DPP v O'Sullivan

[2020] VCC 1449

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00866

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN O'SULLIVAN

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2020
DATE OF SENTENCE:	10 September 2020
CASE MAY BE CITED AS:	DPP v O'Sullivan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1449

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Aggravated offence of recklessly exposing emergency service workers to risk by driving; theft of number plates; possession of a drug of dependence.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).
Cases Cited: Astbury v The Queen [No 2] [2020] VSCA 158.
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Halloran	Mr D. Brown, Solicitor for Public Prosecutions
For the Offender	Mr M. McGrath	Gallant Law Pty Ltd

HER HONOUR:

1Sean O'Sullivan, you have pleaded guilty to the following:

·three charges of theft of number plates;

·one charge of an aggravated offence of recklessly exposing emergency service workers to risk by driving; and

·one charge of possession of a drug of dependence.

2The circumstances of your offending have been provided in the Summary of Prosecution Opening (Exhibit A) which your counsel accepts is an accurate account of events.  A general summary of the facts is as follows.

3Between 7:00pm on 26 March and 2:00am on 27 March 2020, you drove your white Ford Ranger to Aberdeen Road, Macleod.  At that location, you took the front number plate from one car, attaching it to the rear of your car (Charge 1) and the front number plate from another car, attaching it to the front of your car (Charge 2).

4Between 7:30pm on 27 March and 2:00am on 28 March 2020, you attended Steane Street, Reservoir and took the front number plate from another car (Charge 3).

5On 28 March 2020, at approximately 2:10am, you were driving your car with an unknown passenger.  You picked up two more passengers and drove along Boldrewood Parade, Reservoir.  Your car was observed by two police officers, Detective Senior Constable Worland and Senior Constable Tuohy, as they were driving south in an unmarked police car.

6Detective Senior Constable Worland conducted a U-turn and started to follow you, for approximately 700 metres.  The police observed you park your car next to a pizza shop at 168 Boldrewood Parade with the front of your car facing the rear fence of 11 Crookston Street, Reservoir. 

7At approximately 3:04 am, Detective Senior Constable Worland parked right behind you.  He observed the reverse lights on your car to become illuminated.

8Police then activated their red and blue flashing lights.  You immediately reversed your car into the front of the police car and continued to accelerate. Detective Senior Constable Worland had to apply the brakes to prevent the police car from being pushed back.  You drove forward into the fence in front of you and police activated the sirens located within their vehicle.  You then reversed your car another five times into the police car, in quick succession.  Both police officers remained seated in the police car and feared that they would suffer serious injuries (Charge 4). 

9Your car ultimately came to rest.  You opened the driver's side door, jumping out onto the bonnet of your car before running away through the backyard of 11 Crookston Street. The unknown person seated in the front passenger seat also ran from the scene.  The two backseat passengers were arrested. 

10Police commenced a search of your vehicle and recovered several items that enabled them to identify you as the driver.  One stolen number plate was also located inside the car, as was a small quantity of 1,4-Butanediol contained in a small plastic bottle in the centre console (Charge 5).

11Once the police commenced their investigation it was inevitable that they would identify you as the driver. 

12On 30 March 2020, you attended the Preston police station with your father, as you were aware that the police wanted to speak to you. 

13You were arrested and interviewed.  You admitted that the white Ford Ranger was owned by you and registered in your father's name, although you exercised your right to silence when asked questions about the instant offending.  You were charged, remanded in custody and have now served 164 days of pre-sentence detention.

14You have pleaded guilty to committing an aggravated offence of recklessly exposing emergency workers to risk by driving.  You used your car to place police members on duty at risk of harm. This type of violence is unacceptable.  The maximum penalty is 10 years' imprisonment.  The commission of this offence also requires a mandatory licence disqualification for a period of not less than 24 months.[1]

[1] Sentencing Act 1991 (Vic) ss 87P (definition of ‘serious motor vehicle offence’) para (ba); 89(1)(a); 89(2)(b) (‘Sentencing Act’).

15There had been no previous interaction between you and the police on the night of this incident.  There is no suggestion that you were aware of the number of occupants in the car parked behind you, nor that the vehicle was in fact a police car, until the driver activated the red and blue lights and sirens.  Fortunately, Detective Senior Constable Worland parked a very short distance behind your car, limiting the speed and momentum that you could gain as you reversed.  He then moved the police car forward, reducing the distance between the cars each time you reversed, so limiting your capacity to cause any significant damage or injury to the vehicle's occupants.

16You admit that your conduct was reckless, in that you exposed two police members to the consequences of your violent driving.  Your explanation for your offending is that you panicked when you realised that it was a police car that had stopped behind you, as you had attached stolen number plates to your car.  Once it was clear that you were unable to move your vehicle to get away, you fled on foot.  Your conduct was impulsive and ill-considered.

