DPP v Hynum [2022] VCC 2157 (5 December 2022)


IN THE COUNTY COURT OF VICTORIA	Revised Not Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALLUM HYNUM

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	24 October 2022
DATE OF SENTENCE:	5 December 2022
CASE MAY BE CITED AS:	DPP v Hynum
MEDIUM NEUTRAL CITATION:	[2022] VCC 2157

Catchwords: Theft of car x 2, ICI, aggravated intentional exposure of emergency worker to risk by driving, conduct endangering life x 4; numerous summary offences: drive whilst disq, fail to stop and fail to give name after accident. 20 years (almost 21) of age as at sentence. Significant Children’s Court criminal history; early plea ; Worboyes v The Queen [2021] VSCA 169 –COVID-19. Youth. Unsuitable for youth justice detention

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Thomas plea (24 Oct) Ms Grunwald (5 Dec)	Office of Public Prosecutions

For the Accused	Ms L Dubroja	Slades & Parsons Criminal Lawyers

1 Callum Hynum, you have pleaded guilty to two charges of car theft, one charge each of intentionally causing injury and aggravated intentional exposure of an emergency worker to risk by driving, and four charges of conduct endangering life. There are also a number of summary offences to which you have pleaded guilty, being one charge of drive whilst disqualified and three charges each of failing to stop and failure to give details after an accident.
2 You are now 20 years of age, turning 21 in a couple of weeks. You have admitted a criminal history of obvious relevance to my task.
3 The maximum penalties are set out in the prosecution summary and I do not see any need to repeat them all, but the suggestion in that written summary of Charge 4 being a category 1 offence was withdrawn by the Prosecutor and that was because no police member was injured. It is worth noting though that the aggravated intentional exposure of an emergency services worker to risk by driving (Charge 4) has a maximum penalty of 20 years imprisonment. In addition, it is what is described in the Sentencing Act 1991 as a category 2 offence and so a custodial order is required and not one in combination with a community corrections order. See s5(2H). Your counsel is not submitting that any of the exceptions have application here or that a custodial order can in any way be avoided. Plainly she is right and I will not further discuss those relatively complicated Sentencing Act provisions.
Facts
4 The prosecutor Ms Thomas opened the case to me on Monday 24 October when I was sitting on Circuit down at Geelong. She opened in accordance with a written plea opening that was dated 18 July 2022. That written opening was marked as Exhibit A on the plea. It was a quite lengthy document and your counsel told me that it was an agreed summary. Additionally, I have since been provided with the Air Wing footage showing a decent portion of the driving which endangered members of the public. It did not capture the full event or all of the charged conduct that I am dealing with.
5 There is though, in the circumstances, no need for me to set out the full sentencing facts in these my reasons, as I will sentence pursuant to that agreed summary and the footage. So I will say something only briefly about the facts so that my ultimate sentence can be understood by those who might happen to access these reasons.
6 The offending started off with the pretty audacious theft of Mr Chopra’s Navara ute from his driveway and it escalated from that point.
7 It was a hot day on that day, that was 7 February of this year, and Mr Chopra had started up the ute in his Corio driveway. He had done that to cool it down. It was about 3 o'clock in the afternoon. He left the car running and went inside to get his daughter. Meanwhile, you happened by and stole that vehicle. He reported the theft and later got into his wife’s Hyundai i30 to go looking for his stolen ute.
8 He located his stolen ute near the greyhound track later that afternoon. By this stage it was about 4:20 in the afternoon. You had got out of that stolen vehicle to talk to a man at the scene. Mr Chopra got out of his wife’s Hyundai and went to his ute and got inside it. He left the engine of the Hyundai running. You came towards him as he sat in his recovered utility. You were pointing something at him. He was apprehensive and locked the doors of the ute.
9 Now I do not know what you were holding and it actually does not matter. I am not dealing with you for armed robbery or robbery or even assault.
10 A short time later at a point where he had opened the door to respond to a request from the man who had been on a motorbike, you attacked him from behind, punching him to the back of the head and the right side of his face, causing a laceration above his right eye. Hence the charge of intentionally causing injury, Charge 3. You then ran back to the Hyundai and drove off in that car at a fast rate. Hence the theft of that second car. So in a short space of time you had stolen two cars belonging to Mr Chopra.
11 The rest of the summary is devoted to the highly dangerous driving of that car at various points in the afternoon. You endangered a number of people.
12 At about 5 pm, you were travelling on the wrong side of Station Road in Corio and Shannon McMillan sounded his horn and applied his brakes and tried to swerve to avoid what would have been head on contact. Despite his best efforts, there was still contact to the rear left side of the car he was driving. His wife thought they were both going to die. You failed to stop and provide any details. Charge 7 rolls up both of the McMillans, so Shannon and Rachelle McMillan.
