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[2021] VCC 1659
General information, not legal advice.
County Court of Victoria
2021-10-22
Original judgment source is linked above.
Sentence: Imprisonment for a period of 4 years and 6 months with a non parole period of 2 years and 6 months.
2 You have also pleaded guilty to the following summary offences:
4 A prosecution opening was tendered on the plea and may be summarised as follows:
5 At the time of the offending you were 21 years of age.
6 On 26 July 2019 at about 7.30 pm Ben Knights drove his 2013 white Ford Ranger to the Mornington Scout Hall. You were in the front passenger seat. Mr Knights got out of the Ford Ranger and left his car keys in the ignition. You got into the driver's seat and drove off in the Ford Ranger. It is these facts that relate to Charge 1, theft and Summary Charge 66, unlicensed driving.
7 Mr Knights' iPhone 6S was also in the Ford Ranger. Mr Knights later bought a new iPhone. A photo of you in a red shirt taken on 26 July 2019 was transferred to his new phone. A video taken from the driver's seat of the car made on the same day was also transferred to the new phone. Mr Knights could hear you making comments during the video. It is these facts that relate to Charge 2, theft.
8 Sometime between 27 and 29 July 2019, a registration plate BAU399 was stolen from a white BMW parked in the Jeff Wignall Ford car yard. A latent fingerprint lifted from the rear of the registration plate was identified as belonging to you. It is these facts that relate to Charge 3, handle stolen goods.
9 On 31 July 2019 at about 6.30 pm, Leading Senior Constable Jeremy Barber and Constable Lachlan Gray were working the divisional police van. They were called to investigate a suspicious male at a building site in Hastings. After arriving at the building site Leading Senior Constable Barber and Constable Gray approached you. You ran to the Ford Ranger and drove away at a fast speed through a car park.
10 Leading Senior Constable Barber followed you. He activated the police vehicle warning lights and sirens to intercept you. You continued to drive away and turned into Spring Street which is dead end. Leading Senior Constable Barber pulled over to the left hand side of the road and deactivated the lights and sirens. When you reached the end of Spring Street you did a U-turn and stopped. After about a minute you accelerated towards Leading Senior Constable Barber's police van on the wrong side of the road at high speed. Leading Senior Constable Barber believed you were going to ram the police van. He told Constable Gray to brace for impact. At the last moment Leading Senior Constable Barber reversed his police van while turning the steering wheel. The Ford Ranger passed along the driver's side of the police van about 12 to 15 centimetres from the van. You drove away. Leading Senior Constable Barber did not pursue you. It is these facts that relate to Charge 4, aggravated intentional exposure of an emergency worker to risk by driving.
11 At about 6.40 pm, you were driving north on Frankston-Flinders Road Somerville. As you overtook a vehicle being driven by Allan Ayerst, you bumped Mr Ayerst's vehicle causing Mr Ayerst to leave the carriageway and forcing him to take evasive action to avoid colliding with signage and a light pole. You did not stop after making contact with Mr Ayerst's vehicle and continued travelling North on Frankston-Flinders Road. It is these facts that relate to Summary Charge 68, drive in a manner dangerous and Summary Charge 69, failing to stop vehicle after an accident.
12 At about 6.45 pm, you drove up quickly behind Andrew Fletcher's vehicle near the intersection of Frankston-Flinders Road and Bungower Road. You overtook Mr Fletcher on the left hand side gravel shoulder of the road. As you turned back onto the road, the rear of your vehicle collided with the front of Mr Fletcher's vehicle. You did not stop and continued travelling North on Frankston-Flinders Road. It is these facts that relate to Summary Charge 68, drive in a manner dangerous and Summary Charge 71, failing to stop after an accident.
