Director of Public Prosecutions v Beasley

[2022] VCC 1796

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00916

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEIL BEASLEY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2022
DATE OF SENTENCE:	17 October 2022
CASE MAY BE CITED AS:	DPP v Beasley
MEDIUM NEUTRAL CITATION:	[2022] VCC 1796

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Theft of motor vehicle – Commit indictable offence whilst on bail – Drive whilst disqualified – Vehicle abandoned shortly after discovery children of victim in back seat – Guilty plea – History of childhood trauma and prolonged substance abuse – High risk of reoffending – Extensive criminal history

Legislation Cited:                  Sentencing Act 1991 (Vic)

Sentence:  Total effective sentence of 12 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Ms N. Freijah	Victoria Legal Aid

HER HONOUR:

1Keil Beasley, on 16 December last year, shortly after 10 in the morning, you were in the car park of the Endeavour Hills Shopping Centre.  A young mother, Katherine Paus, was loading her car with her shopping.  Unbeknown to you, it would appear, she had already put her two children into their seats into the back of the car.

2She left the driver's door open and the engine running while she pushed the shopping trolley over to the loading bay for shopping trolleys.  Whilst her back was turned you appeared from somewhere in the car park and were seen to run directly towards her car, get into the open driver's door and drive away.  She saw what was happening, and tried to follow you, and catch you, but could not.  Others saw what was happening.  They could not stop you either.  Police were quickly called and the air wing was soon quickly deployed.  You did not get very far before it would appear you realised there were children in the car.  The air wing was ahead and you abandoned the car with the children in it in a nearby street in Endeavour Hills. You ran and hid in the bushes of the building next door. When police arrived you surrendered yourself.

3It was for Ms Paus and her two children a short but no doubt absolutely terrifying incident.  It is every parent's nightmare to think that their children, who they have thought they have left safe in their car, in the back of the family car, for just a moment, being driven away by a stranger who has stolen their car and left the car park.

4That you did abandon the car, that the children were unharmed, and that you did not cause any harm to them, to other road users or to yourself is, in my view, more good luck than good management. As was apparent from the time that you were arrested, you were so significantly substance impaired that you were unfit to be interviewed. Indeed, you remained unfit until the following day. 

5It is as a result of the stealing of the car and driving it away that you now find yourself before this court to be sentenced for one charge of
theft of a motor vehicle.

6You were at the time of this offending on bail.  It would appear that you were on bail for two separate sets of offences, both committed not long before this one.  Therefore, you have pleaded guilty to a charge of commit an indictable offence whilst on bail.

7You were also disqualified from driving in 2018 for a period of four years. That period of disqualification clearly had not expired and therefore you should not have been driving at all.  You have also pleaded guilty to a charge of drive whilst disqualified.

8The maximum penalty for theft is 10 years' imprisonment; for commit an indictable offence on bail, three months' imprisonment; and for driving whilst disqualified, up to two years' imprisonment or 240 penalty units. There is mandatory licence disqualification, although for an unspecified period in respect of the charge of theft where it relates to theft of a motor vehicle.

9Those maximum sentences give some indication of the seriousness with which parliament regards these offences, although of course all offences, and particularly offences of theft, can be committed in a wide range of ways and in respect of property of a wide range of value.  So, it is hard to make an assessment just from the maximum penalty as to where an offence sits in terms of its objective gravity.

10So far as the assessment of the seriousness of the offending is concerned, I have had to bear in mind that although this car that you stole and drove away had the two young children strapped in it, you are charged with, and come to be sentenced for theft of the vehicle, not for kidnap or abduction of the children, or false imprisonment of them by keeping them in the car, or any offences relating to the manner in which you drove the car. Indeed, in relation to the charge of kidnap, which you were originally charged with, it is understandable that that was not proceeded with because for kidnapping to be made out a jury has to be satisfied beyond reasonable doubt that the perpetrator knew that they were kidnapping someone.  In other words, the prosecution would have had to establish that you knew at the time that you stole the car that there were children in there, and there is no suggestion or no evidence of that. So, my sentence has to be for the car theft, taking into account the surrounding circumstances, including that you were apparently substantially substance impaired, but not sentencing you for any of these more serious offences that I have detailed.