13 Next up were police members who were patrolling the Corio area,
First Constable Ned Weatherly and the driver of their marked police vehicle, First Constable Ned Parsons. At around 5:30pm, they observed your erratic driving and activated their lights. They were positioned on the western side of a roundabout. You increased your speed and you drove directly at them and you deliberately rammed the front passenger side of that marked police vehicle and then continued on your way. Hence Charge 4 the aggravated exposure to risk charge.
14 The Air Wing was summonsed and commenced observations from above and at 5:53pm they notified members on the ground that you were headed in their direction. First Constable Weatherly who had been in that van that you had rammed had got out and was deploying stop sticks. You drove on the wrong side of Plantation Road at around 85 kilometres an hour to avoid the stop sticks and that gives rise to the conduct endangering the life of those two members.
15 You continued to speed. You side swiped a car near Broderick Road in Corio. You drove to the Princes Highway where you then crossed onto the wrong side of the road.
16 At around 6:20 pm, Wilhelm Concha had been driving north on the Princes Highway at Werribee. He had his mother in the front passenger seat. You were travelling in his lane but, of course, you were travelling in the wrong direction at around 120 kilometres per hour in an 80 zone. At this point he was stationary at the intersection of the Princes Highway and Derrimut Rd and he saw you coming towards him on the wrong side of the road at speed. He tried to take evasive action and you struck his vehicle to the right-hand side and continued on your merry way. He was shocked and scared for his mother who was in the front seat. Again, you failed to stop and provide any details.
17 You then drove at speeds ranging from 150 to a little over 200 kilometres
per hour on the Princes Highway. That would be bad enough without adding one other fact into the equation. You were on occasions driving in completely the wrong direction. You were swerving left to right through oncoming traffic whilst being followed by police units and you were travelling at these ridiculous speeds. There were numerous near misses with vehicles which were travelling in the right direction. Hence Charge 5. The footage shows that driving. It is really quite extraordinary. A number of motorists took emergency evasive action to avoid what would have been high-speed head-on impact.
18 At around 6:24pm, Ashley Bonney was driving his van south on the
Princes highway in Werribee as he was met by your car travelling at high speed in the wrong direction. He was travelling at the speed limit of
80 kilometres per hour. You were traveling at that point in excess of
150 kilometres per hour in the wrong direction. The car immediately in front of Mr Bonney suddenly swerved, no doubt to avoid you, and this movement at that last moment revealed to Mr Bonney your car heading straight at him. He hit the brakes and swerved to avoid a high speed head on collision, but you struck the side of his vehicle and his vehicle ran off the road and collided with a light pole causing it to snap and fall on the van. This is covered by Charge 8 which rolls up two victims Mr Concha, who I have described, and also Mr Bonney. The footage captures this event. It is quite extraordinary.
19 Again, you failed to stop and provide any details.
20 You then drove south along the Geelong Road at a fast rate with by this stage degraded tyres. You were essentially driving on the rims. You were not able to maintain control. You stopped and you ran from the car and were arrested by police. You were not fit for interview as you were obviously significantly affected by drugs.
21 The next day you were interviewed and you made a number of admissions.
22 You were a disqualified driver at the time.
23 You have been in custody since 7 February of this year.
24 The agreed summary sets out a brief chronology of the matter before the Court. Application was made to adjourn the plea out of the August Circuit listing down at Geelong to obtain a psychologist’s report. There had been some difficulties in the obtaining of that report and I was met by an adjournment application on the day of the plea on 24 October. In fact, the plea was conducted then and I adjourned the case off to today's date for two reasons. To call for a Youth Justice Pre-Sentence Report, but also to permit your legal team to obtain such other materials as they wanted to obtain relating to any mental health considerations in play here. Your counsel told me this morning that they had received a forensic psychologist’s report as well a report from a psychiatrist. They had also subpoenaed the records from the Werribee Mercy Hospital. Your counsel advised me that she was not placing any of that material before the Court as it did not assist you.
25 So much then for my brief summary of the offending. I will sentence pursuant to the more detailed agreed statement in conjunction with the
Air Wing footage that I have viewed and marked as part of Exhibit A.
26 This was offending that so easily could have had a disastrous impact upon others. Given the speeds and the way in which you were driving, it really is something of a miracle that you have not killed or seriously injured yourself or others on this date. This can be put down really to good fortune and the efforts that others made to avoid catastrophic impact. As a result, I am dealing with you for endangering the lives of a number of other people including serving police members.
Impact
27 There is an impact statement from Rachelle and Shannon McMillan.
28 It was not read aloud, and they presumably did not want it read aloud, so I will say little about the impact upon them, but, of course, I take the Victim Impact Statement account, unsurprisingly, your crime has had a sizable impact upon them. It has affected many aspects of their lives. Obviously, there were financial impacts owing to the damage to their car and insurance excesses and that sort of thing. Also the inconvenience of having a car off the road, as well as an ongoing sense of anxiety when on the roads. They relive the incident, one that has them thinking how easily their children might have been left orphaned. So they relive the incident and are pretty angry at your lack of concern for their wellbeing on that day, driving in the way that you did.
