Monaghan v The King

[2022] VSCA 247

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0181

CHACE MONAGHAN	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2022
DATE OF JUDGMENT:	10 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 247
JUDGMENT APPEALED FROM:	[2021] VSC 494 (Judge Hassan)

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CRIMINAL LAW – Application for extension of time for leave to appeal against conviction and sentence – Applicant pleaded guilty to offences including recklessly causing injury, false imprisonment, reckless conduct endangering persons, reckless conduct endangering life, contravention of family violence intervention order, theft and various driving offences – Total effective sentence 6 years 4 months’ imprisonment – Non-parole period 4 years – Whether charges offended principle of duplicity – Whether charge under s 317AF Crimes Act 1958 deficient – Whether insufficient evidence to support charge 3 on indictment – Crown concession that insufficient evidence – Whether integrity of guilty plea affected – Weston (a pseudonym) v The Queen (2015) 48 VR 413, applied – Extension of time granted – Application for leave to appeal against conviction granted – Appeal allowed in part – Applicant resentenced to 5 years 7 months’ imprisonment – Non-parole period 3 years 6 months.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
T FORREST JA
KENNEDY JA:

1On 13 April 2021 the applicant pleaded guilty in the County Court to 13 charges (on indictment K12057519) relating to a series of offending which occurred between 23 July 2019 and 6 August 2019. He also pleaded guilty to 15 related summary offences.

2On 27 April 2021, the applicant was relevantly sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Recklessly cause injury between Numurkah and Shepparton on 23 July 2019[1]	5 years	10 months	2 months
2	False imprisonment between Numurkah and Rushworth on 23 July 2019[2]	10 years	20 months	4 months
3	Reckless conduct endangering persons between Numurkah and Shepparton on 23 July 2019[3]	5 years	18 months	3 months
4	Reckless conduct endangering persons at Shepparton on 23 July 2019[4]	5 years	12 months	2 months
5	Reckless conduct endangering life between Numurkah and Shepparton on 23 July 2019[5]	10 years	24 months	10 months
6	Contravene family violence intervention order between Numurkah and Rushworth on 23 July 2019[6]	5 years and/or 600 penalty units	10 months	Nil
7	Theft at Seymour on 23 July 2019[7]	10 years	3 months	1 month
8	Aggravated reckless exposure of an emergency worker to risk by driving at Clonbinane on 24 July 2019[8]	10 years	30 months	Base
9	Aggravated reckless exposure of an emergency worker to risk by driving at Clonbinane on 24 July 2019[9]	10 years	30 months	12 months
10	Reckless conduct endangering persons at Clonbinane on 24 July 2019[10]	5 years	18 months	3 months
11	Theft at Mickleham on 2 August 2019[11]	10 years	3 months	1 month
12	Theft at Wandong on 5 August 2019[12]	10 years	3 months	1 month
13	Reckless conduct endangering persons at Cragieburn and other places on 6 August 2019[13]	5 years	18 months	3 months
Related Summary Offences
5	Fail to stop vehicle on police request at Shepparton on 23 July 2019	1st offence 60 penalty units and/or 6 months 2nd offence 120 penalty units and/or 12 months	3 months (aggregate with charge 6)	Nil
6	Fail to stop vehicle on police request at Rushworth on 23 July 2019	1st offence 60 penalty units and/or 6 months 2nd offence 120 penalty units and/or 12 months	Aggregate with charge 5	Nil
21	Unlicensed driving at Shepparton on 23 July 2019	6 months or 60 penalty units	6 months (aggregate with charges 22, 26, 29, 32 and 39)	2 months
22	Unlicensed driving at Clonbinane on 24 July 2019	6 months or 60 penalty units	Aggregate with charge 21	Aggregate with charge 21
24	Dangerous driving at Shepparton on 23 July 2019	2 years and/or 240 penalty units, and disqualification for 6 months or more	8 months (aggregate with charge 38)	2 months
26	Unlicensed driving at Mickleham on 2 August 2019	6 months or 60 penalty units	Aggregate with charge 21	Aggregate with charge 21
27	Use unregistered motor vehicle at Mickleham on 2 August 2019	25 penalty units for 1st offence, 50 penalty units for subsequent offence	$200 fine (aggregate with charges 30 and 33)	N/A
29	Unlicensed driving at Wandong on 5 August 2019	6 months or 60 penalty units	Aggregate with charge 21	Aggregate with charge 21
30	Use unregistered motor vehicle at Wandong on 5 August 2019	25 penalty units for 1st offence, 50 penalty units for subsequent offence	$200 fine (aggregate with charges 27 and 33)	N/A
31	Fail to report particulars of accident at Cragieburn on 6 August 2019	14 days or 5 penalty units for 1st offence, 1 month or 10 penalty units for subsequent offence	$300 fine	N/A
32	Unlicensed driving at Cragieburn on 6 August 2019	6 months or 60 penalty units	Aggregate with charge 21	Aggregate with charge 21
33	Use unregistered motor vehicle at Cragieburn on 6 August 2019	25 penalty units for 1st offence, 50 penalty units for subsequent offence	$200 fine (aggregate with charges 27 and 30)	N/A
38	Dangerous driving at Broadford on 6 August 2019	2 years and/or 240 penalty units, and disqualification for 6 months or more	Aggregate with charge 24	Aggregate with charge 24
39	Unlicensed driving at Broadford on 6 August 2019	6 months or 60 penalty units	Aggregate with charge 21	Aggregate with charge 21
41	Contravene family violence intervention order at Tallarook on 6 August 2019	2 years and/or 240 penalty units	$500 fine	N/A
Total Effective Sentence:		6 years and 4 months’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		437 days
Section 6AAA Statement:		Total Effective Sentence 7 years 6 months Non Parole-Period 5 years 6 months