13 At about 6.50 pm, you drove up quickly behind Scott Brunner's vehicle and closely followed the vehicle. Mr Brunner applied his brakes in an attempt to get you to slow down but you continued to tail-gate him as you weaved left and right on the road. As Mr Brunner approached One Chain Road in Somerville you used the turning lane to overtake him. You then slammed on the brakes causing Mr Brunner to collide with the rear of the Ford Ranger. You did not stop and continued North on Frankston-Flinders Road. These facts also form part of Summary Charge 68, drive in a manner dangerous and Summary Charge 73, failing to stop after an accident.
14 At about 10.57 pm Leading Senior Constable Michelle Dench attached to the police dog squad, working as Canine 217 unit, saw you turn south on the Nepean Highway at excessive speed in an erratic and dangerous manner without headlights on. Leading Senior Constable Dench immediately broadcast the location and nature of your driving via police communications. She followed you to obtain a registration.
15 Leading Senior Constable Dench saw you travel into the middle turning lane in the wrong direction while turning onto Strachans Road. You stopped on Pender Avenue. Leading Senior Constable Dench stopped her police vehicle about 25 metres away to get the registration. While Leading Senior Constable Dench was obtaining information from police communications you did a U-turn and pointed your vehicle towards Leading Senior Constable Dench's police vehicle. Leading Senior Constable Dench drove off and as she drove past you, you drove towards her forcing her to take evasive action to avoid a collision.
16 You aggressively followed Leading Senior Constable Dench who activated her emergency lights. You pulled up to the right side of Leading Senior Constable Dench and swerved towards her vehicle attempting to ram her to force her off the road. Leading Senior Constable Dench told police communications that you were chasing her. She requested the PolAir to assist. She was concerned that the police dogs she was transporting may be harmed and was fearful that if she stopped, you would ram her. She accelerated to try to get some distance between the vehicles.
17 Leading Senior Constable Dench attempted to get out of your way by stopping near the intersection of Dava Drive and Pender Avenue in Mornington. You also stopped. You slowly drove towards her police vehicle and came to a stop in the middle of the road next to her. Leading Senior Constable Dench got out of her police vehicle, drew her firearm and yelled 'Police, don't move'. You were wearing something black covering your face and were pointing something at her which she thought was a black handgun.
18 You sped off at high speed east along Dava Drive. You did a U-turn near Gleneagles Avenue and then began driving back towards Leading Senior Constable Dench who ran from the road to the nature strip towards a tree. You drove towards her police vehicle at high speed before at the last moment swerving away from it. Leading Senior Constable Dench walked back to her vehicle. She saw you do another U-turn to face in her direction. She feared that you were going to come back and ram her and the dogs. She pointed her firearm at you. You did another U-turn before driving away south on the Nepean Highway. Leading Senior Constable Dench updated police communication and did not attempt to follow you. It is these facts that relate to Charge 5, aggravated intentional exposure of an emergency worker to risk by driving and Summary Charge 31, unlicensed driving.
19 On 1 August 2019 at about 12.50 am, Senior Constable Cameron Wallace saw you drive from the McDonalds restaurant car park at the intersection of Nepean Highway and Mornington-Tyabb Road before turning onto Mornington-Tyabb Road at high speed. You began following Senior Constable Wallace who was driving an unmarked dog squad police vehicle with a canine pod on the back. Senior Constable Wallace noticed your Ford Ranger travelling close behind him as he approached the intersection with Dunns Road. Senior Constable Wallace accelerated to about 120 km/h in an attempt to keep a safe distance between the vehicles. You also increased your speed to maintain the close distance with Senior Constable Wallace. The speed limit along Mornington-Tyabb Road is 80 km/h. Senior Constable Wallace notified police communications that he required urgent assistance as he was being chased by the Ford Ranger. It is these facts that relate to Summary Charge 39, drive in a manner dangerous.
20 At about 11 pm, Senior Constable Matthew Caddy and Senior Constable Ashley Riley were performing patrol duties in the Mornington area. Senior Constable Caddy was driving a black unmarked Ford Ranger Ute. They received a report over police communications regarding you driving at police vehicles. At about 12.50 am they received an urgent radio communication from Senior Constable Wallace.
