Jaeger v The Queen [2020] VSCA 116

6 On Thursday, 19 July 2018, between 6.00 am and 9.00 am, the applicant went to a property in Wheatsheaf, an area where there are a number of large rural properties. The applicant knew the area well, and knew that many land owners keep their keys in their vehicles. He got into an unattended 1999 Holden Jackaroo parked at the front of the house, and used the keys in the ignition to steal the vehicle and trailer (with a combined value of $9,000). The applicant also stole a number of items from the vehicle, including a socket set; street directories; a map; prescription glasses; hand tools; binoculars; blankets; an umbrella; furniture felts; several padlocks; and a hip flask (with an estimated combined value of $1,980). The theft of the vehicle, and items from the vehicle, was the subject of charge 1.

7 The next day, Friday, 20 July 2018, at 1.30 am, Senior Constable David Bisby and First Constable Carly Murdoch were conducting patrols in the Melton South area in a marked divisional van. They observed the stolen vehicle travelling on Elizabeth Street, Melton South. The stolen vehicle sped off and police lost sight of the vehicle at Coburns Road. Later, at approximately 2.35 pm, the applicant drove the stolen vehicle to the Bacchus Marsh McDonald's restaurant with Cardona in the passenger seat.

8 That same day, at 2.55 pm, the applicant drove the stolen vehicle to the BP service station at Grant Street, Bacchus Marsh. He filled the vehicle and a jerry can with 72.99 litres of diesel to the value of $109. Cardona was sitting in the passenger seat and passed the applicant the jerry can to fill up. The applicant then drove off without attempting to pay for the fuel. It was this theft of fuel which was the subject of charge 2.

9 Later that day, at approximately 10.00 pm, Cardona drove the stolen vehicle to Macs Hotel in Melton. On Saturday, 21 July 2018, at approximately 12.18 am, the applicant and Cardona were captured on CCTV footage leaving the Hotel in the stolen vehicle with the applicant in the driver's seat Cardona in the passenger seat.

10 On Saturday, 21 July 2018, at approximately 12.20 am, Senior Constable Anthony Wicking and First Constable Carly Murdoch, who were in a marked divisional van, saw the applicant driving the stolen vehicle in Melton South. When the applicant sighted the police vehicle he sped off. Police attempted to intercept him by activating their emergency lights, but the vehicle drove along an adjacent train line on a dirt track inaccessible by the police vehicle. As Senior Constable Wicking and First Constable Murdoch were following the stolen vehicle, Cardona filmed the incident. The film depicts the police vehicle following the stolen vehicle for a short while, then the stolen vehicle being driven off road and onto a dirt track. Both the applicant and Cardona can be heard discussing being followed by the police. Cardona advised the applicant to watch out for the police 'chopper' and stop sticks. He also kept an eye out for police and advised the applicant that they were being followed, saying: 'Come on, come on piggies. Let's go. Yeah they're actually following us brother. Yeah!'. Significantly, the applicant is heard on the recording to say, 'I'm gunna ram ya', referring to the police vehicle. Both are heard laughing.

11 At approximately 12.27 am, Senior Constable Glen Hutton and First Constable Samuel Dunn were in Melton South, looking for the stolen vehicle. Hutton observed the stolen vehicle (with headlights off) travelling along Staughton Street, a residential street with a 50km/h speed limit. The stolen vehicle accelerated to approximately 100km/h. Dunn then observed the stolen vehicle turn the wrong way around a roundabout at the intersection of Exford Road and Abey Road, Melton South. When First Constable Dunn and Senior Constable Hutton were behind the stolen vehicle, the 'moving mode' radar checked the vehicle's speed at 130km/h in a signed 60km/h zone.

Intentionally exposing an emergency worker to risk by driving: Charge 3

12 At approximately 1.05 am First Constable Brittany Webster and Constable Ricky Bromley were driving a marked police sedan, east along the Western Freeway near Rockbank. Webster was driving whilst Bromley was in the front passenger seat. At this time, the applicant drove the stolen vehicle across the west bound lanes of the Western Freeway and continued over the medium strip and into the emergency lane for east bound traffic. He pulled out in front of the police vehicle and continued travelling east.

13 As Webster and Bromley followed the stolen vehicle, Cardona, the passenger, leaned out of the passenger side window with a torch, and began shining the torch beam directly into Webster's eyes, blinding her momentarily. Cardona then continued to turn the torch off and on into First Constable Webster's eyes.