17While no Victim Impact Statement has been provided by either of the police members, it is accepted by you that this would have been a frightening experience.  It is most fortunate that they did not suffer injury from your conduct.

18You were charged on 30 March 2020.  Your case proceeded as a straight hand-up brief, with a plea of guilty entered at a very early stage, on 14 July 2020.

19That 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 that jury trials are not currently proceeding, in light of the COVID-19 pandemic.

20You have admitted your criminal history, being 3 prior appearances in the Magistrates' Court for consolidated pleas of guilty, between February 2013 and November 2016.  While you have prior convictions for property damage, dishonesty and drug matters, you have not previously targeted or acted violently towards police.  The current offences demonstrate an escalation in the seriousness of your offending.  This is the first time you will be sentenced to a term of imprisonment.

21At the time of this incident, you were 25 years old.  Your age is a relevant consideration, even though it falls at the upper end of the range of a youthful offender.  In light of your offending and your criminal history, the mitigating effect of age and your relative youth is reduced, although it is not extinguished.  These factors are still relevant when considering your prospects of rehabilitation. General deterrence and denunciation are also relevant considerations when sentencing in this matter.

22You were born on 8 June 1994 and are now 26 years of age.  You are not currently in a relationship.  You are a member of a loving and supportive family and have one younger brother.  Your parents were present at the plea hearing.

23Your childhood was a happy one.  You were popular at school and excelled at sport.  You were successfully involved in football, basketball and athletics at a junior level.  You struggled academically, however, leaving school in Year 11.

24You have a strong work history, undertaking various forms of employment including working in a hotel, as a tree lopper, landscaping and lawn mowing.  In your early 20's, you commenced a carpentry apprenticeship, of which you have approximately 18 months outstanding.  You were last in paid employment in June 2019.

25You have a history of illicit substance use, which began when you experimented with drugs when you were 15 years old.  At the age of 18, after leaving school, you started to regularly use methylamphetamine and GHB, developing an addiction. 

26Your criminal history is drug related.  You have been given the opportunity to address your rehabilitation in the community, being sentenced in September 2015 and in November 2016 to Community Correction Orders with conditions for treatment and rehabilitation. In the past, you have also attempted to overcome your drug use by directly engaging with a number of psychologists, as well as undertaking several periods of residential rehabilitation. 

27I accept that you have benefited from your efforts to rehabilitate.  You remained abstinent from drug use and were able to live a positive lifestyle in the community for approximately 4 years prior to these offences.

28Regrettably, you relapsed into illicit drug use, several months prior to the current offending.  You were in a relationship with another drug user at the time.  Your drug use affected your capacity to work and you lost your job in June 2019.  The relationship ended in January 2020 and your drug use again became out of control.  It was in that context that these offences occurred.  The drugs that were located by police in your car were for your own use.

29A letter has been prepared for the Court by Mr Joshua Ryan, your former employer, dated 12 August 2020.  He first worked with you in 2017.  When he started his own company, he became your mentor, taking you on as an apprentice in March 2019.  He was impressed by your previous work ethic.  He is aware that you have a history of drug use and its effect on your capacity to make good decisions.  He would employ you again should the opportunity arise.

30While in custody, you have spent most of your time at Ravenhall in the Everton Mission Unit, a voluntary 25-bed treatment community for those who are on remand for the first time.  You have regularly undertaken and completed a number of educational courses.  Since 11 June 2020, you have also worked as a billet.  You have a role as a “peer listener” which indicates that you are viewed as a respectful and well-behaved prisoner, who is trusted by the prison authorities.  When you were first remanded, you commenced a Certificate II in Horticulture, although that course has been suspended in the current environment. You have provided a clean urine sample, confirming that you are not currently using drugs. 

31You have undertaken a period of self-reflection while in custody.  Your goals when released are to finish your apprenticeship, to move away from Melbourne and to successfully integrate into the local community, remaining drug-free.  You acknowledge that you will need to access drug rehabilitation.

32Your father, Mr Kevin O'Sullivan, has provided a letter to the Court, dated
8 August 2020.  He describes the negative impact of your drug use on your lifestyle and on your family.  Your battle with addiction and your related criminal behaviour has been distressing for your parents.  They have not permitted you to remain living in the family home when you are using drugs, as they do not condone this behaviour.

33Your father confirms that when you are not using drugs, you are a sensitive and caring member of the family.  Your parents have never wavered in their support of you and will continue to do so in the future.  You maintain regular contact with them while in custody.

34You have told your father that you are sorry for your dangerous conduct and understand that you need to make significant changes to your lifestyle.  I accept that you have shown remorse for your actions and that this is consistent with your early plea of guilty.  I am prepared to moderate your sentence to reflect that.

