Nathan Smith v The Queen
[2022] VSCA 148
•29 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2021 0157
| NATHAN SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 July 2022 |
| DATE OF JUDGMENT: | 29 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 148 |
| JUDGMENT APPEALED FROM: | DPP v Smith [2021] VCC 1150 (Judge Hannebery) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated offence of intentionally exposing emergency workers to risk by driving and associated charges – Guilty plea – Sentenced to 4 years and 9 months’ imprisonment with non-parole period of 3 years and 3 months – Whether judge sentenced on incorrect factual basis – Whether judge wrongly characterised the seriousness of the offence as greater than mid-range – Whether in finding that offence represented a ‘serious example’ the judge denied the applicant procedural fairness – Whether principle of totality offended – Whether sentence manifestly excessive – Leave to appeal refused – DPP v Weybury (2018) 84 MVR 153; Jaeger v The Queen (2020) 92 MVR 95 considered.
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| Counsel | |||
| Applicant: | Mr S Andrianakis | ||
| Respondent: | Ms D Piekusis QC | ||
Solicitors | |||
| Applicant: | Emma Turnbull Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
MACAULAY JA:
Introduction
Nathan Smith, the applicant, now aged 36 years,[1] pleaded guilty before a judge in the County Court on 12 August 2021 to the aggravated offence of intentionally exposing an emergency worker to risk by driving[2] (charge 2); theft of a motor vehicle[3] (charge 1); damaging property[4] (charges 3 and 4); being a prohibited person in possession of a firearm[5] (charge 5); and possessing a drug of dependence[6] (charges 6, 7 and 8). He also pleaded guilty to the related summary offences of unlicensed driving (summary charge 72);[7] fraudulent use of number plates (summary charge 73);[8] possessing cartridge ammunition without a permit (summary charge 76);[9] possessing a controlled weapon (summary charge 77);[10] driving whilst exceeding the prescribed concentration of drugs (summary charge 82);[11] and wilfully damaging property (summary charge 84).[12]
[1]His date of birth is 13 November 1985.
[2]Crimes Act 1958, s 317AD(1)(a). The maximum penalty is 20 years’ imprisonment.
[3]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[5]Firearms Act 1996 , s 5. The maximum penalty is 10 years’ imprisonment or 1200 penalty units.
[6]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment or 30 penalty units.
[7]Road Safety Act 1986, s 18(1A). The maximum penalty is six months’ imprisonment or 60 penalty units.
[8]Road Safety Act 1986, s 72(1A). The maximum penalty is six months’ imprisonment or 60 penalty units.
[9]Firearms Act 1996, s 124(1). The maximum penalty is 40 penalty units.
[10]Control of Weapons Act 1990, s 6(1). The maximum penalty is one year’s imprisonment or 120 penalty units.
[11]Road Safety Act 1986, s 49(3AAA). The maximum penalty is 120 penalty units.
[12]Summary Offences Act 1966, s 9(1)(c). The maximum penalty is six months’ imprisonment or 25 penalty units.
Following a plea, on 18 August 2021 the judge sentenced the applicant to a total effective sentence of four years and nine months’ imprisonment, with a non-parole period of three years and three months, in conformity with the following table:
Charge
Offence
Sentence
Cumulation
1
Theft of motor vehicle
9 months
—
2
Aggravated offence of intentionally exposing an emergency worker to risk by driving
51 months
Base
3
Damaging property
3 months
—
4
Damaging property
3 months
—
5
Prohibited person in possession of firearm
21 months
6 months
6
Possessing a drug of dependence
Aggregate fine of $500
—
7
Possessing a drug of dependence
8
Possessing a drug of dependence
Related Summary Offences
72
Unlicensed driving
$500 fine
—
73
Fraudulent use of number plates
—
76
Possessing cartridge ammunition without a permit
$250 fine
—
77
Possessing a controlled weapon
$250 fine
—
82
Driving whilst exceeding the prescribed concentration of drugs
$1,000 fine
—
84
Wilfully damaging property
1 month
—
Total effective sentence
4 years and 9 months’ imprisonment
Non-parole period
3 years and 3 months
Section 6AAA declaration
6 years, with 4 years and 6 months non-parole
Other orders
Driver’s licence cancelled and disqualified from driving for 36 months (on charges 1 and 2, and summary charge 82); disposal order (drugs); forfeiture order (Mossberg rifle and ammunition); declaration under s 89C of the Sentencing Act 1991 that charge 2 committed while applicant under the influence of drug which contributed to the offence.
