Russell v The Queen
[2021] VSCA 221
•12 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0078
| NATHAN RUSSELL | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 August 2021 |
| DATE OF JUDGMENT: | 12 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 221 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1909 (Judge McInerney) |
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CRIMINAL LAW — Appeal — Sentence — Reckless conduct endangering life and associated offences — Horrendous driving to evade police — Extensive criminal history — Whether total effective sentence of 8 years and 9 months’ imprisonment with 7 years non-parole manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr H Rattray and Ms J McGarvie | Sarah Pratt and Associates |
| For the Respondent: | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
On 1 November 2019, the appellant, now aged 36 years,[1] pleaded guilty in the County Court to reckless conduct endangering life[2] (three charges); attempted aggravated carjacking[3] (one charge); theft[4] (three charges); and possession of a drug of dependence[5] (one charge); and to related summary charges of driving whilst disqualified;[6] fraudulently displaying number plates;[7] failing to stop on police direction;[8] failing to stop vehicle after an accident;[9] driving under the influence of a drug;[10] and possession of a controlled weapon.[11]
[1]His date of birth is 24 May 1985.
[2]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 79A and s 321P. The maximum penalty is 20 years’ imprisonment.
[4]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[5]Drugs Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is 12 months’ imprisonment or 30 penalty units or both.
[6]Road Safety Act 1986, s 30(1). The maximum penalty is two years’ imprisonment or 240 penalty units.
[7]Road Safety Act 1986, s 72. The maximum penalty is two months’ imprisonment or 10 penalty units.
[8]Road Safety Act 1986, s 64A. The maximum penalty is six months’ imprisonment or 60 penalty units.
[9]Road Safety Act 1986, s 61. The maximum penalty is one month imprisonment or 10 penalty units.
[10]Road Safety Act 1986, s 49. The maximum penalty is 18 months’ imprisonment or 180 penalty units.
[11]Control of Weapons Act 1990, s 6(1). The maximum penalty is 12 months’ imprisonment or 120 penalty units.
Following a plea, on 20 November 2019 the judge sentenced the appellant to a total effective sentence of eight years and nine months’ imprisonment with a non-parole period of seven years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Theft (of Navara motor vehicle) 1 year 3 months 2 Theft (of fuel) 3 months — 3 Theft (of registration plates, bankcards) 3 months — 4 Reckless conduct endangering life 6 years Base 5 Reckless conduct endangering life 3 years 1 year 6 Reckless conduct endangering life 3 years 1 year 7 Attempted aggravated carjacking 9 months — 8 Possession of a drug of dependence 2 months — Related summary offences 7 Drive whilst disqualified 6 months 3 months 10 Fraudulently display number plates 1 month — 11 Fail to stop on police direction 2 months — 16 Fail to stop vehicle after an accident 7 days — 19 Fail to stop vehicle after an accident 7 days — 20 Fail to stop vehicle after an accident 7 days — 22 Drive under the influence of a drug of dependence 9 months ‘Base’[12] 23 Possess controlled weapon without excuse 2 months — Total Effective Sentence 8 years, 9 months’ imprisonment Non-Parole Period 7 years Pre-Sentence detention 256 days Section 6AAA Statement 11 years, 8 months with a non-parole period of 9 years Other orders On summary charge 22, disqualified from obtaining any licence or permit for a period of 10 years from 20 November 2019 [12]As I noted when granting leave to appeal, the judge made an unusual order. It should not be emulated (although it cannot have adversely affected the exercise of the sentencing discretion). Thus, the judge directed that the ‘base sentence’ for the summary charges was charge 22, and ordered that three months of the sentence on summary charge 7 be served cumulatively, purportedly leading to a ‘total effective sentence for the related summary charges’ of 12 months’ imprisonment. The judge then ordered that six months of the 12 month sentence ‘imposed for the related summary charges be served cumulatively upon each other and upon the total effective sentence imposed’ on the indictment. There was no warrant to purport to impose a total effective sentence for the related summary charges, part of which was then cumulated upon the total effective sentence in relation to the charges on the indictment. Parts of individual sentences for the related summary charges should simply have been ordered to be served cumulatively (to the extent required) on the base sentence imposed on charge 4 of the indictment.
