DPP v Weinberg [2023] VCC 1074

1. Later that morning, 2 July 2021, police attended the Windemere Drive house and arrested you. You have remained in custody since that day.
2. You declined police attempts to interview you.
3. You were committed on these and other charges on 26 April 2022.
4. You offered to plead guilty to these charges currently before me, which was confirmed on 5 August 2022, while other matters proceeded to trial. I note that those other matters were the subject of legal rulings favourable to you on 29 March 2023 (see indictment M11370512B.1 (CR-22-00735)) and that case was discontinued on 14 April 2023.
5. A plea indictment was filed in this matter on 18 April 2023 and you pleaded guilty on 23 June 2023. The delay in hearing this matter was no fault of yours.
6. Your guilty plea represents your acceptance of responsibility, your willingness to facilitate the course of justice and, to a degree, remorse - I accept that you wish you did not conduct yourself in the manner I have just described on the night.
7. Your plea has avoided the need for a trial at a time when this court faces a large backlog of trials and so you will receive an extra reduction in sentence due to this.

1. You are now 29 years old. You were 27 at the time of these offences.
2. Your developmental history is set out in the report of psychologist Warren Simmons dated 26 April 2019 (Exhibit 2, including a previous report of 2014). Its contents were not contested.
3. You grew up in Melbourne, having been born prematurely and after spending some 6 months or so in hospital before being permitted to go home. In your early years, you required the assistance of a speech therapist to overcome a lisp.
4. From about age 8, you lived in foster and then residential care, having been removed from your parents. Your parents both struggled with substance abuse and the home was violent. While your mother bore the brunt of the violence, it was always around you. At one stage, your mother jumped from a moving vehicle with you in her arms, to get away from your father. You remember there never being enough food and that one of your half-sisters was essentially your carer. You did little together as a family.
5. When you were in residential care, you would regularly run away, trying to return to your mum and sometimes couch surfing or living on the streets. You remember being placed in more than 5 different residential units over time. Tragically, your mother was in no place to care for you and you would inevitably be returned to state care. While you recall some workers in whom you developed some trust, they inevitably moved on and you remained feeling isolated and unsupported.
6. You report having been in a motor vehicle accident when you are about 13 and remaining in hospital for several weeks due to an acquired brain injury. Soon after your release, you also report being on a motorbike accident and suffering fractures to your arm and leg and some internal bleeding.
7. When you turned 18, you returned to live with your mother, but she died a few years later in 2014 from a stroke, when you were 21. You father was never in the picture during your teenage years.
8. You struggled academically, having needed an integration aid during primary school. You recall those years being harassed by your peers because of your intellectual difficulties and you began to strike back because of this. You recall police attending your school at one stage, handcuffing you and parading you in front of other students. This only served to further your feelings of isolation.
9. At a very young age you were introduced to smoking cannabis by another foster child in a unit where you lived. Your smoking increased over the years to very high levels. By age 12, you were also using pills such as Xanax and continued to do so until about 18. Methamphetamine became a major daily problem for you after you were introduced to it following your release from custody in your early 20s.
10. Mr Simmons stated that your childhood left you vulnerable to substance use and observed that using methamphetamines helped you feel confident and more capable in social situations. He diagnosed you with a methamphetamine use disorder.
11. When you were about 15, one of your stepsister's boyfriends found you employment as a concreter but after several months you found it too difficult to keep up. You have not been able to work since and are in receipt of a pension when not in custody.
12. When you were 16, you met a partner with whom you stayed for about 9 years. You met her in residential care, she also living with an intellectual disability. You have 2 children together, who are now about 8 and 10 years. You have had contact with them when you were not in custody. You had another relationship following that from which you have 3 children, twins and a step-son who is 18 months older.
13. You have a criminal history that started when you were 18, putting aside any Children's Court matters, and these included street and driving offences. In 2014 you served 130 days' imprisonment for causing injury. In 2016 you served 42 days for breaching a CCO and then 10 months for assaults and breaching court orders. In 2017, you served 11 months for theft of a car, driving and endangerment offences. In 2019, you served 4 months for stealing a car and then 400 days and a CCO for armed robbery. In 2020, on breach of that CCO, you received 27 months with a non-parole period of 19 months. You also received shorter concurrent sentences in 2020 and 2021. I note that CCOs over the years included justice plan conditions.
14. In 2010, when you turned 18, the Department of Human Services certified that you have an intellectual disability (Exhibit 1). Since that time, you have been eligible for services under disability legislation. Currently you have a plan of services under the National Disability Insurance Scheme (NDIS) which will last for the rest of your life.
15. Those services include assessment and support by allied health professionals to help you achieve life goals which you set in consultation with them. Your support co‑ordinators, Dominic Richardson and Orion Heow, set this out in their letters of 6 April 2023 and 23 May 2023 (Exhibit 5).
16. In custody, you have completed a number of courses, for which you have provided certificates (Exhibit 3). These demonstrate that under appropriate supervision and with support, you are able to succeed in meeting appropriate goals. You have also obtained work in prison, and been a billet in your unit (Exhibit 4). You should feel proud of these achievements.
17. In April 2022, your stepsister Ms Croughton provided a reference confirming details of your early life and that she will provide support for you on your release. She offered to provide you a room in her home in Monbulk (Exhibit 7). Whether that remains available to you as an appropriate place given your need for other community supports, is something that remains unclear.
18. Sharon Burke of Eastside recovery, an alcohol and drug service, provided a letter dated 31 May 2023 (Exhibit 6). In it she confirmed that you've been accepted into a program to help you stabilise once you are released from prison. The program is targeted at your needs and is available as a part of your overall NDIS support. It is an intensive program designed to address your mental health needs and sobriety. I find this to be an important aspect of your planning for transition back into the community.
19. Further, occupational therapist Hannah Estraich has provided a comprehensive assessment of your needs, dated 26 May 2023 (Exhibit 8). This assessment is a necessary step in fully implementing your NDIS plan. It is an impressive document that makes recommendations for your support and an implementation plan of how that support can be successfully achieved.
20. In 2019, Mr Simmons suggested that you will need significant and ongoing support upon your release into the community and that you are at risk of institutionalisation. I find that the material I have just summarised goes a long way to providing just such support. Four years ago, Mr Simmons said you had very limited prospects for rehabilitation. At the time, I expect these were fair descriptions. I am more optimistic now in the context of the treatment and support I have outlined.