The applicant now seeks leave to appeal against sentence on three grounds as follows:
1The sentencing judge erred in relying on a summary of prosecution opening that was not agreed between the parties, nor tendered on the plea, resulting in a substantial miscarriage of justice.
2The sentencing judge erred by:
(i) Concluding that the offending on charge 2 was a serious example of a serious offence, in circumstances where the prosecution submitted the offending was a ‘mid-level example’; and
(ii) Failing to advise counsel for the applicant that the judge would depart from the position of the prosecution’s characterisation of the seriousness of the offence after agreeing it was a ‘mid-level example’; and
(iii)Failing to provide an opportunity for counsel for the applicant to address, or make submissions on, the finding the judge intended to make that it was a ‘serious example’ of this type of offence.
And in so doing, denied the applicant procedural fairness.
3In all the circumstances the sentence imposed on charge 2, and as a result the total sentence imposed and non-parole period fixed are manifestly excessive and offend the principle of totality when having regard to:
(i) The fact that the applicant had already served a 12-month prison sentence and was due to commence an 18-month community correction order;
(ii) The applicant’s prospects for rehabilitation;
(iii) The onerous custodial conditions the applicant has so far spent in prison, and will continue to spend for the foreseeable future due to the COVID-19 pandemic; and
(iv) Current sentencing trends for the offence of aggravated intentional exposure to emergency worker to risk by driving.
For the reasons that follow, we consider that leave to appeal should be refused.
The offending
Before turning to a consideration of the grounds of appeal, it is necessary to summarise the applicant’s offending, which, in our view, was very serious.[13]
[13]See [32] et seq below.
On 17 October 2019, the applicant stole a 2000 Mazda Bravo dual cab utility from a street in Ballarat East (charge 1). So as to disguise it, the utility subsequently was painted green.
At about 7.00 pm on 29 October 2019, the applicant, in company with another male and a female, drove the now green Mazda utility to the Ambassador Motel in Alfredton. The female then went to reception, seeking to book a room. The utility was eventually parked in front of the room booked, Room 4.
Less than an hour later, at 7.40 pm, Detective Sergeant Steven Howard (for convenience, ‘Howard’), driving an unmarked white Colorado police vehicle, identified the utility in the motel car park as the one stolen on 17 October 2019. Shortly afterwards, Senior Constable Benjamin Knight (‘Knight’) and Sergeant Brett Robinson (‘Robinson’) drove to meet Howard nearby the motel.
Knight then went to reception and spoke to Warren Trainor, the motel owner, about the occupants of Room 4. Another occupant of the motel, Robert Howell, had temporarily parked his white Mitsubishi van in the driveway of the motel, blocking the exit. Knight asked Mr Howell to leave his vehicle in that position for the time being. He agreed to do so.
Howard, Knight and Robinson then conducted a briefing to formulate an arrest plan. They each put on vests with ‘Police’ insignia.
At approximately 8.15 pm, Howard drove the Colorado police vehicle into the motel driveway and parked it behind Mr Howell’s van. There was a third vehicle in the other lane of the driveway, so that all exit points of the car park were effectively blocked.
Knight and Robinson then walked up the driveway of the motel, passing the Colorado and the van to their right. Howard got out of the Colorado and followed them. As they walked past Mr Howell’s van, they observed the applicant in the driver’s seat of the Mazda utility with the engine running.
Knight and Robinson then yelled to the applicant, ‘Nathan, stop, police’. At that point, Knight and Robinson were directly in front of the van, Knight being in front of the passenger seat and Robinson in front of the driver’s seat. Howard was positioned just behind Robinson. Mr Trainor was near Knight, and was walking forward, intending to open Room 4 for the police members.
The applicant then drove the Mazda utility forward at speed, directly towards Knight and Robinson – who were forced to jump out of the way to avoid being struck – and rammed the bonnet of Mr Howell’s van.
