James Cardona v The Queen

[2021] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0253

JAMES CARDONA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2021
DATE OF JUDGMENT:	8 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 9
JUDGMENT APPEALED FROM:	[2020] VCC 1422 (Judge C Ryan)

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CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal – Reckless conduct endangering persons (1 charge) and theft of motor vehicle (1 charge) – Plea of guilty – Prior and subsequent offending – Matters not auguring well for prospects of rehabilitation – Assistance given in respect of unrelated offending – Whether TES of 15 months with NPP of 9 months manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Futile to grant extension of time – Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	James Dowsley & Assoc
For the Respondent	Mr P L Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA:

1. On 24 February 2020, the applicant pleaded guilty to one charge of reckless conduct endangering persons[1] (charge 1) and one charge of theft of a motor vehicle[2] (charge 2).  On 8 September 2020, following a plea hearing, the applicant was sentenced as follows:

   [1]Contrary to s 23 of the Crimes Act 1958.

   [2]Contrary to s 74 of the Crimes Act.

Charge	Offence	Maximum	Sentence	Cumulation
1.	Reckless conduct endangering persons	5 years	12 months	Base
2.	Theft of motor vehicle	10 years	6 months	3 months
Total effective sentence:		15 months
Non-parole period:		9 months
Pre-sentence detention:		18 days
Section 6AAA statement:		3 years with a non-parole period of 18 months

1. On 3 December 2020, the applicant filed a notice of application for leave to appeal against his sentence, contending that the sentence imposed was manifestly excessive.  As the application was out of time, on 9 December 2020, the applicant filed an application for an extension of time within which to file and serve his application for leave to appeal.  The application for an extension of time is opposed by the respondent.  The respondent submits that the applicant’s proposed ground of appeal is not reasonably arguable and it would thus be futile to grant the applicant the extension of time he seeks.

Circumstances of the offending

1. On 19 July 2018, a co-offender, Matthew Jaeger, stole a four wheel drive and trailer from a farm property at Wheatsheaf.  On the following day, the applicant was captured on CCTV both as a passenger and a driver of the stolen vehicle at different times during that evening. 

1. At about 12:20 am on 21 July 2018, with Jaeger driving the stolen four-wheel drive and the applicant as the passenger, the applicant was involved in a police pursuit in Melton South.  The applicant filmed and recorded the pursuit on his mobile phone.  The recording shows the applicant during the pursuit saying, ‘Come on, come on, piggies.  Let’s go.  Yeah, they’re actually following us brother. Yeah’.  Jaeger can be heard to say ‘I’m gonna ram ya’, referring to the police vehicle.  Jaeger and the applicant evaded that pursuit.

1. Some 45 minutes later, with Jaeger as the driver and the applicant as the passenger, Jaeger drove the vehicle west along the Western Highway at Grangefields.  The vehicle crossed the westbound lanes of the highway, crossed over the grassed median strip, and travelled east along the highway.  Jaeger completed this manoeuvre in front of a marked police car that was travelling in an easterly direction along the highway.  The vehicle was pursued by the police car, then being driven by First Constable Webster, with Constable Bromley as her observer.  During the pursuit, Jaeger attained a speed of 120 kilometres per hour in a 110 kilometre per hour zone.  As they were being pursued, the applicant leant out of the vehicle and shone a torch into the eyes of First Constable Webster, which caused her to slow down temporarily.

1. A short time later, when the police car was directly behind the vehicle, Jaeger braked suddenly and came to a complete stop on the freeway.  In response, First Constable Webster braked heavily and came to a stop approximately 30 metres behind the vehicle.  Jaeger then placed the four-wheel drive into reverse and drove at the stationary police car, ramming the front of the police car with sufficient force to cause the airbags in the police car to deploy.  As a result of the collision, First Constable Webster suffered redness, swelling, minor lacerations and a sore wrist.  Constable Bromley suffered a soft tissue injury to his neck.  After the collision, Jaeger and the applicant simply drove away from the scene.

1. An investigation conducted by a member of the Collision Reconstruction and Mechanical Investigation Unit of the Victoria Police established, from the airbag control module in the police car, that the police car was stationary, and the other vehicle was travelling at between 15 and 19 kilometres per hour, at the time of the collision.

