DPP v Russo [2020] VCC 1894

The circumstances of the offending are as follows.

1. At approximately 10.38 pm on 11 May 2020, Mr De Silva left a carwash in Bayswater North and began driving towards his home address in Boronia. He was driving a 1998 Nissan Skyline.
2. At about 10.55 pm, Mr De Silva reached his home and turned the car into his driveway.
3. He turned off the car and removed the steering wheel, which is a safety feature of this car. As he turned to get out of the car, two men approached him: you, Mr Russo, and your co-offender. When you reached the rear of his car, you demanded his keys.
4. You were described as a fat guy with a black hoodie zipped up and pulled up to your nose. Your co-offender, who has not yet been identified, was described as being thin and fit, with fair skin and with an unusual walk. He was also dressed in black with a hoodie zipped up over his face.
5. Both you and your co-offender continued to demand that Mr De Silva hand over his keys. Mr De Silva was trying to get out of the car and, at the same time, remove his house key from the key ring. He was hoping that you would become impatient and leave. However, your co-offender became impatient and assaulted Mr De Silva, hitting him in the left eye with an unknown object. This is an uncharged act for context only.
6. Mr De Silva got out of the car and handed the keys to the two of you. You got into the car and reattached the steering wheel. Mr De Silva walked around to the passenger side and began banging on the window. You then reversed out of the driveway and drove away. Your co-offender ran back to another car which was parked on the street and drove off.
7. Mr De Silva went inside the house and told his housemates what had occurred. They called '000' to make a report. Mr De Silva then attended at Boronia police station to make a statement.

As to Charge 2 of conduct endangering life and Summary Charge 6 of failing to stop on police request:

1. At approximately 11.25 pm, a police vehicle on patrol identified the stolen Nissan Skyline being driven by you travelling west along Mountain Highway, Boronia, at high speed. The police Air Wing attended and assisted in conducting surveillance of the stolen vehicle.
2. For the next 10 minutes, the Air Wing and multiple police vehicles became involved in your pursuit. During the course of that pursuit:

1. you were identified by police patrol vehicle 'Rowville 210' as driving erratically and travelling at speeds in excess of 100 km/hr in an area with a speed limit of 60 km/hr; 2. you were later identified again by police patrol vehicle Rowville 210 travelling west on Mountain Highway. Police attempted to intercept you by activating their lights and sirens, but you sped away. This conduct gives rise to Summary Charge 6 of failing to stop on police request;

1. you were observed by police travelling through a red traffic light at the Canterbury Road and Bayswater Road intersection while travelling west at a high speed along Canterbury Road. The patrol vehicle was unable to make contact with you, given your excessive speeds.

1. other stills captured by the Air Wing indicate that: 1. on Mountain Highway, you were travelling at 127 km/hr and 146 km/hr where the posted speed limit was 60 km/hr; and 2. on Canterbury Road Highway, you were travelling at 152 km/hr and 164 km/hr where the posted speed limit was 80 km/hr.
2. At 11.34 pm, Mr Russo, you drove into Aumann Street, Heathmont, and dumped the car in the middle of the road outside 3 Aumann Street. You ran up the driveway at this house and attempted to open a black Holden Commodore but were unsuccessful.
3. You then entered the rear garden of this address and began to jump fences and move through a number of properties in an attempt to evade police. You were eventually found hiding in some bushes out the front of a house on Canterbury Road and were arrested.

5. Upon your arrest, you were searched, and the following items were located in your possession:
   • − a brown wallet containing various personal documents in the name of Malinga De Silva; and
   • − a grey wallet containing various personal documents in your name.
6. The key to the Nissan Skyline was located in the ignition of that vehicle. Also located in the Nissan Skyline was your mobile phone.
7. You were taken to Ringwood police station, where you participated in a record of interview at approximately 3.30 am on 12 May 2020. Much of what you said in the interview is not true. You lied to police about matters of significance, including whether you participated at all in the carjacking, whether you were the driver of the stolen Skyline, the presence of a third offender and the identity of your co-offender.
8. During the course of that interview, you stated that:

1. you admitted that you were located by police hiding in bushes and that you had come from the Skyline; 2. you had been seated in the passenger side of the Skyline while it was being driven by another person;

1. the driver was a person by the name of 'Grady';