11Indeed, the distance that the car was driven before you abandoned it, the short time that elapsed between the time you stole the car and your abandonment of it, and the circumstances in which you abandoned it and ran away all tend to point to the fact that you were unaware at the time you stole the car that there were children in the back seat.  That is not to say, as Ms Freijah ultimately acknowledged in the course of oral submissions, that the presence of the children in the car is not of itself a feature that is relevant to the assessment of the objective seriousness of the offence.  It is one of the circumstances proper to take into account.

12So too is the fact that this was a brazen theft carried out in broad daylight in a public place, the underground car park of a shopping centre where people going about their normal, everyday activities of life, congregate. This was a normal, everyday activity of life for a mother of young children.  Going shopping with two little children is not an easy enterprise.  It involves, once you get to the shopping centre, removing the children from their car seats to a stroller or a sling or a child's seat in a shopping trolley or holding a toddler by the hand so they do not run away, doing the shopping, wrangling the two children throughout, and then returning to the car to do it all in reverse. That is what Ms Paus was doing here.

13She had put the children back safely in their car seats.  She had turned the car on, no doubt to ensure that the car was cool and safe for the children.  She had unloaded the bags of shopping from the supermarket trolley after she had secured the children in the car and then, like a good citizen, was removing the trolley to a safe space before driving on.

14People are entitled to feel safe when they are going about those ordinary, everyday activities in broad daylight in public places.  They are entitled to feel free of the fear that others in the car park of the shopping centre will not respect their right to go about their daily business without interference or threat, that they will not threaten that sense of safety by stealing their possessions or so much worse as happened here, making their little children the unwitting and unintended victims of what might otherwise be thought to be an annoying but relatively low level property theft.

15Having said annoying and relatively low level, it is no small thing to steal somebody else's possessions, somebody's car. Think of the inconvenience that this causes. They, after all, are the ones who have worked to make the money to buy the car and they are entitled to have the use of it in order to go about their daily life, and for somebody simply to help themselves because they see it is simply unacceptable.

16There may have been a level of randomness in choosing Ms Paus' car and not any other. It may have been simply because it happened to be the one left momentarily with the door open and the engine running at a time that you were in the vicinity and ready to take advantage of that moment when Ms Paus was just a few steps away with her attention diverted. You were nevertheless alert to the opportunity posed by a car left running with the driver walking away to put a trolley in the bay and ran to take advantage of it. That shows it was a calculated decision, not a spontaneous one.  If opportunistic is a proper way to characterise it, it is because you were looking for the opportunity, not because it came to you without any effort on your part. While it otherwise appears to be a motiveless and meaningless decision by you, for these reasons I do not consider this to be a low level car theft.

17There may be worse cases; multiple thefts of cars, stealing to order, stealing to use the cars as get-aways or for a rebirthing racket, or cases accompanied by other offences, such as criminal damage or using the car as a weapon, keeping a car for your own use, or cases with motives which themselves are aggravating, such as in order to deliberately cause harm to another or exact revenge upon them. But, that one can think of worse examples is not to the point.  Your offending is not low level offending.  And that the car was abandoned, undamaged a short time later is, in my view, no great mitigator either. On the evidence it would appear to me it was abandoned simply because you discovered that the children were in it, but even then, that did not appear to be out of concern for the welfare of the children. You abandoned it and ran away and hid as the air wing was overhead and the police were swarming around.

18It is clear therefore that in sentencing you denunciation, deterrence and just punishment all must carry considerable weight in the sentencing mix.  What then was relied upon to counterbalance that?  What brings you, a 34 year old man, before the court on such a charge?  You have got a very long history of offending, coupled with, and clearly inextricably intertwined with an equally long history or an even longer history of substance abuse.

