DPP v Roberts

[2020] VCC 1195

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00557

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAEME JOHN ROBERTS

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June & 1 July 2020
DATE OF SENTENCE:	7 August 2020
CASE MAY BE CITED AS:	DPP v Roberts
MEDIUM NEUTRAL CITATION:	[2020] VCC 1195

REASONS FOR SENTENCE
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Subject:         CRIMINAL LAW
Catchwords: Police pursuit - dangerous driving while pursued by police - aggravated offence of recklessly exposing an emergency worker to risk by driving - conduct endangering persons - possession of methylamphetamine – summary offences - drive knowing had been given a direction to stop by a police officer – fail to stop vehicle after an accident – drive whilst disqualified - deal with property suspected of being the proceeds of crime - use unroadworthy vehicle on a highway – relevant criminal history – Verdins principles – youthful offender – mild intellectual disability – ADHD – guarded prospects for rehabilitation – early plea of guilty.
Legislation Cited:    
Cases Cited: Verdins v R (2007) 16 VR 269
Sentence: Total effective sentence three years and three months imprisonment with a non-parole period of 26 months' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J O’Toole	Solicitor for Office of Public Prosecutions
For the Accused	Ms E Millar	Victorian Legal Aid

HIS HONOUR:

1       Graeme John Roberts, you have pleaded guilty to the following charges:

Charge 1 – dangerous driving while pursued by police, contrary to s.319AA(1) of the Crimes Act 1958;

Charge 2 – aggravated offence of recklessly exposing an emergency worker to risk by driving, contrary to s.317AF(1)(b) of the Crimes Act 1958;

Charge 3 – conduct endangering persons, contrary to s.23 of the Crimes Act 1958;

Charge 4 – conduct endangering persons, contrary to s.23 of the Crimes Act 1958; and

Charge 5 – possession of a drug of dependence, namely methylamphetamine, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

2 A number of summary charges were transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. You pleaded guilty to those matters which are as follows:

Summary Charge 1 – at Eaglehawk on 25 September 2019, you drove a motor vehicle knowing that you had been given a direction to stop by a police officer, contrary to s.64A Road Safety Act 1986;

Summary Charge 14 – at Long Gully on 25 September 2019, being the driver of a motor vehicle, you failed to stop the vehicle after an accident, contrary to s.61(1)(a) Road Safety Act 1986;

Summary Charge 16 – at Long Gully on 25 September 2019, you drove whilst disqualified, contrary to s.30(1) Road Safety Act 1986;

Summary Charge 20 – at Golden Square on 25 September 2019, you dealt with property suspected of being the proceeds of crime, contrary to s.195 Crimes Act;

Summary Charge 21 – at Golden Square on 25 September 2019, you did use a vehicle on a highway that was not in a safe or roadworthy condition, contrary to Regulation 259(1) of the Road Safety (Vehicles) Regulations 2009; and

Summary Charge 39 – at Long Gully on 25 September 2019, you failed to stop your vehicle after an accident.

Circumstances of Offending

3       The circumstances of your offending are set out in the Prosecution Opening for Plea which was read out in Court. Your offending is also captured in the recordings made by the police airwing and police body cameras all of which I have viewed.

4       On 25 September 2019, police were attempting to locate you in relation to outstanding allegations. They were aware that you would likely be driving a red Ford XR6 sedan, Registration No. 944 444.  Given your history of offending, police were concerned that you might attempt to drive away from them to avoid apprehension.  The Police Airwing was tasked to assist police with your arrest.

5       Sergeant Rodney Davis, First Constable Jacinta Morrissey and Senior Constable Aylah Loricco were tasked to find and arrest you. They were in an unmarked police car driven by Sergeant Davis.

6       Shortly before 12.30 pm you were seen by them driving along Averys Road, Eaglehawk. Sergeant Davis pulled off to the side of the road as you sped past his car at a fast rate of speed. He performed a U‑turn and began to follow you.  At this time the Police Airwing also began to follow your vehicle and record its movements.

7       You were seen to enter Neanger Court, Eaglehawk. Neanger Court has only the one entry and exit point for vehicles. You parked your car under a carport and you and another person got out of the car. You looked up at the police Airwing unit and shortly thereafter you alone got back into your car.

8       Sergeant Davis followed you into Neanger Court, as did a marked police divisional van being driven by Leading Senior Constable Monaghan.

9       They parked their cars in the middle of the court in an effort to block your exit.

10      Sergeant Davis and officers Morrissey and Loricco got out of their car.  They were each wearing full police operational equipment, including vests bearing police tags on the front and rear. 

11      As they were getting out of their car, you reversed your car from where it was parked and then drove forward towards where the police cars were parked. You drove in the direction of Officer Morrissey, who was near the front passenger side of her car. You sought to drive around the passenger side of her car by mounting the kerb and nature strip.

12      Officer Morrissey, in fear of being struck by your car, was forced to take evasive action by retreating to the police car. She managed to get between the car’s front passenger door and its pillar.  She was attempting to get inside the car but did not have sufficient time to do so.  You drove past her at a relatively fast speed and, in so doing, your car struck the front passenger door behind which Officer Morrissey was sheltering, pinning her between the door and the body of the car.

13      This conduct forms part of Charge 2 which is a ‘rolled-up’ charge.

14      The impact of the door hitting Officer Morrissey caused her immediate pain. You also caused minor damage to the police car.  You did not stop, but continued driving out from Neanger Court.  Whilst doing so, you almost collided with a police motorcycle ridden by Leading Senior Constable Bruce Slimmon who had also attended Neanger Court to assist with your arrest.  Your driving caused him to lean his motorcycle over to the left and move his right leg towards his body to avoid being hit by you.  This conduct also forms the basis for Charge 2.