[1]Crimes Act 1958 (‘Crimes Act’) s 18.

[2]Common law.

[3]Crimes Act s 23.

[4]Ibid.

[5]Crimes Act s 22. It should be noted that charge 5, which is not the subject of a distinct ground of appeal, refers to offending between Numurkah and Shepparton. The prosecution opening suggests that it relates to driving between Shepparton and Rushworth. No point was made about this by the applicant.

[6]Family Violence Protection Act 2008 s 123A.

[7]Crimes Act s 74(1).

[8]Ibid s 317AF(1)(b).

[9]Ibid s 317AF(1)(c).

[10]Ibid s 23.

[11]Ibid s 74(1).

[12]Ibid.

[13]Ibid s 23.

3The applicant filed an application for an extension of time to file an application for leave to appeal against conviction and sentence. The respondent did not ultimately oppose the grant of an extension of time.

4For reasons expressed below, we are satisfied that it is appropriate to grant the extension of time to file the application for leave to appeal against conviction. We will grant leave to appeal against conviction and uphold ground 1(b). The result is that the conviction with respect to charge 3 will be set aside and the applicant will be resentenced. It is unnecessary in such circumstances to deal separately with the application for leave to appeal the sentence.

Circumstances of the offending

5The offending took place in the context of the relationship between the applicant and his partner Emily Craig.[14] At the time of the offending, the applicant was 20 years old and they had been in a relationship for about two years. They were the parents of an eight month old daughter, Nora.[15] Emily and Nora lived apart from the applicant and Emily had custody of Nora.

[14]A pseudonym, as per the judgment below.

[15]A pseudonym, as per the judgment below.

6On 18 March 2019 the Shepparton Magistrates’ Court made an interim family violence intervention order prohibiting the applicant from committing family violence against Emily and Nora or approaching within 200 metres of their home.

7The circumstances of the applicant’s offending were as follows:[16]

[16]This summary is adapted from the Revised Summary of Prosecution Opening dated 25 March 2021, which was accepted by the applicant.

23 July 2019

At about 11:00 am on 23 July 2019, Emily Craig was at the applicant’s home in Meiklejohn Street, Numurkah. He woke up as she was getting ready to take Nora to a scheduled appointment with the child health nurse at Broadford. The applicant told Ms Craig that he would go with them to the appointment.

Ms Craig put her bags in the car, and put Nora into her baby seat. The applicant joined them after a few minutes, and they left the address just after 11:00 am. The applicant was driving and they proceeded down the Goulburn Valley Highway towards Shepparton.

At that time, the applicant did not hold a driver’s licence: his licence had been cancelled on 3 July 2017 for failure to provide a Drug Driving Education Certificate despite prior written notice (summary charge 21 — unlicensed driving).

As they continued their journey, Ms Craig accidentally spilt some soft drink on the applicant, who became upset and began overtaking other cars. Ms Craig told him to relax, and not to speed. They began to argue, and the argument quickly escalated. Ms Craig threatened to call the police and the applicant became angry, hitting Ms Craig once to her face (charge 1 — recklessly cause injury). Ms Craig felt pain on her face as it swelled up, and she was bleeding from a cut under her left eye.

The applicant left the highway and was driving down back roads. Ms Craig called 000 and told them that her boyfriend wouldn’t let her out of her car. The applicant asked her if she had ever been a hostage before. Ms Craig told him to let her get out of the car, but he refused and would not stop the vehicle (charge 2 — false imprisonment; charge 6 — contravene family violence intervention order).

Police Communications broadcast an alert for the Holden Captiva indicating that a female was being held against her will in the vehicle.

The applicant told Ms Craig that he would take her to his step-grandmother’s house, who lived in Rushworth. The applicant was speeding and driving erratically, overtaking and undertaking other vehicles, and slamming on the brakes to avoid a head-on collision with another vehicle. He said, ‘I don’t care if you die’ (charge 3 — conduct endangering persons; charge 6 – contravene family violence intervention order).