On 18 November 2020, I granted the appellant leave to appeal against the sentence ‘on the papers’ on a single ground:[13]
1. The sentence is manifestly excessive.
Particulars:
(a) The individual sentences imposed on charges 4, 5 and 6 are manifestly excessive.
(b) The orders for cumulation infringe the totality principle and produced a total effective sentence that is manifestly excessive.
(c) The non-parole period is manifestly excessive.
[13]Russell v The Queen (Unreported, Court of Appeal, Priest JA, 18 November 2020) (‘Leave Reasons’).
Having now heard full oral argument in support of the ground, I am of the view that the appeal must be dismissed. My reasons follow.
The offending
When granting leave to appeal, I observed that it would be something of an understatement to describe the appellant’s conduct founding charges 4, 5 and 6 as outrageous. I hold to that view.
The details of the appellant’s offending were set out in the Summary of Prosecution Opening, which was treated as an agreed statement of facts, in the following terms:
Background
1. [The appellant] was born on 24 May 1985 and is [36] years old.
2. [The appellant] was 33 years old during the offending period and was living [in Narre Warren].
Offending
Theft on 22 February 2019
3. In the early hours of Friday, 22 February 2019, [the appellant] attended a residential address in Upwey and broke into a 2017 Isuzu MUX SUV.
4. Inside the SUV, [the appellant] found a spare key for a white 2015 Nissan Navara utility, registration number 1EV9QN (the Navara), which belonged to Ryan Hogan-Hough and was parked next to the SUV.
5. [The appellant] then used the spare key to gain access to the Navara, which he drove away from the address (Charge 1 – Theft).
Theft on 5 March 2019
6. At approximately 8:20 pm on Tuesday, 5 March 2019, [the appellant] drove the Navara to the Coles Express Service Station located at 285 Fitzgerald Road, Derrimut.
7. [The appellant] parked near pump 3 and filled the Navara with 58.78 litres of diesel, which was valued at $83.41.
8. [The appellant] got back into the Navara and drove away without making any attempt to pay for the diesel (Charge 2 – Theft).
9. In the early hours of 9 March 2019, [the appellant] drove to Raymond Road, Laverton North with two friends, Max Carminati and Chantelle Turco.
10. [The appellant] and Mr Carminati approached a white Nissan Navara utility, registration number UTP623, which belonged to Timothy Moodie and was parked on Raymond Road.
11. [The appellant] and Mr Carminati broke into the vehicle and attempted to start it by tampering with the ignition. After being unable to start the vehicle, [the appellant] and Mr Carminati stole three bank cards and personal paperwork from inside the vehicle, as well as the vehicle’s registration plates, before leaving the area (Charge 3 – Theft).
Various offending on 9 March 2019
Offending in the Macleod area
12. Shortly after attempting to steal Mr Moodie’s vehicle with Mr Carminati, [the appellant] picked up another passenger, an unknown male.
13. [The appellant] then drove Mr Carminati, Ms Turco, and the unknown male to the Old England Hotel in Heidelberg, where they were all captured on CCTV footage drinking alcohol and playing pokies.
14. The four people left the Old England Hotel at approximately 4:12 am. Shortly afterwards, [the appellant] was driving the Navara on Carwarp Street, Macleod when he was seen by Detective Sergeant Andrew Beames and Detective Senior Constable Adam Donnelly.
15. At the time, the Navara had cloned registration plates with the registration number AYQ967 affixed to it (Related summary charge 10 – Fraudulently display number plates).
16. Upon seeing the police vehicle, [the appellant] accelerated quickly and drove through the back streets of Macleod at high speeds.