Knight continued to yell at the applicant, directing him to stop the vehicle. The applicant, however, reversed the Mazda utility at speed and rammed a parked Toyota Hilux, causing damage to both vehicles. Robinson then deployed stop sticks under the rear tyres of the Mazda utility, but they were not effective.
The applicant then once more accelerated the Mazda utility forward at speed. Knight yelled at Mr Trainor to move – he did so – and Robinson also took evasive action to avoid being struck. Narrowly missing Robinson, Knight, Howard and Mr Trainor, the applicant then rammed the front of the van again, bonnet to bonnet, causing further damage to both vehicles. The collision did not, however, move the van enough to permit the applicant to escape.
Knight then ushered Mr Trainor – who feared for his life and those of police – away from the area. Mr Trainor stopped other motel guests from entering the driveway.
The applicant then reversed the Mazda utility a second time. As he was reversing, Knight, Robinson and Howard were trying to get close to the Mazda utility, attempting to open its locked doors and to smash its windows with their police batons. At one point, Knight stood on a step on the side of the vehicle and used his baton in an endeavour to smash a window. The applicant reversed the Mazda utility into the Toyota Hilux again, this time with such force that the Toyota Hilux moved and hit a third vehicle parked next to it, a black Holden Commodore.
Having done so, the applicant drove the Mazda utility forward for a third time at speed. Robinson then deployed capsicum spray through the partially open passenger side window, but the applicant rammed the front of the van for a third time. On this occasion, the force of the impact pushed the van backwards and into the front of the Colorado, shunting both vehicles backwards two or three metres. As a result of the collision, the Mazda utility became lodged in the front of the van. The applicant, however, continued to rev the Mazda and change gears, trying to push forward.
Robinson then used his baton to smash the utility’s front passenger window, and attempted to open the passenger door. He was unable to do so due to the damage to the vehicle. The applicant refused to get out of the Mazda, and kept trying to drive it, so Robinson reached through the window and struck the applicant with his baton. The applicant then tried to climb into the rear seat and began unwrapping an item. Fearing the applicant was searching for a weapon, Robinson struck him with his baton again. Robinson and Knight were then able to drag the applicant from the Mazda, and he was arrested, handcuffed and cautioned. He subsequently declined to be interviewed.
Charge 2 is based on the applicant’s conduct in repeatedly accelerating the utility forward and reversing it in order to avoid capture, thereby intentionally exposing Robinson, Knight and Howard to a risk to their safety.
Following the applicant’s arrest, police searched the Mazda utility. In a sleeping bag on the floor of the rear seat, police located a Mossberg bolt-action .243 rifle, which had been stolen in a burglary in May 2019 (charge 5). A round of ammunition that could be used in the firearm was located in a magnetic box in the applicant’s pocket (summary charge 76). Also located in the magnetic box was a small quantity of methylamphetamine (charge 6), LSD (charge 7) and ecstasy pills (charge 8) in small zip-lock bags. Inside the driver’s side door was a hunting knife (summary charge 77). As we have said, the Mazda utility had been painted green to disguise its identity and false number plates had been affixed (summary charge 73). The applicant was not licensed to drive (summary charge 72), and a blood sample taken from the applicant by a medical practitioner at 11.55 pm later returned a positive result for the presence of methylamphetamine (summary charge 82).
As a result of the applicant’s driving, the Mazda utility, valued at $8,000, was written-off; the Mitsubishi van belonging to Mr Howell sustained damage to the front and rear, valued at $5,000.00 (charge 3); the Toyota Hilux, valued at $40,000, sustained extensive damage and was written-off (charge 4); the Holden Commodore sustained damage valued at $4,999.00 (summary charge 84); and the police Colorado sustained damage to the front of the vehicle valued at just over $9,000.
Ground 1: Judge used incorrect summary
Prior to the plea, the prosecution initially had filed a Summary of Prosecution Opening for Plea (‘Prosecution Opening’), dated 4 August 2021. That initial version was superseded, however, by an amended version of the Prosecution Opening, dated 10 August 2021. It was the amended version that was read out on the plea by the prosecutor (and marked as Exhibit P1).