Shortly after the alert was broadcast by Police Communications, at approximately 11:21 am, Senior Constable Glenn Fitzgerald and Constable Amelia Boyd observed the Holden Captiva travelling south along Doyles Road, approaching the roundabout intersection with the Midland Highway. The Holden Captiva was accelerating rapidly and overtaking vehicles, forcing oncoming traffic to veer off to the left to avoid head-on collision. The applicant was travelling at approximately 150 kph in an 80 kph zone (charge 4 — conduct endangering persons).

Senior Constable Fitzgerald contacted Police Communications and Sergeant Mark Eade to advise that the vehicle had been sighted. Sergeant Eade directed him to try to intercept the car. Senior Constable Fitzgerald activated lights and siren as he attempted to narrow the distance with the Holden Captiva. He followed the applicant through several streets before the applicant turned onto the Goulburn Valley Highway in Kialla West.

Senior Constable Fitzgerald took up position behind the Holden Captiva and again activated lights and siren to indicate that the driver should stop. The applicant immediately accelerated hard, travelling in an overtaking lane for northbound traffic as he overtook the vehicle in front of him (summary charge 5 — fail to stop vehicle on request). The applicant overtook in the face of oncoming traffic, and then overtook another vehicle whilst driving in the southbound emergency lane (summary charge 24 — drive in manner dangerous).

The applicant told Ms Craig that police were behind them, and that he would not stop the car. Ms Craig could not get out of the car with her infant daughter still in the back seat (charge 2 — false imprisonment [continued]; charge 6 — contravene family violence intervention order [continued]).

Ms Craig was in fear for her own life and for her daughter. She took a knife from the glove box to defend herself if the applicant hurt her again. Then she decided to cut her wrist, hoping to shock him into stopping the car.

The police pursuit was abandoned due to safety concerns as the applicant continued driving at approximately 160 kph.

Christopher Theiss was driving his B-double truck down the Goulburn Valley Highway. His B-double was overtaken by a silver SUV which he had previously passed: the car was travelling very quickly when it overtook Mr Theiss’ vehicle, overtaking in the face of oncoming traffic and despite solid lines on the highway and passing Mr Theiss’ B-double. Mr Theiss saw the car overtake three cars in one go despite solid double lines on the roadway, causing oncoming traffic to veer into the dirt shoulder of the road and a number of cars to brake hard to avoid a collision. He estimated the car’s speed as ‘at least 130 kilometres per hour, probably more’. Mr Theiss was forced to slam on the brakes of his B-double, causing about 12 bags of industrial render to slide off their pallet and split open. The B-double weighs approximately 63 tons. Mr Theiss was in fear for his own life and for the lives of other road users (charge 5 — conduct endangering life).

The applicant and Ms Craig arrived at the applicant’s step-grandmother’s house in Esmonde Street, Rushworth, but the applicant kept driving even though Ms Craig’s wrist was bleeding, because he saw a car near the house. He told Ms Craig that it was all her fault that he would go back to gaol.

The applicant drove the car back to his step-grandmother’s house and pulled into the driveway, parking so that he could see a police car nearby. He went to speak to his step-grandmother, telling Ms Craig to go and clean herself up. When she went to take their daughter out of the car, the applicant grabbed Nora and held her. Ms Craig got a blanket from the car and wrapped up her cut wrist.

After about 10 minutes at the house, the applicant said that the police were there. He sped off as police members approached the house on foot.

Sergeant Rodney Pell entered the home. He observed that Ms Craig had a black eye and was bleeding from her left eye. He photographed her injuries. An ambulance then took Ms Craig to hospital.

Sergeant Dale Simm was in a police vehicle in the street near the house. He saw the applicant reverse the Holden Captiva out of the driveway and leave at speed. Sergeant Simm followed the applicant, activating lights and siren. The applicant made no attempt to stop the car, travelling towards Nagambie at high speed, and Sergeant Simm abandoned the pursuit (summary charge 6 — fail to stop vehicle on request).

Later, at approximately 1:30 pm on 23 July 2019, the applicant drove the Holden Captiva to the Australian Fuel service station on the Goulburn Valley Highway in Seymour. He refuelled the car with petrol valued at $57, and then drove off without making any attempt to pay for the fuel (charge 7 — theft).

24 July 2019

On 24 July 2019, police attempted to locate the applicant in relation to the family violence incident the previous day. The Holden Captiva was sighted in the Clonbinane area.

Detective Sergeant John Bliss and Detective Senior Constable Daniel Raynor located the vehicle, which was parked at a rural property in Spur Road, Clonbinane. They contacted other units for assistance. When the other units arrived, including a marked police vehicle, Detective Senior Constable Raynor drove their unmarked car down the driveway of the property and they confirmed it was the vehicle they were seeking. They stopped the police vehicle directly behind the Captiva.

As their vehicle stopped, the applicant scrambled to open the driver’s door and enter the car as Detective Sergeant Bliss was getting out of the police car. Detective Senior Constable Raynor called out, directing the applicant to stop, but the applicant already had the car’s engine running.