21 Senior Constable Caddy stopped on the side of the Mornington-Tyabb Road. Soon after Senior Constable Caddy saw Senior Constable Wallace drive past closely followed by you. Senior Constable Caddy began following both vehicles east along Mornington-Tyabb Road heading toward Moorooduc Highway. Senior Constable Caddy estimated that both vehicles were travelling well in excess of 100 km/h. He maintained a distance of about 200 metres behind your Ford Ranger.
22 At the intersection with Moorooduc Highway, Leading Senior Constable David Burton deployed a tyre deflation device. You drove past the device and turned north onto Moorooduc Highway which has two north bound lanes and two south bound lanes separated by a large grass median strip with foliage. Senior Constable Caddy saw a police uniform divisional van and Leading Senior Constable Burton and another officer waving their arms on the corner of Moorooduc Highway.
23 Senior Constable Caddy continued to follow you and Senior Constable Wallace. Senior Constable Wallace pulled into the left hand emergency lane. You stopped on the left hand side of the road about 200 metres from the intersection with Eramosa Road West. Senior Constable Caddy also pulled to the side of the road. As he watched your Ford Ranger he noticed that there were other police vehicles stopped behind his police vehicle. You began to repeatedly reverse and then drive forward in an erratic manner. You then drove off and Senior Constable Caddy followed you.
24 You performed a U-turn at Eramosa Road West roundabout before entering Moorooduc Highway on the wrong side of the road heading towards police vehicles. You accelerated to a fast speed. Senior Constable Caddy pulled over to the left hand side of the road and into the dirt emergency lane. A marked highway patrol vehicle and second unmarked police vehicle had stopped behind Senior Constable Caddy's vehicle. Senior Constables Caddy and Riley braced for impact as you drove straight towards their police vehicle believing that you were going to ram them. You swerved away at the last moment while Senior Constable Caddy took evasive action by moving his vehicle on an angle about half on the gravel and half on the road. It is these facts that relate to Charge 6, aggravated reckless exposure of an emergency worker to risk by driving.
25 Senior Constable Caddy heard what he described as a loud 'thunk' sound. He initially believed that your Ford Ranger had rammed or collided with a marked Highway Patrol vehicle behind Senior Constable Caddy's vehicle.
26 Senior Constable Luke Osborne was patrolling with Acting Sergeant Cameron Fields in a fully marked highway patrol vehicle. Senior Constable Osborne stopped to the side of the road and to the rear of the unmarked police vehicle being driven by Senior Constable Caddy and in front of a second unmarked police vehicle. Senior Constable Osborne observed you drive directly at Senior Constable Caddy's vehicle before changing direction at the last moment. As you passed by, Senior Constable Osborne saw you throw what appeared to him to be a large brick from the driver's side window.
27 CCTV footage later confirmed that the sound Senior Constable Caddy heard and the object Senior Constable Osborne saw thrown, was you throwing a brick which struck the rear driver's side door panel of Senior Constable Riley and Caddy's police vehicle. The estimated repair cost of the damage was $1,374.45. It is these facts that relate to Charge 7, criminal damage.
28 Sergeant Brendan Williams, Detective Sergeant Alistair Boyd and Senior Constable Amar Malic were performing patrol duties in an unmarked silver Commodore police vehicle. They heard Senior Constable Wallace's request for assistance. Sergeant Williams later stopped in the left hand lane to the rear of Senior Constable Caddy's unmarked vehicle and Senior Constable Osborne's marked highway patrol vehicle. Sergeant Williams stopped off centre to the police vehicles in front of him so his vision was outside the driver's side of the police vehicles in front of him. When Sergeant Williams saw the reverse lights of your Ford Ranger activated he reversed onto the left emergency lane. Sergeant Williams observed you drive straight towards Senior Constable Riley and Caddy's vehicle.