It is clear, however, that when he sentenced the applicant on 18 August 2021, the judge relied on the facts as outlined in the superseded Prosecution Opening.
There are three main differences between the facts as described in the superseded and amended versions of the Prosecution Opening. They are:
1 Superseded: As [police] walked past the van, the [applicant] exited room 4, looked towards the police members, and immediately got into the Mazda utility, started the engine, and revved the engine loudly.
Amended:As they walked past the van, police members observed the [applicant] in the driver’s seat of the Mazda utility with the engine running.
2Superseded: The [applicant] then drove the Mazda utility forward at speed, directly towards [Knight], [Robinson] and [Howard], and rammed the bonnet of the van (bonnet to bonnet)…
Amended:The [applicant] then drove the Mazda utility forward at speed, directly towards [Knight] and [Robinson], and rammed the bonnet of the van (bonnet to bonnet)…
3Superseded: [Knight] stood onto a step on the side of the Mazda and tried to smash the window with his police baton, but momentarily got his sleeve stuck on the mirror as the Mazda utility reversed, however, his sleeve became free.
Amended: [Knight] stood onto a step on the side of the Mazda and tried to smash the window with his police baton.
In this Court, counsel for the applicant submitted that the differences between the two versions of the Prosecution Opening are ‘marked’, and ‘not what the applicant pleaded guilty to’. When taken as a whole, counsel submitted, the version relied upon by the judge elevates the gravity of the applicant’s offending and must have played a role in the sentencing judge’s ultimate conclusion that:
This is in my view a serious example of an inherently serious offence.
Whilst fairly conceding that the judge proceeded upon the superseded version of the Prosecution Opening, counsel for the respondent submitted that any resulting factual errors by the judge were not material. It cannot reasonably be supposed that, had the judge known of the true situation, a lower sentence would or might have been imposed.[14]
[14]R v Fox [2003] VSCA 138, [18].
The submissions of the respondent’s counsel should be accepted.
Although it is regrettable that the judge sentenced the applicant according to the superseded version of the Prosecution Opening, we agree that any resulting factual errors by the judge were not material. For that reason, we cannot conceive that a lesser sentence might have been imposed had he proceeded on the amended version. Further, as we will make clear below, we consider that the sentence imposed on charge 2, and the total effective sentence, are both very moderate.[15] Hence, notwithstanding that the applicant has demonstrated error, we would still refuse leave to appeal on the first ground since there is no reasonable prospect that the Court would impose a less severe sentence on charge 2 than the sentence first imposed, or would reduce the total effective sentence.[16]
[15]See [50]–[51] below.
[16]Criminal Procedure Act 2009, s 280(1).
The first ground cannot be upheld.
Ground 2: Classifying the offending on charge 2 as ‘a serious example of an inherently serious offence’
On the plea, the prosecutor characterised the offending on charge 2 as a ‘mid-level’ example of the aggravated offence of intentionally exposing an emergency worker to risk by driving.
In discussion on the plea the judge said that
what you have to do is look at the broader circumstances here and you’ve got a vehicle that’s been driven in close proximity to people on their feet without any protection. [T]he vehicle isn’t going at 100 miles an hour or anything but it’s going at sufficient speed, I don’t think anyone would dispute to be capable of at the very least knocking people over and causing them injury or serious injury. I don’t think that’s overstating things and I think if I, in all the circumstances, factoring that in and factoring that it’s been a risk, the charges involved a risk to three separate police officers who were in the course of their lawful duties. I think that probably says that this is a not lower end example of an offence that by its very construction is a serious matter, given the maximum penalty and given the – to be charged with this offence, the threshold – if I can put it this way, the floor is high for this offence. … And I don’t think this is a lower end example of it. I think you’ve said it’s mid-range, which I know these are all relative concepts but I wouldn’t say it’s absolutely upper range, certainly not lower range which I suppose means I probably agree with your description of it being mid-range.[17]
[17]Emphasis added.
Despite ‘probably’ agreeing that the offence was ‘mid-range’, however, the judge in his sentencing remarks (as we have mentioned) described the applicant’s as ‘a serious example of an inherently serious offence’.