The applicant reversed the Holden Captiva directly into the front of the stationary unmarked police car and collided with it (charge 8 — aggravated reckless exposure of emergency worker to risk by driving).

Senior Constable Christopher Mion approached the front passenger window and used his extendable baton to shatter it, intending to apply capsicum spray.

Several of the police called out warnings to other members to get out of the way as the applicant then quickly drove forwards, driving over a log, garden beds and a grassed area before driving off the property (charge 9 — aggravated reckless exposure of emergency worker to risk by driving).

As the applicant reversed, Detective Sergeant Bliss, Detective Senior Constable Raynor, and Senior Constable Mion had to jump clear to avoid being hit. Senior Constable Fidler also had to take evasive action to avoid being struck by the Captiva[17] (charge 10 — conduct endangering persons).

[17]Although it might appear that Senior Constable Fidler took evasive action to the reverse driving, his statement suggests that he took evasive action in relation to the forward driving.

The applicant left the property and turned into Spur Road, travelling south towards Broadford-Wandong Road (summary charge 22 — unlicensed driving).

2 August 2019

At around 11:00 am on 2 August 2019, the applicant drove a white Ford to the Coles Express service station on the Hume Highway at Mickleham (summary charge 26 — unlicensed driving). The car had registration plates ‘DBLB’, but in fact those plates were not registered (summary charge 27 — use unregistered motor vehicle on a highway). The applicant filled the car with 50.76 litres of fuel valued at $79.65, and then drove off without attempting to pay for the petrol (charge 11 — theft).

5 August 2019

The applicant again drove the unregistered white Ford with registration plates ‘DBLB’ on 5 August 2019, taking it to a Caltex service station on the Epping-Kilmore Road, Wandong (summary charge 29 — unlicensed driving; summary charge 30 — use unregistered motor vehicle on a highway).

He added petrol valued at $50.02 and then left the service station without making any attempt to pay for the fuel (charge 12 — theft).

6 August 2019

The applicant again drove the white Ford on 6 August 2019. At about 12:30 pm, Sergeant Robert Derrett saw the vehicle leaving Ms Craig’s address in Main Road Tallarook contrary to the final intervention order then in place (summary charge 41 — contravene family violence final intervention order). Police later observed him on the Hume Freeway travelling south towards Broadford. When they attempted to intercept him, he drove off very fast at an estimated speed of 180 kph (charge 13 — conduct endangering persons; summary charge 39 – unlicensed driving). He continued south, overtaking traffic in both emergency lanes (summary charge 38 — drive in manner dangerous).

At about 2:00 pm, the vehicle was seen again travelling northbound on Plenty Road driving through red lights, veering across multiple lanes of traffic and cutting in between vehicles. Shortly after this, the Police Air Wing located the vehicle and began aerial observations. The applicant continued to drive erratically as he proceeded to the Craigieburn area, where he drove through a recreation reserve at Treasury Place, Craigieburn and then drove along a pedestrian footpath (charge 13 [continued] — conduct endangering persons). He hit a fence at 8 Treasury Place, Craigieburn, causing approximately $500 worth of damage before leaving the scene, continuing to drive erratically (summary charge 31 — fail to report to police; summary charge 32 — unlicensed driving; summary charge 33 — use unregistered motor vehicle).

At about 2:30 pm to 3:00 pm the applicant was travelling north at high speed, estimated at being up to 150 kph on the Hume Freeway near Kalkallo and using the emergency lane to overtake other traffic (charge 13 [continued] — conduct endangering persons). At around 3:30 pm he was again seen driving at high speed and swerving in and out of the emergency lane to overtake other vehicles (summary charge 38 — drive in manner dangerous).

A number of drivers on the Hume Freeway were sufficiently concerned at the manner of the applicant’s driving to call 000.

The applicant left the Hume Highway at Broadford-Wandong Road, and was later spotted by the Police Air Wing as he drove along Doctors Creek Road. Police unsuccessfully attempted to deploy a tyre deflation device (twice). The applicant collided with an embankment before driving into a tree, when the car careered down an embankment, where it was stopped by a wire farm fence.

Conviction appeal

8The applicant seeks leave to appeal against conviction on the following relevant[18] grounds:

Ground 1: It is contended that on the indictment Charges 3 and 4 refer to the same conduct. These are of the same character and could not have substantiated two separate charges.

Ground 2: Similarly charges 8, 9 and 10 also refer to one sequence of events. These are of the same character and could not have substantiated two separate charges.

Ground 3: That charge 8 was deficient in its pleading and particularisation and a plea to it caused a miscarriage of justice.

[18]The application for leave to appeal against conviction also contained a ground 4(a) entitled ‘Double punishment generally’. However, this was clearly intended to relate to the application for leave to appeal against sentence. The other proposed ground of appeal against sentence asserted manifest excess.

