Director of Public Prosecutions v Beacham
[2021] VCC 1645
•26 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00672
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLER BEACHAM |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2021 | |
DATE OF SENTENCE: | 26 October 2021 | |
CASE MAY BE CITED AS: | DPP v BEACHAM | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1645 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Armed robbery at a service station - armed with a kitchen knife. Summary offences of failing to stop motor vehicle after accident and driving with more than the prescribed concentration of drugs - early plea of guilty – full admissions and remorse – 26 years of age with no relevant prior history – disadvantaged background – combination sentence imposed.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act1991
Cases Cited: Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Raimondo | Office of Public Prosecutions |
| For the Accused | Mr N Rolfe | Rolfe Criminal Law |
HIS HONOUR:
Introduction
1Tyler Beacham, you have pleaded guilty to an indictment containing a single charge of armed robbery, contrary to s 75A of the Crimes Act 1958. This offence carries a maximum penalty of 25 years’ imprisonment.
2The armed robbery was committed alone by you, did not involve the use of a firearm and the victim did not suffer any injury. Accordingly, it is not a category 2 offence.[1]
[1]Sentencing Act1991 (Vic) s 3(1).
3You have also consented to this court hearing, and pleaded guilty to the following 2 summary charges:
·
Failing to stop immediately after causing damage to property, contrary to
s 61(1)(a) of the Road Safety Act 1986. This offence carries a maximum penalty of 14 days' imprisonment or 5 penalty units.[2]
· Driving a motor vehicle with more than the prescribed concentration of drugs, contrary to s 49(1)(bb) of the Road Safety Act 1986. This offence carries a maximum penalty of 12 penalty units.[3]
[2] This penalty is for a first offence as applicable in this case.
[3] This penalty is for a first offence as applicable in this case.
Circumstances of the offending
4A prosecution opening dated 27 July 2021 was tendered and read out on your plea.[4] Your counsel told the Court the opening is an agreed document for the purposes of sentencing you.
[4] Exhibit A.
5You were born in July 1995 and were aged 25 at the time of the offending. You are now aged 26.
6The armed robbery occurred at a service station in Long Gully at approximately 9pm on 20 December 2020. Mr Jose was working alone at the service station. You arrived on the forecourt of the service station in a motor vehicle being driven by a friend. Having exited the vehicle, you filled it with petrol. You then walked into the service station store. You selected two bottles of coke from the fridge and began drinking from one of them. You were observed by Mr Jose to be agitated. You then placed the 2 bottles of coke onto the counter. Mr Jose asked you if it was just the 2 bottles of coke that you were purchasing and you replied yes. You then produced a knife and pointed it at Mr Jose and said, “whatever you have in the till.” Mr Jose opened the till and removed all the notes from the cash tray. You then placed the knife on the counter. Mr Jose placed the money on the counter next to the knife. You took the money and left the store. You ran back to your vehicle and got into the front passenger seat and the driver drove off. Mr Jose noticed the rear number plate of your vehicle was covered by fabric. Other customers on the forecourt noticed you getting into your vehicle and the vehicle speeding away. One of the customers, who believed you had driven off without paying for petrol, got into her vehicle, and followed you. At one point, your vehicle pulled over and you exchanged places with the driver. The customer who was following you pulled up about 200 feet in front of your vehicle. You drove your vehicle forward colliding into the rear of the customer’s vehicle causing it damage. You failed to stop and continued driving. (Summary charge contrary to s 61(1)(a) of the Road Safety Act 1986).
7The customer called the police and drove back to the service station. Police attended the service station at about 9:10pm. They seized from the counter the two coke bottles and the knife which you had left behind. The police also obtained the CCTV from the store.
8At about 9:50pm, other police officers on duty, intercepted your vehicle on Eaglehawk Road, not far from the targeted service station. You were driving the vehicle at the time. Both you and the front seat male passenger were arrested.[5] The money you had stolen was located in the pocket of the shorts you were wearing. At the time of your arrest, you made admissions, stating that you had robbed the service station whilst armed with a knife and that some of the money on you were the proceeds of the robbery.
[5] No charges were laid against the passenger.
9
You were taken to the Bendigo police station. You underwent an oral fluid test which returned a positive reading for cannabis. (Summary charge, contrary to
s 49(1)(bb) of the Road Safety Act 1986)
10You were then interviewed. During the course of the interview, you made full admissions to the offending. You said that you had grabbed the knife from home and committed the armed robbery because you wanted to end up in prison. You had placed a cloth over the rear number plate of the vehicle to hide its identity. You went on to say that what you did was stupid, and it would not happen again. You apologised for committing the armed robbery.