29 You drove away heading south bound in the wrong direction towards Wooralla Road. Senior Constable Osborne followed you along Eramosa Road West. You did a U-turn and drove on the wrong side of the road directly at Senior Constable Osborne and Acting Sergeant Fields' marked highway patrol vehicle. Senior Constable Osborne pulled off the side of the road as far as possible to avoid a collision. You changed direction at the last moment and continued travelling along Eramosa Road West.
30 Sergeant Williams had also followed your Ford Ranger along Eramosa Road West. Sergeant Williams saw you drive straight at Senior Constable Osborne's police vehicle. You continued driving towards Sergeant Williams' police vehicle. Sergeant Williams drove off to the left of the road and through a drain and tried to stop behind a light pole. As your Ford Ranger approached, Sergeant Williams flashed his high beam headlights. You drove straight at Sergeant Williams' police vehicle before swerving away. It is these facts that relate to Charge 8, aggravated reckless exposure of an emergency worker to risk by driving.
31 Senior Constable Osborne was advised that other police units had observed the Ford Ranger turn north onto Moorooduc Highway. Senior Constable Osborne activated his warning lights and siren and followed about 100 metres behind you along Moorooduc Highway. You turned onto the Moorooduc Highway service road and then onto a dirt road which was a dead end. Senior Constable Osborne followed you.
32 You stopped about 20 metres in front of Senior Constable Osborne. When Senior Constable Osborne saw your reverse lights activate he believed that you were going to ram his police vehicle. Senior Constable Osborne drove about two car lengths off to the left of the dirt road. You reversed towards Senior Constable Osborne's vehicle while increasing speed. The rear of your Ford Ranger collided with the front of Senior Constable Osborne's police vehicle causing significant damage. The estimated cost to repair the police vehicle was $38,590.19. It is these facts that relate to Charge 9, aggravated intentional exposure of an emergency worker to risk by driving and Summary Charge 11, unlicensed driving.
33 You were on bail at the time of this offending which gives rise to Summary Charge 16, commit indictable offence whilst on bail.
34 You got out of the Ford Ranger and began running away. Senior Constable Osborne and Acting Sergeant Fields apprehended you shortly after. Acting Sergeant Fields yelled at you that you were under arrest. You resisted which gives rise to Summary Charges 14 and 15, resist emergency worker on duty. Acting Sergeant Fields wrestled with you while attempting to handcuff you. Several other police officers assisted Acting Sergeant Fields to arrest and handcuff you and you were then taken to Frankston Police Station.
35 Police searched the Ford Ranger and found the following:
36 While searching you police found a small red box cutter knife which also forms part of Summary Charge 12, possess controlled weapon.
37 On 1 August 2019 you were interviewed by police and answered ''no comment' to the allegations.
38 After the interview you smeared the words 'Die Pigs' onto a wall with your own blood. You then blew mucus and blood over the wall. The room was closed and required a bio hazard clean. It is these facts that relate to Summary Charge 25, cause damage to police gaol.
39 You were further interviewed by police on 20 November 2019 and answered 'no comment'.
40 Your conduct related to driving which occurred over the period of an evening into the early hours of the next day can only be generally described as very serious and dangerous. More specifically, your conduct that gives rise to the three charges of intentionally exposing an emergency worker to risk by driving (Charges 4, 5 and 9) involved you intentionally driving towards police vehicles where in each case the police involved were of the belief that you were going to ram their vehicles. In relation to Charge 9 you did in fact collide with the police car causing extensive damage. I also note that in relation to Charges 4 and 9 they are rolled-up in the sense that two police members were exposed to risk in each instance.
41 In my view Charge 5 represents a serious example of the offence of intentionally exposing an emergency worker to risk by driving. On a number of occasions during the incident involving Leading Senior Constable Dench you drove towards her vehicle causing her to take evasive action. On one occasion after Leading Senior Constable Dench had activated her emergency lights, you aggressively followed her and then attempted to ram her and force her off the road. During the incident Leading Senior Constable Dench got out of her vehicle and pointed her firearm at you in an attempt to stop you. That action did not impede you and you drove at her two further times after performing U-turns. This was an undoubtedly terrifying experience for Leading Senior Constable Dench who was in fear for herself and the dogs she was transporting.
