McKay v The King (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0180

BOBBY MCKAY	Appellant
v
THE KING [NO 2]	Respondent

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JUDGES:	KYROU and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2023
DATE OF JUDGMENT:	9 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 8
JUDGMENT APPEALED FROM:	[2021] VCC 1782 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Twelve charges on indictment and 10 related summary charges involving driving and theft offences – Total effective sentence 5 years, 10 months and 60 days’ imprisonment – Non-parole period 4 years – Sentence of 3 years for aggravated reckless exposure of an emergency worker to risk by driving – Whether sentence manifestly excessive – Serious deprivation and social disadvantage – Appeal allowed – Appellant resentenced to 4 years, 10 months and 60 days’ imprisonment – Non-parole period 3 years, 2 months – Bugmy v The Queen (2013) 249 CLR 571, applied.

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Counsel
Appellant:		Mr DA Dann KC with Mr T Battersby
Respondent:		Ms RL Harper
Solicitors
Appellant:	Melinda Walker, Criminal Law Solicitor
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KENNEDY JA:

On 2 August 2021, the appellant pleaded guilty in the County Court to 12 charges on indictment and 10 related summary charges. These charges involved a sequence of offences committed on 2 and 6 July 2020.
On 12 November 2021, the appellant was relevantly sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft of motor vehicle	10 years	6 months	3 months
2	Dangerous driving while pursued by police	3 years	1 year	6 months
3	Theft from shop	10 years	60 days	14 days
4	Theft of motor vehicle	10 years	8 months	2 months
5	Damage emergency service vehicle by recklessly driving	5 years	1 year	4 months
6	Dangerous driving while pursued by police	3 years	1 year	6 months
7	Damage emergency service vehicle by recklessly driving	5 years	15 months	5 months
8	Theft from shop	10 years	60 days	14 days
9	Aggravated reckless exposure of emergency worker to risk by driving	10 years	3 years	Base
10	Theft of motor vehicle	10 years	8 months	3 months
11	Reckless conduct endangering persons	5 years	12 months	4 months
12	Theft from shop	10 years	30 days	7 days
Related Summary Offence
4	Fail to stop vehicle on police direction	12 months	3 months	1 month
8	Fail to stop after accident	14 days	7 days	2 days
13	Unlicensed driving	6 months	30 days	7 days
14	Refuse preliminary breath test	12 months	30 days	7 days
15	Contravene conduct condition of bail	3 months	7 days	None
16	Commit indictable offence whilst on bail	3 months	1 month	None
29	Unlicensed driving	6 months	30 days	7 days
30	Contravene conduct condition of bail	3 months	7 days	None
31	Commit indictable offence whilst on bail	3 months	30 days	None
32	Fail to stop after accident	14 days	7 days	2 days
Total Effective Sentence:		5 years 10 months 60 days
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		494 days
Section 6AAA Statement:		8 years’ imprisonment, with 6 years non-parole

On 23 August 2022, the appellant was granted leave to appeal in relation to the following ground (two):[1]
It is submitted that the total effective sentence of 6 years, and the non-parole period of 4 years was in all the circumstances manifestly excessive.

Circumstances of the offending[2]

[1]McKay v The Queen [2022] VSCA 175; Leave was refused in relation to ground 1.

[2]As summarised in the Amended Written Case for the appellant, dated 10 March 2022. The respondent took no issue with this summary.