1. The maximum penalty for reckless conduct endangering life is 10 years; for handling stolen goods it is 15 years; for the summary offences of driving whilst disqualified 2 years; for possessing a controlled weapon it is 1 year; for wilfully damaging property it is 6 months; and for committing an indictable offence whilst on bail it is 3 months imprisonment.
2. The seriousness of your driving and other conduct on this occasion is very high. The speeds and the manner of your driving were the kinds of things that strike terror in the hearts of other road users.
3. As an example, at the point where 2 police officers were attempting to slow you down, it would have taken only a split second for your driving to turn from merely being dangerous into horrible tragedy and death. While you may not have properly appreciated the significance of your actions at the time, I hope that with a very long period on remand you now have some perspective on what you did that night.
4. Significantly, you were on bail at the time and without a license. You should not have been driving at all.
5. Your counsel Ms Ljubicic submitted that I should apply the principles in the case of Bugmy and find that your moral culpability for your actions is reduced because your early years, and the disruption and trauma they involved, have impaired your psychological functioning and in any case not equipped you with the skills and other capacities to make good decisions.[1] This is a feature of your development and ongoing life that does not diminish over time. I find that the principles in Bugmy apply in a general way to your behaviour. The prosecutor did not dispute that this principle is relevant in the general sense. I also find however that in the context of your intellectual disability that was emerging throughout your young years, this developmental context will have had a specific effect on your ongoing capacities. Having said this, given what I am about to say about Verdins principles, I wish to make clear that I have had regard to the overlap and not given this aspect of the case double weight.

• 49 Your counsel also relied on your disability to submit that your moral culpability is reduced and because of it there should be less weight given to general deterrence. She also submitted that this should lead to weight being given to you having a more difficult time in custody because of your disability. These are principles in the case of Verdins.[2] I expressed some concerns about the assessment of Mr Simmons and that it may only have reflected a screening test for your intellectual capacity. However, having received the statement of the Department of Human Services and other NDIS material, I accept that you have an intellectual disability and have therefore had regard to the comments of the High Court in the case of Muldrock v R, namely, that this is a permanent condition that affects all aspects of your life.[3] I will therefore give weight to this when weighing up all aspects of sentencing you.

1. In these circumstances, I will moderate the weight I would otherwise have given to general deterrence, denunciation, and punishment when determining the length of imprisonment in this case, having formed the view the such a sentence is the only appropriate one to be imposed.
2. Having considered your personal circumstances as well as the principles in Bugmy and Verdins, I remain of the view that some weight is to be given to specific deterrence and community protection.
3. As to the total effective sentence, I propose to make orders for cumulation so that the totality of what you did is reflected in the sentence.
4. You have been in custody since 2 July 2021. The COVID-19 pandemic has rendered your time in custody more burdensome. You have been subjected to 23-hour lockdowns, restricted movements, reduced access to rehabilitative and vocational programs, and limited access to psychological treatment. For much of your time, you have had no access to in-person visits. I will moderate your sentence accordingly.[4]
5. Neither counsel referred me to comparable cases, and I accept that your personal circumstances make it difficult to find another case that is the same in all respects. However, I have reviewed the cases of reckless conduct endangering life offences summarised in the JCV Sentencing Manual.
6. I sentence you as follows:

(a) On Charge 1 reckless conduct endangering life - 2 years' imprisonment. > > (b) On Charge 2 handling stolen goods, of the car- 9 months' imprisonment. > > (c) On Charge 3 handling stolen goods, of the registration plates - 2 months' imprisonment. > > (d) Three months of the sentence on Charge 2 is to be served cumulatively upon the sentence on Charge 1 making a total sentence on the indictment of 2 years and 3 months. > > (e) On Summary Charges 10, 19 and 20 driving whilst disqualified - 6 months (aggregate). > > (f) On Summary Charge 28, possessing a controlled weapon - 1 month. > > (g) On Summary Charges 33 and 36 committing an indictable offence whilst on bail - 1 month (aggregate). > > (h) On Summary Charge 38 wilfully damaging property - 1 month. > > (i) The sentences on all of the summary offences are to be served concurrently with each other and with the sentence on the indictment. > > (j) The total effective sentence is 2 years and 3 months. > > (k) I fix a non-parole period of 20 months. > > (l) I declare that you have served 724 days and direct that this be reckoned as a period already served under this sentence.

7. In accordance with section 6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed 3 years and 3 months and fixed a non-parole period of 2 years and 3 months.

1. Pursuant to s 104B of the Sentencing Act 1991, the Court reopened the proceeding and heard the parties in relation to summary charge 28.
2. Upon a concession by the Prosecutor that the Court did not have power to amend the charge as was previously proposed, involving as it would the charging of a new offence, it was withdrawn and struck out.
3. The sentencing orders made earlier this day are amended so as to remove the conviction and sentence imposed on summary charge 28 and to amend the sentencing reasons accordingly.

[1] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[2] Verdins v R [2007] VSCA 102; (2007) 16 VR 269.

[3] Muldrock v R [2011] HCA 39, [54].

[4] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].