Director of Public Prosecutions v Beasley
[2016] VCC 626
•13 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-00222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN BEASLEY |
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| JUDGE: | HER HONOUR JUDGE PULLEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 May 2016 |
| DATE OF SENTENCE: | 13 May 2016 |
| CASE MAY BE CITED AS: | DPP v Beasley |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 626 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton & Ors v The Queen [2014] VSCA 342; R v Lacey (2007)176 A Crim R 331; Alum v The Queen [2015] VSCA 48; DPP v Maxfield [2015] VSCA 95; Marocchini v The Queen [2015] VSCA 29, Hutchinson v The Queen [2015] VSCA 115; Gul v The Queen [2016] VSCA 82
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Public Prosecution | Ms M. Mahady | Office of Public Prosecutions |
| For the Accused | Mr A. Grigor | Grigor Lawyers |
Pages 1 - 29
HER HONOUR:
1Kevin Beasley, you have pleaded guilty to one charge of reckless conduct endangering serious injury, one charge of criminal damage, one charge of common law assault and one charge of aggravated burglary. The maximum penalties applicable are for reckless conduct, five years' imprisonment, criminal damage, ten years' imprisonment, common law assault, five years' imprisonment, and aggravated burglary, 25 years' imprisonment.
2You have also agreed to three summary charges being dealt with by me, pursuant to s.145, Criminal Procedure Act 2009, and have pleaded guilty to summary Charge 8, careless driving. The maximum penalty for a first offence is not greater than 12 penalty units, and this is a first offence, as far as I know. You have also pleaded guilty to summary Charge 27, possessing a drug of dependence, methylamphetamine, the maximum penalty being 30 penalty units or one year's imprisonment or both, and summary Charge 29, assault by kicking with a maximum penalty of two years' imprisonment.
3The crimes are the subject of Charges 1 and 2 on the indictment and summary Charge 8 occurred on 14 September 2015, and Charges 3 and 4 on the indictment and summary Charges 27 and 29 occurred on 30 October 2015.
4It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with the prosecution opening (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case in relation to both incidents are most disturbing and represent serious offending by you.
5I turn to a brief summary of your offending on 14 September 2015.
6On that date, at approximately 6.12 pm, Senior Constable Keogh and Senior Constable Lewicki were in an unmarked police vehicle when they saw a white BMW sedan (registration number 1BB 2AA) driven by you make a right-hand turn into Elizabeth Street, Melbourne from the eastbound lanes on Lonsdale Street.
7A police check revealed the vehicle had been stolen on 9 September 2015.
8Police caught up with the vehicle travelling southbound on Elizabeth Street. As you and the police car neared the intersection of Elizabeth and Flinders Streets, police requested a further unit to assist.
9At 6.14 pm, a police vehicle containing Sergeant Gilmore and First Constable Schouten approached the intersection at Swanston and Flinders Streets. Sergeant Gilmore activated the lights and parked the car on Swanston Street, blocking eastbound traffic on Flinders Street. The BMW and the unmarked police car were in the right lane in the eastbound traffic approximately six car lengths from the intersection.
10Turning to Charge 1. Constable Schouten exited the police vehicle and began walking towards the BMW. As he moved within three car lengths of the BMW, you drove out of the right lane, across the left lane, up onto the footpath in front of Young & Jackson's Hotel on the corner of Flinders and Swanston Streets.
11The BMW paused momentarily whilst on the kerb and Constable Schouten approached the driver's side of the vehicle, demanding you exit the car. Sergeant Gilmore approached the passenger side of the vehicle at the same time. The unmarked police vehicle parked behind the BMW in an attempt to block it in.
12You reversed into the unmarked police vehicle, turned up onto the footpath and began driving along the crowded footpath.
13Sergeant Gilmore moved quickly out of the way to avoid being hit. As the BMW passed, he hit the passenger window with his extendable baton and yelled to people to get out of the way.