17. Detective Sergeant Beames and Detective Senior Constable Donnelly began to follow the Navara, with their police lights activated, until [the appellant] drove the Navara onto the wrong side of Greensborough Road and turned off its headlights (Related summary charge 11 – Fail to stop on police direction). [The appellant] drove northbound on Greensborough Road at an estimated speed of 140km/h.
18. [The appellant] continued to drive the Navara with its headlights off, on the wrong side of the road, and at a very high speed through several streets before Detective Sergeant Beames and Detective Senior Constable Donnelly lost sight of the Navara as it turned into Nell Street, Greensborough.
19. Shortly after this, [the appellant] dropped the unknown male off in the Yallambie area.
20. Approximately 10 minutes later, the Navara was seen by police driving on Lower Plenty Road. Due to the nature of [the appellant’s] driving, the Police Air Wing helicopter were requested to assist in locating and tracking [the appellant].
21. The Air Wing located the Navara in the Preston area at around 4:25 am. The Air Wing then tracked [the appellant] for the remainder of the driving episode (approximately 46 minutes), capturing all of his driving on video.
Offending on Eastlink and at TC printing
22. The Air Wing followed [the appellant] as he drove the Navara through the Preston area, onto the Eastern Freeway until he got off at the Elgar Road exit, and through residential streets in the eastern suburbs. Throughout this time, [the appellant] consistently drove the Navara above the speed limit, overtaking other vehicles in a dangerous manner, and failing to stop at red lights.
23. [The appellant] eventually drove the Navara onto Eastlink, where he drove southbound, once again above the applicable speed limit. [The appellant] drove the Navara to the Monash Freeway overpass, which he parked under in an attempt to evade police detection.
24. However, when two police vehicles approached the Navara, [the appellant] performed a U-turn and commenced driving northbound against oncoming traffic in the southbound lanes. While driving against the oncoming traffic, [the appellant] drove past 11 civilian vehicles, narrowly avoiding a number of head-on collisions (Charge 4 – Reckless conduct endangering life).
25. Again, [the appellant’s] driving was captured by the Air Wing. His driving was also captured by CCTV footage on Eastlink, and was reported to ‘000’ by a number of civilian witnesses.
26. [The appellant] exited Eastlink by driving up the wrong way along the onramp from the BP Service Station, which is located between the Ferntree Gully Road and Wellington Road exits.
27. He then drove along Caribbean Drive, Scoresby and through an industrial area. At the same time, Kuldip Hanspal was driving to work. [The appellant] drove up behind Mr Hanspal’s car on Nyalong Drive, Scoresby and collided with it as he drove past, causing damage to both of Mr Hanspal’s driver’s side doors. [The appellant] did not stop after the collision (Related summary charge 16 – Fail to stop after accident).
28. [The appellant] then drove into the car park of TC Printing, which is a factory located on Jellicoe Drive, Scoresby. He drove the Navara into the factory at a fast speed through an open roller door, driving over pallets containing stock. [The appellant] drove the Navara directly at Matthew James, who was working inside the factory at the time. Mr James was required to run away to avoid being hit, with the Navara stopping where Mr James had been standing.
29. [The appellant] reversed the Navara out of the factory and back onto Jellicoe Road, almost colliding again with Mr Hanspal, who had followed [the appellant] to the factory. [The appellant] then drove back into the factory. As this was happening, Mr James and a co-worker, Steven Antoniou, had walked towards the roller door at the front of the factory. They were forced to get out of the way of the Navara as it drove back into the factory (Charge 5 – Reckless conduct endangering life).
30. As [the appellant] reversed out of the factory for a second time, he collided with Mr Antoniou’s car, causing significant damage to it. [The appellant] did not stop after the collision (Related summary charge 19 – Fail to stop after accident).
Offending at Keysborough
31. After leaving TC Printing, [the appellant] drove along Ferntree Gully Road to Stud Road, and eventually onto Cheltenham Road towards Keysborough. He again drove on the wrong side of the road while driving along Cheltenham Road.