35After reading the references from your family and friends, it is clear that they all support your goal to establish a better life.  You are most fortunate in that regard.  Upon your release from custody, you will have stable accommodation, the capacity to access rehabilitation and employment.  These prosocial supports will certainly assist you to achieve your goals, although maintaining a drug-free lifestyle is critical if you are to be successful.

36I accept that your drug use provides a context for your offending and your prospects for rehabilitation are, in my view, reasonably good.  In the past you have managed to overcome your addiction after receiving appropriate treatment, remaining offence and drug-free in the community.  Ongoing professional intervention is required if your rehabilitation is to be successful.  A period of supervision provided by parole will form part of this sentence, which will be of benefit to you and to the community.

37An offence under s.317AF Crimes Act[2] is a Category 2 offence pursuant to the Sentencing Act.[3]  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 are established.[4]  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[5] for any sentence imposed under s.317AF.[6]

[2]Crimes Act 1958 (Vic) s 317AF (‘Crimes Act’).

[3]Sentencing Act (n 1) s 5(2H).

[4] Ibid s 5(2H)(a)-(e); Crimes Act (n 2) s 317AF(3).

[5]Sentencing Act (n 1) s 16(3D).

[6]Crimes Act (n 2).

38It is conceded that the principle of general deterrence looms large and is the principal sentencing factor here, while denunciation and just punishment are also relevant.  Rehabilitation also remains a relevant consideration.

39I take into account the measures taken by Corrections to deal with the COVID-19 pandemic have added to your hardship as a prisoner, particularly as this will be your first time as a sentenced prisoner.  The prosecution concedes as much.

40I am aware that the first 14 days you spent in custody were in 24-hour lockdown, due to quarantine requirements.  I do not provide any specific sentencing benefit for this or for the possibility that lockdown may occur again.  As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of the prison authorities.

41It is clear, however, that the current time will be more stressful for you than it would be if you were in the community.  This is not only due to your personal position of confinement but also to the hardship you may feel being absent from your family at this difficult time.  The emotional impact of being unable to have any personal visits so far and for the foreseeable future will increase the burden of imprisonment.  You are also likely to feel more vulnerable to the possibility of infection of the virus in light of your incarceration. 

42The Court of Appeal has recently acknowledged in Astbury v The Queen [No 2][7] that these hardships justify a sentencing benefit.

[7] [2020] VSCA 158 [33].

43The offence of recklessly placing emergency workers’ safety at risk by driving[8] and its aggravated form[9], have only recently been incorporated into the Crimes Act.  It appears that they have not yet been considered in sufficient numbers to build up a sentencing profile. I have considered the cases referred to by both the prosecution and defence counsel in the course of their submissions. 

[8]Crimes Act (n 2) s 317AE.

[9] Ibid s 317AF.

44The prosecution's position is that although a term of imprisonment must be imposed in your case, this is not a serious example of this type of offending. I take into account the maximum penalties for each offence. 

45While there is a presumption of cumulation, the principle of totality also needs to be considered.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.  In my view, in all the circumstances, it is appropriate to impose a longer period on parole than would normally be imposed.  I have adjusted the sentence I impose accordingly.

46Balancing all the relevant factors as best I can I sentence you as follows.

47Charges 1, 2 and 3: Given that these offences are a series of offences of a similar character and in effect, form part of the one course of conduct, I impose an aggregate sentence of 3 months' imprisonment.

48Charge 4, you are convicted and sentenced to 18 months' imprisonment.

49Charge 5, you are convicted and sentenced to 1-month imprisonment.

50I direct that the sentence for Charge 4 be the base sentence.  I direct that 1 month of the aggregate sentence for Charges 1, 2 and 3 be cumulative upon the base sentence and that the sentence for Charge 5 is to be concurrent.

51That is a total effective sentence of 19 months' imprisonment.  I set a non-parole period of 9 months.

52I enter in the records of the court that 164 days have been served as pre-sentence detention.

53I make the order for disposal as requested and note there is no objection to the application.

54Your licence is cancelled.  You are disqualified from driving for the minimum period of 24 months.

55The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 2 years and 3 months with a non-parole period of 18 months.

56MR McGRATH:  As Your Honour pleases.

57HER HONOUR:  Is there anything further, Mr O'Halloran or Mr McGrath?

58MR O'HALLORAN:  No, Your Honour.  And with Your Honour's leave, I'll leave the court now.

59HER HONOUR:  Yes, you're excused, Mr O'Halloran - and Mr McGrath,
Mr O'Halloran, thank you very much.  I'll ask my tipstaff to formally adjourn the court and then we'll excuse anyone that's not intending to remain on the link.  Thank you.

60MR O'HALLORAN:  Yes, thank you.

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