15      For the next 27 minutes, you drove dangerously and at high speeds in both residential and bush areas whilst being pursued by police vehicles and the Police Airwing.  I set out some of the details of your driving:

16      While driving along Simpsons Road, Eaglehawk, near the intersection with Gallway Street, you overtook a blue coloured station wagon at approximately 113 kilometres per hour.  The applicable speed limit was 60 kilometres per hour.

17      Approximately one minute later, while driving along Howard Street, Epsom, you overtook a silver coloured SUV at approximately 85 kilometres per hour, driving across solid double white lines.  The speed limit was 60 kilometres per hour.

18      While continuing to drive along Howard Street, you overtook a silver coloured sedan at approximately 130 kilometres per hour.  The applicable speed limit at this time was 80 kilometres per hour.

19      While continuing to drive along Howard Street, you overtook a blue sedan around a bend, crossing over double white lines.  You were driving at approximately 144 kilometres per hour in an 80 kilometre per hour zone.

20      While still on Howard Street, as you were approaching Bowles Road, you passed a white ute and then a red ute by driving on the dirt shoulder of the road at approximately 120 kilometres per hour.  You then overtook a blue coloured SUV at approximately 142 kilometres per hour before turning off Howard Street and into Goynes Road.

21      

You entered Goynes Road on the incorrect side of the road, narrowly missing a white sedan, and continued before turning left into Botheras Court.  You then got out of your car and appeared to check the rear bumper bar before re-entering the car and continuing to drive.  You drove back onto Goynes Road, passing a silver four-wheel drive on its left side at an approximate speed of

80 kilometres per hour.  The speed limit in Goynes Road was 60 kilometres per hour. 

22      You continued along Goynes Road and overtook a black sedan at approximately 100 kilometres per hour.  You then entered Kennewell Street, Epsom, and overtook a white coloured ute at approximately 127 kilometres per hour.  A short time later, you were driving along Holdsworth Road, Bendigo, and overtook a black ute at approximately 94 kilometres per hour.  As you approached the roundabout at Prouses Road, you overtook a white coloured tanker at approximately 94 kilometres per hour.  You then entered Prouses Road and overtook a car and trailer at approximately 99 kilometres per hour.  Further along that road, you overtook two white cars at approximately 102 kilometres per hour.

23      At approximately 12.45 pm, you were driving along Albert Street, Long Gully, approaching the intersection with Sparrowhawk Road.  You drove to the left of a four‑wheel drive being driven by Faith Pitson, who was waiting to turn right into Sparrowhawk Road.  As you passed Ms Pitson’s car, you collided with it, scratching the passenger side of her car.  You failed to stop. You turned right into Sparrowhawk Road, in front of Ms Pitson’s car, accelerating away. Your failure to stop after colliding with Ms Pitson’s car is the basis for Summary Charge 14.

24      

At approximately 12.48 pm, while driving along Marong Road, Golden Square, you overtook a white SUV.  You were travelling at approximately

131 kilometres per hour.  As you got to the intersection of Happy Valley Road and Stray Street, Long Gully, you failed to give way at the intersection, continuing to drive through it, where you collided with a white Mazda ute being driven by Ronald Threlfall.  Selina Donelly was a passenger in his car.  Your car collided with, and damaged, the step below the driver’s door of Mr Threlfall's car. This driving resulting in a collision is the basis of Charge 3, reckless conduct endangering serious injury.  You also narrowly missed colliding with a police divisional van.

25      You failed to stop following the collision.  This is the basis of Summary Charge 39, failing to stop after an accident.

26      At approximately 12.49 pm, while you were driving along Stray Street, you moved onto the dirt shoulder of the road and passed a green coloured ute on its passenger side.  You were travelling at approximately 101 kilometres per hour at the time.

27      You turned into Derwent Drive and then into Sparrowhawk Road at a fast rate of speed, causing your car to slide across the carriageway and onto the dirt shoulder.  Officer Slimmon, on his motorcycle, was in the northbound lane of Sparrowhawk Road when you slid across the road, onto the dirt shoulder and then came towards him at a fast rate of speed. Your rear tyres were spinning on the roadway and the car was out of control.  Officer Slimmon was forced to take evasive action. This is the basis of Charge 4, reckless conduct endangering serious injury.

28      You continued to drive on Sparrowhawk Road and then onto some bush tracks in an attempt to lose the pursuing police.

29      

At approximately 12.55 pm, you were seen in bushland at the rear of

60 Sparrowhawk Road, where you stopped and parked your car.  As you got out of your car you looked towards the Police Airwing before getting back in and continuing to drive.

30      While driving along Sparrowhawk Road you moved onto the incorrect side of the road, travelling at approximately 137 kilometres per hour around a bend.  The speed limit on Sparrowhawk Road was 60 kilometres per hour.

31      Still on Sparrowhawk Road, you moved onto the dirt shoulder, passing a red sedan on its left.  You were travelling at approximately 116 kilometres per hour.

32      Approximately one minute later, you were driving along Marong Road, Golden Square, when you overtook a white ute and trailer, entering on to the wrong side of the road, travelling at approximately 130 kilometres per hour.  The speed limit on Marong Road is 60 kilometres per hour.  A little further along that road you overtook a red ute and trailer on its passenger side.  You were still travelling at approximately 130 kilometres per hour.