1. On 23 July 2018, the applicant was arrested and interviewed by police.  During the interview, the applicant said:

·he was in the back seat of the car;

·it was like fun and games;

·it was another friend of Jaeger’s who was ‘holding a torch out the window’;

·Jaeger did a U-turn on the freeway and then he ‘slammed on the brakes and some cop slammed up his arse’;

·Jaeger took off, ‘I told him to stop and, shit, he wouldn’t stop;  all I was really worried about was if whoever was in the car was all right’;  and

·he did not know that the car was stolen.

Sentencing reasons

1. The sentencing judge commenced his reasons for sentence with a summary of the applicant’s criminal history.[3]  The judge observed that the applicant’s criminal history began in the Children’s Court in 2012, when the applicant was 15 years of age.[4]  He also observed that the applicant had ‘14 findings of guilt or convictions arising from four court appearances’, including prior convictions or findings of guilt for robbery and other dishonesty offences, as well as offences of violence and driving offences.[5]  The judge referred to the applicant’s most recent court appearance, which occurred in October 2019 in relation to the offences of criminal damage, making a threat to kill, threatening to damage property, committing an indictable offence while on bail, contravening a conduct condition of bail, and using a prohibited weapon without approval.  The judge noted that the applicant had been convicted and released on a community correction order (‘CCO’) for 12 months, with a condition that the applicant perform 100 hours’ unpaid community work.[6]

   [3]DPP v Cardona [2020] VCC 1422 (‘Reasons’).

   [4]Ibid [4].

   [5]Ibid.

   [6]Ibid.

1. The judge then described the circumstances of the applicant’s offending and its aftermath.[7]  In the course of describing the offending, the judge noted that the basis of the theft charge (charge 2) was the evidence of the applicant driving the stolen vehicle on 20 July 2018.[8]  His Honour then observed that the basis of the reckless conduct endangering persons charge was that the applicant was complicit in Jaeger’s conduct of using the stolen vehicle to ram the police car.  The judge noted that the applicant’s counsel accepted that the prosecution was entitled to rely upon the first pursuit, the contents of the film taken by the applicant during the course of that pursuit, and the conduct of the applicant in flashing the torch at the driver of the police vehicle as circumstantial evidence to establish that, by his presence, the applicant encouraged Jaeger to drive in the manner he did causing the stolen vehicle to collide with the police car.[9]  Having set out the circumstances of the offending, the judge said that the applicant’s plea of guilty ‘should attract an additional level of discount because of the weakness of the prosecution case’.[10]

   [7]Ibid [5]–[16].

   [8]Ibid [5].

   [9]Ibid [15].

   [10]Ibid [17].

1. The judge then turned to the applicant’s personal circumstances, noting that the applicant was 21 years of age at the time of the offending, and 23 at the time of sentencing.[11]  The judge referred to the fact that the applicant was unemployed, and lived with his partner and four year old daughter.[12]  The judge then described the applicant’s family history (including that the applicant’s father had died in 2017) and his school and work history, leading up to him discontinuing an apprenticeship in construction in 2017.[13] 

   [11]Ibid [18].

   [12]Ibid.

   [13]Ibid [19]–[24].

1. Next, the judge set out a chronology of the applicant’s prosecution as follows:

·On 23 July 2018, the applicant was arrested, charged and remanded in custody.

·On 9 August 2018, he was granted bail.

·On 9 October 2018, he offered to plead guilty to two charges:  reckless conduct endangering serious injury, on the factual basis of shining the torch at the police vehicle;  and theft of a motor vehicle.

·On 11 January 2019, a committal proceeding took place where no witnesses were called.  Submissions were made as to the applicant’s criminal liability in respect of other and more serious charges, and the applicant was committed for trial on that day.

·On 28 January 2020, the applicant offered to plead guilty to a charge of recklessly engaging in conduct endangering persons on the factual basis of shining the torch at the driver of the police vehicle, and being complicit with the ramming of that vehicle.  That offer was initially rejected, before being accepted by the prosecution on 18 February 2020.