11At the conclusion of your interview, you were charged and remanded in custody. You have remained in custody since your arrest on the 20 December 2020.
Prior History
12You have one prior matter, well over 8 years ago, in the Children’s Court for matters of driving for which you were placed on a good behaviour bond without conviction. I place no reliance upon this prior matter. I am told there are no other matters outstanding. Plainly, your offending subject to the indictment is out of character.
Victim Impact
13The victim has chosen not to provide an impact statement. However, there can be no doubt that your offending would have been a frightening experience.
Personal Circumstances
14You are now 26. You were born in Geelong and grew up in Ballarat. You have a younger sister and seven half-siblings. You have profoundly distressing memories of growing up. Regrettably, both your parents were heroin addicts and spent time in prison. You witnessed violence involving your parents and some directed towards you, primarily at the hands of your mother. You also witnessed your parents abusing drugs. You had no real relationship with your mother and never felt loved by her. Similarly, you developed no meaningful relationship with your father. By the age of 4, you had moved numerous times between your parents, paternal grandparents, and foster care placements.
15At the age of 8, you were placed in the permanent care of your paternal grandparents. This was a positive move in your life, and you have high regard for both your grandmother and grandfather. Up until the age of 15, you had some contact with your parents. However, you were growing up with a real sense of resentment at the failings of your parents to provide you with a stable and nurturing environment.
16You completed primary school and left secondary school during year 9. You were often bullied at school. The bullying related to taunts about your parent’s absence from your life, the fact they abused heroin and your father being in prison. You would lose your temper and were involved in many fights at school. During secondary schooling, you were suspended on occasions for getting into fights. By the time you were asked to leave school during year 9, you were using drugs regularly.
17You used cannabis for the first time with your mother, at the age of 12. Since then, you have smoked cannabis on a regular basis. You began smoking methylamphetamine at the age of 14 and have used it intermittently since. You have also used some party drugs, including MDMA, over a period of 2 years when you were going to nightclubs. You have used a number of prescription drugs, including alprazolam to assist you, temporarily, forget the distressing memories of your childhood.
18At times, due to your drug use, your grandmother would tell you to leave the house. You would then live in homeless shelters or a swag in the bush. However, your grandmother has always been and continues to be supportive of you. It is intended, upon your release from prison, you will return to live with your grandparents in Ballarat.
19
You went on to complete the equivalent of year 11 at TAFE in Ballarat. You commenced a chef apprenticeship and worked as a cook for 2 years. You have worked in a number of labouring jobs, including a recycling business for about
3 years. Your most recent employment was at Aldi supermarket.
20You are currently single. You have been in one relationship which lasted for about 2 years. It ended when your partner became pregnant. She terminated the pregnancy at your insistence as you felt you would not be able to be a good father.
21In the past, you have sought help in relation to your drug addiction. You completed a residential rehabilitation program in Bendigo that lasted some 9 months in 2019. You maintained abstinence from drug use for a period of 10 months. Shortly before this offending, a close friend of yours died as a result of an overdose in 2020. This sad event triggered a relapse and you again started abusing cannabis, alprazolam, and ice.
Psychiatric report
22
I will now refer to Dr Zimmerman’s psychiatric report dated 9 April 2021.[6]
[6] Exhibit 2.
Dr Zimmerman noted your distressing background. You told her that you struggled with bouts of low mood and suicidal thoughts from your teenage years.
Dr Zimmerman observed scars from early self-harm attempts. She opines:
· You have experienced depressive episodes with impulsive self-harm.
· Your problems with emotional regulation including anger, depression and impulsivity are often seen in individuals who have lacked early secure attachments. Parental substance misuse clearly played a role in the early onset of your drug use but your impaired ability to self soothe has also played a role in turning to drugs to manage difficult emotions. Disturbed early attachments impair the development of self-soothing abilities.[7]
· There was no evidence of depression or suicidal thoughts at the time of the assessment, noting you had been taking antidepressant medication in custody and had been abstinent from drugs.[8]
· You have a pattern of dependence on cannabis and benzodiazepines and abuse of methylamphetamines and suboxone, all currently in remission in the context of incarceration.[9]
· You will remain at risk of relapse into depressive episodes, particularly when feeling overwhelmed by negative emotions and losses which may take the form of relationship break-ups or death.[10]
· Your long history of substance dependence and lack of a positive secure sense of identity pose the greatest challenges to successful rehabilitation. Psychological counselling specialising in emotional regulation therapy as well as drug and alcohol counselling would be of real assistance.[11]
[7] Psychiatric report [57].