14 A truck driver, Shpendi Sabru, was also driving along the Western Freeway at the time. He observed the stolen vehicle drive across the medium strip and onto the east bound lanes. Mr Sabru observed that the stolen vehicle had failed to give way and pull out in front of the marked police sedan. He described the applicant's manner of driving as very erratic, going from the left to the middle of the freeway and all over the road. Another truck driver, Terry Johnson, described seeing a Holden Jackaroo drive sideways over the medium strip on the Western Freeway. He stated that the stolen vehicle had its lights' high beam on and was driving erratically. Mr Johnson estimated that when the stolen vehicle overtook his truck, it was travelling at approximately 120km/hour. He observed the marked police vehicle come up behind the stolen vehicle and active its lights and siren.

15 As police were behind the stolen vehicle, the applicant braked suddenly and came to a complete stop on the Freeway itself. In response, First Constable Webster also braked heavily, and also came to a complete stop, approximately 30 meters behind the stolen vehicle. The applicant then reversed the stolen vehicle at speed towards the police car, ramming the font of the police car with sufficient force to cause the air bags to deploy. As a result of the collision, First Constable Webster suffered redness, swelling, minor lacerations and a sore wrist; and Constable Bromley suffered a muscular-ligamentous strain to his neck.

Failing to render assistance following an accident: Summary charge 21

16 The applicant failed to stop the vehicle to check on the welfare of the occupants of the police vehicle. He sped off and hid the stolen vehicle so he would not be detected by patrolling police.

17 Mr Johnson stopped to render assistance to the police officers. He described the damage to their vehicle as severe. Mr Sabru also stopped and rendered assistance to the police officers. He described trying to open the driver's side door, but it was stuck and he had to use force to open it. Mr Sabru stated that the driver of the police vehicle appeared distressed and that both police officers were in shock.

18 Police arrested the applicant on Tuesday, 24 July 2018. His telephone was seized. In text messages he admitted ramming the police vehicle. When interviewed he said that he:

• had drunk 30 alcoholic drinks over the preceding two days prior to the ramming

• had used approximately two grams of ice leading up to the ramming

• knew that people that live in that area leave their keys in their car

• was driving the stolen vehicle when they stole the diesel fuel

• saw the police vehicle and 'baited' them to follow him

• then drove off road as he knew the police vehicle could not follow

• recalled Cardona, who was sitting in the front passenger seat, making the video recording on his phone

• travelled across two lanes and a medium strip of the Western Freeway and into the inbound lanes, pulling out in front of a marked police vehicle

• was aware that Cardona used the torch in an effort to blind the driver of the police vehicle

• 'slammed on his brakes', and, as his vehicle was still coming to a complete stop, placed it in reverse

• intentionally rammed the police vehicle to stop it from following him

19 At the time of the offending, the applicant was aged 24 years. He pleaded guilty at committal mention.

20 The applicant had a substantial drug history that commenced with smoking cannabis when aged 12 or 13, and had escalated to a gram daily by the age of 14. At age 15, the applicant graduated to methylamphetamine ('ice'), becoming addicted to ice by the age of 16. The applicant attributed his drug use to self-medicating as result of the trauma of having been sexually abused by an older stepbrother between the ages of 4 and 13.

21 On the plea, the applicant's mother, Michelle Jaeger, a nursing assistant, gave oral evidence. She said that she had separated from the applicant's father, an alcoholic, prior to her son's birth. The applicant lived with her but, until he was aged 12 or 13, would go fortnightly to his father's place. At age nine or 10 the applicant's attitude and behaviour changed. He had been sexually 'molested' by his stepbrother. Ms Jaeger became aware that her son was using ice when he was aged 18, after he had a seizure at work. His ice taking made him aggressive. The applicant had a 'stint' in a rehabilitation facility from November 2017 until early 2018, but he was discharged without completion.

22 Ms Carla Ferrari, a consultant psychologist, provided a report dated 24 March 2019 (Exhibit B), in which she expressed the view that the 'sexual and physical abuse by his older stepbrother from age 4-12 ... led to feelings of worthlessness, self-esteem issues, shame, embarrassment and a sense of betrayal and exploitation'. The applicant 'developed depression and anxiety symptoms as well as post-traumatic symptoms, which he managed through self-medication with substances'. Ms Ferrari said:

As a result of these early experiences, [the applicant's] predisposition to mental health issues such as depression, anxiety and posttraumatic stress, all of which has a high comorbidity with substance use. There is also evidence, which requires further longitudinal assessment once he is in remission of substances for a lengthy period, of ADHD which may have further impacted his ability to regulate his emotions, decision-making, impulse control and general organization and planning, as well as the ability to consider consequences to his actions relative to same-age neurotypical peers.