14Moments before the vehicle reached the intersection of Swanston Street the pedestrian light turned green, clearing some of the pedestrians from the footpath. Numerous pedestrians jumped out of the way as you accelerated along the footpath.
15Another witness, Glen Jarvis, who was at the intersection, said he felt adrenaline kick in and knew he had to get out of the way as another male pushed he and a group of people into the Young & Jackson's Hotel.
16A witness, Jeremy Gray, was at the intersection and upon seeing the vehicle ran into the middle of Flinders Street to avoid being hit. He described feeling shocked and afraid.
17Turning to the summary charge of careless driving.
18At the corner of Flinders and Swanston Streets, you turned left through a red light, drove north on Swanston Street, going through another red light on Flinders Lane. You turned left down Bourke Street Mall, continued through a red light at the intersection of Bourke and Elizabeth Streets, and drove into the secure car park entrance in Hardware Lane. You drove straight through the boom gate, damaging it (Charge 2 on the indictment).
19You were later identified by CCTV footage as being the driver of the BMW car.
20I turn to your offending on 30 October 2015.
21You were the former partner of Alexandria Apostolides, with one daughter of that relationship, Arianna-Rose who, at the time, was 2 years of age.
22In the weeks prior to this offending you were living sporadically at your mother's house in Werribee. Ms Apostolides was also living at that address with Ariana-Rose.
23On 29 October 2015, you arranged to spend time with Ms Apostolides and Ariana-Rose at the Werribee address. You picked up Ms Apostolides from a Craigieburn address at about 9.00 pm and went to the Werribee home.
24At approximately 12.00 am on 30 October, you left the Werribee address, saying you were going to see a friend.
25You called Ms Apostolides prior to returning sometime after sunrise that morning. During the call you were screaming, not making sense, and telling her to “fuck off”. Ms Apostolides asked you to return her child car seat.
26At approximately 7.30 am, you arrived at the Werribee address, entered the premises, and the room where Ms Apostolides was sleeping. You began to punch her. You dragged her out of bed, threw her to the floor, and continued to punch her. She was screaming for you to stop. This is referrable to Charge 3 on the indictment, assault.
27Your mother heard you yelling and said, "Kevin, what are you doing?" You were yelling, "Where is Ariana?" Your mother told you Ariana-Rose was sleeping. You went to grab the baby, your mother and Ms Apostolides trying to stop you. You pushed them away.
28You picked up Ariana-Rose, took her outside, and placed her into the front passenger seat of your car through the driver's door. You entered the vehicle and closed the door. At the same time, Ms Apostolides opened the driver's door and your mother went to the passenger door and grabbed Ariana-Rose. You got out of the vehicle and began to punch and kick Ms Apostolides (is also part of Charge 3 on the indictment).
29You approached your mother and tried to grab Ariana-Rose. Your mother tried to shield Ariana-Rose and you kicked her in the left leg, causing pain (summary Charge 29, assault by kicking).
30A neighbour, Rhianon Walker, heard the screams and saw Ms Apostolides, your mother and Ariana-Rose in the driveway and you walk away from the property.
31Ms Walker approached the fence and asked Ms Apostolides and your mother if they were okay. Both women were crying and shaking, and she told them to come into her home. All four entered Ms Walker's house.
32Ms Walker locked the wooden front door and wire screen door and called 000. Whilst she was on the phone, you returned and started banging on the windows. You started to break the screen door, yelling, "I have got an AK-47. I am going to kill you all." You broke the screen door, kicked in the wooden door, and entered the house (Charge 4 on the indictment, aggravated burglary).
33When you were in the house you said to Ms Walker, "I just want Ariana" and told her to get off the phone. Ms Walker told you to get out.
34When you saw your mother, who was having a panic attack and lying on the floor, you left the house and drove away.
35You were arrested later that day by Special Operations Group and found to be in possession of a small bag containing methylamphetamine (summary Charge 27, possess methylamphetamine).