The offending of the appellant commenced on 2 July 2020 when he stole an LDV utility vehicle from Lakes Entrance. Some 40 minutes after the theft, members of Victoria Police attempted to intercept the LDV on a road south of Mossiface, Gippsland. The appellant evaded police by rapidly accelerating and the pursuit was soon terminated. The appellant then attended a service station in Bruthen and committed shop theft.
The remainder of the offending occurred during the latter half of 6 July 2020. In the early afternoon of this date, the appellant stole a Range Rover in East Melbourne. Around 5:00 pm, this Range Rover was driven to the dealership in Port Melbourne where the appellant requested that the vehicle be refuelled. Victoria Police attended the dealership and requested that the appellant surrender himself at gunpoint. Instead, the appellant drove away through a gap next to a police vehicle, damaging both the police vehicle and the stolen Range Rover.
At 7:10 pm, the Range Rover was sighted by members of Victoria Police in Mordialloc. On sighting police, the appellant drove off along Beach Road in a dangerous manner, exceeding the speed limit and overtaking other traffic on a wet road.
Some minutes later, the appellant was observed by Victoria Police refuelling the Range Rover at a service station in Sandringham. Police attempted to ‘box-in’ the appellant with their vehicles to effect an arrest. Again, rather than surrendering himself, the appellant entered the Range Rover and drove away. In doing so, the appellant collided with two police vehicles. Through his driving, he exposed four members of Victoria Police to risk. It is this conduct which was the subject of charge 9, which was the focus of this application.
At 7:40 pm, the appellant abandoned the stolen Range Rover and stole a Toyota Corolla in Sandringham. While driving this Corolla, he caused damage to another vehicle through a glancing impact on the Monash Freeway and failed to stop after this accident.
The appellant then drove to a service station in Wheelers Hill and committed shop theft. He was arrested shortly after and transported to Melbourne West Police Station. He was deemed unfit for interview by a Forensic Medical Officer.

Appellant’s background

The appellant was born on 24 June 1989, and was 31 years old at the time of the offending.[3] The appellant is an Indigenous Australian man who was born in Melbourne and raised in Mill Park by his mother. The appellant has a brother and a sister. He was expelled from school in year nine, and has had several jobs as a labourer, but has not worked in many years.[4]
[3]DPP v McKay [2021] VCC 1782, [6] (‘Reasons’).
[4]Ibid [52], [61]–[62].
The appellant could not remember living with both parents at any time when they were together. His father was severely violent towards his mother, and went to prison many times for violence against multiple partners. The appellant reported that his father had continued to intimidate and try to control his mother for years, and had terrorised her partners.[5]
[5]Ibid [53].
The appellant was taken from his mother when he was six years old and went to live with his father who was extremely neglectful and abusive. He reported being flogged repeatedly, left at strangers’ homes and being molested. The appellant’s last contact with his father was at the time of his arrest in July 2020, when his father was staying at his house. The appellant reported that his father was very manipulative and that he regretted allowing his father to stay with him, as he felt his behaviour had spiralled out of control due to his father’s presence.[6]
[6]Ibid [54], [64].
The appellant’s mother has nine children and began drinking heavily when the appellant was aged 16. The appellant left home when he was 13 years old. At age 16, he was couch surfing and then rented a property in Lalor with his partner, who was 25 years old. That relationship lasted three years. When the appellant was 20, he formed a relationship with a woman named Elise, and lived with her over the course of seven years. The appellant and Elise had a daughter and a son together, aged 11 and 9 (at the time of sentencing). The appellant and Elise separated due to the appellant’s drug use. The appellant’s current partner (of six months) attended his plea hearing.[7]
[7]Ibid [55]–[58], [60].
The appellant was diagnosed with child behaviour disorders, as well as post-traumatic stress disorder and obsessive-compulsive disorder in adulthood. The appellant also reported diagnoses of paranoid schizophrenia, and said that he heard voices even when drug free. The appellant also began self-harming at age 16, and reported suicidal ideation. The appellant began using cannabis at age 12, and by age 14 was using methamphetamine and heroin, which continued until the appellant formed the relationship with Elise. At that time, the appellant was using cannabis but nothing else. Following the separation from Elise, the appellant relapsed. Prior to his arrest he was using heroin, ice, GHB and cannabis daily, as well as drinking heavily. The appellant was admitted to the Northern Hospital psychiatric ward twice in 2016 owing to drug induced psychosis. The appellant is open to attending drug rehabilitation, and has been placed on methadone every time he has been to prison, but has not continued the dose once released back into the community.[8]
[8]Ibid [66]–[73].