9During oral submissions, counsel for the applicant sought, and was granted, leave to file a new ground (which was not opposed). It was subsequently reduced to writing as follows:

Ground 1(b) – (in the alternative): That a miscarriage of justice was occasioned by a plea of guilty to charge 3 on the indictment as there was no evidence that could have properly supported it.

Ground 1

10The applicant submitted that the conduct the subject of charges 3 and 4 could not have constituted ‘different’ conduct in order to substantiate separate charges.

11The relevant evidence was found in the statements of Ms Craig and Senior Constable Fitzgerald. However, it was submitted that the statement of Senior Constable Fitzgerald described one continuous event, and the statement of Ms Craig did not shed any more light on whether it covered the same incident described by Senior Constable Fitzgerald.

12It was therefore said to have been impossible to conclude that there were separate events which could have given rise to two separate charges. Rather, a plea to both charges was said to offend the ‘duplicity’ principles.

Analysis

13The rule against duplicity is a basic principle of the common law that no count in an indictment should charge the defendant with having committed two or more separate offences.[19] The issue which generally arises with duplicity is whether a single charge suffices, or whether there should be further separate charges.[20] This is a question of fact and degree, having regard to whether events the subject of charges are so closely related that they amount to a single composite activity.[21]

[19]Rixon v Thompson (2009) 22 VR 323, 331 [46] (Maxwell P, Weinberg JA and Kyrou AJA); [2009] VSCA 84 (‘Rixon’). As to the basis of the rule, see also S v The Queen (1989) 168 CLR 266, 284–5 (Gaudron and McHugh JJ); [1989] HCA 66.

[20]Thus in Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, the High Court was concerned with a single charge alleging that the defendant had dishonestly obtained payments under workers compensation legislation. The issue was whether there should have been separate charges in respect of each occasion on which the defendant had received the payments.

[21]See generally Rixon (2009) 22 VR 323; [2009] VSCA 84.

14This enunciation of principle highlights that the applicant’s complaint is the very opposite of one based on ‘duplicity’. Rather than complaining that there should be further charges, his complaint is that there was a ‘single’ act of driving which should have been the subject of a single charge.

15The respondent submitted that the conduct the subject of charges 3 and 4 (and 5) related to different acts of driving, and hence separate acts of reckless conduct endangering different groups of people. More particularly, charge 3 related to the driving between Numurkah and Shepparton and was said to be supported by Ms Craig’s statement, while charge 4 related to driving in Shepparton and was supported by Senior Constable Fitzgerald’s statement.

16Consistent with the respondent’s submission, the indictment clearly distinguishes between the driving the subject of charge 3 (‘between Numurkah and Shepparton’) and the driving the subject of charge 4 (‘at Shepparton’). It may well be that this driving, considered overall, was so close in time and place that it could have been characterised as a single composite activity without breaching duplicity principles. However, this is different from suggesting that the conduct could not substantiate two separate charges. There is no basis for this suggestion and the ground is without merit.

Ground 1(b)

17In its written case the respondent accepted that there was ‘no evidence’, other than the plea of guilty, to properly support charge 3. This was because it was unclear from the statement of Ms Craig where the impugned driving took place, so that it could have been the same driving as encompassed by charge 4 (or charge 5). Further, it appeared ‘most likely’ that the driving took place after the police gave chase which means that it could not have occurred between Numurkah and Shepparton as specified in charge 3. The respondent stated that if this point were to be raised by an amended ground, the respondent would be likely to concede that the applicant should not have been convicted in relation to charge 3.

18At the hearing, counsel for the respondent did not resile from this position. Notwithstanding that the applicant had pleaded guilty to charge 3, his ultimate position was that it was ‘a matter for the Court’.

19Counsel for the applicant submitted that there would be a miscarriage of justice[22] if the applicant was held to his plea in the circumstances of this case. He relied on the affidavit of the applicant’s solicitor, Samuel Russo, who relevantly stated that the applicant instructed him to ‘lodge an appeal’ on the basis that:

[the applicant] did not receive comprehensive legal advice until the day of the plea hearing, that he rushed his decision and did not completely understand the law or the consequences of the plea he was entering.[23]

[22]Citing Weston (a pseudonym) v The Queen (2105) 48 VR 413; [2015] VSCA 354 (‘Weston’).

[23]Affidavit of Samuel Russo (8 December 2021) [20], filed in support of the application for extension of time.

20Counsel submitted that, given the respondent’s concession (that there was no evidence to support the charge) and that the applicant lacked understanding, the ground should be upheld — notwithstanding the plea.

Analysis

21Consistent with the respondent’s concession, it is not clear from the statement of Ms Craig where the impugned driving the subject of charge 3 took place.

22The respondent did not seek to rely on the plea in circumstances where there was evidence (from Mr Russo) that the applicant had not been properly advised before the hearing and had felt some pressure at the time he entered his plea. The transcript of the plea hearing supports this evidence. At the commencement of the plea hearing the judge indicated that an arraignment was to occur and the applicant raised a number of issues as follows:[24]

[24]Emphasis added.