29 The other victims have chosen not to make impact statements and, of course, that is their right. Many of those are not even identified and they are the ones that are captured by Charge 5. Plainly though this was frightening offending. To be met by an erratic driver travelling at ridiculous speed, often in the wrong direction, will not be easily forgotten by any of the people that had the misfortune to come upon you on this day. Nor, of course, the dangerous act of ramming the marked police vehicle. It is not just a police vehicle. It is a police vehicle occupied by police members.
30 I take into account the impact of your crimes as I am required to.
In Mitigation
31 Now, your counsel Ms Dubroja relied upon a written outline of submissions dated 23 October 2022.
32 The Court was told about your personal background including your educational, relationship and employment history. She made some submissions as to your prospects of rehabilitation and risk of re‑offence. She placed before the Court on the last occasion a Youth Justice Deferral Report, but that was quite dated. It was from 2019. She made submissions as to the relevant sentencing purposes in play in this case, as well as the relative seriousness of the offences. She also made some submissions about your unfortunate criminal history.
33 She relied upon a number of matters in mitigation. They were principally the following:
• your early guilty plea in the midst of the global pandemic;
• the presence of some remorse;
• your youth;
• your disadvantaged early background (Bugmy [1]/Marrah[2]); and
• also the impacts of COVID-19 upon your custodial experience.
34 She conceded that you had a highly relevant criminal history and that confinement was obviously required here. She had originally argued that a term of detention in a Youth Justice facility might be open in this case and that the Court should at least call for an assessment report. Well, I did that. I called for an assessment report. Today she has withdrawn any submission as to detention in a Youth Justice facility being an available disposition in this case. She concedes the inevitability of a prison term and one of a dimension requiring the fixing of a non-parole period. She withdrew any reliance on the mental health issues spelt out in paragraph 30 of the written submissions.
Prosecution
35 Ms Thomas conducted the original plea but as there were still matters outstanding she reserved the right to make sentencing submissions on the adjourned date which is today. Well, she was not available, and I excused her, and she has been replaced by Ms Grunwald who has made some brief sentencing submissions this morning as to the gravity of the offending. The Director of Public Prosecutions, unsurprisingly, was calling for a head sentence and a non-parole period but so much had been already conceded by your counsel earlier this morning.
36 Of course, I am not bound by submissions made as to sentence by either side. I have to exercise my own sentencing discretion having regard to the various principles of sentencing and paying due regard to any submissions made to me. I will discuss the various submissions shortly.
Background
37 I will turn firstly though, and quite briefly, to your background. There is much material before me as to your background and I just do not see any point in repeating all of this material which I do accept. Much of it is in the
Youth Justice Deferral Report which was prepared when you were 17 years of age. It is also detailed in your counsel's written outline as well as in the
Youth Justice Assessment Report which has been obtained, which I have had marked as Exhibit D on the plea.
38 So by way only of quite brief summary, you were born in December 2001 so are almost 21 years of age. You were one of two children born to Leonie Casboult and Jason Hynum. You had an older sister. Child Protection were engaged frequently, and at a very early stage, due to the drug use and the behaviour of your parents. You were removed from their care when you were only a toddler and after a period of foster care you wound up being placed with your grandmother when you were about three. Your sister was placed with a different grandparent and you have only met once.
39 Your early life was very difficult and plainly unenviable. Your grandmother herself had a host of issues, though she has been there for you and you acknowledge that fact. She evidently had some issues with alcohol and I was told that there were pretty constant undesirable influences exerted by your uncles and also your father. Drugs, drug use and alcohol excess were commonplace in the home where you were living. Money was also pretty tight. There was real disadvantage in your early life and into adolescence. There was very little done to meet your needs. You had, for instance, limited clothing and food, and plainly witnessed many things better not seen by a child, including adult family members overdosing on drugs.
40 Unsurprisingly, school was fragmented and very little interest was demonstrated in your progress by those adults who were in your life. You transferred into a special school in Year 6, one for those who had disengaged from schooling, but you went back to mainstream education the following year. You were frequently absent and you had behavioural issues and you finished up your schooling in what is described as the equivalent of Year 11 whilst detained at the Parkville Youth Justice Centre.
41 Drugs have been a major problem for many years, perhaps unsurprisingly given the role models in your life. You gravitated to drug use at a very early age with cannabis and then later ice, heroin and Xanax use. There have been some periods of abstinence but they have been few and far between. Your father died as I understand it in 2020. You had a partner who had your son in May of last year. You had a job at one point as a labourer in construction but relapsed into drug use and lost that job. You were admitted to hospital in early 2021. The relationship with your partner ended when you were remanded earlier this year. During your present remand you have done some courses whilst in custody.