Sentencing remarks

The judge noted that the 22 offences committed by the appellant were all ‘serious enough’,[9] and that the offending conduct ‘seriously escalated between the two series of offences’, with the appellant engaging in an ‘eight-hour offending rampage’.[10] Overall, the judge assessed the appellant’s moral culpability as being ‘very high’.[11] He described the rolled up charge 9 as ‘particularly concerning’, involving aggravated circumstances, since the offending was committed in a stolen vehicle and in connection with other relevant offences.[12]
[9]Ibid [39].
[10]Ibid [42]–[43].
[11]Ibid [45].
[12]Ibid [46].
The judge considered the legislative purpose of charges 5, 7 and 9, as well as charges 2 and 6. He considered that with offences of this type, general deterrence, denunciation and just punishment must be given significant weight.[13]
[13]Ibid [47]–[49].
His Honour accepted that the appellant had entered ‘relatively early’ guilty pleas, and that those pleas had significant utilitarian benefit, particularly in a COVID-19 environment. The effects of the COVID-19 pandemic were also relevant because of the increased burdens on the appellant of being incarcerated during the pandemic.[14]
[14]Ibid [93], [100].
The judge found that the pleas indicated the appellant’s acceptance of responsibility for his offending conduct and a willingness to facilitate the course of justice, but did not accept that the appellant was genuinely remorseful.[15]
[15]Ibid [94], [96].
The judge accepted that the appellant was born into disadvantaged circumstances and was exposed to violence and drug abuse from a very early age. The judge cited Bugmy v The Queen[16] and said that he took the appellant’s disadvantaged upbringing into account as part of his personal circumstances, such that it operated to reduce the appellant’s moral culpability ‘to a limited extent’. The judge also stated that he moderated the weight given to general and specific deterrence.[17]
[16](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[17]Reasons, [98].
His Honour considered an assessment report provided by psychologist, Ms Cidoni. She opined that the appellant suffered from a number of syndromes including post-traumatic stress disorder, borderline personality disorder, major depression, and generalised anxiety and substance use disorder. She considered that the use of illicit substances was high in the offending period and would have produced a loss of contact with reality.[18]
[18]Ibid [76]–[77].
The judge accepted that principle 5 from R v Verdins[19] was engaged. He considered that the mental health conditions from which the appellant suffers would make any sentence imposed weigh more heavily on the appellant than a person in normal health.[20]
[19](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).
[20]Reasons, [86].
The judge also took into account the appellant’s Aboriginality, noting that the appellant’s application to have this matter heard in the Koori Court was unsuccessful.[21]
[21]Ibid [99].
His Honour considered the appellant’s ‘appalling’ prior criminal history. He summarised this as constituting 13 court appearances, including 32 dishonesty offences, 15 driving offences, 12 offences involving the contravention of court orders or bail conditions, eight offences against the person, six offences under the Family Violence Protection Act 2008, two drug offences and one charge of possessing a controlled weapon without excuse.[22] However, he recorded that, while on remand, the appellant had regularly taken buprenorphine for his drug addiction, seen a psychologist, worked every day, and undertaken a number of programs, gaining various qualifications.[23]
[22]Ibid [89].
[23]Ibid [88].
The judge took into account current sentencing practices, but considered that it was always difficult to gauge more than a ‘general yardstick’ from comparable cases.[24]
[24]Ibid [103]–[104].
The judge noted that the standard sentencing regime did not apply in the appellant’s case, however the aggravated offence of recklessly exposing an emergency worker to risk by driving (charge 9) was a category 2 offence under the Sentencing Act1991, and thus the Court was required to impose a mandatory sentence of imprisonment to be immediately served.[25]
[25]Ibid [105].
His Honour recorded that the presumption of concurrency was displaced in relation to charge 9, and charges 5 and 7. The fact that the offences were all committed whilst the appellant was on bail enlivened s 16(3C) of the Sentencing Act, which meant the presumption of concurrency did not apply in sentencing the appellant for the breaching offences. However, the principle of totality was not displaced in relation to the operation of the statutory presumption of cumulation in respect of all the charges.[26]
[26]Ibid [106]–[108].
The judge further stated:
I accept totality it [sic] an important consideration in sentencing given the large number of charges and the overlapping nature of the offences. I must also avoid the imposition of a crushing sentence on you. These considerations will be particularly reflected in my orders for cumulation.[27]
[27]Ibid [115].
The judge noted that charge 9 was a rolled up charge covering the risk to which the appellant’s driving exposed four police officers, and that the appellant fell to be sentenced for all the criminality involved in that charge.[28]
[28]Ibid [109].
The judge considered that general deterrence, denunciation and just punishment were important sentencing considerations in this case and must be given ‘primacy’. He also noted the need to give real weight to specific deterrence and protection of the community, in light of the appellant’s conduct, the involvement of illicit drugs and alcohol in the commission of the offences and the appellant’s prior criminal history.[29]
[29]Ibid [113].
The judge assessed the appellant’s prospects of rehabilitation as being ‘guarded’ and dependent on the appellant’s ability to remain drug free following his release from custody.[30]
[30]Ibid.