1. Grady and another guy - 'Joel' - told you to come for a drive with them; 2. you three followed the Skyline for about 10 minutes and then stopped, and the two other guys got out of the car and went down a driveway while you waited in the car; 3. you then got told to get in the Skyline, so you did; 4. you agreed that there were police following you with lights and sirens and you noticed the police helicopter above you; 5. Grady stopped the car and Grady ran away in one direction and you ran away in the other; 6. you grabbed your phone but ended up grabbing the other guy's wallet; and 7. you did not know what the other two were doing and you did not want to be there, but they threatened you with a hammer.
2. Mr De Silva has provided an impact statement expressed in his own words as to how the crime affected him. I accept that Mr De Silva's victim impact statement must be read with caution because it also includes the impact of more aggravated circumstances committed by your co-offender. Nonetheless, being unexpectedly confronted late at night by two men in company, dressed in black, being subject to a persistent demand for his very treasured car and having that car taken and being damaged upon its return has been a frightening and traumatic event with lasting consequences.
3. I now turn to your personal circumstances.
4. As I noted earlier, you are presently 30 years of age, as you were when this offending occurred in May this year, and you do have a criminal record.
5. Your criminal record commences with an appearance at the Ringwood Magistrates' Court in August 2009 when, at the age of 19, for affray and property damage, you were sentenced to four months' imprisonment to be served by way of an intensive correction order.
6. Just over eight months later, you were back in that court, this time on driving and criminal damage charges, for which you were fined and put on a two-year good behaviour bond and your licence was restricted for six months.
7. It was over three years later that you again returned to that court on driving charges, including exceeding the speed limit, and you were again fined and lost your licence for 12 months.
8. In May 2014 you were back in court for driving, weapons and violence charges, including reckless conduct endangering serious injury and failing to stop your vehicle on police request, for which you were fined, lost your licence for 18 months and were given one month's imprisonment, which was wholly suspended for six months.
9. You then stayed away from the courts for over four years, until September 2018, when, at the Dandenong Magistrates' Court, you were fined and put on yet another good behaviour bond for 12 months for theft and using threatening words in a public place.
10. Less than a year later, you appeared in the Frankston Magistrates' Court for contravening both a family violence interim intervention order and a conduct condition of bail - you were yet again fined and placed on a good behaviour bond.
11. Four months after that appearance, you appeared at the Ringwood Magistrates' Court on a drug charge, for which you were fined.
12. In December 2019, you appeared in the Dandenong Court for breaching the good behaviour bond entered into in September 2018. The original order was confirmed and you were again fined.
13. More recently, on 20 January this year, for unlawful assault and making a threat to kill, you appeared back at the Ringwood Court and were put on a community correction order for 18 months. I note this current offending that I am dealing with today breaches that community correction order.
14. As to your background, you have experienced a disrupted earlier life. Your father drank heavily and became violent when intoxicated. You, your mother and your siblings were physically abused. You were slow learning at school and even now have limited literary skills. You were bulled at primary school. Your highest level of education is Grade 6 and you were never enrolled in secondary school.
15. You commenced work in your father's concrete-pumping business from the age of 13 and have continued working in that business whilst your brother has managed it until the time of your arrest.
16. In 2018, you were involved in a fatal motor vehicle collision in which your friend was killed. You have reported a range of symptoms consistent with post-traumatic stress disorder in the aftermath of this collision. You did not participate in treatment.
17. You developed an extensive history of substance abuse from the age of 10. From age 16 you began to use cannabis, ecstasy and amphetamines. You have said that you enjoyed the increased energy which these drugs induced, as well as their ability to alleviate feelings of depression.
18. Your use of methamphetamine came to dominate your life, destroying relationships and compromising your work performance, even in the supported environment of your family's business. Your use of methamphetamine was particularly intense during the two years following the motor car collision in 2018. Your life became chaotic and you became immersed in drug using and criminal sub-cultures. You have not participated in any significant substance-related treatment.
19. You were diagnosed with ADHD at age 8 and medicated for a short period on Ritalin. You have said that the combination of your father's violence and the taunting which you received at school had left you feeling depressed. You have also reported significant depressive symptoms during your adult years and that you had sought treatment with counsellors at Anglicare for about three months in about 2014. After this time, however, you returned to drug use and did not continue with treatment.
20. A report from Mr Patrick Newton states that you have been diagnosed with type 2 diabetes and that the control of your blood sugar is poor despite the prescription of metformin and adherence to a low glycaemic diet. You cannot recall when you had last seen an endocrinologist or participated in diabetes education. You also suffer from nerve damage in your neck which results in right side weakness, and varicose veins in your legs which are often a source of pain.
21. The full report from Mr Patrick Newton was tendered on your plea. In

Mr Newton's opinion, you fundamentally suffer from a severe methamphetamine use disorder, together with symptoms of anxiety and depression, reactive to your current legal problems, wariness about other prisoners and more chronic elements related to the motor vehicle collision in which your friend was killed in 2018. You do not, however, manifest the full syndrome associated with post-traumatic stress disorder, major depressive disorder or anxiety-related disorder, but in combination would meet criteria for an adjustment disorder with mixed disturbance of emotions and conduct. In the controlled environment of prison, your amphetamine condition is now in early remission. From a clinical perspective, you would benefit from the provision of a disposition which allowed for the provision of ongoing mandated treatment and support for your emotional vulnerabilities in the context of ongoing supervision and clear consequences to encourage continued compliance on your part.