...

His alcohol and substance abuse itself perpetuates and can exacerbate impulsive, reckless behaviour, as can any underlying ADHD which often impacts an individual's emotional regulation, impulse control, ability to plan and organize oneself, and has a higher comorbidity with substance abuse, as well as exacerbated depression and anxiety, particularly when under stress. ...

...

In relation to [the applicant's] clinical and behavioural functioning at the time of offending, there is evidence of both depression and anxiety which remains operational at present, and is subject to increases in acuity in the context of dynamic factors within his psychosocial environment, such as changes to his accommodation, unemployment, peer group influence, relationship quality and substance use. [The applicant] does not present with symptoms of an ABI however his cognitive screen highlighted deficits in executive functioning, which when combined with his educational and employment profile, presentation at interview and other available historical information, suggests he meets criteria for ADHD which would have been persistently operational given he has never received treatment. In addition, his substance use was an attempt to self-medicate acute and chronic symptoms related to his emotional, psychological and behavioural functioning. He described during the offences being intoxicated with both alcohol and methamphetamine, which he had consumed approximately half an hour prior.

...

In regards to his general risk of reoffending, [the applicant] is considered a moderate risk, on the basis of his persistent substance use, association with an antisocial peer group and untreated psychological issues. This risk however is dynamic and treatable, and can therefore be reduced substantially; he has a minimal criminal history and an absence of criminal versatility, is able to express remorse and displays insight into his behaviour during this period, as well as the effect it has had on himself and others. He is particularly cognisant of the danger he put others in, especially the victim whom was a police officer. ...

Ground 1: Taking account of the applicant's drug addiction

23 Under cover of the first ground, the applicant's counsel submitted that the judge erred in failing to find that the applicant's moral culpability was affected by the age at which, and the circumstances in which, he developed his dependence on cannabis, alcohol and methylamphetamine.

24 In response, the respondent's counsel submitted that the judge did take into account the applicant's history of drug addiction as a mitigatory feature of the offending but made it plain - correctly - that the consumption on the day of the offending could not be seen as mitigatory.

25 The judge made the following observations in her sentencing remarks:[6]

As regards substances you commenced smoking cannabis at about 12. You report smoking a gram a day by the age of 14 and 2 grams' a day prior to your arrest. Ms Ferrari, whose report I shall turn to, opines that this was an attempt to self-medicate in relation to the matters which form the context of the sexual abuse and you being bullied. Whatever the genesis, this is an early use of drugs and your pattern thereafter shows the all too familiar entrenchment of drug and alcohol abuse in formative years, which is relevant to your development as a member of our community and perhaps explains some aspects of your poor decision making. Your difficulties with alcohol commenced at 15 and there have been intermittent periods of excessive drinking.

Your drug and alcohol use on the day of this offending, I wish to make clear, is not mitigatory and I am sentencing you on that basis.

26 In support of their respective submissions, both counsel referred to the observations made by Buchanan JA in McKee.[7] His Honour said:[8]

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question ... I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.

27 In the same case, Vincent JA observed[9] that counsel for the appellants had

placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan JA has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender's prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.

28 In light of these observations from McKee, the following remarks by the sentencing judge in her reasons for sentence are important:

The community must maintain a real interest in your rehabilitation as that is the community's best protection into the future. It is to be hoped that the custodial sentence, which you are now undergoing, will have significant deterrent effect and will perhaps provide the motivation to make the necessary changes to ensure that you do not find yourself back in the criminal justice system.

...

Like many prisoners, I think your depression will make custody more difficult. You will need to actively address the matters relevant to your mental health, both for your own sake and to protect the community into the future. The efforts you have made as regard to your own drug rehabilitation, absent the criminal justice system, are I think the cause for some confidence that you have real prospects in this regard. In the end, it will come down to the choices that you ultimately determine.

29 Contrary to the submissions of the applicant's counsel, in our view it is plain that the judge took the applicant's drug addiction into account in the permissible way. First, the judge acknowledged that the applicant's drug and alcohol abuse in his formative years was relevant to his development as a member of the community and 'perhaps explains some aspects of [his] decision making'. Secondly, the judge recognised that reform might be fostered by the aspect of specific deterrence in the sentence imposed. And thirdly, the steps taken by the applicant to rid himself of drugs was 'cause for some confidence' that the applicant had real prospects of rehabilitation. None of this is open to legitimate criticism.