33      You finally stopped your car in Hasker Street, Golden Square.  You got out of your car and were seen to be jumping fences and running into a nearby house, before you were ultimately arrested.

34      On arrest, you were searched and police located a clear zip-lock bag containing a small amount of methylamphetamine.  This forms the basis of Charge 5, possession of a drug of dependence.  You admitted to the drug being methylamphetamine. The drug weighed less than 1 gram.

35      Police conducted a search of your car.  The registration plates on it are believed to be the proceeds of crime.  This forms the basis of Summary Charge 20, dealing with property suspected of being proceeds of crime.

36      Inspection of your car revealed that it was not in a safe and roadworthy condition.  Each of the tyres were bald and three of them were under-inflated.  The left-hand side mirror was partially detached from its mounting with the mirror facing down.  This forms the basis of Summary Charge 21, using a vehicle not in a safe or roadworthy condition.

37      During the pursuit police had their lights and sirens activated, of which you were aware, but you failed to stop.  This is the basis of Summary Charge 1, failing to stop on police request.  For the entirety of your driving whilst being pursued, you drove in a dangerous manner, having regard to your failure to stop, the speeds at which you were driving, driving towards oncoming traffic, failing to observe traffic signs, and overtaking without due care and attention.  This conduct forms the basis of Charge 1, dangerous driving while pursued by police.

38      You have never held a driver’s licence. Indeed, on 24 May 2019, you were disqualified from obtaining a licence or permit for a period of 12 months.  Accordingly, you were driving whilst you were disqualified from driving.  This forms the basis of summary Charge 16.

39      As a result of your conduct, Officer Morrissey suffered bruising to her legs and arms, and injuries to her right hip, right shoulder, both knees and rib cage.  She continues to experience pain, mostly to her back, as a result of the impact. I have had full regard to her impact statement, which was tendered at the plea hearing but not read in open Court at her request. I will not refer to its detail in these reasons other than to say your offending is not without consequence and has had a significant impact on her.

40      You were interviewed by police where you admitted to owning and driving the red coloured XR6 while being pursued by police.  You admitted to knowing that police had attempted to block you in at Neanger Court.  You denied hitting a police vehicle and did not recall hitting any other car.  You admitted that the registration plates 944 444 did not belong to your car.  You estimated that you travelled at speeds of up to 140 kilometres per hour.  You could not recall driving on the incorrect side of the road but admitted to driving into on-coming traffic.  You denied knowing that the registration plates were stolen and you admitted to being in possession of methylamphetamine, saying you had consumed methylamphetamine the day before.  You told police, falsely, that was the first time you had ever used methylamphetamine.

41      With regard to the events in Neanger Court, you acknowledged that you saw police standing around and admitted to reversing out of the car park, seeing police cars in the middle of the road, and driving around them, up and over a gutter.  You denied placing Officer Morrissey at risk, saying that she had shut the door of the car and went to the back of the car.  You denied hitting the police car and stated you would never drive towards a police officer.  You said you took off to try and lose the police.

Criminal History  

42      You have admitted your criminal record. 

43      Your history of offending extends back to 31 July 2015 at the Bendigo Children’s Court.  On that occasion, without conviction, you were placed on probation for six months and directed to participate in a road trauma awareness program for offences which included driving in a manner dangerous; failing to stop your vehicle on police request; driving your vehicle causing loss of traction; three charges of using an unregistered motor vehicle on a highway; three charges of unlicensed driving; possession of cannabis; behaving in a riotous manner in a public place; and failing to answer bail.

44      On 3 May 2016, at the Bendigo Children’s Court, you were found guilty of breaching the probation order, and placed on probation for six months from that date.  You were also found guilty of three charges of reckless conduct endangering life; four charges of driving whilst disqualified; two charges of negligently dealing with proceeds of crime; three charges of failing to stop your vehicle on police direction; and two further charges of driving whilst disqualified.

45      On 8 March 2017, at the Bendigo Magistrates’ Court, without conviction, you were placed on a 12 month bond for theft.

46      On 13 April 2017, at the Bendigo Magistrates’ Court, you were convicted of  dangerous driving whilst being pursued by police; failing to stop motor vehicle on request; committing an indictable offence whilst on bail; driving whilst disqualified; using an unregistered motor vehicle; driving in a manner dangerous and other offences.  You were convicted and placed on a Community Correction Order for 12 months.  You were disqualified from driving for a period of 12 months.

47      On 16 May 2017, at the Bendigo Children’s Court, you were placed on a bond without conviction for the offences of unlawful assault and driving whilst disqualified.

48      On 15 February 2019 you were charged with contravening the Community Correction Order.  The charge was found proven and you were convicted and fined.  The original Correction Order was confirmed.

49      On 24 May 2019, at the Bendigo Magistrates’ Court, you were dealt with for a number of charges relating to contravention of Family Violence Orders; two charges of unlawful assault; reckless conduct endangering life; 10 charges of being a learner driver without an experienced driver present; seven charges of using an unregistered motor vehicle; five charges of fraudulently using a registration label; driving a vehicle causing loss of traction; failing to stop a motor vehicle on police request; and failing to stop a motor vehicle on police direction.  You were sentenced to a total effective term of imprisonment of 150 days as well as a Community Correction Order for a period of 12 months.  You were further directed to participate in services specified in a Justice Plan.  You were disqualified from driving for a period of 12 months.  You were warned not to drive a motor vehicle.  On that same day you were also convicted of a number of dishonesty charges; seven charges of committing an indictable offence whilst on bail; and two charges of contravening a conduct condition of bail.