42 You have a disturbing criminal history. It is obviously relevant to my task notwithstanding that most of it relates to appearances in the Children’s Court. The Children’s Court has a very different approach to sentencing and that is as it should be. There is no weight afforded to general deterrence in that regime. It is not a relevant consideration in that regime. That Court has bent over backwards to try to avoid confining you. You have been given chance after chance in the Children’s Court and you simply have not taken them. You have breached virtually every order ever imposed and you have just continued to offend and to do so seriously.
43 I am not going to waste your time or mine descending to the full details of your criminal history. It speaks for itself. As you know, there are some serious offences within that history. Assaults, affray, aggravated burglary and armed robbery to name but a few. There are also instances of car theft and dangerous driving, some of which has been in the course of a police pursuit and some of which have endangered the lives of members of the public. You have previously been detained for conduct endangering life. You have been detained on a number of occasions but you simply keep offending even when paroled it would seem. Some of the past summaries have been placed before me and marked as Exhibit C. I take your counsel's point that it is not clear whether amendments were made to them, but I also take her point that they give a guide to some of your past offending. There are also a couple of summaries relating to pending matters which are to be heard as a guilty plea this coming Friday.
44 Now you do not fall to be sentenced a second time for any of that past conduct. Nor does it, or any of the pending matters for that matter, actually aggravate the offending that I am dealing with. I must pass proportionate sentences. However, I do have to make judgments as to the weight to be given to specific deterrence and community protection. I have to assess your prospects of rehabilitation and your risk of re‑offence. It is very plain that past sentences have not deterred you. Plainly you must be deterred from future offending.
Disadvantage - Bugmy/Marrah
45 Having set out as I have, some of the details of your background, I make it plain that I take it into account insofar as I am permitted to.
46 An offender's family circumstances and their experience during their childhood and formative years must be considered in the sentencing process and that is not just out of some historical curiosity but, rather, because the effects of social disadvantage do not just diminish with time. They are likely to have profound and lasting consequences, and in some cases, they can actually explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence or sexual or physical abuse or neglect into account when sentencing is just the mark of a humane society. It is no answer at all to say that these events occurred years ago when the offender was just a child. That is because the effects of these things do not just diminish with the passage of time. They do actually leave their mark. No doubt they have in your case. You had a most unenviable early life. You had few if any useful role models. You were exposed to things you should never have been exposed to, including drug use on display from those who should have been guiding you. It is hardly surprising that you have had issues with drug use yourself.
47 It is always going to be though a matter of what weight to attribute to evidence of a significantly disadvantaged background. Disadvantage will not attract the same weight in every case or in the same manner. Sometimes it might lead to a substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position here. Sometimes it might be enough to take into account in a general way without any of those very sizeable reductions and that is the way I will have regard to it in this case. The proper approach will always be informed by the nature of the evidence. It will depend on the nature and the extent of the disadvantage, the nexus if any, with the offending (though none is required), and also the nature of the crimes and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation. See the case of Terrick.[3] It does not all flow in one direction, as your counsel correctly concedes. It can even lead in some cases to a finding of there being a greater need for community protection.
48 I do give full weight to your background. I do take into account your background in a mitigatory fashion pursuant to those decisions of Bugmy and Marrah in the way contemplated by your counsel. Given the nature of these crimes and your past criminal history, it cannot dominate my task.
Guilty Plea
49 Let me now deal with the various matters in mitigation raised on your behalf. The first of those matters is your guilty plea. It was a plea at what I will treat as the earliest stage. That is important.
50 You have taken this early responsibility for your crimes. You took responsibility earlier still making the admissions that you made in the police interview the day after your arrest. I take into account that cooperation as well.
51 Indeed, when I viewed the Air Wing footage over the weekend, I noted the way that you stopped the vehicle. Originally you kicked the door open and ran, but you ran into an open space and essentially put your hands up. So you cooperated with the police.
52 As a result of your plea, the time and the cost and effort of a contested committal in the Magistrates’ Court and a trial up in this court has been avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience for some witnesses. Well, the witnesses have been spared that experience altogether. At least they have not had to relive their ordeal in giving evidence before a court.
53 So you have facilitated the course of justice in these various ways and this must be adequately reflected in the sentence that I am imposing. You must be rewarded for your stance in pleading guilty and at the earliest of stages.
54 Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[4] In the course of the global pandemic, a very large backlog of cases has arisen over the last couple of years. Your case was never part of that backlog. It very swiftly settled. So I take these various matters into account in mitigation.

Remorse
55 I turn then to the issue of remorse. Your counsel argued this morning that I should conclude that there was some remorse in this case.
56 You have pleaded guilty. You have done that at the earliest stage and a guilty plea is often indicative of at least some remorse. You also made the admissions I spoke of moments ago when you were interviewed by the police and you were seemingly not revelling in the offences that next day when interviewed by the police. There is also some expression of remorse in the Youth Justice Assessment Report which I have called for, which is marked as Exhibit D.