30 Further, we note that the specific complaint made in the first ground - that the judge erred 'by not treating the fact that the offending was caused by drug addiction as mitigating' - is without substance. Although, when he rammed the police car (driving a stolen vehicle and seeking to escape police), the applicant may have been disinhibited by drugs - he said he had used two grams of ice shortly beforehand - in no sense was any aspect of his offending 'caused' by his drug addiction. His outrageous, anti-social and dangerous conduct was in no way the product of any need to feed an insidious addiction.

Ground 2: Manifestly excessive sentence on charge 3 and cumulation?

32 Under cover of ground 2, the applicant's counsel submitted that there were several circumstances in mitigation which were not reflected in the sentence imposed. Those circumstances included the applicant's age; his full admissions; his early guilty plea (having utilitarian value and evidencing remorse); his limited criminal history;[10] family support; and his attempts at rehabilitation.

33 It is to be noted that the offence in charge 3 is a category 2 offence, so that, by virtue of s 5(2H) of the Sentencing Act 1991, the judge was required to order that the applicant be imprisoned unless there were 'substantial and compelling circumstances that are exceptional and rare and that justify not making [such] an order'. Moreover, by virtue of s 10AE(1), on charge 3 the judge was required to 'impose a term of imprisonment and fix ... a non‑parole period of not less than [two] years if, in the commission of the offence, an emergency worker on duty ... [was] injured'. Once more, those mandatory consequences could only be avoided in this case if the judge was able to find pursuant to s 10A the existence of 'substantial and compelling circumstances that are exceptional and rare' that justified the Court in not imposing a term of imprisonment and not imposing a non-parole period of less than two years.

34 In sentencing the applicant, the judge said that some 'very limited submissions' were made by the applicant's counsel, but there was 'absolutely no basis upon which "special reasons" were established'. That finding was not challenged in this Court.

Your offending, as it relates to the ramming of the police vehicle is very serious, as is demonstrated by the maximum penalty for the offence of aggravated offence of intentionally exposing an emergency worker to risk by driving, which as I have already noted carries a maximum term of 20 years' imprisonment.

There are a number of features of your offending which make it a serious example of the offence; you were involved, effectively, in a police pursuit. Your conduct had a number of aspects, you were on a busy highway. Your conduct involved stopping dead in a 110 kilometre freeway and then reversing, ramming a police vehicle which caused injury to the occupants. Both these actions are highly dangerous and the fact that tragedy did not result was simply a matter of luck. Your intention was at all times to impede your arrest, with absolutely no regard for the welfare or safety of the victims or the community at large. The message must be clear and consistent that conduct of this type simply will not be tolerated and condign punishment will result in appropriate circumstances.

36 In our view, general deterrence, punishment and denunciation all needed to be given prominence in the sentence. As we have said, the applicant's drug-fuelled conduct founding charge 3 was outrageous. It placed in danger - and caused actual injury to - two police officers, upon whom the community relies for protection and the maintenance of order. The 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. We regard the applicant's as being a serious example of a serious offence, warranting stern punishment. In our opinion, the sentence imposed - representing only 25 per cent of the available maximum (at the risk of resorting to naive fractions) - adequately reflects all the circumstances in mitigation relied upon. Indeed, were it not for the applicant's plea of guilty (in particular), we consider that a significantly more severe sentence would have been justified.

37 Finally, given the way in which the ground is expressed, we should say that we regard the cumulation ordered between the sentences on charges 1 and 3 to be quite moderate.

39 Leave to appeal against sentence must be refused.

[1] Crimes Act 1958, s 74. The maximum penalty is 10 years' imprisonment.

[2] Crimes Act 1958, s 317AD(1)(a). The maximum penalty is 20 years' imprisonment.

[3] Road Safety Road Rules 2017, r 20. The maximum penalty is 10 penalty units.

[4] Road Safety Act 1986, s 61(4)(b). The maximum penalty for a first offence is not more than 80 penalty units or imprisonment for not more than 8 months; and for a subsequent offence, a penalty of not more than 240 penalty units or imprisonment for a term of not less than 4 months and not more than 2 years.

[5] His date of birth is 6 January 1997.

[7] R v McKee [2003] VSCA 16; (2003) 138 A Crim R 88, 92-3, [12]-[13] ('R v McKee').

[8] Ibid 92 [13] (emphasis added to this and following passages).

[10] Apart from a dishonesty offence which resulted in a non-conviction disposition. Driving offences included three traffic infringement notices: driving with a prescribed concentration of drugs in 2018; and exceeding the speed limit in 2015 and 2017. The applicant was also fined in 2014 for failing to give way and failing to exchange name and address after an accident.