36You were interviewed by police on 30 October. You answered “no comment” to questions asked by the police, and of course to answer that way was your right. I note in a recorded conversation with police on 30 October 2015, prior to that recorded interview, you acknowledged your offending on 14 September 2015 and 30 October 2015.
37I have no doubt the victims of your offending on both 14 and 30 October suffered in the ways described in their statements to police. And I also note the observations made by Ms Walker of your mother and Ms Apostolides.
38Turning to the timing of your plea of guilty, Mr Moglia, who appeared on your behalf at the plea hearing, submitted your plea of guilty was entered at the earliest opportunity. That while you did not admit your offending in the record of interview, rather, exercised your right to make a “no comment” interview, you had, in the lead-up conversation to which I have just referred, off-tape, made admissions to your offending on the 14th and 30th. This was tendered as Exhibit B and I have, since the plea hearing, read that document.
39You were charged with both sets of offending on 30 October 2015 and indicated your intention to plead guilty on 15 February 2016, formerly entering that plea on 18 February 2016 in the Magistrates' Court. I, therefore, accept your plea of guilty is indicative of your remorse and your willingness to facilitate the course of justice and to accept responsibility for your offending. You have not required any witnesses to give evidence.
40The prosecution did not take issue with Mr Moglia's submission that your plea of guilty was entered at the earliest opportunity and I accept that is so.
41You have pleaded guilty to these charges as I have said, and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial.
42Further, I take into account in your favour you intimated early your intention to plead guilty to these charges.
43I am prepared to accept that your plea of guilty indicates some remorse for your offending, however, I am concerned about the extent of your remorse given your extensive and relevant prior criminal history.
44You have a very concerning prior criminal history.
45Your first court appearance was at Sunshine Children's Court on 5 June 2006 and your most recent prior matter 12 November 2013. You have appeared at court on ten occasions over that time. Your offending in the past has included offences of driving in a manner dangerous, burglary, intentionally cause injury, criminal damage, reckless conduct endangering life, aggravated burglary and trafficking in drugs.
46In particular, of relevance to the charges before me, you were at the Melbourne County Court on 18 February 2009 and dealt with for a number of offences which included intentionally causing injury, reckless conduct endangering life, criminal damage and assault, for which you received a sentence in a Youth Justice Centre.
47On 9 February 2010, you again appeared in the Melbourne County Court for offences that included aggravated burglary – person present, and criminal damage, for which you were sentenced to a total of two years' imprisonment, with a non-parole period of 18 months.
48You later appeared on 19 September 2013 on a charge of reckless conduct endangering life and trafficking methylamphetamine, amongst other offences, for which you were sentenced to a total aggregate of 20 months' imprisonment, with a non-parole of 14 months.
49The prosecution provided further details of some of your prior criminal history, specifically your appearance on 19 September 2013. However, correspondence from your instructing solicitors queried the factual basis upon which you were actually sentenced, as often in the Magistrates' Court, a police summary is amended on the day of the hearing. And that, of course, may well be so.
50I did ask counsel who appeared on your behalf at the sentencing hearing what that offending involved and you gave those instructions which were stated at the commencement of this hearing. And I will not repeat them again.
51I was also given copies of the offences and sentencing remarks of his Honour Judge Montgomery on 9 February 2010.
52On that occasion, you were with a co-offender. You and your co-offender attended at a property in Airport West. One of you burst the door open, you smashed the laundry window and leant in, a person being present in the house. This apparently involved an argument about money.
53His Honour also dealt with offending on another date at that hearing, when you attended at another address and produced a machete. You and your co-offender stabbed at the door of the house. The latter offences, as I understand it, were committed by you whilst on bail, and his Honour's sentencing remarks will be exhibited (Exhibit E).
54I also received the sentencing remarks of his Honour Judge Smallwood who sentenced you on 18 February 2009 (Exhibit F).