·On 24 February 2020, the applicant was arraigned and pleaded guilty to the two charges to which we have already referred.  There was then a further period of delay before a plea hearing occurred on 8 September 2020.[14]

[14]Ibid [27].

1. The judge said that the applicant was, ‘at the least, entitled to the benefit arising from the delay between arraignment and plea’.[15]

   [15]Ibid.

1. The judge then returned to matters personal to the applicant and discussed the effect of various reports, letters and references that had been tendered during the course of the plea hearing.[16]  In the course of this part of his Honour’s reasons, the judge summarised:

·a report from Odyssey House relating to counselling sessions the applicant underwent between November 2018 and May 2019;

·a letter from MacKillop Family Services dealing with the applicant’s engagement with that service, his support for his partner and the care he had provided to his daughter when needed since the offending;

·a report from a psychologist, Mr Coffey, which, amongst other things, concluded that the applicant’s psychological state was largely governed by his drug use;

·a report from the Scott Street medical centre which stated the applicant’s diagnoses as ‘substance abuse (marijuana, ice), depressive anxiety disorder and epigastric pain’;[17]  and

·supportive references written by the applicant’s partner, mother, grandfather and mother-in-law.

[16]Ibid [29]–[43].

[17]Ibid [36].

1. The judge referred to a submission made by the applicant’s counsel on the plea that, ‘in all the circumstances a community correction order with stringent conditions, including judicial monitoring, was the appropriate disposition’ of this case.[18]  The judge noted that the applicant was assessed as a suitable candidate for a CCO, ‘despite [him] being assessed as a high risk of general reoffending’.[19]

   [18]Ibid [37].

   [19]Ibid.

1. As to the applicant’s prospects of rehabilitation, the judge said that the offences which resulted in the applicant’s most recent court appearance in October 2019 were a matter of concern and did not augur well for his rehabilitation.[20]

   [20]Ibid [38].

1. The judge then said that it was a matter of ‘further concern’ that the applicant had ‘performed only a handful of unpaid community work and for most of 2020 [had] not been in contact with those supervising [the CCO imposed in October 2019]’.[21]  The judge said that this gave him ‘real concern’ as to the applicant’s prospects for rehabilitation.[22]

   [21]Ibid [39].

   [22]Ibid.

1. Next, the judge returned to the evidence concerning the applicant’s use of cannabis to alleviate his cravings for methylamphetamine following his release from custody on bail.  The judge observed that the applicant’s cannabis use resulted in him being consistently in breach of the law while on bail, and that this too did not augur well for his prospects of rehabilitation.[23]

   [23]Ibid [40].

1. During the course of the plea hearing, a statement made by the applicant to police in respect of a murder investigation was tendered.  While the judge said that the precise value of the information provided by the applicant was unclear, the statement the applicant made had ‘some potential value’, and accordingly he was entitled to ‘a benefit’ for his co-operation with the authorities in relation to that matter.[24]  The judge did however note that, from the contents of the statement, the relationship between the applicant and the accused in the murder prosecution appeared to have been one where the applicant supplied the accused with cannabis.  The judge said that this fact added to his disquiet about the applicant’s prospects of rehabilitation.[25]

   [24]Ibid [41].

   [25]Ibid [42].

1. The judge concluded his reasons for sentence as follows:

Mr Coffey in his report recommends treatment akin to that recommended by your general practitioner and which you have failed to take up.  You remain addicted to cannabis.  You have committed serious offences whilst on bail for the instant offending.  You have been assessed as a high risk of reoffending generally and have not complied with the community correction order that you were placed on in October last year.  While you are a youthful offender and any sentence imposed upon you must look to your rehabilitation, despite the benefits that you are entitled to arising out of your plea and your cooperation with authorities in respect of another investigation I am not satisfied that a community correction order meets the purposes of sentencing in your case.

You are an appropriate vehicle for the application of general deterrence.  You are a person who must be specifically deterred from reoffending.  Your conduct must be denounced.[26]

[26]Ibid [43], [45].

Was the sentence manifestly excessive?