Background and Personal Circumstances

50      I turn now to your background and personal circumstances.

51      You were born on 18 April 1998 and were 21 years of age at the time of this offending.

52      You described a normal childhood, growing up in Kangaroo Flat and you say you felt cared for by your parents. You are the second youngest of six children.

53      You also spent a lot of time in the care of your grandparents. You did report that your father tended to drink a lot and was sometimes violent, but never towards you.

54      The Department of Health and Human Services was, at one stage, involved with your family as a result, it would seem, of your problematic behaviour.

55      

You attended Kangaroo Flat Primary School and then Kalianna Special School in Bendigo.  You were expelled during Year 9 because of your poor behaviour.  You have not had any further formal education.  I was told by

Ms Millar, who appeared on your behalf, that you were 14 years of age when you left school, and that throughout your schooling you suffered from a learning disability and attention deficit hyperactivity disorder for which you were prescribed Ritalin, Dexamphetamine and Catapres.

56      You have held a number of jobs since leaving school. You worked in a car wrecking yard for two and a half years. You also worked in a spray painting business, a tyre and auto shop business and as a plasterer. You reported that your employers were generally happy with your work performance. You last worked approximately two years ago at the tyre and auto shop. You had been employed there for some 11 months. You quit that job, it would appear, after a weekend of methylamphetamine use.

57      You have had one significant relationship during which your son was born. He is now aged three years. You report a very close relationship with your son and have not been able to see him in person since the COVID-19 restrictions. You do have video calls with him twice per week. Your son is under the supervision of Department of Health and Human Services because of your former partner’s own issues with drug abuse.

58      Ms Millar tendered reports from Laura Scott, clinical neuropsychologist, dated 5 June 2020, and from Professor Michael Daffern, consultant psychologist, dated 21 May 2019 which was prepared in respect of an earlier court hearing.

59      Ms Scott said that you are hopeful for the future, stating that when you are released you want to go back to work and be with your son. You said something similar to Professor Daffern when you were last remanded.

60      You reported a history of polysubstance abuse, commencing in your teenage years.  You commenced to drink alcohol at the age of 15 or 16; cannabis at the age of 16; benzodiazepines at the age of 16; ecstasy at the age of 17; ice at the age of 18; and GHB at the age of 21.  At the time of these offences you were using approximately three grams of cannabis; one gram of methylamphetamine; and six or seven mls of GHB each day.

61      You told Ms Scott that you had used ice and GHB on the day of the offences. You said you had seen police approaching your mother’s home earlier that day and assumed they had come to arrest you. You fled from your mother’s house. Later that day you were aware that police, including the Airwing, were trailing you. You again attempted to flee but you strongly denied driving towards a police officer. You told Ms Scott that you drove around the police car and did not recall hitting its door. You acknowledge being involved in a lengthy car chase and said to Ms Scott that you stopped when the car had no more petrol and three flat tyres. You also told her you were 'coming down off ice and not in the right frame of mind'. You said you also began to fear that you might hurt someone if you did not stop.

62      Ms Scott administered a number of tests during her interview with you. On assessment you presented with a reduced level of overall intellectual function  with significant difficulties in numerous areas of adaptive function. Your full scale IQ of 67 is in the range of mild intellectual disability. You presented with mild symptoms of depression, anxiety and high levels of stress. She could not say whether those symptoms of depression, anxiety and stress, were present at the time of the offending.

63      There were prominent impairments in higher attentional and executive skills, consistent with the earlier diagnosis of ADHD. You also suffered a traumatic brain injury in January 2016 when involved in a car accident. You made a good recovery but the brain injury was likely to be contributing to the additional impairments observed in higher attention and executive functions. Ms Scott stated that your profile is consistent with a traumatic brain injury on a background of neurodevelopmental conditions, they being mild intellectual disability and ADHD.

64      At page 13 of her report Ms Scott stated:

'From a purely cognitive perspective, Mr Roberts’ difficulties with impulse control, planning and organisation would undermine his ability to regulate his behaviour and anticipate the consequences of his actions. His thinking is somewhat rigid and he is prone to making errors on complex tasks or when under pressure. He struggles to consider … a situation from different perspectives or to weigh up alternatives when making a decision. Difficulties with planning and impulsivity mean

Mr Roberts is more likely to respond in impulsive, unplanned ways, and struggles to stop and consider the future impact of his actions. His thinking and behaviour is also likely to be more disorganised than others around him'.

65      Ms Scott stated that you demonstrated a clear appreciation for right and wrong and although you may be susceptible to acting on impulse, you are able to stop and reflect once the immediate situation passes. She considered that your disorganisation of thought and poor concentration severely undermines your capacity to think clearly and make calm, well-reasoned decisions. Your cognitive and behavioural impairments, in her opinion, were likely significant contributors to your offending.

66      Ms Scott also stated that your disabilities are likely to have had a secondary impact on your life in that you struggle more than most to participate in pro-social behaviour and have a greater risk of problematic behaviours such as drug use and criminality. However, I do note that you did have a good history of employment and appeared to get on well with your employers and work colleagues when working.

67      Ms Scott also stated that poorly coordinated movements are commonly seen in people with ADHD and this may have impaired your ability to judge the distance between yourself and the police vehicle or to plan a safe route through the available space.