57 I am prepared to find there is some remorse in this case and I take that into account in your favour.
Youth
58 I turn then to the issue of youth. You are a youthful offender and I give weight to that fact. I apply to my task the statements of principle that can be found in cases such as Mills [5] and Azzopardi[6]. However, as I said on the plea both on the last occasion and earlier this morning, you are far removed from being a youthful first offender. You are not a youthful first offender. Your youth is still important, and it must lead to some moderation of the punitive purposes of sentencing and some greater focus on rehabilitation. Young people are less likely to consider the consequences of their actions. They are more likely to act impulsively. They are less developed, and they are generally judged to be less culpable for these reasons.
59 The benchmark for sending a youthful first offender to prison or even to a Youth Justice facility is undoubtedly a very high one but we sometimes have to do it and, as I say, you are not a youthful first offender. Judges understand the corruptive powers that exist in an adult prison setting and even to a lesser extent in a Youth Justice facility. There is always concern about exposing a youthful offender to those sorts of influences because we know they can be quite counterproductive, and it is never an exercise that is taken lightly. It should not be forgotten that a rehabilitated offender is one for whom there is no need for any future community protection. So, I do apply these various principles to my task, but I have to modify them to meet the needs of this case to take into account your age and your criminal history.
60 The issue of youth is not dealt with in every case in the same way. It willalways depend to some extent on the nature of the offences and the extent to which an offender has been before the Courts previously. You are not some silly 18-year-old first offender. You were a 20-year-old at the time of these events, with a pretty unimpressive and relevant prior criminal history behind you.
61 The more serious the offence, generally the less weight exists for youth and rehabilitation. More weight is devoted to the other purposes. In addition, many of the offences to which you have pleaded guilty are often enough committed by youthful offenders. General deterrence assumes importance in my task. So too in your case specific deterrence as you have been given a great number of chances in the Courts and simply will not or cannot take advantage of them. You keep committing similar offences and you must be deterred. Sometimes a Court is left with no choice but to confine a youthful offender and that plainly is the position here. Your youth, though still of importance, cannot be given the same weight as might be afforded to it in the case of a youthful first offender, which you most definitely are not.
Rehabilitation
62 I turn then to the issue of your prospects of rehabilitation.
63 I have already mentioned the importance of your relative youth, for with youth comes some hope. You are only 20 years of age. You have however a quite lengthy and highly relevant criminal record. You have not taken the chances offered to you by the courts. You continue to offend seriously. Your disadvantaged background which I do take into account in a mitigatory fashion is not something which will just be miraculously erased. It will continue to impact upon you and the choices that you make and your actions and it leads to an increase in the weight given to community protection.
64 You have long term serious illegal drug use issues and those things cast a shadow over your prospects of rehabilitation into the future.
65 Then I have the offending. This was serious offending.
66 I certainly will not write you off and say that your prospects are extinguished. They are not. However, given the history before the courts and your complete lack of response to past orders, I accept the submission made by your counsel that I can only be guarded as to your future prospects. I believe those prospects are not particularly strong. I do accept though your counsel’s submission that there are some prospects of rehabilitation. They will be dependent upon you leaving drugs behind. If you cannot do that, if you continue to use illegal drugs in the way that you have over the last several years, you will have very dim prospects of rehabilitation indeed. They will plummet. I judge that you have a relatively high risk of reoffending.
COVID-19
67 I turn to the issue of COVID-19 and its impact upon you. I have no difficulty at all in accepting that the COVID-19 virus and the response to it by those who run and manage the prisons has increased the burden felt by prisoners generally. You have been in custody since February of this year. It is your first experience of adult prison. No doubt there would have been some worries about catching the virus in such a setting and no doubt you would have experienced the increased burden posed by quarantine or lockdowns on occasions since then. Also, the absence of in person visits for at least some of that period, as well as lack of access to the full range of courses and programs. I take that into account.
68 Things have looked up though in the prisons since about March of this year, so from shortly after you actually arrived there.
69 What lies ahead into the future on the COVID-19 front for prisoners is really impossible for me to know and I am not free to guess. Those whose job it is to run the prisons will be in a much better position to assess the actual impacts upon you. They will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place and I make it clear that I certainly do not proceed on the assumption that it will. To take that sort of thing into account in that way would be for me to contemplate future executive action, which is prohibited to me.
70 I do not think it is unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming several months. Case numbers have risen in the community once again and one would expect that that will be reflected in a rise in case numbers in a prison setting. I am sure there will still be some lockdowns and the day-to-day uncertainty that they cause to prisoners will no doubt persist.
71 I take into account the increased burden imposed by the response to COVID‑19 in the manners that I have described. So that which has arisen in the past and that which lies ahead insofar as I am able to ascertain it.
General
72 Let me turn then to some general observations. I am required to take into account a large range of matters, and those things include things such as the maximum penalties and the nature and the gravity as well as the impact of your crimes.
73 This was unmistakably serious offending and that much is conceded. The car thefts were quite brazen. The intentionally causing injury was no minor example of the offence, though plainly it is a mile removed from the most serious examples of that offence given the mechanism and the limited nature of the injury actually inflicted.