19Your criminal history was described by the psychologist, Marlese Bovenkerk, in her helpful report dated 30 September 2022 as depicting a pattern of engaging in driving offences, of violent offences, drug possession and trafficking charges, weapons possessions and a range of dishonesty offences.  She noted you have served multiple terms of imprisonment and you have breached a number of community based dispositions including community corrections orders.  It has covered the whole of your adult life and those multiple terms of imprisonment and the community corrections orders and other sentencing dispositions seem to have had no effect at all in deterring you from offending.

20You have been in custody since your arrest on 16 December last year, and
two weeks ago, on 4 October, you were sentenced in the Magistrates' Court for three sets of offending, two of which, it would appear, you were on bail for at the time of committing this offence. All three sets of offending occurred shortly before these offences and in some ways the offending that you were dealt with for the Magistrates' Court could be described as worse and certainly covering a broader range of behaviour, including violent behaviour.

21The Magistrates’ Court sentenced you to a total effective sentence of 12 months’ imprisonment. There were 60 days of pre-sentence detention to be taken into account, which meant your sentence would expire in early August 2023. That term of imprisonment was ordered to be followed by an 18 month community correction order with very strict treatment and rehabilitation conditions relating to mental health, substance abuse and behaviour programs designed to address offending behaviour and other behaviour.

22The thrust of the careful and comprehensive plea presented by Ms Freijah was that the sentence I impose today should be structured to allow you to commence your community correction order when the term of imprisonment imposed by the Magistrates' Court expires in early August of next year. Giving proper weight to totality, having regard to that earlier sentencing, your early plea of guilty and the weight that is proper to give to that having regard not only to an early guilty plea generally, but also because of the COVID conditions upon which you have been held and are likely to remain whilst in custody, and your personal circumstances, that was he just outcome.

23As a result of that sentence imposed by the Magistrates' Court, including the counting of 60 days of pre-sentence detention in respect to the
Magistrates' Court sentences, there are 232 days not counting today, or just under eight months of pre-sentence detention attributable to your time on remand for these offences, which so far has been unaccounted for and must be counted as part of the sentence to be served today The plea was directed to a sentence of no more than time served.

24On the materials that were presented to me it is clear that you are at high risk of committing further offences including further offences of violence.  It follows that you are at high risk of continuing the cycle of offending, substance abuse and imprisonment that has sadly marked your life since your late teens, and that will be the case unless you address your substance abuse and your underlying mental health problems and personality issues.

25In that sense a strictly conditioned community correction order following a term of imprisonment gives the best opportunity to protect the community from further offending by you and to assist you should you take advantage of the conditions that are offered to rehabilitate yourself, and the assistance and supports that are offered to you generally and through that strictly conditioned CCO.

26So, to some extent not only because of the structure of the order made by the Magistrates' Court, but also because of the materials that were presented to the Magistrate and again were presented to me today, my hands are tied by that sentence that has already been imposed and by your circumstances, as well as by the amount of time you have already spent in custody attributable to these offences, which has not yet been counted in the previous sentencing. In my view, the only appropriate sentence for these offences, having regard to the objective gravity, as I have outlined it, to the weight I must give to totality, to your plea of guilty, to your personal circumstances and the other sentences, is a term of imprisonment. But, I propose to impose a sentence that will not interfere with that imposed by the Magistrates' Court so that you should still be eligible for release on the expiry of that sentence in early August of next year, although the sentence that I propose to impose is structured somewhat differently from that contended for by Ms Freijah. I am not going to sentence you simply to time served but the effect of the amount of time as yet uncounted as pre-sentence detention, and the availability to me of making partial cumulation orders, will have the effect of having the sentence I impose expire before 4 August of next year.

27In coming to that view, I have been greatly assisted by the submissions, both written and elaborated on in oral argument or modified in oral argument by Ms Freijah and by the submissions of Ms Piggott for the prosecution.  I was also considerably assisted by the contents of three reports:  the psychological report of Ms Miriam Latif prepared in 2019 for an earlier set of offences for which you were sentenced; a neuropsychological report of Ms Lofthouse, prepared in 2021; and then for the most recent report of Marlese Bovenkerk, dated 30 September this year, prepared for the most recent Magistrates' Court hearing and this hearing.