55That offending involved you chasing another vehicle by the car you were driving. Your car was very close and those in the other car were afraid as a result of your driving. You tried to ram the car. Eventually, the other driver stopped his vehicle and you pulled up in front of his vehicle. You and two or three other males exited your vehicle and walked towards the other vehicle carrying bottles. That driver and his friend were then chased on foot by you. During this incident you produced a knife and assaults also occurred.
56Also before me were summaries of your offending dealt with by his Honour Judge Murphy on 9 October 2008 (Exhibit G).
57I shall not summarise that offending, his Honour set this out in great detail within his sentencing remarks.
58You, of course, are not being re-sentenced for any of that offending, however, it puts this current offending into context. You are not new to the commission of very serious offences, including that before me.
59At time of sentence, you are 27 years of age.
60Your counsel tendered a report from Mr Patrick Newton, Clinical and Forensic Psychologist, dated 4 May 2016, who interviewed you on 21 April 2016.
61Mr Newton referred to your background and history. You were the younger of two children and grew up in the Footscray area. You described a chaotic and abusive family environment. Your parents separated when you were about 1 year old.
62Your mother re-partnered and you described your stepfather as being domineering and abusive. In addition to physical violence, you also described sexual abuse by him upon you on a regular basis. Although I note in the report of Ms Lechner referred to at the court hearing on 9 February 2010, and in the report at the Court hearing on 18 February 2009, reference was not made to your allegations of sexual abuse. Your sister, you told Mr Newton, was also sexually abused.
63When your sister turned 18, both you and she left the family home.
64Your stepfather was eventually charged and you understood he was sent to prison for his offending against your sister.
65You described behavioural problems when growing up, both within the family and at school.
66You attended local primary schools in Keilor Downs and enjoyed school. You then attended Keilor Downs Secondary School, leaving just before turning 15, which was the time you left home with your sister. I note from sentencing remarks at the court hearings on 9 February 2010 and 18 February 2009 differences in the level of education completed by you.
67After you left home, you were homeless for a period of time and your lifestyle remained unstable for several years.
68You subsequently undertook pre-apprenticeship studies in boiler making, however, did not continue with your apprenticeship as your lifestyle was too unstable.
69You thereafter worked sporadically with lengthy periods of unemployment.
70You hope to complete vocational training in prison to improve your job prospects.
71You told Mr Newton your main relationship had been with Ms Apostolides, with a daughter of the relationship, Ariana-Rose.
72You described many of the problems in your relationship with Ms Apostolides related to your drug use. You also acknowledged your behaviour had been quite 'erratic' whilst with her.
73As to the current status of that relationship, there was some prospect of reconciliation, as I understood it, if you resolved your drug-related issues.
74In custody, you instructed you had undertaken drug-related courses that were available to you, although no certificates were provided.
75You reported a lengthy history of drug abuse commencing with cannabis from age 14, by age 15 using on a daily basis.
76When you were 16 you began to use amphetamines, moving to methamphetamine use from about the age of 18.
77You told Mr Newton you continued to use that drug regularly until your arrest for the offences before me, and that you were only ever abstinent during periods of incarceration or when under correctional orders.
78Your drug use had, over the years, also extended to periods of heroin addiction, chronic heavy drinking and use of various hallucinogens.
79Prior to your recent remand, you said you had received scant drug rehabilitation and that even whilst undertaking community corrections orders you had not benefitted from the few sessions you did attend.
80I note that your effort to date to address your drug use has been minimal, and it seems none specifically instigated by you, despite, I am sure, you being aware drug use was problematic.
81You reported a history of severe social behavioural and interpersonal problems dating back to your childhood.
82You did not report having attended with any psychologist or psychiatrist.
83At the time of this offending, you instructed you had been intoxicated with methamphetamine, alcohol and cannabis since September 2015 and you "panicked" when asked to pull over by the police. I note there was no further specificity regarding 14 September in particular.
84Regarding your offending in October 2015, you said you were anxious about your daughter. You were unclear as to whether you were substance-affected in October.
85You expressed guilt and regret to Mr Newton for your offending in both incidents.