1. In his proposed ground of appeal, the applicant contends that the total effective sentence and non-parole period are manifestly excessive when regard is had to his plea of guilty and the stage at which it was entered, his prospects of rehabilitation, his personal circumstances, his assistance in relation to the murder investigation, his youth, and an additional burden of imprisonment as disclosed in Mr Coffey’s report and by the fact that the applicant’s present incarceration is his first time in custody, which itself has been made more burdensome by the COVID-19 pandemic.

1. The applicant was originally charged with the aggravated offence of intentionally exposing an emergency worker to risk by driving.  Ultimately, the matter settled when the prosecution accepted the applicant’s plea to the charge of reckless conduct endangering persons.  In his reasons for sentence, the judge said that he took the applicant’s plea as ‘having been entered at an early stage’ and one entitling him to the benefits that flow from such a plea.[27]  There is no basis for contending that the judge did otherwise than what he said he did in sentencing the applicant.  The applicant’s submission to the contrary must be rejected.

   [27]Ibid [28].

1. Similarly, to the extent that the applicant submitted that the judge had failed to give proper weight to the applicant’s personal circumstances and youth, that submission must be rejected.  These matters were dealt with comprehensively by the judge in his reasons.  Moreover, there is nothing in the ultimate sentence imposed which suggests that they were not properly taken into account or given appropriate weight.

1. In oral argument, counsel for the applicant submitted that the evidence disclosed that the applicant was a man who had made ‘great strides towards rehabilitating himself’ following his offending.  While there was some support in the material tendered on the plea for the proposition that the applicant had taken some steps towards rehabilitating himself, we see no error in the judge’s conclusion that there were circumstances which gave real concern as to the applicant’s prospects for rehabilitation.  Those matters included the applicant’s offending that led to his court appearance in October 2019, his failure to engage substantially with the terms of the CCO imposed in October 2019, and his continued use of cannabis and its supply to a third party as disclosed in his police statement in relation to the murder prosecution.

1. As to the applicant’s co-operation with authorities in relation to the murder prosecution, we see again no error in the judge’s treatment of this issue.  Moreover, we are unable to conclude from the sentence imposed that the judge failed to give this matter proper weight.

1. The applicant submitted that the judge impermissibly linked ‘two mutually exclusive considerations’:  the applicant’s prospects of rehabilitation, and the ‘discount’ he could expect to receive from his provision of assistance to the authorities in the murder prosecution.  There is no substance in this submission.  Nothing in his Honour’s reasons suggests that he reduced the benefit the applicant was otherwise entitled to for his co-operation by reference to a diminution in the applicant’s prospects of rehabilitation as disclosed by his supply of cannabis to the accused in the murder prosecution.  Both matters were relevant.  Both matters fell to be considered in the sentencing synthesis.  There is nothing to suggest that the judge engaged in any impermissible reasoning.

1. In relation to the burdensomeness of the applicant’s incarceration, again we see nothing in the judge’s reasons that suggests error.  The applicant’s submissions overstated the effect of Mr Coffey’s report.  None of the principles in Verdins[28] were engaged by the evidence tendered on the plea.  That said, the judge appropriately considered Mr Coffey’s report and opinion, relying upon it as part of the evidentiary matrix in the overall sentencing synthesis. 

   [28]R v Verdins (2007) 16 VR 269 (‘Verdins’).

1. As has been said many times before, manifest excess is a difficult ground to make out.  It requires an applicant to establish that the sentence imposed is wholly outside the permissible range of sentencing options open to the judge.  The offending constituting charge 1 was a particularly egregious example of the offence of reckless conduct endangering persons.  The encouragement of a person to drive at speed so as to reverse into another motor vehicle, in which there were people, is both outrageous and reprehensible.  In our view, the sentence imposed on charge 1 was, if anything, modest.

1. Having considered all of the evidence and the applicant’s arguments for ourselves, we have concluded that the sentence imposed by the judge was, far from being manifestly excessive, a moderate one in all the circumstances.  The applicant’s proposed ground of appeal is not reasonably arguable. 

Should an extension of time be granted?

1. In light of our conclusion that the applicant’s proposed ground of appeal is not reasonably arguable, it would be futile to grant him the extension of time which he seeks.  The application for an extension of time should thus be refused.

Conclusion

1. The application for an extension of time within which to file an application for leave to appeal against the sentence imposed on 8 September 2020 is refused.

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