Martinez v The Queen [2019] VSCA 135

1 For the reasons given by T Forrest JA, whose judgment I have had the considerable advantage of reading in draft, I agree that this appeal should be dismissed.

2 On 23 April 2018, the appellant pleaded guilty to one charge each of theft, arson, conduct endangering life and criminal damage. On 27 June 2018, the appellant was sentenced as follows:

[Crimes Act 1958 s 74(1)]

[Crimes Act 1958 s 197(6)]

[Crimes Act 1958 s 22]

[Crimes Act 1958 s 197(1)]

9 years' imprisonment with a non-parole period of 7 years and 6 months

Driver's licence cancelled for 12 months and disqualified from obtaining a licence for a period ending 6 months after release from custody; compensation in the sum of $14,061.51 in favour of the Chief Commissioner of Police; and forfeiture of flat tow truck and mobile phone.

3 The appellant sought leave to appeal against his sentence on the following grounds:

1. The sentencing judge erred in diminishing the weight to be given to the fifth principle in R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
2. The sentence on charge 3, the total effective sentence and the non-parole period are, in all the circumstances of the case, manifestly excessive.

4 On 4 October 2018, Priest JA refused leave with respect to the first proposed ground but granted leave to appeal on the second proposed ground. His Honour considered the ground to be reasonably arguable.

5 I shall briefly set out the circumstances of the appellant's offending.

6 On 12 December 2016, after experiencing a flat tyre, Omar Mohamed parked his grey coloured 2010 Ford G6E sedan, registration number XRC 871, on the side of the Western Ring Road, Derrimut.

7 At some point between 12 December and 14 December 2016, the appellant loaded the Ford sedan onto his Hino flat tray tow truck and removed it from its Derrimut location. (Charge 1) The appellant then dismantled the stolen Ford sedan and placed the car parts in the back of his tow truck.

8 At approximately 3.20 pm on 15 December 2016, the appellant drove his tow truck to the BP Service Station in Rockbank. The appellant re-fuelled his truck before the passenger, Crystal Perry, entered the service station and paid for the fuel. CCTV footage showed the tow truck bearing the registration number STJ 366. The registration number in fact belonged to another truck registered in the name of the appellant's father.

9 The next day, at approximately 2.10 am, the appellant drove his tow truck with the stolen Ford sedan on the tray to Melton South. Ms Perry was a passenger in the tow truck. The appellant unloaded the stolen Ford sedan shell onto a vacant paddock off Exford Road, Melton South, and doused it in petrol before setting it alight. (Charge 2)

10 Senior Constables Emma Toll and Brendan Densley were performing duties in a marked police divisional van when they observed the appellant's tow truck departing the vacant paddock. Shortly after, they saw the Ford sedan shell alight. They attempted to intercept the tow truck on Exford Road, but the appellant accelerated away. The appellant turned into Mitchell Road, Melton South, where he said to Ms Perry, 'Babe, I'm fucked if they pull me over, I'm fucked, I have to fucking ram them'.

11 The appellant pulled to the side of Mitchell Road and the police van stopped behind with its emergency lights flashing. Before Senior Constables Densley and Toll had time to get out of their vehicle, the appellant reversed his tow truck at fast speed into the front of the police van. The underside of the flat tray became wedged on the top of the bonnet of the police van, preventing the point of the flat tray from penetrating the van's windshield. The appellant then drove the tow truck forward, dislodging it from the bonnet of the police van. He again reversed the truck at a fast speed into the police van. It seems that the first contact was more significant and the police van was pushed backwards on that occasion about 10 metres or more. (Charge 3)

12 As a result of the appellant ramming their vehicle, Senior Constables Densley and Toll were placed in fear for their lives. They were not injured physically but both suffered ongoing emotional trauma. The damage to the police van was $14,061.51. (Charge 4)

13 The appellant drove away from the scene, dumped the tow truck at the far southern end of Coburns Road. He and Ms Perry escaped on foot through the paddocks.

14 A few days later, the appellant and Ms Perry returned to where they had dumped the tow truck on Coburns Road, and drove it to Ms Perry's brother's house at 12 Lemco Walk, Delahey. The appellant parked the tow truck in the front yard, and removed the front and rear registration plates.

15 On 29 December 2016, police executed a search warrant at 12 Lemco Walk, Delahey, and located the tow truck in the front yard. The car parts from the stolen Ford sedan were still on the flat tray.

16 Police arrested the appellant on 5 January 2017. At the time of his arrest, the appellant was 37 years old. When interviewed at Melton Police Station, he denied the allegations put to him and stated he had not driven the tow truck for six months.

17 Counsel for the appellant submitted a number of matters in mitigation. In short compass, these were:

(a) the appellant's guilty plea;

(b) the appellant's troubled family background;

(c) depression, anxiety and untreated post-traumatic stress disorder said to engage the fifth limb of Verdins;[1]

(d) there were some prospects of rehabilitation;

(e) the circumstances of charge 3 (conduct endangering life) are less serious than in certain other cases; and

(f) the appellant has shown some remorse.