86Mr Newton concluded that you reported clear signs of physical dependence on the drugs you abused. You had developed a significant level of tolerance to the effects of the drugs and have withdrawal symptoms when forced to abstain from drugs.
87Your insight into your drug addiction was largely intuitive. You were able to enumerate the number of negative impacts of your drug addiction and had expressed a desire to avoid returning to that lifestyle upon release.
88Your insight, however, remained at an unsophisticated level and, as Mr Newton noted, your ability to maintain your abstinence in the community was untested.
89In the opinion of Mr Newton, you presented with a history of conduct disorder in childhood, together with prominent features of anti-social personality, although those diagnoses, he said, failed to meet the criteria for anti-social personality disorder. You were an immature man.
90Turning to his opinion, your drug addiction attracted a diagnosis of severe and chronic substance abuse disorder with regard to methamphetamine and cannabis in early remission in a controlled environment, that is, in prison.
91Whilst you had some heightened anxiety and depression as a result of your current legal proceedings, those were, in the opinion of Mr Newton, within normal bounds for a person in your situation.
92In terms of furthering your rehabilitation, Mr Newton recommended you participate in treatment programs, drug education and counselling, training and living skills. Upon your eventual release, you would require extensive support and assistance to engage successfully in the community. You would be at risk of relapse to substance misuse following your release.
93Mr Moglia was not relying upon the principles in R v Verdins & Ors[1], and that concession in my opinion was appropriate on all the material before me.
[1] (2007) 16 VR 269
94Mr Moglia provided a written outline of submissions for your plea hearing (Exhibit 1) and addressed those during the course of the hearing.
95Regarding your current time on remand, Mr Moglia submitted that you had undergone testing on two occasions, and that urine testing was negative for illicit substances (Exhibit 3). There had been no disciplinary matters involved while you were in custody and you are currently working as a billet, a trusted role within the prison. All these things are good.
96Turning to your offending, I discussed with Mr Moglia the serious nature, in my opinion, of both sets of offending.
97Whilst I accept that there may be some distinction between the victims of your driving relevant to the 14th not being specific targets, as I discussed with Mr Moglia, it is nevertheless very concerning that without any particular person in mind you drove the car as you did. You simply did not care who was in the way, just wanting, it seems, to get away from the police. In that sense, broadly, I do regard your car as being akin to use as a weapon.
98In my opinion, your offending on the 30th was also serious. Mr Moglia urged, in relation to your entering of the neighbour's house, that you offered to pay for the damage to the door. Payment, it seems, is yet to occur.
99While it was not, perhaps, as Mr Moglia described it, a calculated home invasion, it was, nevertheless, in my opinion, serious offending, breaking into a home owned by another who was attempting to shelter your mother, partner and child from you.
100I have no doubt your offending was very distressing for all your victims.
101Regarding your offending, Mr Moglia referred to your extensive history of amphetamine and methylamphetamine abuse, which he conceded was not mitigatory of your sentence but provided some background to it.
102Mr Moglia has relied upon the conclusions and report of Mr Newton and urged that what was required in your case, was an intensive period of treatment and that you had indicated your intention to pursue that, albeit had not done so of your own volition previously.
103Mr Moglia referred to periods of time in the past when you had remained offence-free. Although, looking at your prior criminal history, unfortunately, relapse into crime has been the pattern.
104Mr Moglia submitted that following the decision in Boulton & Ors v The Queen[2], he submitted there was a real benefit to you having a disposition, involving a term of imprisonment together with a community correction order as it would involve an intensive period of drug treatment, and also address alcohol consumption. He submitted that the community correction order could, through various conditions imposed, provide a highly tailored program to ensure you received and participated in as many programs as possible.
[2] [2014] VSCA 342
105Mr Moglia submitted, consistent with the report of Mr Newton, you were a very immature man who had not, in the past, tried to get help, but rather just attempted to "get by".
106He submitted your immaturity meant you lacked the necessary insight that would have taken you to places such as Windana, to seek counselling.