42 Charges 6 and 8 are offences of reckless exposure of emergency workers to risk, and while they are in a less serious category of offending than Charges 4, 5 and 9, they involve similar conduct of you driving towards police vehicles before swerving.
43 A number of the related summary charges arise from your driving over the same period where you placed other road users and police at risk. Your driving resulted in three collisions where, on each occasion you failed to stop after hitting other vehicles. On another occasion you pursued a police vehicle where the police involved were required to increase their speed to keep a safe distance whereby you continued to pursue them.
44 In a psychological report tendered to the court, you admit that your offending occurred in the context of ice use at a time when you were injecting and smoking in excess of a gram of ice a day. Nonetheless, your conduct by driving placed members of the community including police at serious risk and it is clear you had no regard for their safety.
45 You are 23 years of age and were 21 at the time of the offending. You are the eldest of seven children. Your parents separated when you were young and you were raised primarily by your mother. Your father struggled with drug use and served periods of imprisonment. He has since overcome his substance use issue and has stable employment.
46 You attended various schools and were expelled multiple times due to your behaviour. At school you displayed learning difficulties, hyperactivity and inattention and your mother engaged with professionals in order to assist with managing your behaviour and engagement at school. At the age of 10 you were referred for an assessment by Psychologist Melanie Rogers and you also attended counselling with Ms Dolly September. You were diagnosed with Oppositional Defiant Disorder. Historical reports were tendered on the plea. In Ms Rogers' report dated 24 March 2009 she also noted that you struggled with concentration and short term memory. In 2012 your paediatrician Dr Hugh Kelso diagnosed you with Asperger's syndrome. You have been prescribed a number of different medications. You attended an alternative secondary school and completed Year 9.
47 You have worked casually in the area of mechanics and concreting.
48 You began using drugs at a young age and began offending at the age of 15. Ice has been particularly problematic in your life and as noted above, at the time of the offending you were affected by ice.
49 Your remand for this offending has been your first experience of incarceration and you have found it difficult. You began individual counselling sessions in May last year through Caraniche with a focus on alcohol and other drugs. A letter from Provisional Psychologist Zoe Ferguson dated 30 September 2020 confirmed your participation in 18 counselling sessions as of that date. Ms Ferguson writes positively of your engagement and states that you have explored motivation for change and developed insight. You have continued those sessions via video. You have otherwise been unable to access courses or treatment programs due to the pandemic.
50 You continue to be in contact with your mother, who observed the plea remotely, and you are particularly close with one of your sisters. After release from custody you hope to move to Echuca to work as a farm hand, create a new social network and spend time with your grandfather who is unwell.
51 You have a relevant criminal history commencing in the Children's Court in 2014. You have been given a number of community based dispositions where the focus has clearly been on your rehabilitation given your young age. This will be the first time you are to be sentenced to a term of imprisonment.
52 A report from Psychiatrist Dr Leon Turnbull was tendered on the plea. In a frank report, Dr Turnbull is of the opinion that your past diagnosis of ADHD or Autism did not have a role in the offending but rather ice use was the main contributor. Dr Turnbull writes that you are currently experiencing some anxiety and are taking antidepressants.
53 Mr Polak who appeared on your behalf at the plea outlined a number of matters in mitigation. First and foremost is your plea of guilty. A contested committal took place in the Magistrates' Court where police witnesses were cross examined. Resolution negotiations were ongoing from an early stage and the matter resolved to a plea of guilty after a case conference before me.