18 Counsel for the appellant conceded the seriousness of the offending and the inevitability of a considerable prison term which required the fixing of a non-parole period.

19 Counsel for the appellant set out the appellant's background in some detail:

(a) The appellant was 38 years old at the plea date.

(b) The appellant was one of three boys who witnessed and experienced violence at home.

(c) He left home at 16 years of age due to family violence, and left school at the end of Year 11 to pursue an apprenticeship.

(d) He has spent most of his life working in mechanics and towing.

(e) The appellant has used cannabis for a long time and started also using methamphetamine in 2016, following the breakdown of a long-term relationship.

(f) The appellant has a criminal history spanning 20 years. He had been sentenced in the past for a large array of dishonesty offences. There have been over 15 convictions for car theft and many breaches of court orders. The appellant had served a prison term for dangerous driving causing death in 2005. In that case, the appellant had driven through a 'give way' sign, and struck and killed a motorcyclist.

(g) In 2000, the appellant's younger brother crashed a stolen motorcycle and had died in the appellant's arms.

20 Ms Ferrari, a psychologist, stated in her report that the appellant showed symptoms of depression and anxiety, as well as untreated post-traumatic stress disorder and possibly attention deficit hyperactivity disorder. Ms Ferrari suggested that a person with these conditions is likely to find a custodial sentence more detrimental than an emotionally sound person. She did not, however, explain why or how this may be the case.

21 The prosecutor submitted that the offending was serious, particularly charge 3 (conduct endangering life). He contended that the appellant had low prospects of rehabilitation given his lengthy criminal record and that there was little, if any, evidence of remorse shown by the appellant. The prosecutor submitted that it was a significant matter in aggravation that the conduct endangering life was against two police officers who engaged in lawfully intercepting the appellant. The prosecutor also questioned the application of the fifth limb of Verdins and challenged the appellant's submission that these circumstances of conduct endangering life were less serious than those referred to in the other cases raised by counsel for the appellant. With some enthusiasm, he submitted that this was grave offending involving a deliberate decision to ram violently an occupied police vehicle and that the appellant should be made to serve the majority of his sentence before parole eligibility. He submitted that protection of the community was an important sentencing consideration.

22 Senior Constables Densley and Toll each filed a victim impact statement. The statements set out the negative psychological and emotional impact of the appellant's offending.

23 The judge noted that the summary of agreed facts was extensive and saw no need to describe the full factual setting of the offending.[2] His Honour commented that '[t]his was extremely serious criminal conduct'.[3] The conduct endangering life offending, in particular, was extremely serious:

... given the size of [the appellant's] vehicle, [the appellant's] familiarity with the vehicle [he] was driving and the reasons behind [his] deliberate act in reversing the tray truck at velocity into an occupied marked police van with flashing lights. There is nothing in the matters raised by Ms Ferrari which suggest [the appellant] was impeded in [his] understanding of the seriousness of that act.[4]

24 His Honour made the following observations concerning the appellant:

(a) Notwithstanding that the appellant had served a prison sentence for dangerous driving causing death and that his brother died from a car accident, the appellant still engaged in the deliberate act of driving a large truck into an occupied police van. This act, together with the appellant's criminal record, demonstrated a great need for specific deterrence.[5]

(b) The guilty plea was entered late - on the day that a jury was to be empanelled - but 'there [was] still utilitarian value which must be recognised'.[6]

(c) It was extremely difficult to find any evidence of remorse shown by the appellant for his actions. As this case was 'overwhelmingly strong', the appellant's guilty plea was not necessarily indicative of remorse. There was nothing to suggest genuine remorse for the commission of any of the offences. His Honour thus concluded that on the balance of probabilities, the appellant was not genuinely remorseful.[7]

(d) The appellant had poor prospects of rehabilitation. He was 38 years old with a lengthy criminal record. He had breached many court orders and had been imprisoned a number of times, yet he still committed the crimes the subject of this appeal. His Honour did not accept Ms Ferrari's assessment that the appellant has a moderate risk of re-offending; he judged it to be a higher risk.[8]

(e) The victims of charge 3 (conduct endangering life) were serving police members on duty - the appellant knew that at the time of offending - but he deliberately placed the police members in danger of death, knowing or foreseeing that his conduct 'would probably create a real risk of death'.[9] In all the circumstances, charge 3 was the 'most serious offence by far'.[10]

25 His Honour accepted the appellant's family background as set out by counsel for the appellant at the plea hearing.[11] The judge did not accept Ms Ferrari's suggestion that the appellant's mental health should be a paramount concern in sentencing.[12]

26 As I have observed, leave to appeal was refused on ground 1. The appellant declined to elect to re-litigate this ground.