107Mr Moglia also submitted that if you were to “lose your way” while on a community correction order, there could be a fixed correction by the imposition of a brief term of imprisonment, which would then enable you to reset and focus on complying with the community correction order.
108I discussed with Mr Moglia the decisions of Boulton. In that decision, the Court of Appeal made it clear that sentencing courts need to rethink the conventional wisdom about whether prison is the only option. Boulton emphasised the grave disadvantages of imprisonment and the unique advantages of a community correction order in permitting significant punishment to be imposed, while at the same time advancing an offender's rehabilitation in a way that imprisonment cannot (see Alam v The Queen[3]).
[3] [2015] VSCA 48
109The decision in Boulton has been referred to by the courts in a number of other cases, including DPP v Maxfield[4], Marocchini v The Queen[5], Hutchinson v The Queen[6], although, of course, being mindful of different offending in those cases from yours. And, most recently, in Gul v The Queen[7].
[4] [2015] VSCA 95
[5] [2015] VSCA 29
[6] [2015] VSCA 115
[7] [2016] VSCA 82
110I did not, however, understand Boulton to remove the requirement that a sentencing judge to take into account all of s.5 Sentencing Act 1991, nor did I understand the decision in Boulton to mean that sentencing principles stated by the Court of Appeal relevant to the various types of offending now before me amounted to nought, nor did I understand Boulton's decision to remove the instinctive synthesis required when sentencing, nor did I understand the decision in Boulton to remove the need for me to be mindful of the maximum penalty applicable for the various offences that you face as set by Parliament.
111In Hutchinson, Priest JA, acknowledged that it should not be thought that Boulton offers a “get out of jail free card” in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.
112Also in support of his submission for a combination disposition, Mr Moglia referred to the decision of R v Lacey[8]. When referring to the decision of Lacey, he submitted that your offending was rooted in your drug taking from a child or teenager, and that such would decrease your moral culpability for this offending.
[8] (2007) 176 A Crim R 331
113In my opinion, that decision has very limited application when sentencing you. At the least, very different offending was involved. Lacey involved a charge of trafficking in heroin and involved the offender 'trafficking' to provide funds to support his own drug addiction. That is not the case on the facts before me. It was in that context, that is Lacey, of that offending that the court referred to the decision of R v Nagy (see paragraph 13 of Lacey), R v Burchard (see paragraph 14 of Lacey) and R v McKee (see paragraph 15 of Lacey).
114The court also noted in Lacey:
"The offender's addiction will only call for mitigation of punishment where it is established on the balance of probability that there is a link between that addiction and the commission of the offences." [para 16]
115Regarding the latter, there is a real issue as to whether your addiction to drugs was the cause of your offending on 14 September and 30 October 2015, and in that regard, I note the report of Mr Newton (paragraph 24) which I read out earlier in these sentencing remarks.
116Mr Moglia submitted that your immaturity reduced your moral culpability for your offending, together with your history of drug use and disadvantaged background. I do not agree. In my opinion, your moral culpability in both these instances of your offending is high.
117Mr Moglia submitted your mother had been visiting you in custody, and that
Ms Apostolides was intending to return to the Magistrates' Court to relax the condition that you not be permitted to have contact with her, or to have the intervention order currently in place withdrawn in its totality.118Mr Moglia conceded general deterrence was a relevant consideration when sentencing you.
119Mr Moglia's primary submission was that the appropriate way to deal with you for all of these offences was a term of imprisonment, together with a community correction order. I discussed with Mr Moglia the limitation of such a combination disposition including the maximum period of imprisonment that could be so ordered.
120Ms Mahady, on behalf of the prosecution, submitted an immediate custodial disposition was the only appropriate sentence and that a combination disposition would not be appropriate in all the circumstances.
121Ms Mahady submitted when considering Lacey, your drug addiction, the need for a term of imprisonment for your offending, outweighed any consideration that should be given to reduction in your moral culpability.