HER HONOUR: …. Mr Monaghan, we’re going to have you arraigned, that is, my associate is going to read out the charges to you and take your plea. Just listen carefully.

ACCUSED: I’m guilty. Can I speak to Andrew for a sec? If you’re there? Do I - am I just pleading guilty to all of these? If it’s already been arranged?

[DEFENCE COUNSEL]: Your Honour - - -

ACCUSED: I wasn’t too aware of what - - -

HER HONOUR: Just hang on a second. [Defence counsel], do you want - - -

[DEFENCE COUNSEL]: I’m sorry, Your Honour.

HER HONOUR: Well.

[DEFENCE COUNSEL]: Can I have a couple of minutes to reconfirm this with Mr - - -

HER HONOUR: Yes, of course you can. We’ll take a couple of minutes and then we’ll decide what’s going to happen.

ACCUSED: I haven’t been talked to at all - - -

HER HONOUR: I’ll just stand down for a few moments. All right, thank you.

(Short adjournment.)

[The applicant then pleaded guilty to the charges, above]

23The above exchanges are consistent with the evidence of Mr Russo that the applicant did not receive legal advice until the day of the plea hearing (given he had not been ‘talked to at all’) and that he lacked understanding about the consequences of the plea he was entering (as highlighted by his question: ‘Am I just pleading guilty to all of these?’). In fact, given the ‘short adjournment’ there may be some doubt as to whether the advice he received was ever ‘comprehensive’ as Mr Russo suggests.

24To impugn the integrity of a plea of guilty, it is necessary to establish that there was an ‘issuable question of guilt’, together with some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to that plea.[25] Where the integrity of the plea is not shown to be affected, the conclusion is drawn that the plea was attributable to a consciousness of guilt, and no miscarriage of justice has taken place.[26]

[25]Weston (2015) 48 VR 413, 444–6 [109] (Redlich JA), 449 [128]–[129] (Whelan and Kaye JJA); [2015] VSCA 354.

[26]Although the authorities speak in terms of a miscarriage of justice, s 276(1)(c) of the Criminal Procedure Act 2009 requires a ‘substantial’ miscarriage of justice; we understand the test in the authorities to have that meaning.

25In the present case, the ‘issuable question of guilt’ is the one identified by the respondent, namely that the prosecutor proposed to lead no evidence of offending of the kind alleged in the locational area specified in charge 3. On the evidence proposed to be led, the applicant had no case to answer on that charge.

26The question of the integrity of the plea is more finely balanced. We are conscious of the strong public policy reasons to limit applications for leave to appeal against conviction following a plea of guilty.[27] It is unsatisfactory, on a matter of this importance, that the Court has no evidence from the applicant, or defence counsel, and only the hearsay evidence of his solicitor. That evidence is itself ambiguous, in that it states that the applicant did not ‘receive comprehensive legal advice’ until the day of the plea, and that he did not ‘completely understand the law or the consequences’ of the plea. On one reading, that means that the applicant did receive comprehensive legal advice, but that it was given at a late stage, leaving the applicant not understanding some undefined aspect of his plea. Nothing in the material relied on distinguishes charge 3 from the remainder of the charges.

[27]Weston (2015) 48 VR 413, 443 [105] (Redlich JA); [2015] VSCA 354.

27On the other hand, the respondent indicated in its written case that it ‘would be likely to concede that the applicant should not have been convicted in relation to charge 3’, and did not resile from that submission at the hearing (albeit submitting that the decision was ultimately one for the Court). In other words, no issue was taken with the paucity of the applicant’s material, and it is reasonable to think that the applicant did not supplement it for that reason. In those circumstances, we consider that the ground should be upheld if it would be open on the material before us to find that the integrity of the plea was affected.

28The material before the Court suffices to show that the applicant was at best insufficiently advised and at worst confused by the process involved in entering a guilty plea to charge 3. The charge sheet was lengthy and complicated and the decision to plead guilty to all charges would plainly have benefited from full and timely legal advice. The applicant expressed his concern at his lack of understanding, after which there was a ‘short’ adjournment. Not without some hesitation, we consider that it is open on this material to conclude that the integrity of the plea was affected and that, in relation to charge 3, there was a miscarriage of justice.

29In these very unusual circumstances, and having regard to the respondent’s concession, we consider that ground 1(b) is established.

Grounds 2 and 3

30In respect of charges 8, 9 and 10, counsel for the applicant submitted that the conduct that constituted these charges was the same conduct and could not have constituted separate offences. The relevant evidence described one continuous event, being the reversing of a vehicle, which struck a police vehicle, then driving the vehicle forwards to escape from the police present.

31Counsel submitted that the changing of gears that could be inferred from the description of the car reversing, then driving forwards, in rapid succession, did not make up a separate event for the purpose of ‘avoiding duplicity’, and that the actus reus could properly be described as the driving of the vehicle in the manner alleged at that time.