32. As [the appellant] drove towards the 7/11 Service Station located at the intersection of Cheltenham Road and Kingsclere Avenue, Keysborough, he mounted the nature strip, drove over a raised concrete kerb and rammed into the passenger side door of a grey Toyota Camry that was parked at pump one. Steven Chin was sitting inside the Toyota Camry when [the appellant] rammed it with the Navara (Charge 6 – Reckless conduct endangering life).
33. The force of the collision caused Mr Chin’s vehicle to be pushed into a safety bollard located next to the petrol bowser. Mr Chin’s vehicle sustained significant damage as a result of the incident. [The appellant] did not stop after the collision (Related summary charge 20 – Fail to stop after accident).
34. [The appellant], Mr Carminati and Ms Turco all got [out] of the Navara after the collision with Mr Chin’s vehicle. Mr Carminati and Ms Turco attempted to run away, while [the appellant] approached a Mazda 2 that was at the service station and attempted to open the driver’s door. [The appellant] yelled ‘get out of the fucking car’ to the unknown female occupant of the Mazda 2, who drove away.
35. [The appellant] then ran over to a silver Hyundai Sonata that was parked at the service station and used a crow bar to smash the front passenger side window of the vehicle. Prabhbakshish Singh and Isha Isha were sitting inside the vehicle at the time. [The appellant] ran around to the driver’s side of the vehicle, opened the driver’s side door and twice yelled ‘give me the keys’ at Mr Singh. Mr Singh replied that he did not have the keys and [the appellant] ran away (Charge 7 – Attempted aggravated carjacking).
36. [The appellant] was then arrested by police in the car wash bay of the service station.
37. After [the appellant] was arrested, Leading Senior Constable Kylie Moriarty searched the Navara and seized a number of items from inside the vehicle, including a black hunting knife in a sheath, which was located in a black laptop bag on the rear passenger seat (Related summary charge 23 – Possession of a controlled weapon).
38. At all times between 22 February 2019 and 9 March 2019, [the appellant] was disqualified from holding a Victorian Driver Licence, having been disqualified for a period of two years on 20 September 2017 (Related summary charge 7 – Drive while disqualified).
Hospitalisation and interview
39. After his arrest, [the appellant] was taken to the Dandenong Police Station. While there, he was searched by Leading Senior Constable Goff, who found a small zip lock bag containing a small quantity of methylamphetamine (Charge 8 – Possession of a drug of dependence).
40. Police officers observed that [the appellant] was becoming drowsy and he told Leading Senior Constable Goff that he had earlier taken gamma-hydroxybutyrate (GHB) (Related summary charge 22 – Drive under the influence of a drug).
41. An ambulance was called due to [the appellant’s] appearance, and he was taken to Dandenong Hospital under police guard. He was released from hospital approximately four hours later and was taken to Heidelberg Police Station, where he was interviewed.
42. During the interview, [the appellant] predominantly either answered ‘no comment’ or that he couldn’t remember when he was asked about the offending.
The submissions of the appellant’s counsel
The submissions of the appellant’s counsel on the appeal were principally directed to the individual sentence on charge 4 and the orders for cumulation.
Counsel for the appellant submitted that the sentence of six years’ imprisonment on charge 4 was manifestly excessive, having regard to the maximum penalty and the appellant’s early plea of guilty. A sentence that equates to 60 per cent of the available maximum penalty is not justified when all relevant matters are properly synthesised.
Further, counsel for the appellant submitted that orders that effected 12 months’ cumulation of the sentences on charges 5 and 6 upon the sentence on charge 4, were excessive and in breach of the principle of totality. Counsel contended that the appellant’s driving should be regarded as one continuous course of conduct (albeit of more than 40 minutes’ duration), rather than three distinct episodes. It was accepted that the appellant’s appalling driving — described by the sentencing judge as ‘horrendous’ — was engaged in for the purpose of evading police. As counsel put it, ‘he kept going until he crashed’.