68      Professor Daffern interviewed you on 12 April 2019. You were then on remand at Fulham Prison in respect to the charges dealt with at the Bendigo Magistrates’ Court on 24 May 2019. You reported that you were working in the kitchen, attending gym, swimming, and not experiencing issues with other prisoners. You also completed a number of courses. Professor Daffern stated that you knew driving without a licence and driving to avoid apprehension was illegal. Further, with regard to the charge of breaching a Family Violence Intervention Order, he considered that your intellectual disability might have limited your capacity to communicate effectively your distress and solve problems but it did not compromise your ability to determine that your behaviour was illegal.

Defence Submissions

69      Ms Millar relied on the following matters in mitigation of sentence -

i.    The matters set out in the psychological reports and the diagnoses of mild intellectual disability, traumatic brain injury, ADHD, mild depressive symptoms, anxiety and severe levels of stress, and the impact such difficulties have on your offending behaviour.

ii.    The offending, whilst serious, must be seen in the context of your impaired mental functioning.

iii.    The application of Verdins’[1] principles 1 to 5.

[1][1] Verdins v R (2007) 16 VR 269

iv.    Your youth and the sentencing principles relevant to sentencing youthful offenders.

v.    Your pleas of guilty.

vi.    Your remorse and insight into your offending behaviour.

vii.    Your prospects for rehabilitation and the risk of you reoffending.

viii.    The totality principle of sentencing.

ix.    Prison hardship as a result of the COVID-19 pandemic.

70      Ms Millar submitted that even though you understood the illegality of your conduct, by reason of your intellectual disability and ADHD, you were not able, in the moment you were offending, to appreciate the consequences of your actions and to think of other alternatives. She submitted that stopping the car was not one of the options you were able to consider. Your instinctive impulse, it was submitted, was to revert to learned behaviour of driving off from police.

71      It was also submitted that whilst you were aware that police were attempting to box you in, you did not see Officer Morrissey or notice colliding with the police car. It was put that your attentional deficits may explain your failure to notice each of the collisions and Officer Morrissey, and that your drug use exacerbated those cognitive issues.

72      Tendered on your behalf were certificates of courses which you have recently completed whilst in custody. You have completed the 'Ice and me' and 'Cannabis and me' programs and have received a statement of attainment from the Kangan Institute in 'Control Traffic' and 'Implement Traffic Management Plan'.

73      Ms Millar also relied on a letter of apology from you. I was told that the letter was written by another inmate but that the sentiments expressed are your own. In that letter, which was read to the Court by Ms Millar, you expressed your deep and sincere apologies for the physical and emotional impact your driving had on Officer Morrissey and her family, and to the community generally. You also stated that you were under the influence of drugs that severely hindered your ability to think reasonably and consciously. You have since been addressing your drug issues in custody.

74      Ms Millar conceded that an immediate term of imprisonment was warranted and submitted that it would be appropriate to impose a lengthy period of parole, as this would best assist with your rehabilitation and ultimately the community’s protection.

Prosecution Submissions

75      Mr O’Toole, who appeared on behalf of the Director of Public Prosecutions, submitted in relation to Charge 1 that your driving conduct made this a very serious example of dangerous driving. Added to that, he said, is the fact that you have never held a licence and have no proper experience of driving.

76      In relation to Charge 2, a rolled-up charge, he submitted that your offending fell in the mid-range of seriousness when regard is had to the following matters:

i.    Officer Morrisey suffered actual injury;

ii.    Officer Slimmon was unprotected;

iii.    You fully appreciated that the police were wanting to arrest you when you decided to get into your car and manoeuvre your way through the cordon police had established; and

iv.    That notwithstanding your denials, you knew that Officer Morrissey was attempting to take evasive action and was in your immediate line of sight. It was submitted that I should reject your explanation that you did not see Officer Morrissey. Given her position, directly in your line of sight, it is implausible that you did not see her.

77      

Mr O’Toole also submitted that the seriousness of your offending on

Charges 3 and 4 also fell in the mid-range, having regard to the speeds and manner in which you were driving. Further, that Officer Slimmon was required to take evasive action to preserve his safety.

78      With respect to the defence submission that your impairments may explain your failure to notice the evasive action taken by others, the minor collisions or speeds and distances involved between you and other road users, Mr O’Toole submitted I should reject that submission. Rather, he submitted, the evidence suggested otherwise when regard is had to your driving, including your ability and foresight to sound your car’s horn as you were approaching an impending collision, your ability to overtake, and to weave in and around other cars.

79      Mr O’Toole accepted that your mild intellectual disability, ADHD and mild depressive symptoms enlivened the first four of the Verdins principles but that the weight attaching to each principle should be moderated given your drug use, your ability to appreciate right from wrong, and the fact that you made a deliberate choice to avoid apprehension. He disputed that your cognitive impairment was ‘significant’.

80      Mr O’Toole submitted that given your history of offending, protection of the community and specific deterrence are significant sentencing considerations.

Sentencing Considerations

Nature and Gravity of Offending

81      There can be little doubt that the manner and speed at which you drove whilst being pursued by police was extremely dangerous and highly reprehensible.  

82      Charge 1 is a particularly serious instance of the offence of dangerous driving while being pursued by police. The maximum penalty for this offence is three years’ imprisonment.

83      You drove dangerously for approximately 30 minutes. You knew that police were pursuing you. Your driving clearly endangered police and members of the public. Much of your driving was in residential streets at speeds well in excess of the applicable speed limit. You overtook cars on their left, you crossed double white lines, you overtook cars on bends, you drove on the incorrect side of the road, you drove towards oncoming traffic, you disobeyed traffic signs and police directions to stop, all in an unroadworthy car whilst being pursued by police. I have reviewed the recordings which show, in frightening detail, the dangerousness of your driving.