32Counsel submitted therefore that a plea to all three of these charges clearly offends the rule against ‘duplicity’. However, he also submitted that there was an infringement against the principles of double punishment even if this was not correct.

33In oral submissions counsel suggested that a better way to frame the charges was to separate and identify the people put at risk of serious injury. He emphasised the artificiality in seeking to separately charge driving forwards and backwards.

34In respect of charge 8, the applicant also submitted that the aggravation element of this charge (brought under s 317AF(1)(b) of the Crimes Act) was that it was committed in connection with an offence against s 317AG — being a charge of damaging an emergency service vehicle. The applicant did not dispute that the behaviour pleaded to caused damage to an emergency service vehicle. However, the applicant complained that this conduct did not form the basis of a separate charge, and that there was therefore no finding by a court that the applicant had offended against the provision. He also submitted that it would have failed the test under s 317AG(3)(d) (namely, that the fact that the vehicle is an emergency service vehicle is ‘reasonably apparent’) because the vehicle was unmarked and there were no lights and sirens operating.

Analysis

35For reasons given already, the applicant misconceives the concept of duplicity, and there is no ‘duplicity’ by reason of the laying of the three charges. This says nothing about whether the laying of multiple charges is appropriate as a matter of practice. In the present case, this arguably helped give rise to the confusion about the various charges which this application has identified, and it certainly made the sentencing task more difficult. In any event, the respondent conceded that charges 8 and 9 could have been ‘rolled up’ on the plea. However, the two charges are capable of relating to two separate and distinguishable acts (of reversing and subsequently driving forwards) as alleged.

36Turning next to charge 10, the real complaint appears to be one of ‘double jeopardy’ rather than duplicity, namely a complaint that, by reason of laying charges 8 and 9 — as well as 10 — the applicant has been prosecuted twice for the same offence.[28] However, this principle focuses attention on the elements of each offence and is not applicable where the subsequent offence contains elements not included in the first offence.[29]

[28]Pearce v The Queen (1998) 194 CLR 610, 614 [9]–[10] (McHugh, Hayne and Callinan JJ); [1998] HCA 57.

[29]Ibid 615–21 [16]–[32], especially 617 [20]–[21].

37In undertaking a comparison between s 317AF of the Crimes Act (the subject of charges 8 and 9) and s 23 (the subject of charge 10), there are elements of s 317AF that are not elements of s 23. For example, the complainant under s 317AF must be an emergency worker, custodial officer or youth justice custodial worker (as defined in s 317AB), whilst s 23 applies to all people. There is also at least one element in s 23 that is not included in s 317AF. That is the requirement that the impugned conduct places another person in danger of serious injury. It is sufficient for the purposes of s 317AF that the person be exposed to a risk to safety, which is clearly a lesser requirement. So, where the risk created is one of serious injury and the complainant is an emergency worker, the criminality cannot be fully covered by the charging of only one or other of the two offences.

38There is also a further distinction in the present case, because charge 10 includes an additional complainant, being Senior Constable Fidler, such that there is an additional person alleged to be placed in danger of serious injury.

39It was therefore lawful for the prosecution to include three separate charges on the indictment in relation to the driving that occurred on 24 July 2019 and ground 2 is without merit.

40Turning then to ground 3, there is no explicit requirement in s 317AF that the aggravating feature under sub-s 1(b) be the subject of either a separate charge or a conviction. The requirement is merely that the offending be ‘in connection with an offence committed by that person against section 317AG’. The manner in which the Crimes Act employs the term ‘offence’ makes it clear that an offence is committed as soon as the elements are satisfied. There are multiple sections of the Crimes Act which use the form: ‘A person who [commits certain acts] is guilty of an indictable offence’.[30]

[30]See, eg, ss 16–21 of the Crimes Act.

41The effect of sub-s 1(b) then is simply to add elements to the charge under s 317AF by reference to s 317AG and there is no requirement for a separate charge or conviction under s 317AG.

42There is also no merit in the suggestion that it was not reasonably apparent to the applicant that the vehicle was an emergency service vehicle. Three policemen were yelling directions for the applicant to stop prior to him reversing into the police car. He was clearly well aware that the complainants were police officers and that their car was a police car. His actions are readily explicable on the basis that he was seeking to avoid apprehension by the police. There is no reason why the applicant should not be held to his plea in respect of charge 8.

Summary

43By reason of the applicant’s success in relation to ground 1(b), the conviction in respect of charge 3 cannot stand. In the result, the sentencing exercise has been affected such that the discretion is opened in relation to all of the charges.

