like it had a flat tyre, but it was him, stuck under the car, and I didn't know what to do. I just went, went home.
Later in the interview, the respondent said:
I didn't see him but I knew he would have been under there because, like, it just, I don't know, I don't know, it just went through me head.
Davidson was taken to hospital, where he was kept in an induced coma for four days, and spent seven days in intensive care. Davidson suffered a number of broken ribs, a fractured right leg, torn tendons in his knee, grazing, a fracture to his wrist, lacerations requiring skin grafts, fractured collarbones, and the loss of two teeth.
The respondent was arrested on 8 June 2007. He made a 'no comment' record of interview, on legal advice, but an hour later requested to be re-interviewed and made a number of admissions and expressed remorse.
The respondent had a large number of prior convictions. Between 2000 and 2006, when the respondent was aged between 11 and 17 years, he was dealt with by the Children's Court for offences of dishonesty, assaults, recklessly causing injury, assault with a weapon, and assault in company. The respondent also had a large number of convictions for driving offences, including unlicensed driving, failing to stop upon a lawful request, reckless conduct endangering persons of serious injury, driving whilst disqualified, driving with a concentration of alcohol in his blood in excess of the prescribed limit, and driving in a manner dangerous. The respondent was sentenced to detention in respect of some of his driving offences.
After the commission of the offences in question in this appeal, the respondent was convicted of a number of driving offences, including reckless conduct placing another person in danger of serious injury, driving in a manner dangerous, theft of a motor vehicle, unlicensed driving, and failing to stop after an accident. The respondent was sentenced to four months' detention.
The respondent is an Aboriginal youth now aged 19 years. He was born on 30 January 1989. The respondent was the fourth of five children. He was raised in Heidelberg, where his family lived in a house rented from the Housing Commission. His parents separated when he was about six years old. The respondent's early years were marred by his parents' use of drugs and domestic violence between them. The respondent's mother's new partner was also violent towards him, notwithstanding the attention of the Department of Human Services throughout the respondent's childhood. The respondent has a year-old daughter by a relationship which appears to have ended. The respondent failed to complete his secondary education and left school at the age of 16 years to work as a rubbish collector. After six months, the respondent obtained work landscaping, but that job came to an end after a few months, and the respondent has been unemployed since that time.
The respondent began drinking alcohol at the age of 13 and was drinking heavily by the time he was aged 15 years. At about the age of 10 or 12 years, the respondent used marijuana regularly, and by the age of 16 or 17 years he commenced using methamphetamine and ice. On occasions his drug use has caused him to be hospitalised.
In the course of the plea, a report by a forensic psychologist was tendered. The psychologist was of the opinion that the respondent had been depressed for some time, possibly since childhood. He came from a dysfunctional family, was subject to abuse and neglect and exposure to drugs, and experienced learning and behavioural difficulties. The psychologist concluded that the respondent's escalating depression had led to his increased drug use and risk-taking. The psychologist expressed concern about the respondent entering the adult prison system, for he had been stood over at a youth training centre. She said that his psychological condition rendered him vulnerable in an adult prison setting.
The sentencing judge received a pre-sentence report from the Department of Human Services, which assessed the respondent as being unsuitable for a youth justice order. The report stated, in part:
Mr Richard Daly from Malmsbury Health Services reports the comprehensive assessment undertaken indicates the extent of entrenched offending and thinking and attitudes that Jake presents with are all the features of a young man who has hard-wired thoughts and beliefs regarding offending and anti-social behaviour. The most significant indicator of entrenched criminal behaviour is the age offending commenced, and with Jake he began at a very early age. Jake has beliefs and attitudes that are indicative of pro-offending and anti-social behaviour. These are the hardest of class to shift, and Mr Daly is not optimistic of long-term change for Jake. Mr Daly continues that Jake has not shown himself to be vulnerable in Malmsbury, and he comes with a significant history of youth justice involvement, which reflects little evidence of long-term positive change. Jake's behaviour while in Malmsbury Youth Training Centre indicates that Jake is not presenting as vulnerable and has been assessed as being quite sophisticated in his manipulative behaviours in custody, despite his presenting emotional health issues, level of cognitive functioning, impressionability, and disadvantaged childhood trauma experiences and his small stature physical appearance. The prognosis for rehabilitation is limited. Therefore, in accordance with section 32(1) of the Sentencing Act 1991, which takes into account prospects for rehabilitation, or, if a young person is particularly impressionable, immature or likely to be subject to undesirable influence in prison, Jake Massey is assessed as being not a suitable candidate for a youth justice centre order.