Acknowledging the appellant’s criminal history was relevant to the sentence to be imposed, counsel submitted that considerations of community protection and specific deterrence did not warrant the length of the total effective sentence. Moreover, the non-parole period — equal to 80 per cent of the head sentence — was manifestly excessive, and paid insufficient regard to the need to promote the appellant’s rehabilitation by an extended period of supervision in the community. The appellant had, it was contended, responded positively to previous periods of supervision.
The submissions of the respondent’s counsel
Counsel for the respondent concentrated his submissions on the objective gravity of the appellant’s offending. It was, counsel submitted, ‘prolonged, persistent offending at three locations’. A serious aspect of the offending was that it was engaged in for the purpose of evading police. In the circumstances, the sentence of six years’ imprisonment was wholly within range, and the sentences on charges 5 and 6 could not be said to be excessive. Counsel contended that the orders for cumulation were appropriate (albeit it was difficult to understand why partial cumulation of some of the other sentences — particularly the sentence on charge 7 — had not been ordered). The appellant’s prior convictions, it was submitted, pointed up the need for community protection to be a prominent feature of any sentence imposed.
Discussion
Endeavouring to put to one side the visceral reaction naturally provoked by the appellant’s outrageous offending,[14] by any objective standard the gravity of the appellant’s offending is extremely serious. As to that, I venture to repeat what I said when granting leave to appeal:[15]
It is no overstatement to describe the applicant’s driving — particularly in relation to charges 4 and 5 — as terrifying. By any yardstick, it is one of the worst examples — if not the worst example — of reckless conduct endangering life by driving that I have encountered in more than four decades’ experience in the criminal law. Epithets such as shocking and appalling are inadequate to capture its true flavour.
Among other things, the conduct founding charge 4 involved the applicant driving the stolen Navara through residential streets at high speed, overtaking other vehicles in a dangerous manner, and failing to obey red lights. Having driven to the Monash Freeway overpass, when police vehicles approached the applicant drove northbound against oncoming traffic in the southbound lanes, narrowly avoiding a number of head-on collisions. Given the enormity of this offending, and in light of the applicant’s prior convictions, a sentence of six years’ imprisonment for this offending may well have been fully deserved, even following a plea of guilty.
The conduct founding charge 5 was also horrifying. Endeavouring to evade police, the applicant drove into a factory at high speed, driving over pallets containing stock and narrowly missing a worker. He then reversed out of the factory, almost colliding with another vehicle, before driving back into the factory, once more forcing workers to take evasive action to avoid being struck.
Although not of the same order as charges 4 and 5, charge 6 also involved very bad driving, in which the applicant mounted the nature strip, drove over a raised concrete kerb and rammed a Toyota Camry parked at a petrol pump with a person inside it.
[14]Leave reasons, [38].
[15]Leave reasons, [32]–[35].
As his poor record reveals, the appellant’s conduct on 9 March 2019 was no mere aberration. Indeed, he has an unenviable criminal record. Independently of his driving on 9 March 2019, the appellant’s extensive criminal history demonstrates a disturbing disregard for the safety of others when driving. Hence, quite apart from his prior convictions for violence — including aggravated burglary (2009); intentionally causing injury (2009, 2014); recklessly causing injury (2014); common assault (2009); unlawful assault (2014); making a threat to kill (2014); affray (2017); assault with a weapon (2017); and assaulting an emergency worker on duty (2017) — the appellant’s prior convictions include:
· a conviction for reckless conduct endangering serious injury (2019);
· two convictions for driving in a manner dangerous (2014 and 2019);
· two convictions for driving while disqualified (2019);
· one conviction for careless driving (2017);
· two convictions for driving whilst exceeding the prescribed concentration of drugs (2014 and 2019);
· one conviction for failing a drug blood test within three hours of driving (2017);
· two convictions for unlicensed driving (2017);
· seven convictions for driving while suspended or disqualified (2008, 2014, 2017 and 2019);
· one conviction for failing to stop a vehicle after an accident (2017); and
· one conviction for reversing vehicle when unsafe (2017).