Resentence

44In considering an appropriate sentence, there were a number of significant findings made by the judge which were unchallenged and may be accepted:

•the offending was objectively ‘very serious’ and the applicant’s moral culpability was ‘high’.[31] The offending was ‘exceptionally dangerous’ and called for both general and specific deterrence as well as denunciation and the need for community protection;[32]

•an aggravating feature of the offending was that the applicant was on a community correction order (‘CCO’) for similar offences at the time of offending;[33]

•although the applicant has been diagnosed with a general anxiety disorder and stimulant abuse disorder, there was no submission that Verdins[34] principles applied;[35]

•the applicant’s prospects of rehabilitation are poor;[36]

•the applicant had not demonstrated any real and insightful remorse.[37]

[31]Director of Public Prosecutions v Wallis [2021] VCC 494, [50] (‘Reasons’).

[32]Ibid [75].

[33]Ibid [49].

[34]R vVerdins (2007) 16 VR 269; [2007] VSCA 102.

[35]Reasons, [66].

[36]Ibid [68].

[37]Ibid [69].

45The applicant also has a relevant criminal history. On 6 July 2017, he was sentenced in the Seymour Magistrates’ Court to a 12-month CCO without conviction, for offences of intentionally damaging property, driving without authorisation, persistent contravention of a family violence order and committing an indictable offence on bail. The applicant breached this CCO with further offending and was sentenced at the Shepparton Magistrates’ Court on 27 November 2018 for offences including reckless conduct endangering life, and multiple offences of contravention of a family violence order. He was sentenced to an aggregate sentence of 8 months’ imprisonment in combination with a 12-month CCO, as well as an extension of the CCO (in respect of the breach of the CCO imposed on 6 July 2017).

46The applicant was taken into custody for the present offending on 6 August 2019, and was granted bail on 13 August 2020. Unfortunately, although the applicant initially responded positively to Court Integrated Services Program involvement, he again reoffended between 26 December 2020 and 13 January 2021 and was sentenced in the Shepparton Magistrates’ Court on 17 February 2022 for offences similar to those the subject of the present application. The applicant was sentenced to 18 months’ imprisonment to be served wholly concurrently with his sentence for the offences the subject of this application. Two further CCOs were also imposed, both to commence upon release from prison.[38]

[38]No issue was raised concerning the consistency of this disposition with s 44(1) of the Sentencing Act 1991.

47This prior history suggests that there is a strong case for specific deterrence, although the youth of the applicant is also an important consideration. In this respect the judge expressly observed that the applicant was a young man who was 20 years old when he committed the offending (he is now 24 years old). She correctly considered that his youth was a significant matter and the sentence should be appropriately moderated because of his youth.[39]

[39]Reasons, [70].

48The judge also correctly accepted that the plea had utilitarian value which was heightened given the COVID-19 pandemic, and that the current difficult conditions in prison by reason of the pandemic should be taken into account.[40]

[40]Ibid [52], [74].

49The judge further described the applicant’s childhood as ‘difficult’, saying:

You were one of a siblingship of five. You had a difficult childhood. Tragically, your father was killed in a workplace accident when you were only 13 years old.

When you were 15, your mother re-partnered. She left the family home and abandoned you. You and your mother did later reconcile, and your mother and your stepfather now support you. After your mother left, you moved in with your sister and then into a caravan park with your brother.

You left school at 15. You completed two years of a roofing apprenticeship, but by this time your life was already dominated by your drug addiction.

You told Lisa Jackson, psychologist, who prepared a psychological report tendered at your plea, that you started using cannabis in your teens and by 16 you were using daily. At 17, you were introduced to methylamphetamine and within months you were using it daily. You also used heroin and GHB on occasion.[41]

[41]Ibid [56]–[59].

50Counsel for the respondent accepted that the principles in Bugmy v The Queen[42] had a role to play in these circumstances. We accept this concession, which was an appropriate one.

[42](2013) 249 CLR 571; [2013] HCA 37.

51In resentencing in the light of all these matters, there is some merit in the respondent’s submission that the sentence, considered overall, was appropriate, even allowing for the exclusion of charge 3. However, we also agree with the respondent’s fair concession that the 12 months’ cumulation on charge 9 was ‘very stern’.

52Having particular regard to the applicant’s youth, difficult childhood, and his plea, we consider that he should obtain the full benefit of the acquittal on charge 3 (namely cumulation of 3 months). We also consider that the 12 months’ cumulation on charge 9 is excessive having regard to the small time frame involved in respect of the driving actions the subject of charges 8 and 9 (reversing and then immediately driving forwards). We would substitute a cumulation of 6 months in respect of charge 9.

53Having regard to the factors recited above, including that the offending was dangerous and prolonged, we would otherwise not interfere with the judge’s individual sentences, which we consider to be appropriate.

54The total effective sentence will therefore be 5 years and 7 months’ imprisonment, with a non-parole period of 3 years and 6 months. Consistent with the approach of the judge, it is appropriate to set a relatively generous non-parole period given the applicant’s youth, in order to provide opportunity for rehabilitation and supervision.

55Pursuant to s 6AAA of the Sentencing Act 1991, but for the applicant’s pleas of guilty, the Court would have imposed a total effective sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 10 months.

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