In this Court, the applicant’s counsel submitted that the applicant had not taken issue on the plea with the characterisation of the seriousness of the offending as ‘mid-range’ and so did not address the sentencing judge further on the matter. At no stage before sentencing did the judge seek submissions on the seriousness of the offence from the applicant. If the sentencing judge saw the offending as a serious example, counsel submitted, the judge ought to have alerted the applicant’s counsel before imposing sentence. By reason of the judge’s failure to do so, counsel submitted, the applicant was denied procedural fairness and a more severe sentence was imposed on charge 2.
The respondent’s counsel submitted that it is difficult to discern any real difference between the prosecutor’s assessment of the offence as ‘mid-level’ and the judge’s conclusion that it was a ‘serious example of an inherently serious offence’. If a particular example of a criminal offence carrying a maximum penalty of 20 years’ imprisonment is correctly characterised as a ‘mid-level’ example of such offence, then it must follow it is a ‘serious’ example of the offence. Moreover, counsel submitted, procedural fairness was not denied to the applicant during the plea hearing. Thus, the applicant was on notice by a statement made by the judge early in the hearing that the offending called for a ‘substantial period of imprisonment’. Further, in written submissions the applicant’s counsel had said that the applicant ‘acknowledges the seriousness of his offending’.
As was observed in Weybury,[18] beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called),[19] attempts to shoehorn particular cases into categories of seriousness such as ‘upper’, ‘middle’ or ‘lower’ are often calculated to obscure the essential nature of the sentencing task.
[18]DPP v Weybury (2018) 84 MVR 153, 170–1 [54] (Priest JA); see also 165 [33]–[34] (Maxwell P and Hargrave JA). See further DPP v Ristevski [2019] VSCA 287, [62]–[66] (Priest JA).
[19]R v Kilic (2016) 259 CLR 256, 265–6 [18]–[19] (Bell, Gageler, Keane, Nettle and Gordon JJ); DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, [45] (Kiefel CJ, Bell and Keane JJ).
Plainly, the aggravated offence of intentionally exposing an emergency worker to risk by driving is an inherently serious offence, given that it involves driving a vehicle in the vicinity of an emergency worker intending to expose the worker to a risk to his or her safety. And given the circumstances of this case, we would have thought it obvious that the applicant’s was indeed a serious example of an inherently serious offence.
We agree that the applicant was on notice from the discussion at the hearing of the plea that the judge was concerned about the gravity of the offending. Having read the transcript of the hearing, it seems that, in reply, the applicant did in fact address the judge further on aspects going to that issue. But, assuming in the applicant’s favour that his counsel on the plea might have advanced further submissions on his behalf had the judge given notice that he intended to depart from the prosecutor’s ‘mid-level’ categorisation, we are not persuaded that inviting further submissions might have made any difference.
As we have already indicated, we consider that the sentence imposed on charge 2, and the total effective sentence, are both very moderate. Thus, even were we of the view that the applicant had demonstrated error, we would nonetheless refuse leave to appeal on this ground because there is no reasonable prospect that the Court would impose a less severe sentence on charge 2 than the sentence first imposed, or would reduce the total effective sentence.
Ground 2 cannot succeed.
Ground 3: A manifestly excessive sentence?
In considering the claim of manifest excess, it is important to note that the applicant had been sentenced in the Magistrates’ Court on 5 June 2020 to 12 months’ imprisonment, with a community correction order (‘CCO’) of 18 months’ duration, on a large number of charges, including recklessly exposing an emergency worker to a risk by driving.[20] The circumstances of that offence – which occurred a little over a month prior to the offending the subject of charge 2 – were described in Exhibit P2 as follows:
On the 11th of September, 2019, an Automatic Number Plate Recognition (ANPR) site was set up on Leith Street, Redan. The site was east of Albert street and was monitoring traffic travelling west on Leith Street.
At approximately 1 pm a silver Ford Sedan driven by the [applicant] drove towards the line of police members at the site. The vehicle had no number plates and began slowing in speed. Also within the vehicle was a female passenger. The [applicant] drove the vehicle turned right into Yarrowee Parade where Constable Herzog, Constable Mitchell and Constable Cosgrave were intercepting traffic turning prior to the ANPR line. They were wearing Police IOEVs and reflecting vests as well as standing with a police vehicle.