84 Charge 2 is a rolled-up charge of two offences contrary to s.317AF(1)(b) of the Crimes Act 1958. The maximum penalty for this offence is 10 years’ imprisonment.

85 The particulars of the charge are that you committed an offence against s.317AE of the Crimes Act in that, without lawful excuse, you drove in the vicinity of Officers Morrissey and Slimmon, emergency workers on duty, and you recklessly exposed them to a risk to their safety, knowing or being reckless as to whether they were emergency workers. Further, you committed that offence in connection with an offence against s.317 AG(1) of the Act in that, without lawful excuse, you recklessly drove a motor vehicle so that damage was caused to an emergency services vehicle, knowing or being reckless as to whether the vehicle was an emergency services vehicle.

86      In plain language, you drove very close to the police cars parked in Neanger Court. You knew they were police cars and that the persons in and around them were police. You said as much in your interview. You had no lawful excuse to be driving. You had no lawful excuse to drive in the way you did and to seek to avoid arrest.  Your manner of driving, over the kerb and onto the nature strip, through a tight space, passing very closely to the unmarked police car, colliding with it, and then around the bend, almost colliding with Officer Slimmon on his motorbike, exposed both officers to a risk to their safety. They were both in vulnerable positions, particularly Officer Morrissey, who was effectively trapped between the door of the police car and its body. As you drove towards her, she was caught in a position where she could not escape. She thought she was going to be seriously injured or killed. She suffered both emotional trauma and physical injury which continues to this day.

87      I am not prepared to accept the submission that you were not aware of Officer Morrissey’s presence or that you had struck the police vehicle, in the absence of evidence. Apart from your assertion in the police interview, no evidence was called in support of the submission. I do not accept the speculative opinion of Ms Scott that your difficulties and attentional impairments may help to explain the asserted failure to notice others taking evasive actions or the minor collisions. Ms Scott did not consider, it would seem, if you did fail to notice, whether drug intoxication may also have had that effect.

88 An offence against s.317AF is a Category 2 offence under the Sentencing Act. Ms Millar did not seek to argue that I should find any of the exceptions applied, given her concession that a term of imprisonment with a non-parole period was warranted. Further, s.16(3D) of the Sentencing Act requires that every term of imprisonment imposed for an offence against s.317AF of the Crimes Act be served cumulatively on any other sentence of imprisonment imposed unless otherwise directed by the Court.

89      

The video recording of your driving that gives rise to Charges 3 and 4, well shows just how serious your offending was in respect to those charges. At the intersection of Happy Valley Road and Stray Street there was a give way sign facing you. You did not give way. You did not stop.  Mr Threlfall’s car and a police van were clearly visible and had the right of way. You turned right onto Stray St cutting across the path of the police van. You narrowly missed colliding with it. You also narrowly avoided a more serious collision with

Mr Threlfall’s car. You collided with his car side on and did not stop. Again, you claim to have been unaware of the collision. Again, I am not prepared to accept that assertion without evidence. In any event, you do not dispute colliding with his car and you admit that your driving placed Mr Threlfall and his passenger in danger of serious injury.

90      Despite that collision you continued driving in a dangerous manner, trying to evade police. Within two minutes of colliding with Mr Threlfall’s car you lost control of your car as you turned onto Sparrowhawk Rd, sliding onto the carriageway as Officer Slimmon was approaching from the opposite direction. You were driving at a speed that was simply too fast to take the turn safely. Officer Slimmon had to take evasive action to avoid the danger of collision caused by you.

91      The offence of conduct endangering persons carries a maximum penalty of five years’ imprisonment.

92      I accept Mr O’Toole’s submission that your conduct giving rise to Charges 2, 3 and 4 falls in the mid-range of seriousness.

93      With regard to Charge 5, having regard to the small quantity of methylamphetamine found in your possession, and your admission to being a user of the drug, I am satisfied that your possession was not for any purpose related to trafficking. Accordingly, the maximum penalty is one year imprisonment or 30 penalty units.

94      You also fall to be sentenced on the summary offences to which you pleaded guilty. Summary Charge 1 has a maximum penalty of 12 months' imprisonment or 120 penalty units. You were aware that police had directed you to stop. You did not stop because you wanted to avoid being arrested.

95      Summary Charge 14 carries a maximum penalty of five penalty units or a term of imprisonment of not more than 14 days, and summary charge 39, because it is a subsequent offence, to a penalty of not more than 10 penalty units or to imprisonment for a term of not less than 14 days and not more than one month.

96      Summary Charge 16 is the offence of driving whilst you were disqualified from driving. The maximum penalty for this offence is 240 penalty units or two years’ imprisonment. You have eight prior convictions for this offence. You demonstrate little to no regard for orders of the Court prohibiting you from driving.

97      Summary Charge 20 relates to your dealing with registration plates that were suspected of being the proceeds of crime. The plates were in fact fitted to your car. You told police that you bought a car for parts and they were in that car. You did not know they were stolen plates. This charge carries a maximum penalty of two years’ imprisonment.

98      Summary Charge 21 is based on your use of a car that was not in a safe and roadworthy condition. It carries a maximum penalty of five penalty units.

Verdins’ Considerations

99      There was no issue between counsel that because of your cognitive impairment arising from your intellectual disability, ADHD and mild depressive symptoms, anxiety and stress, a number of the Verdins’ principles are enlivened. The issue between counsel was the extent which your cognitive impairment should moderate those considerations.