The sentencing judge appears to have regarded rehabilitation of the respondent as of prime importance. She said:
It is to be hoped, however, that the reality of your status as a father, combined with the support of your partner and mother, will provide much needed impetus for change, which has thus far been seriously lacking. In my view, the community cannot afford to lose hope in this regard and must continue to pursue your rehabilitation because you will be released and you will still be a young man, and the community's best protection lies in your rehabilitation.
And again:
In my view, the weight of both general and specific deterrence, which clearly has significant weight in this case, do not displace the need to accommodation, to the extent that it is possible, of your prospects of rehabilitation. Despite your history, I think youth detention offers the community the greatest prospect.
It was proper to approach the sentencing of a 19-year-old offender with rehabilitation firmly in mind. I am of the opinion, however, that her Honour erred in proceeding upon the basis that the respondent’s prospects of rehabilitation were more than limited and effectively rejecting the pre-sentence report. Her Honour elevated rehabilitation to a level which effectively minimised the gravity of the offences. In my opinion, the offences were extremely serious examples of the crimes of which the respondent was convicted. In particular, the respondent's conduct in driving a car at high speed when he knew that a person was trapped underneath it was callous in the extreme. It had drastic consequences for Davidson, who was lucky not to have been killed.
In my opinion, the sentence imposed upon the respondent was wholly inadequate. I accept that it is not the role of this Court to substitute its judgment for that of the sentencing judge. The appellant must establish that the sentence passed below is so disproportionate to the seriousness of the crimes and the offending conduct as to shock the public conscience.[1] In my opinion, the sentence in this case is so unreasonable or unjust that it can be concluded that the sentencing judge failed to exercise her discretion properly.
[1]See Lowndes v The Queen (1999) 194 CLR 64 at [15], Director of Public Prosecutions v Mirik [2007] VSCA 150 [37], and Director of Public Prosecutions v Bright (2006) 163 A Crim R 538 at [10] and [11].
I am conscious of the constraint imposed by the principle of double jeopardy. I am also conscious that the respondent has never been incarcerated in an adult prison. I would sentence the respondent to be imprisoned for a term of one month on count 1, for a term of six months on count 2, for a term of two years on each of counts 3 and 4, for a term of three-and-a-half years on count 5, and for a term of 18 months on count 6. I would cumulate six months of each of the sentences on counts 3 and 4 upon each other and upon the sentence on count 5, producing a total effective sentence of four years and six months' imprisonment. I would fix a minimum term of two years and six months' imprisonment before the respondent is to be eligible for parole.
VINCENT JA:
I agree.
ROBSON AJA:
I agree as well.
BUCHANAN JA:
The orders of the Court will be as follows:
The appeal is allowed.
The sentences passed below are set aside and in lieu thereof the respondent is sentenced to be imprisoned for a term of one month on count 1, for a term of six months on count 2, for a term of two years on each of counts 3 and 4, for a term of three years and six months on count 5, and for a term of 18 months on count 6.
It is ordered that six months of each of the sentences on counts 3 and 4 be cumulated on each other and on the sentence on count 5.
The total effective sentence is four years and six months' imprisonment.
A term of two years and six months' imprisonment is fixed before the respondent is to be eligible for parole.
It is declared that a period of 180 days is to be reckoned as already served under the sentence and it is directed that the fact that that declaration has been made and its details be entered in the records of the Court.A certificate under s 15 of the Appeal Costs Act is granted to the respondent.
Pursuant to the provisions of Rule 36.07, on 9 December 2008 the Court amended the judgment and orders made on 3 December 2008 by adding:
(a) an order that the sentence imposed below on the summary charge of unlicensed driving is set aside and in lieu thereof the respondent is sentenced to be imprisoned for a term of two months to be served concurrently with the sentence on Count 5. The sentence on the charge of careless driving is confirmed.
(b) an order that the order made below disqualifying the respondent from obtaining a driving licence is set aside and in lieu thereof it is ordered, pursuant to the provisions of sub-s 89(4) of the Sentencing Act1991 and s 28 of the Road Safety Act1986 that the respondent be disqualified from obtaining a driver licence for a period of four years from 6 June 2008.
(c) an order that the order made below for the taking of a sample pursuant to the provisions of s 464ZF of the Crimes Act1958 is confirmed.
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