Whether sentence manifestly excessive

Appellant’s submissions

In written submissions, the appellant focused solely on charge 9.
The appellant submitted that, as an offence recently incorporated into the Crimes Act 1958, sentences imposed for the offence of recklessly exposing an emergency worker to risk by driving have not yet been considered in sufficient numbers to build up a sentencing profile. Nevertheless, he submitted that an analysis of recent sentences reveals that terms of imprisonment are commonly imposed within the range of some 18 to 20 months.[31]
[31]Citing DPP v Cox [2021] VCC 1942; DPP v Roberts [2020] VCC 1195; DPP v O’Sullivan [2020] VCC 1449.
The appellant accepted that past sentences imposed for like offences are not binding precedents, but contended that promoting reasonable consistency in sentencing practices remains an important plank of maintaining confidence in the justice system. While the judge said that he had attempted to gauge a ‘general yardstick’ from comparable cases, it remained unclear how this yardstick was applied.
The appellant submitted that, having regard to the objective gravity of the offence, the penalty imposed is plainly excessive. The appellant noted that the Crown conceded during the plea hearing that the gravity of the offending was less serious than that described in the case of Nelson v The Queen,[32] where a 3 year term of imprisonment was imposed for the same offence. The appellant’s criminal history was also not as serious as that of the offender in Nelson. Factors present in mitigation also included an early plea of guilty, the application of principles expressed in the cases of Bugmy and Verdins, and the onerous conditions in custody occasioned by the COVID-19 pandemic.
[32][2020] VSCA 219 (‘Nelson’).
The appellant submitted that, when weighed against other sentences imposed for the same offence, the sentence imposed on charge 9 was manifestly excessive. Further, due to orders made for cumulation upon the base sentence, the resulting head sentence and the non-parole period imposed were crushing.
In oral submissions, counsel for the appellant confirmed that he only challenged the individual (base) sentence in respect of charge 9 and was not separately challenging the individual sentences, or orders for cumulation, in respect of the other charges.
Counsel submitted that, in the light of the findings as to the mitigating factors, the sentence of 3 years’ imprisonment was outside the range. These included the plea of guilty, the moderation to general deterrence, the finding that limb 5 of Verdins applied, and that there had been efforts made towards rehabilitation in custody. Most significantly, counsel emphasised that there were powerful Bugmy considerations in this case.
Counsel also highlighted that there could be an aggravated reckless exposure of an emergency worker to risk in a broad range of circumstances, extending to cases where there is serious injury, as well as cases where the conduct does not lead to anything other than apprehension or distress.[33] Where, as here, the offence was committed in connection with an offence of damaging an emergency vehicle (against s 317AG of the Crimes Act), the driving could also cover a wide range of offending, including driving at very high speed. The offending in this case did not involve serious damage but occurred at a petrol station where the offender would have been travelling at only 1–2 kilometres an hour. The case was thereby readily distinguishable from Nelson where the offender drove at high speed and on the wrong side of the road.

Respondent’s submissions

[33]Citing DPP v Reid [2020] VSCA 247, [101] (Priest, T Forrest and Weinberg JJA). It was noted that this case involved a different offence of reckless conduct endangering life, however counsel submitted that the comments were equally applicable to the present offence.