74 The conduct endangering life offences are serious examples of that offence. Some roll up separate identified victims, for instance Charges 7 and 8. Charge 5 relates to a number of near misses in relation to a number of unidentified victims. This was not some arcade game being played by you. These were real motorists met by an emergency setting, all of your creation. The footage is really quite disturbing.
75 The offence of conduct endangering life can cover a very broad range of circumstances. It can be committed where the conduct in question results in actual serious physical injury to the person or persons who are actually endangered. It can also relate to conduct which does not lead to anything other than apprehension, or distress, on the part of victims. In fact, it can apply also to conduct that is viewed as endangering others who are not even identified, and who may never have even come forward. That is the nature of Charge 5. The crazy high-speed driving at speeds up to and over
200 kilometres per hour. You were on occasions on the wrong side of the road. Your driving endangered a host of other motorists who were then on the road just behaving themselves and following the rules.
76 This offence can even cover a setting where a “victim” may not have sustained any physical or psychological injury at all. It can cover a setting where a victim may not even have appreciated that they were ever even at risk at all. That is how broad the endangerment offences can be. They can cover a multitude of different settings. See the case of Reid [7].
77 Well, these instances of the offence did not involve some vague or theoretical risk. They did not involve a setting which went unremarked on by the victims. These were extremely dangerous acts by you causing serious immediate risk of death averted really only at the last moment and as a matter of good fortune. Risks that were immediately appreciated by, for instance,
Mr and Mrs McMillan and by Mr Concha and by Mr Bonney, and by those motorists who were swerving out of your path.
78 You had no business being behind the wheel of any car as you were disqualified from driving. You were obviously drug affected and were driving a stolen car as though it was in some sort of video game. Driving at great speed and in the wrong direction along a busy road. Head on catastrophe was narrowly avoided with these many near misses that are described in the summary and some of which are observable in the footage taken from the
Air Wing above.
79 As to the police and the victims who were police members, it is an inherently dangerous job that they perform, at the best of times. It is dangerous enough even without meeting up with one such as you prepared to use a vehicle to ram a police car and then to endeavour to outrun the police. It is a serious offence to intentionally expose an emergency worker to risk by driving a stolen car to deliberately ram a marked police vehicle as you did. Very serious. The police must be protected. Further, you then endangered the life of police when they sought to deploy stop sticks to stop you from driving. See
Charge 6. They were simply going about their sworn duty.
Purposes
80 I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation and I do. They are not particularly strong.
81 I am required to punish you for your crimes and I must do that justly and proportionately.
82 I must also pay regard to community protection. Well, plainly that is an important purpose of sentencing in this case. It is a matter of time until you kill yourself and/or an innocent motorist if you continue to offend in the way that you have over the last few years. You show no signs really of learning from the error of your ways. I must strive to protect the community from you.
83 I must also denounce your conduct and I do. That is also an important purpose of sentencing here.
84 I must pay appropriate weight to specific deterrence and by that I mean the need to deter or dissuade you, from offending in the future. That is of real significance here given the serious nature of the offending and your recent record of serious offending dealt with in the Children’s Court. You have somehow got to get the message. You must be deterred from ever offending in this way again. Being sent to a Youth Justice facility has not deterred you in the least.
85 General deterrence is also an important purpose of sentencing in this case. It has had no role at all in your past appearances before the Children’s Court. Well you are not in the Children’s Court anymore and you never will be again. You are not a child. You are an adult in an adult Court being dealt with for crimes committed as an adult. The principle of general deterrence involves the need to deter other potential future offenders. This Court must send a message to others in the community who may consider this serious style of offending. That is particularly important in relation to the driving offences where you endangered life and the aggravated intentional endangerment. People must understand they are not free to seek to outrun the police. They must stop. They must not endanger police in their endeavours to escape arrest. They must not ram police vehicles. They must not endanger other innocent members of the public. That message must be conveyed loud and clear by the sentences imposed in these courts, that doing these things will lead to sizeable periods of confinement.
86 I must have regard to the maximum penalties and to the impact of your crimes as I have mentioned earlier.
87 I must also pay regard to current sentencing practices and I do. That is not a single controlling factor.
88 There are no sentencing snapshots for the aggravated intentional exposure or conduct endangering life offences.
89 The Sentencing Advisory Council theft snapshot is of no use at all given the multitude of ways that theft can be committed and all the variables that exist as to matters of aggravation including things such as value. I have looked at the online data for conduct endangering life and also for the aggravated intentional exposure offence.
90 The most common sentence for conduct endangering life where prison was selected fell in the band from three to less than four years.
91 I have also looked at the relevant portions of the Judicial College of
Victoria Sentencing Manual.
92 There are summaries of a large number of Court of Appeal decisions, as well as many examples of sentences imposed by judges of this Court.
93 Having said that though, sentencing is not a statistical task.
94 Other cases are not precedents. No amount of looking at other cases or the statistics will ever provide the answer to my sentencing task in this case. There is not even any such thing as one correct sentence.