29. The offending in which you engaged is inherently serious. Carjacking, in particular, is serious offending, reflected partly in the maximum penalty of 15 years' imprisonment imposed by Parliament, together with it being nominated as a Category 2 offence, mandating a sentence of immediate imprisonment unless certain criteria apply - which in your case do not.
30. I am conscious that your involvement does not extend to the more aggravated form of carjacking reflected in the conduct of your co-offender; however, being physically confronted by an offender late at night, in company, with a demand for his motor vehicle is itself likely to be terrifying to an isolated and defenceless victim and a cause of great distress, fear and anxiety.
31. Whilst I accept that other features such as a direct threat by you, detailed planning or risks to other road users are not present in the circumstances of the carjacking, the offending did involve some considered premeditation and is aggravated by the fact that it was committed in breach of a recently imposed community correction order.
32. I am sceptical of and unconvinced by your instructions to counsel that you only participated in the carjacking under threat from your co-accused of being hit with a hammer. In light of the serious objective falsehoods otherwise contained your interview with the police, I regard your evidence as unreliable and motivated by desire to simply minimise your role. Even if it were accepted that your participation was in some way induced, the part you played was significant and included you confronting the victim, taking the keys and driving the vehicle away.
33. The nature of your driving, embracing the offence of conduct endangering life, is also a serious form of criminal conduct by exposing members of the public to the danger of death. The speeds at which you drove the vehicle through a highly populated area over a period of approximately 10 minutes were so excessive that police were unable to maintain contact with you. The fact that you drove at an extremely high speed though a red-light intersection is breathtaking in contemplating the potential loss of life or lives through collision.
34. Proceeding in this manner in the context of ignoring an attempted police interception adds significantly to your culpability. You also have a conviction in 2014 for a similar offence of reckless conduct endangering serious injury.
35. As I have previously mentioned, you have a history of previous offending, and at the time of offending were subject to a community correction order by the Ringwood Magistrates' Court which had been imposed less than four months previously. You also have a previous conviction for failing to stop on police request. In these circumstances, principles of specific and general deterrence and the protection of the public loom large in sentencing considerations.
36. In mitigation, I take into account the matters submitted on your behalf by your counsel and, in particular:
    • your plea of guilty as an early plea - I accept that there were forensic matters necessary to resolve up until committal, and the resolution of those matters at that time has spared the victim the anxiety and stress of having to give evidence, and the community the expense and inconvenience of a contested trial;
    • your strong family support, your desire to re-establish contact with your daughter, your continuous history of employment, the availability of employment for you on release from prison, the development of insight by you into your drug addiction and negative peers, your engagement in drug counselling whilst in custody and abstinence from drugs for a period now of approximately six months - all these matters will assist your rehabilitation prospects upon your release from prison;
    • your chronic history of drug addiction: in this context, whilst falling short of mental health reducing your moral culpability, I also take into account your early life, with its history of social disadvantage, as evidencing a greater vulnerability than most to seek relief and support in the seductive qualities of illicit drugs and a lower capacity to address more appropriate measures of support - the moderation I allow for this must be measured against the need for community protection;
    • the more onerous conditions that you have endured in remand custody because of the COVID-19 pandemic, and I also take into account that more restricted conditions than usual will continue in custody for the immediate future;
    • your remorse, as expressed through your counsel, and to Mr Newton in acknowledging the impact of your offending on the victim of the carjacking and the dangers associated with your reckless driving.
37. In all the circumstances, the purpose or purposes for which the sentences are imposed preclude a sentence other than one with a head sentence and minimum term before eligibility for parole. I consider that the gravity of the totality of offending requires a sentence beyond that which would permit a component being served within the community.
38. Mr Russo, I will now read out your sentence.
39. On Charge 1 of carjacking, you are convicted and sentenced to three years' imprisonment.
40. On Charge 2 of conduct endangering life, you are convicted and sentenced to two years' imprisonment.
41. On Summary Charge 6 of fail to stop on police request, you are convicted and sentence to two months' imprisonment.
42. Charge 1 is the base sentence.
43. I direct that 12 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
44. The total effective sentence is four years' imprisonment.
45. I direct that you serve a minimum period of three years before being eligible for parole.
46. The sentence starts today.
47. Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 199 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.

48. Pursuant to s.6AAA Sentencing Act 1991, but for your plea of guilty, the total effective sentence that would have been imposed over all charges is six years' imprisonment, with a minimum period of four years to be served before eligibility for parole.
49. I note that Charges 1 and 2 involve a motor vehicle and this has enlivened s.89(4) of the Sentencing Act. Upon conviction for Summary Offence 6, fail to stop on police request, I am also required, pursuant to s.89(3) of the Sentencing Act, to cancel any licence and disqualify you from obtaining a further one for a period of not less than 12 months.
50. Pursuant to those sections, on each of those charges I further order that any driver's licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of two years, effective from today.
51. At the plea hearing the Crown sought orders for disposal and forfeiture, to which you consented, and I have made those orders today.
52. Now, counsel, that concludes my sentencing remarks. Are there any other matters?
53. MS ROODENBURG: No, thank you, Your Honour.
54. HIS HONOUR: Mr Schocker?
55. MR SCHOCKER: No, Your Honour.
56. HIS HONOUR: Thank you. The court can be adjourned.