Evincing an attitude of disrespect for the law and the rights of others, the appellant also has a large number of prior convictions for damaging property; dishonesty offences (including theft of motor vehicles); weapons offences (including being a prohibited person in possession of a firearm); and multiple convictions otherwise concerned with motor vehicles.
Of significance, the appellant also has a history of failing to comply with court orders, including contraventions of bail, a Community Correction Order (CCO) — the current offending also contravened a CCO — and a suspended sentence of imprisonment.
Although, of course, he is not to be punished again for his prior offending, the appellant’s lamentable criminal record is significant in a number of ways: as an indicator of his moral culpability (making due allowance for his cognitive difficulties); his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[16]
[16]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA) (‘O’Brien and Gloster’). See also Leishman v The Queen (2019) 90 MVR 421, 427–8 [19] (Ferguson CJ, Whelan and Priest JJA) (‘Leishman’).
As was made clear by the High Court in Veen [No 2],[17] although the applicant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant
to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
[17]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen [No 2]’). See also O’Brien and Gloster, 718 (Charles JA); Bugmy v The Queen (2013) 249 CLR 571, 595 [45]; Leishman, 427–8 [19] (Ferguson CJ, Whelan and Priest JJA).
I adhere to the following views, expressed when granting leave to appeal:[18]
I am in no doubt that the community needs protection from the [appellant]. His history vividly demonstrates that this is so. Moreover, his responses to previous sentences establishes that there is a compelling need for a strong element of specific deterrence in any sentence imposed on the applicant. Clearly, his serious and protracted criminal conduct — particularly when viewed against the backdrop of his atrocious criminal history — deserves stern punishment, his moral culpability being very high. A very large measure of general deterrence is also called for in any sentence imposed for this kind of offending.
[18]Leave Reasons, [37].
I note that in submissions to the sentencing judge on the plea, counsel for the appellant realistically conceded that an immediate term of imprisonment with a non-parole period was the only appropriate sentence. In mitigation, counsel relied on the appellant’s early guilty plea (entered at committal mention); his remorse and insight; his family support, and the increased burden of imprisonment that will result from separation from family. Counsel also tendered a report by Carla Ferrari, consultant psychologist, dated 29 October 2019, and relied on the appellant’s personal circumstances and biographical details as outlined in that report. Based on the available material, counsel submitted that, although the appellant has been gainfully employed most of his adult life, he has difficulties with illicit drugs since his early teen years. His early prior convictions — particularly the 2009 conviction for aggravated burglary — were related to alcohol abuse. More recent prior convictions, counsel submitted, have been related to amphetamine and methylamphetamine use. The appellant also developed a dependency on opiate medication following clinical prescription of painkillers after a serious leg injury in 2017.
On the plea, his counsel conceded that the appellant ‘has a relevant and reasonably extensive prior criminal history’, including ‘a relevant and extensive history of traffic offences’. Counsel submitted, however, that the appellant has a demonstrated ability to comply with parole (although it was acknowledged that he has had ‘less success’ with CCOs). Whilst it was conceded that ‘being on a CCO at the time of the offending is an aggravating factor’, the appellant’s ‘attempts at compliance did not constitute a wholesale refusal to comply with all obligations of the [CCO]’. Counsel submitted that the sentencing judge should have ‘some guarded optimism’ about the appellant’s prospects of rehabilitation, which ‘should be assessed as guarded but reasonable’.