The respondent submitted that there was no error, highlighting that charge 9 was a rolled up charge (involving danger to four police officers), the maximum penalty, and the appellant’s prior convictions.
The respondent accepted that, while Nelson was a more serious example of the offence (in that six police officers were endangered), the appellant’s offending was of a broadly similar nature by an offender with a relevant prior history. The appellant’s conduct was also spread over a longer period of time and included thefts of vehicles and endangering members of the public. It consisted of 10 separate incidents and 22 separate charges, and is best described as a ‘rampage’.

The respondent submitted that the judge appropriately considered matters in mitigation, but rightly concluded that general deterrence, specific deterrence and community protection needed to be given real weight. Given the conduct, and the appellant’s prior history, such a finding was unimpeachable. The conduct placed both the community, and specifically police, in danger, and was committed less than six months after the conclusion of the appellant’s last term of imprisonment whilst on bail.
In oral submissions, counsel for the respondent fairly accepted that there were ‘powerful’ Bugmy considerations which were not present in Nelson. She also acknowledged the more serious prior convictions in that case, but suggested that the offending was only ‘slightly’ more serious in Nelson. She emphasised that the relevant offending was serious and formed part of a protracted period of offending.

Analysis

The objective seriousness of the offending and the appellant’s criminal history suggest that considerations of general deterrence, specific deterrence and community protection need to be given real weight. Counsel for the appellant also fairly accepted that the offending involved a rolled up charge, affecting four police officers, and that it was committed by a person on bail.
However, there is a wide range of circumstances to which charge 9 might apply. In this case, although one of the police officers suffered a shoulder tear, there was no evidence of any permanent serious injuries. Having viewed the recording of the incident, we agree with the appellant’s submission that the driving was at relatively low speed as the appellant sought to move from a stationary position at a petrol station. The case is thereby readily distinguishable from Nelson where the offender veered to the wrong side of the road and was driving at high speed. The respondent’s concession before the sentencing judge that the offending in Nelson was ‘more serious’ is hence appropriate.
There were also significant factors in mitigation. These included the early plea of guilty in a COVID-19 environment,[34] as well as the judge’s determination that principle 5 in Verdins was engaged. Most significantly, there were the effects of extensive social disadvantage experienced by the appellant as an Indigenous Australian man. As emphasised by his counsel, the appellant: could not remember being with both parents; had a father who was imprisoned for violence towards his mother and other partners; was taken from his mother when he was only six years old; and left home when aged only 13. In such a context, the respondent was correct to acknowledge the ‘powerful’ Bugmy considerations of deprivation and abuse. The Bugmy decision was also not cited in Nelson.
[34]Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.
Although we agree that other cases should be treated with caution, it appears that the most commonly imposed sentence for the offence of reckless exposure of an emergency worker to risk is within the range of 1–2 years.[35] More importantly, there are a number of significant distinguishing features with the case of Nelson which suggest that the appellant’s sentence of 3 years’ imprisonment falls outside the applicable range. Having regard to the nature of the offending and powerful Bugmy considerations in this case, we are satisfied that the sentence imposed in respect of charge 9 was manifestly excessive. We are further satisfied that a sentence of 2 years’ imprisonment should be substituted. Consistent with the position of the appellant and the seriousness of the offending, we are not satisfied that we should interfere with the other individual sentences.
[35]The Sentencing Advisory Council’s published sentencing outcomes between 1 July 2016 and 30 June 2021 showed that 37.5 per cent of the charges for this offence received a term of imprisonment between 1–2 years, and a total of 60.4 per cent of the charges received a sentence of 2 years or less. SACStat Higher Courts, ‘Recklessly expose an emergency worker to risk by driving in aggravated circumstances’, 1 July 2016 to 30 June 2021.
The appellant will therefore be resentenced so that the total effective sentence will be 4 years, 10 months and 60 days’ imprisonment. The new non-parole period will be 3 years and 2 months. Pursuant to s 6AAA of the Sentencing Act, but for the appellant’s pleas of guilty, the Court would have imposed a total effective sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 9 months.
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[2023] VSCA 8

9 February 2023