The [applicant] slowed the vehicle as Constable Herzog stepped in front of the vehicle and directed it to pull over. Constable Herzog was within a very short distance of the vehicle. The vehicle at this time accelerated at a fast pace towards Constable Herzog and began turning right to perform a ‘u’ turn. This caused Constable Herzog to jump out of the way as the vehicle nearly struck him. The vehicle then accelerated over a grassy / stoned area losing traction. The vehicle headed back the same direction as it had arrived from.
Detective Senior Sergeant Argall entered [an] unmarked police vehicle as the driver while Detective Sergeant Allen entered the passenger side and commenced to head in the same direction of travel as the [applicant]. The [vehicle’s] flashing lights and sirens were activated.
At the intersection of Cobden and Barkly Street, the vehicle was again observed. The [applicant] turned right at the roundabout cutting the corner and travelling across the lane of traffic putting other road users at risk. The police vehicle took up a position behind the vehicle to intercept but the accused refused. The vehicle was pursued in Cobden Street which is a 60 zone at speeds fluctuating above the limit to an amount of 20 km/h. A number of times the drove the vehicle into oncoming lanes of traffic to overtake other vehicles travelling in the same lane of traffic. Cobden becomes Britain Street which then becomes Tinworth Street.
At the corner of Tinworth and Geelong Road the vehicle turned right travelling along Geelong Road. The speed limit along this road varies between 70 km/h to 100/km/h. The vehicle was continually driving 20 km/h above the posted limit and other vehicles travelling at these limits. The [applicant] drove the vehicle into the oncoming lane numerous times passing vehicles and driving in a manner to cause the termination of the pursuit.
At the intersection of Main Road and Gear Avenue Buninyong the pursuit was terminated by the pursuit controller. The Ford continued towards the Buninyong Township and [police] lost [sight] of it.
The total distance was 8 km and was for a period of five minutes.[21]
[20]Crimes Act 1958, s 317AE(1)(a). The maximum penalty is 10 years’ imprisonment.
[21]Emphasis added.
With respect to the sentence imposed by the Magistrates’ Court on 5 June 2020, there was a declaration of 220 days’ pre-sentence detention and the applicant was granted 75 emergency management days, so that the custodial portion of the sentence expired on 13 August 2020. When that sentence and the present sentence are together taken into account, the applicant will be in custody for a continuous period of five years and nine months, and then will have to complete the CCO upon release. As a result, counsel for the applicant submitted, the principle of totality has been infringed.
It should be noted, however, that the judge was astute to apply the totality principle, observing in his sentencing reasons that
the June 2020 sentence must be taken into account as part of the broader consideration of totality. Whilst I do not regard it as necessary to engage in an exercise of trying to determine precisely what level of cumulation might have been imposed had that Magistrates’ Court matter been dealt with as part of this indictment, I take into account that you have already served 12 months’ imprisonment subsequent to the offending before this court and moderate my sentence somewhat to reflect the total period of imprisonment that both sets of charges will produce.
As well as submitting that totality had been infringed, counsel for the applicant submitted that the sentence was manifestly excessive given that: the judge had assessed the applicant’s prospects of rehabilitation as ‘good’; the applicant has been subjected to onerous conditions in custody due to the COVID-19 pandemic; a psychologist, Ms Carla Lechner, had found that the applicant suffered from an adjustment disorder and depression, causing him extreme psychological distress and a moderate level of anxiety, so that the judge was satisfied that the fifth limb of Verdins[22] – that imprisonment would be somewhat more burdensome for the applicant than for somebody without these conditions – was engaged; and that the sentence on charge 2 was high in light of current sentencing practices.[23]
[22]R v Verdins (2007) 16 VR 269.
[23]Counsel cited Jaeger v The Queen (2020) 92 MVR 95 (‘Jaeger’), and referred to a number of sentences imposed in the County Court: DPP v Borg [2020] VCC 60; DPP v Clavell and Clavell [2020] VCC 1437; DPP v Turnbull [2020] VCC 1299; DPP v Beattie and Hogan [2020] VCC 1560; DPP v Richardson [2020] VCC 1886; DPP v Jackson [2021] VCC 1659; and DPP v Nixon [2020] VCC 553.