95 Statistics have inherent limitations. They omit all of the detail of the matters in aggravation and in mitigation. These are the details which would explain a particular sentencing outcome. These are the sorts of things that I have been working my way through in my reasons to date. Statistics tell me next to nothing about the offence or the offender represented in that data.
96 I am exercising a sentencing discretion in your case, taking into account the known matters in aggravation and mitigation in your case. Things that I actually do know about.
Totality
97 I take into account the principle of totality of sentence. I have engaged in a last look at the sentences imposed by the Court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and also to ensure that the overall effect is commensurate with your overall criminality.
98 I must determine an appropriate sentence for each charge, taking the applicable sentencing considerations into account, and then I must designate the highest term and nominate that as the base sentence. As I said earlier this morning, reasonable minds could easily differ as to which was the most serious charge on the indictment here. The ramming of the police car (Charge 4) which has a much higher maximum penalty or is it Charge 6 the conduct endangering the life of the police members with the stop sticks or Charge 5 conduct endangering the life of a number of separate motorists or Charge 8 rolled up conduct including the extraordinary high speed near miss with Mr Bonney. As I say reasonable minds could differ in their view as to which was deserving of the highest penalty. One however will be nominated as the base sentence and, I repeat, Charge 4 has the highest maximum penalty by a long distance.
99 I must then determine the extent to which there should be cumulation regarding the other sentences imposed.
100 Then there is that 'last look' which I have described. That is that third step. I have to 'stand back' and consider, in light of the totality principle, what is an appropriate total effective sentence.
101 If applying the first two steps produces a total effective sentence that infringes totality, then I then need to moderate the extent of cumulation to ensure the total effective sentence complies.
102 It is inescapable that there must be a level of cumulation here. Clearly there is a temporal link between the offending. It started out with the first car theft and then a second and between those two offences there was the intentionally causing injury upon Mr Chopra. Then of course there was the ridiculous and dangerous driving which spawned the balance of the indictment offences and the related summary offences for that matter. This was not however offending over in seconds or even minutes as is sometimes the position. You have endangered the lives of many over an extended duration. Charge 7 and 8 roll up multiple victims. So too Charge 5 which relates to many unidentified victims. You placed the two police members at risk by ramming their car and endangered their lives when the stop sticks were being deployed.
103 The driving involved a course of conduct, that is true, but it was over a decent enough period and these are each separate crimes in the sense that there are separate victims and no doubt, separate impacts. I cannot just wave away victims and make them meaningless statistics. They are not. They are not some job lot that happened to be on the road. They are individuals. They must be meaningfully reflected by the sentences that I impose and marked out by a level of cumulation. Totality though is still an important consideration and it must lead to quite sizable moderation of the extent of cumulation when I stand back, as I must, and look at the overall effect of the sentences. I also have s16(3D) to contend with in relation to the sentence imposed on Charge 4 and the removal of the presumption of concurrency for that charge, but that will be the base sentence in any event.
104 Confinement is always a disposition of last resort. It is unavoidable here. That is conceded.
105 I called for a Youth Justice Centre Pre-Sentence Report and that has now been received. I made it clear enough when I called for the report that I foresaw real difficulties in structuring a sentence in this case such that
Youth Justice could even be open as a matter of law. However, the case was being adjourned in any event and I wanted to see what the assessment had to say. That report has been received and it is not helpful to your cause. It is, if I may say so, a thorough and sensible report as they generally are. It says you are not suitable for such a disposition and it expands upon the reasons for that judgment. You are judged not to have reasonable prospects of rehabilitation. Nor do they believe that you are particularly impressionable, immature or likely to be subject to undesirable influences in adult prison. You have presented management issues in Youth Justice in the past and those things are spoken of. The authors comment on the number of past incidents in Youth Justice facilities and the manner in which you seem to have adapted to adult prison.
106 In any event the authors, who I judge to be experienced in this field and well informed, do not believe that you meet either of the criteria in s32 of the Sentencing Act. Of course, that judgment does not bind me. I had to call for the report. That is a legislative precondition to placing a person on a
Youth Justice Centre order. A finding as to a person being unsuitable does not prohibit such a sentence being imposed if it is both open and appropriate. I have read that report carefully over the weekend. I have heard also the submissions made by your counsel today.
107 She has abandoned any submission urging such a disposition. She is no longer arguing in support of detention in a Youth Justice Centre.
108 In the circumstances I do not believe it is open to even structure a sentence which leaves open any consideration of a Youth Justice disposition. You have been sent there before repeatedly. It has not curbed your offending in any way and, in any event, I have a ceiling of four years. Nor are you any longer judged to be suitable for such an order even if one was open to me.
109 It is prison now for you from this point onwards if you continue to offend. I am left with no option but to impose terms of imprisonment and to fix a non‑parole period.
Sentence
110 I am sorry to have taken so long to get to this point. Let me now pass sentence upon you. I will have you remain seated though in the circumstances given that we are using the Webex.