27 In concise and attractive submissions, the appellant's counsel on this appeal directed his arguments primarily to the sentence imposed on charge 3 (the reckless endangerment charge). In short, he accepted that charge 3 involved serious offending but contended that the late plea was of utilitarian benefit and that the appellant's prior history was long and serious, but in recent times, the appellant had shown he could conduct a successful business and stay out of trouble. Counsel for the appellant submitted that the sentence imposed on charge 3 and the total effective sentence were out of step with current sentencing practices, as was the minimum term ordered to be served before parole eligibility.

28 In equally attractive submissions, counsel for the respondent (who was not the prosecutor on the plea) contended that a perusal of the reasons for sentence demonstrates that his Honour gave weight to the late plea of guilty and all other relevant sentencing factors. Charge 3 was a dreadful offence which could have had appalling consequences, and the sentence called for significant weight to be given to specific deterrence, general deterrence, protection of the community, denunciation and punishment. What bleak prospects there were for rehabilitation needed to take a backseat to these other factors.

29 It was conceded by counsel for the respondent that each of the sentences imposed by his Honour was towards the very top of the range available in the reasonable exercise of sentencing discretion; however, justifiably so, submitted the respondent's counsel. After some prolonged consideration, I agree with this characterisation of each of the sentences imposed. The appellant's prior history is appalling. Over the last 20 years, he has prior convictions for dangerous driving causing death, scores of dishonesty offences, many firearms offences (including possession as a prohibited person) and numerous offences against the person (including intentionally causing injury, common assault and making a threat to kill). Before his recent imprisonment, he had received a total of nine terms of imprisonment and many other punitive court orders, including Community Based Orders, Community Correction Orders and Intensive Correction Orders. He has breached most of them.

30 I also agree with counsel for the respondent that the circumstances of offending, particularly those of charge 3, are dreadful. The community engages young men and women to perform a most difficult job. These police officers have a sworn duty to endeavour to keep and preserve order in the community, without favour or affection, and to prevent, to the best of their powers, the commission of offences. That was all these young police officers were doing when the appellant made the conscious decision to reverse his large flat top tow truck at speed into the occupied stationary police van. It was fortuitous that the tray of the truck became sufficiently fouled on the front bonnet area of the van, so as to prevent the tray progressing further backwards into the cabin. In my view, the police officers' initial alarm at serious injury and possible decapitation was entirely justified. I consider the courts have a duty to spell out a message in the strongest terms that this type of attack upon police officers, doing no more than their duty, will simply not be tolerated. Long terms of imprisonment await those who ignore this message.

31 It will be apparent from these remarks that I regard charge 3 as a grave example of this type of offending. I consider that the comparisons made on the appellant's behalf with other serious examples of this offence[13] are of little assistance. In my view, these offences are sufficiently dissimilar as to make this exercise futile.

32 A complaint that a sentence is manifestly excessive is a difficult ground to establish. It is insufficient to establish that a different sentence should have been imposed, or that the sentence is merely stern or high. In the absence of identifiable error, an appellant must demonstrate that the sentence imposed is wholly outside the range available to the sentencing judge in the exercise of reasonable sentencing discretion.[14] An appellant must thus demonstrate that the sentence imposed below is plainly unjust.[15]

33 I consider that none of the sentences imposed by his Honour, considered individually, are manifestly excessive. As I have said, I agree that each can fairly be considered to be towards the top end of the range of sentences available to his Honour. This was the consequence of the appellant's appalling prior criminal history and the gravity of the offending to which I have adverted.

34 I have reached a similar view about the total effective sentence, which is the product of the individual sentences and the orders for cumulation. The appellant's prior history and the circumstances of the individual offending demanded a deal of cumulation. While all the activities that gave rise to the four offences were interrelated, there was little factual overlap between them. His Honour was conscious of the principle of totality and I can discern nothing in any specific order for cumulation or the total effective sentence which could be characterised as wholly outside the range of sentences available to his Honour.

35 Finally, the appellant contended that the minimum non-parole period is manifestly excessive in that it is too close to the total effective head sentence. Expressed as a percentage, five years and 10 months is 80.4 per cent of the head sentence of seven years and three months. Counsel for the respondent described this ratio as 'interesting, but not appealably so'. For the reasons that I have expressed above, particularly in relation to the appellant's prior criminal history, I tend to agree. I am certainly not positively satisfied that the appellant has demonstrated that this ratio is manifestly excessive, although like every aspect of the sentence in this case, it is high. Justifiably so, in my view.

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

[2] DPP v Martinez [2018] VCC 978 [3].

[13] See especially R v Rivette [2017] VSCA 150; Sadiq v The Queen [2017] VSCA 64; Bradley v The Queen [2010] VSCA 70.

[14] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364 [89]; R v Macarthur [2019] VSCA 71 [58].

[15] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329 [22] (Gaudron and Gummow JJ).