28From those reports I accept that there were significant factors occurring in your childhood and youth which predisposed you to substance abuse and predisposed you to developing an entrenched pattern of behaviour or personality that led to this continuing cycle of substance abuse and offending with little insight and little preparedness to address it.

29I accept on the reports that it was properly open to Ms Latif to make her diagnosis that it was likely you had suffered from depressive disorder since your teens with episodes of depression, and also from an anxiety disorder now characterised by Ms Bovenkerk as generalised anxiety disorder. I accept that you also have been diagnosed by Ms Lofthouse as having a mild degree of cognitive impairment most likely as a result of your levels of substance abuse over such a considerable period.

30Those diagnoses are all highly relevant to your background and circumstances and clearly explain your predisposition, together with your family background and circumstances to substance abuse, and to your inability to date to address your substance abuse or the underlying psychological issues or psychosocial issues that you face they provide general mitigatory background which explain your vulnerability to substance abuse.  I do not, however, consider that they enliven the first four principles in Verdins.[1] Clearly, this offending was committed by you when you were substance impaired, and in circumstances where you knew that the effect on you of sustained ice use and the resultant sleeplessness that it caused, would bring about substantial impairment in your judgment and was a significant factor in not only this offending but a lot of your offending behaviour in the past.

[1] R v Verdins & Ors [2007] VSCA 102

31So, you knew the effect on you of sustained ice use, and resultant sleeplessness and self-induced substance impairment is no mitigatory factor.  I do not accept that there is any causal connection between the offending and any mental or intellectual impairment, and I do not consider your moral culpability is reduced as a result.  I do not consider the weight to be given to general or specific deterrence should be reduced as a result, and although on the evidence, imprisonment may be more onerous for you than others, that appears to be largely, according to the report of Ms Bovenkerk, as a result of your behaviour, not as a result of any mental impairment or intellectual impairment. Therefore the fifth and sixth limbs of Verdins are also, in my view, not enlivened. 

32That is not to say, however your background and, the circumstances that predisposed you to the personality that you have developed, to what appears to be a diagnosis of depression and anxiety, and predisposed you to substance use, led to what appears to be a self-destructive personality, or self-destructive behaviours, and has led to a lack of insight or preparedness to date to engage in any proper or systematic way in mental health assessment or treatment or in substance abuse assessment or treatment, are not matters to take into account generally as a general mitigating factor. But not by reason of Verdins.

33In particular, I rely on these matters.  In the 2019 report prepared by Ms Latif, she noted that your substance abuse history went back to your early teens, starting with cannabis from age of 13, ecstasy at 15, alcohol at 16, and by 21, ice being your drug of choice. From then on, apart from two periods of abstinence in 2013 and 2014, you have been abusing ice constantly.

34Back in 2019 you had told Ms Latif that there was no mental health history.  You denied being formerly diagnosed with any psychological condition in the past or of having any form of mental health treatment or drug or alcohol rehabilitation in the past.  Notwithstanding that, Ms Latif concluded that your presentation with your prolonged history of substance abuse had led to periods of drug induced psychosis whilst using ice and usually related to periods where you had gone a number of days without sleep.

35She considered that despite the fact that you had not sought any treatment, that you presented with symptoms consistent with depression which appeared episodic in nature, which would be relatively un-cued, that is not triggered by any particular event or life circumstance, and which was consistent with major depressive disorder. That appears to now have been crystallised into acceptance of a formal diagnosis of that.  Interestingly, Ms Latif concluded that your drug and alcohol use in your youth were closely linked with social anxiety, and other factors in your presentation related to poor self-confidence and
self-worth. They related, it would appear, to three significant factors that affected your development:  the death of the man you understood to be your father when you were aged eight; the lack of proper mourning or capacity to experience and process the grief you felt as a result of his passing; the shock discovery at the age of 15 that he was in fact your stepfather, not your biological father, and the disappointing results of your attempts to engage with and have some connection later with your biological father; and your struggles with understanding coming to terms with, and dealing with the responses of others to your sexuality as you came to understand and appreciate that you were bisexual or homosexual.