Further, counsel for the applicant submitted that the applicant is 36 years old, with a relatively limited prior criminal history relating primarily to dishonesty, drug and non-violent driving offences. He has made a concerted effort to rid himself of his drug addiction, including seeking to complete a CCO to assist in his rehabilitation on release from prison. So much shows a degree of insight, and, together with his good employment history and ongoing motivation for rehabilitation (for the sake of his three sons), prompted the sentencing judge to remark that there is a ‘substantial reason for optimism about [his] prospects of rehabilitation’.
On the other hand, counsel for the respondent submitted that the sentence was not manifestly excessive. The offending on both charge 2 and charge 5 were serious examples of the relevant offences. The motive for the offending on charge 2 was to avoid lawful arrest; and charge 5 involved the possession of a firearm in working condition, in circumstances in which the judge found that the possession of the firearm was accompanied by a willingness to grab the weapon at a time that the applicant was violently defying a police direction.
The respondent’s counsel submitted that the judge took into account the applicant’s plea of guilty and expressions of remorse, and accorded greater weight to the plea given its entry during the pandemic restrictions.[24] The judge also took into account the applicant’s adjustment disorder and depression and sentenced on the basis that this condition rendered imprisonment more burdensome for the applicant. Further, counsel submitted that the judge properly applied the principle of totality, and took into account the impact of the pandemic; the applicant’s prospects of rehabilitation; and current sentencing practices.
[24]See Worboyes v The Queen (2021) 96 MVR 344, 356–7 [39].
Jaeger, a case referred to by both parties (and by the sentencing judge in his reasons), involved the applicant ramming a police vehicle occupied by police whilst driving a stolen car. In rejecting the contention (among others) that a sentence of five years’ imprisonment imposed for the aggravated offence of intentionally exposing an emergency worker to risk by driving was manifestly excessive, this Court observed:[25]
In our view, general deterrence, punishment and denunciation all needed to be given prominence in the sentence. As we have said, the applicant’s drug-fuelled conduct founding charge 3 was outrageous. It placed in danger — and caused actual injury to — two police officers, upon whom the community relies for protection and the maintenance of order. The message needs to be sent clearly and unequivocally to like-minded individuals that conduct such as the applicant’s simply cannot — and will not — be tolerated. We regard the applicant’s as being a serious example of a serious offence, warranting stern punishment. In our opinion, the sentence imposed — representing only 25 per cent of the available maximum (at the risk of resorting to naive fractions) — adequately reflects all the circumstances in mitigation relied upon. Indeed, were it not for the applicant’s plea of guilty (in particular), we consider that a significantly more severe sentence would have been justified.
[25]Jaeger, 104 [36].
We would once more emphasise that the message ‘needs to be sent clearly and unequivocally to like-minded individuals that conduct such as the applicant’s simply cannot – and will not – be tolerated’. In the present case, as in Jaeger, general deterrence, just punishment and denunciation all needed to be given prominence. And as in Jaeger, the applicant’s drug-fuelled conduct foundational of charge 2 was outrageous, placing three police officers – upon whom the community relies for protection and the maintenance of order – in danger (albeit that it was fortunate that they escaped injury). Moreover, given the incident a few weeks prior to the instant offending, in which the applicant drove a motor vehicle towards a police officer, we consider that an adequate measure of specific deterrence needed to be reflected in any sentence imposed.
Ultimately, we regard the applicant’s to have been a serious example of a serious offence, warranting stern punishment. It was not the first time that he had exposed police officers to risk by driving. Were it not for the mitigating factors that the judge took into account, we consider that a more severe sentence would have been warranted. The very moderate individual sentence imposed on charge 2, and the relatively lenient total effective sentence and non-parole period, can only be explained by the judge giving proper weight to all relevant mitigating features.
The complaint in ground 3 that the sentence is manifestly excessive is without substance.
Conclusion
Leave to appeal against sentence must be refused.
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