DPP v Keirl [2025] VCC 554

1. Charge 1 is a rolled-up charge which relates to the two police officers who were in the police divisional van at the time of the incident.
2. The circumstances of your offending have been provided in the Summary of Prosecution Opening. It is an agreed account of events. A general summary of the facts is as follows:
3. On 30 August 2024 at approximately 7.30pm, you were in company with another male and stole a motor vehicle from a parking space in Soldiers Hill, being a 2006 Mazda Bravo.[1] You took the vehicle and drove a short distance, before the steering wheel locked up and caused you to crash into a tree at low speed. You and the other male were picked up by another associate and left in a different vehicle.
4. Between 10.30pm on 1 September and 4.00am on 2 September 2024, you attended a farm shed in Clunes and stole a 1998 Toyota Hilux, which was unlocked with the keys inside.[2] The vehicle had a hydraulic tipper tray and contained the owner's wallet with approximately $1,000 cash, bankcards and identification cards.
5. At approximately 1.15am on 3 September 2024, you attended a rural property in Haddon and stole a 2008 Toyota Hilux, which was unlocked with the keys inside.[3] The owner of the property was awoken by the sound of the vehicle being driven away, in convoy with a driver in an unknown utility.
6. The owner chased the vehicles in another one of his cars, throughout local areas. At 1.40am police located the stolen vehicle being followed by the owner in the Delacombe area. Police intercepted the owner, who indicated that he was chasing his stolen vehicle and provided the police with a description of his Toyota Hilux.
7. At around 1.55am, two police officers who had been patrolling in the area, observed two utility vehicles approximately 20 metres away. The police activated their lights and sirens in an attempt to intercept the stolen vehicle. The first utility drove away, past the police. You were driving the second utility which you had just stolen. You turned on its high beam lights and quickly accelerated towards the two police officers who were in a divisional van. The police officer who was driving had to take evasive action by swerving to his left, to prevent being rammed. By requiring the police officer to take evasive action, you exposed the two police officers to risk.[4] The officer notified other police of what had happened, via radio.
8. The police officer then performed a U-turn and a pursuit occurred. You drove erratically, turning the 'Ute' lights off and entering the wrong side of a roundabout. As the pursuit continued, you travelled on the wrong side of the road for approximately 50 metres and eventually turned into another street that was closed due to road works.[5] You rammed the closed wooden gates of Club Wyndham and caused extensive damage. You drove through the Club and as you left, you rammed through closed metal gates before proceeding back onto the street.[6] During this period, you were still being pursued by police.
9. The stolen vehicle ultimately came to rest when you lost control of the vehicle which flipped, landed on its side and ended up against a power pole. You did not have a valid driver's licence at this time.[7]
10. You were able to get out of the vehicle and were subsequently arrested. You were conveyed by ambulance to a hospital, released a short time later and taken to the Ballarat Police Station where you were interviewed.
11. In relation to the first incident, you admitted that you stole the car. You stated that when you tried to turn the corner, the vehicle stopped running so you held wires together to keep it going.
12. In relation to the second incident, you admitted that you drove onto a rural property and stole the vehicle. You said that you found a wallet which contained $500 and bankcards and that you spent the money on drugs. You also admitted that this vehicle was used in the commission of the third incident.
13. In relation to the third incident, you stated that you had used drugs at the time. You admitted that you stole the vehicle and recalled being followed by the owner as you drove at a high speed. You admitted that you drove back into Ballarat, saw multiple police cars and were chased by them. You said that you deliberately attempted to evade police as you were in a stolen vehicle. You described that while driving, you were sliding out on every corner, the brakes were dragging and that you were losing more and more control of the car. You recall going through both sets of fences at Club Wyndham. However, you denied attempting to ram the police officers. You were charged, remanded in custody and are currently incarcerated at Marngoneet Correctional Centre. You have served 244 days of pre‑sentence detention.
14. You have pleaded guilty to committing an aggravated offence of recklessly exposing police officers to risk by driving. You used the vehicle that you had stolen to place the police members on duty at risk of harm. This type of violence is unacceptable. Fortunately, the police were able to evade being rammed by you, which prevented any damage to their divisional van or injury to the vehicle's occupants. The maximum penalty for this offence is 10 years' imprisonment. The commission of this offence also requires a mandatory licence disqualification for a period of not less than 24 months.
15. You admit that your conduct was reckless in that you exposed two police members to the consequences of your violent driving. Your conduct was impulsive and ill considered. You admit that you were drug affected at the time. While no Victim Impact Statements have been provided by either of the police officers, it is accepted by you that this would have been a frightening experience. It is most fortunate that they did not suffer any injuries from your conduct.
16. Your subsequent driving was erratic, as you drove at night with the vehicle lights turned off, swinging onto the wrong side of the road. Your explanation is that you panicked and that you deliberately attempted to evade the police. Fortunately, other drivers were not jeopardised by your dangerous driving.
17. I note that you caused damage to the first and third stolen vehicles and it is uncertain whether the second stolen vehicle has been recovered.
18. You were initially charged with a number of offences, including the aggravated offence of intentionally exposing police officer to risk by driving. Your matter proceeded to a contested committal hearing, and you were committed to stand trial. Ongoing discussions took place in order to determine the appropriate charges, and your case soon resolved. Given the charges that remained, an application to remit your hearing to the Magistrates' Court was made but refused. Your matter was listed for plea shortly thereafter. Your plea hearing has concluded within short compass, and you will be sentenced less than nine months after the commission of these offences.