36These led to feelings of lack of self-worth and poor self-confidence, in Ms Latif's opinion, and she considered that as a result of your sense of poor self-worth there was a persistent pattern of self-sabotage.  She noted that when you said that when life started to go well for you that you would quickly engage in reckless or impulsive behaviour, such as drug use or crime, and so keeping yourself stuck in the same negative pattern. But, importantly, she noted that your offending appeared mostly linked to your drug use. In her opinion, your drug use was likely perpetuated by your social awkwardness and anxiety. She noted you have poor coping mechanisms and so it was likely that you used drugs as a way of medicating your depression. It was also apparent to her that you had not given much thought to the precipitating factors that may relate to your psychological and addiction issues.

37Back in 2019 she noted that whilst you were able to identify depression and anxiety symptoms you also appeared unaware of the fact that your anxiety was mostly social in nature.  She noted that your lack of insight likely perpetuated your drug use and that in turn prevented you from facing your problems and finding better solutions to them, a vicious cycle in which you had been stuck, she considered, for most of your life.  It is based on all those matters that she ultimately diagnosed you with a stimulant use disorder, cannabis use disorder, major depressive disorder and social anxiety disorder.

38She concluded that if you fail to address your psychological issues you will continue to relapse and that would place you at high risk of reoffending in the future.  She noted you had little in the way of family support or positive social supports. She stressed the importance of professional supports but, she said, you must be willing to engage with them consistently if you are to be successful in managing your mental health issues and abstain from drug use. She considered that your prognosis was positive if you did engage with treatment services, but there was real concern at the time that she assessed you that your presentation at interview suggested that you were hesitant to do so.

39In assessing you in 2021 for any intellectual impairment or acquired brain injury, Ms Lofthouse ultimately concluded that your current test scores, along with your history, revealed that for most part your scores fell in the average to low average range, consistent with premorbid function.  So that is, no intellectual impairment. Although there was not a consistent finding, you demonstrated some deficits across the verbal tests, that is, of skills that are usually preserved in the presence of brain injury.  You also showed a marked impairment in verbal learning. But the overall pattern of your impairment in verbal learning was longstanding and she considered was most likely as a result of your not being able to fully benefit from education due to early drug use, unstable behaviour and a possible verbal learning disorder.  She noted that you demonstrated significantly slowed mentation and memory deficits beyond that which was expected, likely to be the result of a mild acquired brain injury as a result of your drug and alcohol use and possible traumatic injuries reported by you, (although you had not described any significant sequelae from traumatic injuries).

40Ms Lofthouse concurred in Ms Latif’s  diagnoses of  stimulant and cannabis use disorder, social anxiety disorder and major depressive disorder. In 2021 you were rated as falling in the moderate range for depression, the severe range for anxiety and the moderate range for stress a on the DASS a screening test for symptoms in the two weeks before the administration of the test Ms Latif  said they were consistent with you experiencing significant psychological distress, which was likely to have a major impact on your functioning and place you at risk of drug and alcohol use as a means of dealing with psychological distress.  Although she considered that there was some causal link back in 2021 between the behaviour that led to the charges you were then facing and the mild intellectual impairment she had found and the psychological issues that had been identified, she also was of the view that they could not fully account for your criminal behaviour. She too concluded that to a greater extent your drug and alcohol use had compounded the intellectual deficits and the pattern of behavioural deregulation and emotional instability which had been a significant contributing factor in the behaviour that led to the charges that you were then facing. It was her view that it was your behavioural issues that placed you at risk of impulsive and poorly reasoned behaviour, which would make incarceration more difficult for you by comparison to other people because you were more likely, in effect, to get into trouble.

41Coming up then to just before your sentencing for these offences,
Ms Bovenkerk, who had the benefit of those two previous assessments, as well as assessing you herself, noted that even then when she assessed you that you were still uncertain about the factors that may have contributed to your repeated relapses into substance use, stating, 'Drug use just happens'.  So, the lack of insight and the lack of addressing the problems identified by Ms Latif have continued from 2019 through to 2022.