122Turning to your rehabilitation prospects, I have grave concerns, in particular given your prior and relevant criminal offending. Although one cannot, however, give up hope of your eventual rehabilitation, and in fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.
123I have carefully considered Mr Moglia's submission on disposition. In my opinion, to impose such a combination disposition as urged, would not adequately or appropriately reflect all relevant sentencing considerations in your case, but would rather in my opinion, result in a manifestly inadequate sentence.
124As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
125There is also the need for specific deterrence when sentencing you, given your prior relevant criminal history.
126I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of you re-offending. This continues to concern me.
127I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
128In sentencing you, I take into account principles of totality and proportionality.
129I sentence you as follows:
130On Charge 1, you are convicted and sentenced to 16 months'.
131On Charge 2, you are convicted and sentenced to 10 months' imprisonment.
132On Charge 3, you are convicted and sentenced to 6 months' imprisonment.
133On Charge 4, you are convicted and sentenced to 3 years and 6 months' imprisonment.
134On the summary Charge 8, you are convicted and fined $300.
135On summary Charge 27, convicted and sentenced to 1 month's imprisonment.
136On summary Charge 29, you are convicted and sentenced to 2 months' imprisonment.
137I order the following in relation to cumulation and concurrency:
138Charge 4 is the base sentence.
139I direct that 10 months of Charge 1 be served cumulatively upon Charge 4.
140I direct that 4 months of Charge 2 be served cumulatively upon charge 4.
141I direct that 2 months of Charge 3 be served cumulatively upon Charge 4.
142I direct that 7 days of summary Charge 27 be served cumulatively upon charge 4.
143I direct that 1 month of summary Charge 29 be served cumulatively upon Charge 4.
144For clarity, the orders for cumulation are upon each other and upon the base sentence.
145That results in a total effective sentence of 4 years, 11 months and 7 days' imprisonment, and I order that you serve a period of 3 years and 6 months before you are eligible for parole.
146Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words, if you pleaded not guilty to all of these and been found guilty of them, I would have sentenced you to 7 years' imprisonment and ordered a non-parole period of 5 years.
147Pursuant to s.28 Road Safety Act, I cancel all driver's licences as held by you and disqualify you from obtaining a driver's licence for 5 years from your initial remand date on 30 October 2015.
148In determining the appropriate period of disqualification, I am mindful and have taken into account the relevant principles in R v Lefebure[9].
[9] (2003) 31 MVR 131
149Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 196 days in custody, up to and including yesterday, 12 May 2016, and I direct that be entered into the records of the court.
150The prosecution made application for a disposal order. That was not opposed by counsel on your behalf, and I make the order in the terms sought. And I do not think there are any other orders sought.
151Now, maths. Anyone want to help with the maths?
152MS MAHADY: Just checking the PSD, Your Honour.
153HER HONOUR: Yes, just check the PSD. So everyone has got the figures right. Every day counts when you are doing time, so let us get it right. When did he go in, 30 October, was it not, last year?
154MR GRIGOR: Ninth May 2016, Mr Moglia in his written submissions said that at the date of plea hearing it was 193 days in custody since arrest.
155HER HONOUR: All right.
156MR GRIGOR: And that was accepted by the prosecution.
157HER HONOUR: All right. So we are now up to 196, that would be right? Yes. So as that would include the 9th, that is tenth, 11th, 12th, so that is another three days. That would make it right. All right? Well, there are no other orders. Just the disposal order?
158MS MAHADY: Yes, that is right, Your Honour.
159HER HONOUR: That is fine. I am just signing that. All right, thank you.
160HER HONOUR: So it is 196, as I said, up to and including yesterday, 12 May.
161MS MAHADY: Not including today.
162MR GRIGOR: Yes, all right. Thank you, Your Honour.
163HER HONOUR: All right. Well, that is - all right. Thank you. Can you remove Mr Beasley? Thanks very much.
164Attached as an appendix is discussion that occurred on 13 May 2016 prior to sentence being delivered.
(See appendix attached.)