19. The parties agree that your pleas of guilty were entered at an early stage. You initially faced a more serious offence for the first charge and the case resolved once a lesser charge was agreed to be appropriate. You are entitled to receive a substantial benefit for your guilty plea. It has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial. You have facilitated the efficient administration of justice and are entitled to a benefit for that. Your pleas of guilty also demonstrate an acceptance of responsibility for your offending.
20. You immediately made some admissions in your record of interview, although there is no dispute that you denied attempting to ram the police. However, I accept that your eventual plea of guilty was entered within a short period and is consistent with remorse, despite the fact that it was not immediately forthcoming. I have taken that into account in your favour.
21. You have a relevant criminal and driving history for similar offences, encompassing 10 prior appearances in the Magistrates' Court. Most of the hearings are for a consolidation of charges including multiple convictions for dishonesty, criminal damage and driving offences. You have previously been found guilty of careless driving, failing to stop vehicle on police direction and have 26 prior convictions for theft of motor vehicle. I am told that initially, the reason you stole cars was to use them yourself or to exchange them for drugs, but you have since developed a compulsion to steal them.
22. Since 2019 your counsel describes that your life went into a 'chaotic spiral' due to your drug use and criminal offending, leading to significant periods of imprisonment and involvement with the Drug Court and the Assessment and Referral Court (ARC list).
23. Your history of compliance with Court Orders in the past is poor. You were placed on a Community Corrections Order (CCO) in 2019, which was breached and varied on two occasions before it was ultimately cancelled. You also had the benefit of a 15-month drug treatment order in 2022 which was breached by further offending. You have been found guilty of 19 charges of commit an indictable offence while on bail in 2022.
24. At the time of this incident, you were on bail for other matters and participating in the ARC list to manage your mental health issues. You were also on a CCO that was imposed on 9 October 2023, for a number of offences including five charges of theft of motor vehicle. The breach of these orders is an aggravating feature of your conduct. The outstanding matters, including the contravention matter, will be dealt with in the Magistrates Court at the conclusion of this plea.
25. I am told that the longest time you have remained in the community since 2019 was to undergo rehabilitation, for around five months. Otherwise, you have returned to custody between four to six weeks after your release. I note that you attended Odessey House for three months in July 2023. Unfortunately, you returned to drug use and committed the current offences, as well as your outstanding matters.
26. I turn now to your personal circumstances.
27. You were born in August 1996 and are 28 years of age. You have two siblings and were raised in the Ballarat area. You describe your upbringing and parents' relationship in a positive light. You did have some traumatic experiences, such as finding your great-grandfather who was deceased, when you were nine years old.
28. You suffered some instability during your adolescence as you were always in trouble, which impacted your connection with your father and siblings, and you no longer have a good relationship with them. You were evicted from home at the age of 16 and you moved in with other troubled adolescents. I am told that your offending commenced in 2014, in the Children's Court.
29. You suffered a significant assault when you were 16 years of age. You have also been involved in numerous car accidents when driving stolen vehicles, although you did not receive medical care as you left the scene of these accidents.
30. Fortunately, you maintain a good relationship with your mother who continues to support you and tries to assist you. She was present in Court for your plea and has attended nearly every Court appearance that you have undergone. You were supposed to be residing with her at the time of this offending, although she has low tolerance for your 'falling off the rails'. You intend to return to live with her upon your release. A reference from a friend who has known you for 10 years also intends to provide you with support upon your release. You are most fortunate in that regard.
31. As a child you had difficulties in school due to your diagnosis of ADHD. You also had issues in school with respect to violence and behavioural issues. You eventually fell in with a negative peer group who consumed drugs and left school partway through Year 11. You completed a Wall and Floor Tiling Apprenticeship at TAFE, although you had difficulty in securing employment for several years due to your substance abuse issues. You were recently in receipt of a Centrelink benefit.
32. You have had one significant relationship which resulted in the birth of your son, who is now four years of age. He currently resides with his mother under the supervision of DFFH services. The relationship with your former partner was plagued with both substance and regular abuse.
33. You have a history of illicit substance use which began at the age of 14 by using cannabis and then methamphetamine shortly afterwards. You initially used drugs on the weekends but after you found out that your partner was cheating on you, your drug use accelerated to using daily. You have also used GHB and Xanax. You have ceased your drug use while incarcerated. However, after your most recent release, your daily use of methamphetamine and GHB resumed until your current period on remand. It was in that context that these offences occurred. Your criminal history is drug related.
34. You have been very proactive while recently in custody. You have used your time efficiently to engage in educational programs and do cleaning tasks. Certificates of your programs have been provided. You have now engaged with the NDIS and have been approved to participate in occupational therapy, disability support and community development and provided with 74 hours funding per year when you return to the community. Your goals are to manage your drug use and your mental health issues with the assistance of the NDIS, while residing with your mother. You hope to break the current cycle of your offending.
35. You have multiple outstanding charges that were committed between November 2023 and March 2024. At the request of your solicitor, you participated in a neuropsychological assessment with Ms Jane Lofthouse and were assessed by her on 31 July 2024. Her report is dated 2 August 2024, approximately one month before the current offences were committed. Your personal history and circumstances have been summarised.
36. She outlined that she prepared a report for a plea of guilty for multiple offences including car theft, failure to stop a motor vehicle when directed by police and driving at a dangerous speed. For these offences she writes:

Although Mr Keirl drew on his drug use as a contributing factor in his criminal offending, he stated that he has developed an impulsive addiction to stealing cars over the last five years when he was again using methamphetamine on a daily basis, and in addition he also likes to steal 'small stuff' if it is easily accessible.[8]

1. Ms Lofthouse has made the following observations and findings:
   • You are of low average and borderline intelligence with an acquired brain injury against longstanding developmental impairment. As such, you have significant intellectual impairment that would have been present at the time of the criminal offending that resulted in the charges she considered and will continue to be present throughout your life.
   • You were diagnosed with ADHD in 2013. In addition to these symptoms, you report a significant level of psychological distress. Your psychological systems have been present dating back to childhood/adolescence and as such would have been present at the time of the criminal offending that resulted in the charges she considered and will continue to impinge on your function into the future without appropriate assessment and treatment.
   • At the time of this assessment, you were at the Fulham Correctional Centre. You had recently received medication for your ADHD, and this was making you feel more calm. You suffered from severe depression, extremely severe anxiety and extremely severe distress at the time.
   • You have a pattern of long and chronic use of methamphetamine and more recently, GHB, with you suffering many accidental overdoses of this drug. Your drug use is a factor in contributing to your suffering intellectual impairment as the result of an acquired brain injury.
   • Your intellectual impairment and psychological issues will place you at risk of engaging in drug use which in turn will further destabilise your behaviour resulting in emotional instability and accentuating your intellectual deficits. The impact on your drug use should be considered as a further factor in contributing to the criminal offending that resulted in the charges she considered.
   • Your intellectual impairment will impinge on your ability to engage in rehabilitation and your deficits should be considered in the development of any treatment programs. Coupled with your intellectual impairment, your psychological issues and possible return to drug use will impinge on your ability to engage with professionals and undertake appropriate interventions.
   • You do need to address your drug use as this further accentuates your psychological presentation and impinges on your intellectual deficits including your already impaired problem-solving skills. You require long term support if you are to maintain abstinence.
   • Although your intellectual impairment is not likely to deteriorate during a period of incarceration, it makes it more difficult for you to complete a period of incarceration in comparison to people who do not suffer from this intellectual impairment or other issues.
2. While it has been acknowledged that your drug use has had a significant impact on your misconduct, your counsel has submitted that the limbs of Verdins[9] are applicable here. The prosecution does not agree with this submission in terms of contributing to your offending conduct, although they do not dispute that there may be some application of limb 5. In the report of Ms Lofthouse, she opines that your drug use is a factor in contributing to your suffering intellectual impairment as the result of an acquired brain injury. It appears that your mental health issues have been exacerbated by your use of illicit drugs. You admit that when you committed the most serious incident in the current case, you were affected by drugs. Further, that your underlying issues are made worse by your drug abuse. I consider that it is impossible to evaluate the extent to which your mental impairment is connected to your offending, in light of the effect of your consumption of drugs.
3. There is no material before me that isolates your intellectual impairment having a causative effect on your current offending, in light of your drug use. I was told that you attributed your offending to drug use and your addiction to stealing cars. In fact, your plea material has made clear that while currently in custody, you are not using drugs and your mental health issues do not have such a persistent impact, as your life appears to be better managed. The impact of your drug use cannot be disentangled sufficiently to determine if the relevant Verdins considerations are applicable. There is no cogent and positive evidence to apply the Verdins limbs 1-4. However, I do take your background and Ms Lofthouse's findings of your general mental health factors into account in your favour, as part of your general circumstances.