42She also noted a concern for the weight I would give to her assessment, that several discrepancies existed between your self-report within the current assessment, and disclosures made by you in previous psychological assessments, and she noted therefore that you were not considered to be a reliable or accurate historian.  So, I do not devalue the weight I would give to her report because of any lack of professionalism on her part but, rather, she was to some extent hampered by the information she received from you, and her disclosure that she did not consider you to be a reliable or accurate historian. But, importantly, consistently with the findings of Ms Latif and Ms Lofthouse, again there is no evidence of the sensory disturbances or psychotic phenomena.  Your flow of thought was logical and sequential.  There is no evidence of formal thought disorder.  You were well oriented to person, place and time.  In other words, there is no serious psychiatric illness that distorts your sense of reality.  That bodes well for your capacity, if you do want to address the underlying problems, to be able to do so.

43By September 2022, when you were assessed by Ms Bovenkerk, your depressive symptoms on another screening test like the DASS, indicated that they were moderate, that your anxiety was only mild. She noted that whilst she confirmed the diagnoses of stimulant use disorder, generalised anxiety disorder and major depressive disorder, she also noted there is no evidence of any entrenched personality disorder.  That bodes well for treatment. and that mild to moderate intellectual impairment in those very limited areas that have been identified by Ms Lofthouse. Troublingly, she noted that you were in a high risk category for violence relative to other offenders. Whilst that is something that is not directly relevant to my assessment in respect of this offending, she also noted that you are at high risk of reoffending generally. She noted evidence to suggest a pervasive pattern of violence commencing during adolescence and persisting into adulthood, with you continuing to perpetrate violent behaviour whilst in a custodial environment.  Importantly, she too confirmed that your early departure from formal education limited your exposure to positive role models, removed a form of routine and structure in your life that may have further encouraged antisocial behaviour, and your early exposure to alcohol and other drugs meant that during adolescence your primary means of coping and regulating emotions was reliant on substance abuse. All this again points to the importance of tightly structured and controlled rehabilitation, including residential rehabilitation, and further explains why I am not going to interfere with the structured program that has been imposed by the Magistrates' Court.

44Ms Bovenkerk also recommended intensive treatment or making it available if you wished to avail yourself of it in order to assist you to deal with the underlying causes of your offending.  As I have said before l went through the detail of those reports, that is up to you but that is going to be the best way of protecting the community and protecting it from further offending by you as well as assisting you to rehabilitate. I therefore propose to mark the seriousness of this offending by a term of imprisonment but one which will not interfere with that rehabilitative program, and I take into account the weight that must be given to your early guilty plea, particularly in these COVID times, and to the circumstances that I have identified.

45So, I now come to sentence you.  On the three charges to which you have pleaded guilty, you are convicted.  On the charge of theft of motor vehicle, you are sentenced to be imprisoned for a period of 10 months.  On the related summary offence of committing an indictable offence on bail, you are sentenced to be imprisoned for a period of one month, and I direct that that be served cumulatively upon the sentence on Charge 1 and upon the partial cumulation order I am about to make on the other related summary offence. On the charge of drive whilst disqualified you are sentenced to be imprisoned for a period of three months and I direct that one month of that be served cumulatively upon the sentence on Charge 1 and the sentence on related summary offence of commit an indictable offence on bail.  That makes a total effective sentence of 12 months.

46Although this is a sentence of 12 months' imprisonment, I am not fixing a non-parole period because of the existence of the Magistrates' Court sentence and the release on a community correction order for 18 months after that.

47On the charge of theft of a motor vehicle all licences held by you are cancelled and you are disqualified from obtaining any further licence for a period of
two years, commencing today.

48I declare, pursuant to section 6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a total effective sentence of 18 months and fixed a period of nine months as the time that you would have to serve before being eligible for parole.

49MS FREIJAH:  As the court pleases, thank you, Your Honour.

50HER HONOUR:  All right.  Are there any further orders that are required to be made?

51MS PIGGOTT:  No, Your Honour, thank you.

52HER HONOUR:  All right.  Thank you both again for your assistance.

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