In her report, Ms Ferrari said that the appellant
is a 34-year-old male presenting with symptoms of Major Depressive Disorder, Post-Traumatic Stress Disorder and various substance use disorders prior to and at the time of offending. Some of these symptoms have also persisted post-offending in the absence of substance use, and are evident within his clinical interview and psychometric testing. This indicates that his issues are not directly related to his substance use alone, however would have been further exacerbated. [The appellant] also exhibits a chronic history of symptoms consistent with Attention Deficit Hyperactivity Disorder [ADHD] which appears to have remained undiagnosed and have likely contributed to his tendency to self-medicate with substances since adolescence, as they somewhat alleviate his symptoms.
I also note that in her report Ms Ferrari expressed the view — one which, with respect, I cannot agree — that the appellant ‘would be considered a moderate risk of reoffending’. She also expressed her ‘professional opinion’ that the appellant
would not benefit from a further period of incarceration, as there is no available treatment in custody for his specific mental health issues, and remaining in custody is likely to simply delay treatment and exacerbate the symptoms he is experiencing. ADHD symptoms worsen in the context of severe stress ...
Ultimately, the appellant has failed to persuade me that the individual sentences on charges 4, 5 and 6, the total effective sentence — produced by the impugned orders for cumulation — or the non-parole period are manifestly excessive or otherwise breach the principle of totality.
I have come to the view that, given the enormity of the appellant’s offending, and in light of the appellant’s extensive prior convictions, a sentence of six years’ imprisonment for the offending embraced by charge 4 is fully deserved. The appellant’s driving represented the worst example of reckless conduct endangering life by the driving of a motor vehicle that I have encountered, and, although it is always possible to imagine worse examples, it was very bad indeed. As counsel for the respondent said in argument, it was a ‘miracle’ that nobody was killed or seriously injured. In my view, a sentence representing 60 per cent of the available maximum penalty gave full recognition to the appellant’s early plea of guilty and such other matters he could muster by way of mitigation.
Other aspects of the sentence imposed by the sentencing judge have given me pause. Quite apart from the unorthodox approach he adopted to the imposition of sentence for the summary offences,[19] I consider at least two of the individual sentences that he imposed to be inadequate. Hence, I regard the sentence of three years’ imprisonment on charge 5 — which involved the appellant driving the stolen vehicle through the TC Printing factory, over pallets containing stock and towards employees — to be inadequate to reflect the seriousness of the offending. I would repeat what I said in Butler, which is apposite to the present case:[20]
The applicant’s was appalling driving, by a man with a bad record, for the express purpose of evading police. Driving such as the applicant’s, putting the public in danger so as to avoid facing the consequences of other criminal activity, is to be strongly condemned and severely punished. Furthermore, general deterrence is of prime importance in a case such as this. People tempted to drive recklessly and endanger the public in order to evade police must know that when caught they will receive stern punishment.
[19]See footnote 12 above.
[20]Butler v The Queen [2019] VSCA 132, [42].
Not only do I regard the sentence on charge 5 to be inadequate, but I consider the sentence of nine months’ imprisonment for the attempted carjacking in charge 7 — in which the appellant used a crow bar to smash the front passenger side window of the vehicle with two people inside and demand the ignition keys — borders on derisory. And remarkably, no part of the sentence on that charge was ordered to be served cumulatively on the base sentence.
Importantly, however, I am unable to see that the orders for cumulation have led to a manifestly excessive total effective sentence or otherwise infringed the principle of totality. Each of charges 4, 5 and 6 related to distinct aspects of the appellant’s driving, in which separate groups of people were endangered. In those circumstances, moderate cumulation was required between the individual sentences to give recognition to the fact that different victims were affected by the appellant’s conduct.
Finally, I cannot agree that the non-parole period is manifestly excessive. Had I been sentencing at first instance, I would have allowed for the possibility of a slightly longer period of supervision on parole. But that is not to the point. It has not been demonstrated that the non-parole period imposed is wholly outside what was open in the sound exercise of the sentencing discretion.
Conclusion
The appeal should be dismissed.
NIALL JA:
I agree with Priest JA, whose reasons I have had the benefit of reading in draft, that the appeal should be dismissed for the reasons he gives.
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