4. I do accept that Verdins limb 5 is applicable, as your diagnosis will add to the burden of custody. I accept that your conditions mean that a sentence of imprisonment will weigh more heavily on you that a person in normal health and I take this factor into account.
5. You have been given the opportunity to address your rehabilitation in the community, having been sentenced several times to Community Corrections Orders with conditions for treatment and rehabilitation as well as a Drug Treatment Order. You also completed residential rehabilitation at Odyssey House in 2023. You were unable to maintain your abstinence of drug use and were offered an opportunity to re-engage in 2024. However, you were unable to maintain your abstinence of drug use and you left. Regrettably, you relapsed into illicit drug use prior to the current offending.
6. I consider that the principles of deterrence, denunciation and just punishment assume some importance in the sentencing mix and that protection of the community is highly important, given your history. Your prospects of rehabilitation are, in effect, in your hands. They are bleak if you cannot deal with your dependence on illicit drugs. I am told that your substance abuse is a large motivating factor for your offending. You seem to have developed some recognition into the problems you face and have expressed a desire to overcome your substance abuse and mental health issues overall. It is acknowledged by your counsel that your prospects are somewhat guarded.
7. An offence under s317AF of the Crimes Act is a Category 2 offence, pursuant to s5(2H) of the Sentencing Act. The act is prescriptive in the type of penalty to impose in such a case being a term of imprisonment unless one or more criteria are established. Your counsel did not seek to persuade the Court that any of these criteria could be applied in your case. A term of imprisonment therefore is the only appropriate disposition for Charge 1.
8. There is also a presumption of cumulation for any sentence imposed under s317AF in light of the Sentencing Act.[10]
9. Your counsel has submitted that it would be appropriate to impose a CCO for the other offences, when considering all of your plea material. The prosecution submits that a term of imprisonment with a non‑parole period is appropriate.
10. I am unable to accept your counsel's submission as to sentence. You previously had numerous opportunities to benefit from Corrections Orders that supervised your drug rehabilitation and your mental health, yet you breached the orders and have continued to offend. The current incidents occurred during the most recent CCO which included therapeutic conditions. Given these facts, in the context of your overall level of non-compliance with court orders, I am not persuaded that a further corrections order would form an appropriate part of this sentence.
11. I accept that your supervision upon release will be of benefit both to you and the community. I intend to propose a period on parole that will allow your monitoring and supervision. Subject to the decision of the Parole Board, I hope you will be able to access parole as soon as it is available to facilitate your rehabilitation.
12. I take into account the maximum penalties for these offences and the cases referred to by your counsel_.[11]_ While there is a presumption of cumulation, the principle of totality is also relevant and I have taken care not to doubly punish you for these offences. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
13. Balancing all these factors as best I can, I sentence you as follows:

Aggravated reckless exposure of police officer to risk by driving (a stolen motor vehicle)

Your licence is cancelled. You are disqualified from driving for the minimum period of 24 months. (Charge 1)

Charges 3,4,5 - Licence cancelled and disqualified for 12 months on each count

All periods of disqualification to commence on the date of your remand and to operate concurrently.

[8] Report of Ms Jane Lofthouse dated 2 August 2024, p4.

[9] R v Verdins [2007] VSCA 62.

[10] s16(3D) Sentencing Act 1991 (Vic).

[11] DPP v Rule [2021] VCC 234; DPP V Roberts [2020] VCC 1196; DPP v Meldrum [2021] VCC 1734; DPP v Balancy [2023] VCC 1244; DPP v Hafda [2023] VCC 653.