[8] Ibid [58].
[9] Ibid [59].
[10] Ibid [61].
[11] Ibid [69].
23You have been in custody since your arrest on 20 December 2020. Throughout the period on remand, you have remained drug-free.[12] You have completed a number of courses, including a 6 Hour Alcohol and Drug and Stress Management Program. However, due to the pandemic, you have had very limited access to courses and other rehabilitative programs. You have had no personal visits. You are in an environment where there is a risk of contracting the virus over which you have little control.
[12] Urine Screen dated 7 June 2021 – Exhibit 4.
Plea of Guilty, admissions and remorse
24Your plea of guilty, at the earliest opportunity, is valuable and entitles you to a significant discount. As a result of your plea, you have avoided witnesses from having to give evidence and have saved valuable court time and expense. Your plea of guilty is indicative of you accepting responsibility and demonstrates your willingness to facilitate the course of justice. You are entitled to an additional and palpable discount for pleading guilty at a time when this Court is facing a considerable Covid-19 related backlog of trials.[13]
[13] See Worboyes v The Queen [2021] VSCA 169, [35] – [39].
25I further accept that your plea of guilty is demonstrative of genuine remorse. The remorse is evident from your immediate admissions upon arrest. You continued to co-operate with the police, making full admissions in your interview. As I stated earlier, you apologised for your criminal conduct in the police interview.
26You expressed your remorse to Dr Zimmerman. At paragraph 48 of her report, she states:
Mr Beacham told me that he thinks he made a dumb decision to carry out the armed robbery – “look where it has got me”. He also stated that he felt sorry for the man working in the petrol station, saying that he may have been traumatised by what occurred. He emphasised that the offending was out of character for him and feels that it was a “call for help”.
27You are relatively young and have no relevant prior history. I further accept that your profound disadvantage during your formative years has had a lasting impact upon you. You were not fortunate to have had the advantage of a stable and nurturing upbringing. Your background explains your drug use and the culmination of emotional anger within you. I take your background into account as reducing your moral culpability.[14]
[14]Bugmy v The Queen [2013] 249 CLR 571.
Objective gravity and Sentencing purposes
28The offence of armed robbery is viewed very seriously by Parliament. That is made abundantly clear by the maximum penalty it attracts, namely 25 years' imprisonment.
29I am told that you were at a low ebb at the time of the offending. You were not working and needed money for day to day living, as well as to fund your cannabis use. Residential rehabilitation in the past had not worked and you thought going to prison was a way of assisting you to abstain from drug use. I hope you now understand they were not good reasons to offend in the way you did. There can never be any justification for committing an armed robbery.
30Your victim was working alone in a service station. He was a soft target. Some thought had gone into the offending. You had covered the rear number plate of your vehicle with a cloth in order to avoid detection. You armed yourself with a large kitchen knife that you utilised in your offending. I accept that the offending did not involve actual physical violence and was of short duration. It was not particularly sophisticated. However, the presence of the large kitchen knife[15] that you pointed at the victim and then placed on the counter would have been utterly frightening. Indeed, it led to the victim complying with your demand without hesitation. You left the store having stolen $200.
[15] The use of the knife is not a separate aggravating feature but part of the offence.
31Armed robberies on soft targets are prevalent. They strike fear into the minds of those upon whom they are perpetrated and are a cause of concern for the community generally. Members of the community should be able to go about their business and perform their employment without being confronted and placed in fear by an armed offender. The sentence I impose must seek to deter other like-minded persons from engaging in this type of conduct and make clear, on behalf of the community, that it will not be tolerated. Your conduct must be denounced.
32Protection of the community and just punishment also assume importance.
33A lack of a prior history, your immediate remorse and full co-operation with the police means that specific deterrence does not loom large in the sentencing exercise. These same factors and the fact you are only 26 means that this Court must also give emphasis to your rehabilitation. You are someone who clearly needs assistance in treating the traumas and the impact of your childhood.