54 Your plea of guilty carries utilitarian value as it has spared the time and expense of a jury trial and witnesses from having to give evidence again. I therefore take your willingness to facilitate the course of justice into account in your favour. Your plea carries additional weight which must be reflected in an additional amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]
55 As you are 23 years of age, you are still a relatively young offender. However, the serious nature and the extent of your offending in this instance necessarily reduces the weight to be given to the principles related to youth. While rehabilitation remains an important consideration, general and specific deterrence, denunciation of your conduct and community protection must carry weight in the sentencing discretion. As the Court of Appeal noted in The Queen v Jaeger in relation to driving offences placing police and community at risk: '[t]he 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.'[2]
56 Turning to your prospects of rehabilitation, it is self evident that you need to address your long standing drug addiction. You will need considerable support upon your release and you must take advantage of the services that will be available to you. The letter from Caraniche demonstrates that you are capable of engaging with counselling and other services. The letter also suggests that you are beginning to gain some insight into the factors that led to your continued drug use. In the circumstances in my view if you maintain that progress, as you gain insight and mature, your prospects can be considered as reasonable.
57 I take into account the fact that the majority of your time on remand has been spent under the onerous COVID-19 restrictions. You have, like all prisoners, been subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. Given the current state of the virus in the community and in the Victorian prison population, restrictions may remain for some time. I take these matters into account.
58 Mr Polak submitted that in all the circumstances, in particular your age and the COVID-19 pandemic, a combination sentence pursuant to s 44 of the Sentencing Act 1991 would meet the relevant sentencing considerations in this case. As Charges 4, 5, 6, 8 and 9 are Category 2 offences, the Court must impose a sentence of imprisonment other than a combination sentence unless one of the exceptions pursuant to s 5(2H) of the Sentencing Act 1991 is established. Mr Plummer who appeared on behalf of the Director of Public Prosecutions submitted that the high hurdle of substantial and compelling circumstances that are exceptional and rare is not met in this instance pursuant to s 5(2H)(e). I agree. However even if that hurdle could be met, given the seriousness of your offending, in all the circumstances in my view a combination sentence is not open and the only appropriate disposition is a head sentence with a non parole period.
60 Diesel Jackson, on Charge 1, theft of the motor vehicle, you are convicted and sentenced to 18 months imprisonment. On Charge 2 theft of the iPhone , you are convicted and sentenced to 1 month imprisonment. On Charge 3, dishonestly assist in the retention of stolen goods, you are convicted and sentenced to 2 months imprisonment. On Charges 4 and 9, aggravated offence of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to 2 years and 6 months imprisonment on each charge. On Charge 5, aggravated offence of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to 3 years imprisonment which will be the base sentence. On Charges 6 and 8, aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to 18 months imprisonment on each charge. On Charge 7, criminal damage, you are convicted and sentenced to 1 month imprisonment. On Charge 10, possession of a drug of dependence you are convicted and fined $250.
61 On Summary Charges 11, 31 and 66, unlicensed driving, Summary Charge 12, possess a controlled weapon and Summary Charges 14 and 15, resist emergency worker on duty, you are convicted and sentenced to 7 days imprisonment on each charge.
62 On Summary Charge 16, commit indictable offence whilst on bail, Summary Charges 39 and 68, dangerous driving and Summary Charge 63, going equipped to steal, you are convicted and sentenced to 1 month imprisonment on each charge.
63 On Summary Charge 25, causing damage to a gaol, Summary Charge 65, possession of article of disguise with unlawful intent and Summary Charges 69, 71 and 73 failure to stop motor vehicle after an accident, you are convicted and fined $250 on each charge.
64 I direct that 6 months of the sentence on Charge 4 and 9 and 3 months of the sentence on Charges 6 and 8 be served cumulatively on each other and on Charge 5 making for a total effective sentence of 4 years and 6 months. I direct that you serve 2 years and 6 months before becoming eligible for parole.
65 Pursuant to s 18 of the Sentencing Act 1991, I declare that 768 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
66 Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 5 years and 9 months imprisonment with a non parole period of 3 years and 3 months.
67 Pursuant to s 89(4) of the Sentencing Act 1991 any licence you hold is cancelled and you are disqualified from obtaining a drivers licence for a period of 3 years from today.
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
[2] [2020] VSCA 116 at [36].
DPP
Jackson [2021] VCC 1659