100     Ms Millar submitted that your moral culpability is reduced and that general and specific deterrence should be moderated 'to some extent'. She conceded that your drug use exacerbated your cognitive issues at the time of your offending but that should impact on the Verdins’ considerations to a small degree only because your underlying cognitive impairment remains significant. Mr O’Toole emphasised that your intellectual disability is mild and that whilst Ms Scott considered that your cognitive and behavioural impairments were likely significant contributing factors, you admitted to using significant amounts of drugs on a daily basis at the time of the offending, you had a clear knowledge of right from wrong, and you committed the offences as a deliberate choice to avoid arrest.

101     As earlier mentioned, you told Ms Scott that you had taken ice and GHB that day and were coming down from your use of ice and were not in the right frame of mind. You attributed your belief that you could avoid arrest to the effects of GHB. You acknowledged to Ms Scott that your use of drugs impacted your decision making on the day and that if you weren’t on drugs you would have stopped.

102     Curiously, Ms Scott did not specifically address the impact that drug use had on your offending behaviour. However, Ms Millar, properly in my opinion, conceded that your drug use was relevant to your offending. You were also clearly of that view.

103     Indeed, further to what you told Ms Scott, in your apology letter to the Court you stated that you were under the influence of drugs which severely hindered your ability to think reasonably and consciously. I consider this to be an important admission as to why you behaved in the way you did.

104     In assessing the weight to be attributed to each of the relevant principles referred to in Verdins I have regard to the following matters in particular:

i.    At the time of the offending, and at the time of sentencing, you were and are suffering a well-established mental impairment. I have already referred to Ms Scott’s diagnoses.

ii.    I accept, based on the opinion of Ms Scott, that your impaired mental functioning contributed causally to the commission of the offences. You have mental inflexibility and hence you tend to revert to well-learned behaviours such as evading arrest when under pressure. You have a disorder of impulse control which predisposes you to impulsivity and you struggle to think through the consequences of different causes of action. Your disorganisation of thought and poor concentration undermine your capacity to think clearly and make calm, rational decisions.

iii.    You do have, however, a clear appreciation of right and wrong. Further, you are able to stop and reflect once the immediate situation passes.

iv.    You had some opportunity to reflect on your conduct. You first believed that police were going to arrest you when you were at your mother’s house. You were aware of the Police Airwing when you were at Neanger Court and before getting back into your car. You were aware of the arrival of police at Neanger Court. During the 30 minute pursuit you stopped the car on some five occasions, from what I could see in the recordings. On at least two of those you got out of the car to inspect it.

v.    You were grossly affected by your drug use. This also impacted, in my opinion, significantly, to your behaviour. As you said to Ms Scott, 'On the juice you think you are untouchable'. You told her that if you were not on drugs you would have stopped on the day because you knew what would happen. You also had insight into the danger of what you were doing, explaining to Ms Scott, 'I thought, fuck, if I don’t stop now I’m going to hurt someone bad'.

105     I accept that your moral culpability is reduced by reason of your mental impairment. It would otherwise be very high given that drug use provides no excuse for your offending and given very similar offending in the past.

106     In my opinion, it is appropriate to moderate, but not eliminate, the need for general and specific deterrence. Both are still important sentencing considerations, particularly specific deterrence. I do not consider that there should be significant moderation given  your drug use and its relationship with your offending; your insight into the danger you were creating by driving in the manner you did; your understanding that police wanted you to stop; your understanding that what you were doing was wrong; and your criminal record.

107     I accept that your mental impairment will mean that the sentence to be imposed will weigh more heavily on you than it would on a person in normal health. Ms Scott was concerned at the level of psychological distress she noted on her assessment, as well as reports of your recent suicidal ideation. You are isolated from your family and have limited coping skills. I also have regard to the impact that the COVID-19 pandemic restrictions have on you and accept that the restrictions will make your time in custody more difficult.

Rehabilitation and Risk of Further Offending

108     With regard to the submissions made by Ms Millar as to your prospects for rehabilitation and the risk of you further offending, I must also take into account what I consider to be an appalling criminal history, particularly as it relates to driving related offences, your lengthy reliance on illicit substances, and Ms Scott’s opinion that your cognitive impairments, in isolation, increase the risk of future offending.

109     Ms Scott considered that your impairments have not been well treated to date, but that with appropriate multidisciplinary supports the risk of future offending will be meaningfully reduced. She does caution, however, that you are very vulnerable to problematic behaviours in the face of unexpected life stressors. It was noted that you have recently been approved for an NDIS plan and that this is cause for some optimism with regard to your access to treatment.

110     In my opinion, your prospects at this time are guarded. You were previously directed to complete a road trauma awareness program. The offences before me occurred when you were on a Community Correction Order, a matter which in fact aggravates your offending. As part of that order you were required to undergo various treatment programs to assist with your rehabilitation, including participation in services specified in a Justice Plan. Your counsel was not able to tell me what was provided under that Plan or the extent of your participation. You have also breached an earlier Corrections Order as well as a probation order.

111     You are still a youthful offender and your rehabilitation and reclamation is an important consideration. I am mindful of the concerns expressed by Ms Scott as to your vulnerability to manipulation and victimisation. I am also conscious of the potential corrupting influences of imprisonment in an adult gaol. However, given the seriousness of your offending, my assessment of your prospects for rehabilitation, your history of offending, and the need for deterrence and protection of the community, the weight that would ordinarily attach to rehabilitation is diminished. This will not be the first time you have been incarcerated.