34Mr Beacham you told the police in your interview that you will not repeat such criminal behaviour again. I hope that is correct. You have remained abstinent from drugs for a period of over 10 months. It is imperative you maintain that progress when you are released. Your rehabilitation hinges on you being able to refrain from drug use and seeking appropriate treatment for the psychological trauma you have endured in your formative years. You are fortunate to have the support of your grandparents with whom you will reside once released. You have also maintained a good relationship with your sister. You have employment available to you upon release. There is a real sense of optimism for your future but ultimately it is in your hands.
Sentencing
35On your behalf, Mr Rolfe has submitted that bearing in mind the objective seriousness of the offending, your profoundly disadvantaged background attracting a reduction in moral culpability, and other strong mitigating factors, including your early plea of guilty, remorse, full admissions and lack of a relevant prior history, this court can adequately deal with all sentencing objectives by the imposition of a combination sentence.
36Mr Raimondo, on behalf of the prosecution, took no issue with any of the matters raised in mitigation, including the impact of your disadvantaged background. He accepted that whilst the armed robbery was serious, it was of short duration, involved no actual violence and was unsophisticated. He submitted the sentencing principles of general deterrence, denunciation, protection of the community and just punishment could all be met by imposing a combination sentence.
37I agree with the sentencing submissions made by both parties. In my judgment, all sentencing objectives can be met by the imposition of a term of imprisonment, followed by a community corrections order, designed primarily to assist you with treating the matters identified by Dr Zimmerman.
38Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Beacham, as follows:
39On the charge of armed robbery, you will be convicted and sentenced to 12 months' imprisonment.
40On the summary charge of failing to stop immediately after causing damage to property, you will be convicted and fined $100.
41On the summary charge of driving a motor vehicle with more than the prescribed concentration of drugs, you will be convicted and fined $150. Further, your driving licence will be cancelled from today and you will be disqualified from obtaining one for a period of 6 months.
42In addition to the term of imprisonment on the charge of armed robbery, you will be placed on a community correction order for a period of 18 months. The order will commence upon your release from imprisonment.
43Every community correction order has core conditions that you must comply with. They are as follows:
44You must not commit any offence punishable by imprisonment.
45You must comply with any obligation or requirement prescribed by the regulations.
46You must report to and receive visits from the Secretary.
47You must report to the community corrections centre within two clear working days of your release.
48You must notify the Secretary of any change of address or employment within two clear working days of the change.
49You must not leave Victoria except with the permission of the Secretary.
50And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
51In addition to the mandatory core conditions, the community correction order will also include the following special conditions:
52First, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
53Second, you must undergo any mental health assessment and treatment as directed.
54Third, you must undertake programs addressing factors related to your offending.
55Fourth, you will be subject to supervision as directed for the duration of the community correction order.
56Fifth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9:30am on Friday 25 February 2022.
57You must report to Ballarat Community Correction Services within two working days from your release.
58Mr Beacham, you need to understand that if you were to breach the community correction order in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.
59The offence of breaching a community correction order itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the original order, namely the armed robbery. You would then face the possibility of being sent back to prison.
60There are serious consequences attached to any breach. Do you understand that Mr Beacham?
61OFFENDER: Yes, Your Honour.
62HIS HONOUR: Do you also understand all of the conditions of the proposed community correction order?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: I need to now ask you; do you consent to being placed on a community correction order in the terms I have outlined and to abide by all of its conditions?
65OFFENDER: Yes, Your Honour.
66HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where you are appearing by way of a video link.
67A copy of the order with all of the conditions will be sent to your solicitors and you will be provided with a hard copy, all right?
Pre-sentence declaration
68Pursuant to s 18 of the Sentencing Act1991, the period of 310 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Section 6AAA declaration
69Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Mr Beacham pleaded not guilty and had been found guilty of the armed robbery, he would have been sentenced to 2 years and 6 months' imprisonment with a non-parole period of 18 months.
70Thank you. Mr Raimondo, does that deal with everything?
71MR RAIMONDO: Yes, it does, Your Honour, thank you.
72HIS HONOUR: Thank you, and anything else arising, Mr Rolfe?
73MR ROLFE: No, nothing further from me, Your Honour.
74HIS HONOUR: Thank you. Mr Beacham, you will be released very shortly I would have thought, and you will then commence your community correction order. I hope that everything goes well. As I've indicated, I will be monitoring your progress and you will appear before me on 25 February 2022 at 9.30 in the morning. Prior to that hearing I will be provided with a report from Community Corrections and, of course, I expect that report to be positive and I hope that the conditions that I have imposed on the order are going to be beneficial and you are going to make full use of it, okay?
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: Thank you, adjourn the court.
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