111 On Charge 1, which is the charge of car theft, I convict and sentence you to nine months imprisonment.
112 On Charge 2, car theft, I convict and sentence you to nine months imprisonment.
113 On Charge 3, intentionally causing injury, likewise I convict and sentence you to nine months imprisonment.
114 On Charge 4, this is the aggravated intentional exposure of the two members to risk of safety by ramming their marked van, I convict and sentence you to three years imprisonment. That will be the base sentence.
115 Charge 5 is the conduct endangering life relating to a number of unidentified motorists. I convict and sentence you to two and a half years imprisonment.
116 On Charge 6, conduct endangering the life of the police members, I convict and sentence you to two and a half years imprisonment.
117 On Charge 7, conduct endangering the lives of the McMillans, I convict and sentence you to two years imprisonment.
118 On Charge 8, conduct endangering the lives of Mr Concha and Mr Bonney, I convict and sentence you to two and a half years imprisonment.
Summary Offences
119 On the summary offences - on the driving whilst disqualified, I convict and sentence you to one month's imprisonment
120 On the various fail to stop and fail to provide details offences (there are six of those offences all up), I convict and sentence you to an aggregate period of 14 days imprisonment on those six offences.
Cumulation
121 The base sentence is, therefore, the three years that I have imposed on Charge 4.
122 I make the following orders for cumulation: I direct that:
• two months of the sentences imposed on Charges 1, 2 and 3; and
• three months of the sentences imposed on each of Charges 5, 6, 7 and 8
is to be served cumulatively upon the base sentence and upon each other. The various summary sentences that I have pronounced will be served concurrently with each other and upon the base and other part concurrent sentences.
Section 16(3D)
123 I am to that extent otherwise directing under s16(3D). The sentence on Charge 4 is in fact the base sentence and I have pronounced the extent of cumulation of other sentences upon that base sentence.
Total Effective Sentence
124 Now, you are probably having difficulty doing the calculations here, but these orders for cumulation result in a total effective sentence of four and a half years imprisonment.
Non-Parole Period
125 I am required to fix a non‑parole period. I am not allowed to speculate as to whether or not you will be released on parole. That matter will rest entirely in the hands of the Adult Parole Board and I have no role in that decision, but I must fix a non-parole period.
126 I fix a period of two years and three months during which you will not be eligible for release on parole.
Pre-Sentence Detention
127 You have already served a total of 301 days by way of pre-sentence detention and that s18 declaration is entered into the records of the court. You get credit for that time served already.
Section 6AAA
128 I have told you that I have taken into account your guilty plea. I have. If you had pleaded not guilty and been found guilty of these offences by a jury I would have sent you to prison for six and a half years. I would have fixed a non-parole period of four and a half years and that s6AAA declaration is also to be entered into the records of the court.
Licence Order
129 I must also make some orders against your licence. I must make an order in relation to Charge 4 and also the two charges of car theft and I have a discretion to make such an order in relation to the conduct endangering life charges. Given that they arise though in a setting where you were driving a vehicle I have no doubt that I should be making an order in relation to each of the charges. The minimum period of disqualification for Charge 4 is
two years.
130 On Charge 4, all licences are cancelled and you are disqualified for a period of two years commencing from today’s date. I make the same order in relation to each of the conduct endangering life charges. So on each of those charges all licences are cancelled and you are disqualified from driving for a period of two years from today's date. For the two car theft charges all licences are cancelled and you are disqualified from driving for a period of
six months from today's date.
Disposal
131 Finally, there is a disposal order that is sought in this case. There is no opposition taken to the making of this order under the provisions of s78 of the Confiscations Act. I am satisfied that the pre-conditions for the making of such an order are made out and I order pursuant to that provision the forfeiture to the State of the property referred to in the schedule. I direct that it be held and managed in the way contemplated by that signed order. So I have made that order.
132 Let me just see if there are any other matters I need to deal with.
Ms Grunwald, from your perspective any other matters I need to deal with?
133 MS GRUNWALD: No, Your Honour.
134 HIS HONOUR: Ms Dubroja, any matters from your perspective?
135 MS DUBROJA: No, Your Honour.
136 HIS HONOUR: Either you or your instructors will need to arrange or tee up some sort of video link, I guess, in the near future to discuss what's happened here today and your client's rights in relation to what's occurred.
137 MS DUBROJA: Yes, Your Honour. Mr Hynum knows that we're going to have a conference with him in the next 24 hours or so.
138 HIS HONOUR: Right. So, Mr Hynum, you've heard that. So your legal team will be touching base with you in the next day or so to discuss what's occurred here today and your rights in relation to this sentence. Do you understand?
139 OFFENDER: Yes. I do, yes.
140 HIS HONOUR: Good. Well, that completes the matter then. Disconnect the link now then, please. Thank you.
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County Court of Victoria

DPP v Hynum [2022] VCC 2157 (5 December 2022)