Pleas of Guilty and Remorse

112     Your pleas of guilty were entered at a very early stage and have facilitated the course of justice. You have saved the Court and community the time and expense of a committal hearing and trial. Importantly, you have spared witnesses from having to give evidence. Your pleas of guilty are also an indicator of your remorse. I accept, through your expressions to Ms Scott, and to the Court through your counsel, that you are genuinely remorseful for your behaviour, particularly the danger you caused to Ms Morrissey and others.

Current Sentencing Practice

113     

I have had regard to each of the cases referred to by both Mr O’Toole and

Ms Millar. They are of some assistance to an understanding of current sentencing practice for some of the offences you committed, but the sentence which ultimately is to be imposed must be one which is just and appropriate in all the circumstances of your case.

Sentence

114     As already mentioned, both counsel submitted that the only sentence appropriate is one of imprisonment with a non-parole period. I agree.

115     I also accept the application of the totality principle for the reasons advanced by Ms Millar. However, and notwithstanding your age, I do not propose to place you on a lengthy parole period. Given my finding as to your prospects for rehabilitation, I do not consider that the protection of the community will best be served by a lengthy parole period.

116     You should understand, Mr Roberts, that if you continue to commit criminal offences, particularly when behind the wheel of a car, you will be spending more and more time in gaol.

117     Mr Roberts, would you please now stand?  Thank you.

On Charge 1 you are convicted and sentenced to a term of imprisonment of 14 months;

On Charge 2 you are convicted and sentenced to a term of imprisonment of 18 months;

On Charge 3 you are convicted and sentenced to a term of imprisonment of 12 months;

On Charge 4 you are convicted and sentenced to a term of imprisonment of 10 months;

On Charge 5 you are convicted and sentenced to a term of imprisonment of one month;

On Summary Charge 1 you are convicted and sentenced to a term of imprisonment of three months;

On Summary Charge 14 you are convicted and sentenced to a term of imprisonment of seven days;

On Summary Charge 16 you are convicted and sentenced to a term of imprisonment of eight months;

On Summary Charge 20 you are convicted and sentenced to a term of imprisonment of two months;

On Summary Charge 21 you are convicted and fined the sum of $200;

On Summary Charge 39 you are convicted and sentenced to a term of imprisonment of 21 days.

118     Charge 2 is the base sentence.

119     I order that the following periods are to be served cumulatively on the base sentence and on each other: seven months of the sentence imposed on Charge 1; five months of the sentence imposed on Charge 3; five months of the sentence imposed on Charge 4; four months of the sentence imposed on summary Charge 16.

120     This makes a total effective sentence of three years and three months. I set a non-parole period of 26 months' imprisonment.

121     Have the parties agreed on pre-sentence detention?

122     MR O'TOOLE:  Yes, Your Honour, 317 days excluding today.

123     HIS HONOUR:  Ms Millar?

124     MS MILLAR:  Yes, I agree, Your Honour.

125     HIS HONOUR:  All right.  I declare that 317 days, not including today, as a period of imprisonment already served under the sentence.

126 Pursuant to s.6AAA Sentencing Act, had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of four years' imprisonment with a non-parole period of two years and 10 months.

127 Because of Charge 2 you have committed a 'Serious motor vehicle offence'. Pursuant to s.89(1)(c) of the Sentencing Act I disqualify you from obtaining a driver’s licence or learner’s permit for a period of three years from today’s date.

128 Pursuant to s.89C of the Sentencing Act, I find that offences 1, 2, 3 and 4 on the indictment were committed whilst you were under the influence of a drug which contributed to the offences.

129 In relation to Summary Charge 1, pursuant to s.64A(4) you are disqualified from driving for a period of 16 months from today.

130     I make the disposal order sought in respect of the methylamphetamine.

131     Mr Roberts, you may be seated.  Mr O'Toole, are there any other matters which I need to address?

132     MR O'TOOLE:  No, Your Honour, I might have misheard Your Honour, but I'm not sure I heard Your Honour pass sentence in relation to Summary Offence No.39.

133     MS MILLAR:  Yes, I am satisfied, Your Honour.

134     HIS HONOUR:  Is that right?

135     MR O'TOOLE:  It is the second charge of failing to stop.

136     HIS HONOUR:  Yes, you are right.  The first being Summary Charge 14.

137     MR O'TOOLE:  Yes, Your Honour.

138     HIS HONOUR:  Summary Offence 39 carries a minimum term of 14 days, does it not?

139     MR O'TOOLE:  Yes, Your Honour, a maximum of one month.

140     HIS HONOUR:  And a maximum of one month, yes.

141     MR O'TOOLE:  Yes, Your Honour.

142     HIS HONOUR:  Thank you for bringing that to my attention.  I had overlooked that.  I will insert it in my reasons for sentence to be published after Summary Charge 21, convicted and fined $200, will appear the following.  On Summary Charge 39 you are convicted and sentenced to 21 days' imprisonment.

143     MR O'TOOLE:  If Your Honour pleases.

144     MS MILLAR:  As Your Honour pleases.

145     HIS HONOUR:  Are there any other matters?

146     MS MILLAR:  No, Your Honour.

147     HIS HONOUR:  All right.  I am grateful to both of you for your assistance and your submissions in this matter.  Mr Roberts, Ms Millar is now going to speak to you.  Please do not leave that room.  Thank you.  Please adjourn the court.

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