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APPENDIX
165All right, now I have received some additional correspondence since we were here last and I just want to get this on transcript.
166First of all, some correspondence from Mr Slucki. OPP? No, your office.
167MR GRIGOR: That is correct.
168
HER HONOUR: Regarding a summary of charges relating to the incident on
2 July 2013, dealt with at Sunshine Magistrates' Court on 19 September 2013, as shown in the criminal history.
169Now, references there said, "Whilst it is accepted this is the summary originally drafted by the informant, defence is not in a position to concede that this was the final summary to that was pleaded to. As is the common practice in the Magistrates' Court, the summary is often negotiated on the day of the mention or contest mention and changes are made to the summary by the prosecutor 'on the fly'. Mr Beasley instructs that he believes this is part of a consolidated plea which occurred after being given the sentence indication."
170Then it goes on, "In order to ascertain the precise set of facts alleged against Mr Beasley on the plea, it will be necessary to obtain a copy of the recording of the proceedings and I advise I have been instructed that Mr Beasley will consent to an adjournment if the court would be assisted by further time to consider the material."
171Then, I also received some correspondence from Simon. Mr Moglia, sorry. Had to check all that. And basically, he set out in the what I will call lead-up conversation - that may not be the strict term, but he will know, that is clear what that is about - where he made admissions to both the 14th and the 30th. So, I have received that.
172And in addition to that, I received material from the prosecution outlining two summaries as I understood it regarding alleged offending that was dealt with in July - or rather that occurred in July or thereabouts - that were dealt with on that date, 19 September 2013 at Sunshine. Being the summaries in question, if I could put it that way.
173All right, now is that a very vague but accurate description of where we are at at the moment?
174COUNSEL: Yes, Your Honour.
175HER HONOUR: Good. So my next question is this: where do we go from here? Because the offences on 19 September 2013, if one has a look at those, are very clearly different to anything else that he has in his priors.
176They include reckless conduct endangering life, making a threat to kill and importantly, use of a firearm and possession of a controlled weapon. So, the bottom line is this: given the report of Mr Newton - which does not refer to any memory problems - that your client would have a memory of this plea and what was meant by what his conduct was that it would endanger life and the use of the firearm.
177So, really, I think we go one of two ways. You can get some instructions, your client may say, "I do not remember any of this," bearing in mind Mr Newton does not say that he has a memory problem, but you can certainly get those instructions if whatever. Or, he will remember and say, "Yeah, look, that is probably a bit consistent even if the whole summary is not taken into account" if you follow?
178MR GRIGOR: Yes.
179HER HONOUR: Or, the prosecution can decide what they want to do with this. It is back in 2013, I do not have any idea what goes in the Magistrates' Court so I would not know how long they keep recordings, so ‑ ‑ ‑
180MR GRIGOR: I think it is four months from my experience, Your Honour.
181HER HONOUR: Yes, I do not think it was long.
182MR GRIGOR: Yes.
183HER HONOUR: So, the bottom line is they may not have that access to that material anyway and therefore, the question is, do we hold this up to find out that answer? Or do we just go ahead? And you have heard what I have said that it is clear that the charges are very different to anything else he has ever faced, and it was only three years ago. Mr Newton does not say he has got a bad memory. You may or may not choose to get instructions on it and we may or may not bat on. So, what do you want to do, Mr Grigor?
184MR GRIGOR: Look, Your Honour, I ‑ ‑ ‑
185HER HONOUR: It is up to you.
186MR GRIGOR: I am happy to make those enquiries as to - let us start off by making those enquiries to begin with.
187HER HONOUR: Well, see what you get as an answer.
188MR GRIGOR: Yes.
189HER HONOUR: All right. Off you go. Do you actually want me to go?
190MR GRIGOR: I would actually like a few minutes with this is because it is not easy obtaining instructions.
191HER HONOUR: (Indistinct) well, look.
192MR GRIGOR: I can certainly make these enquiries here.
193HER HONOUR: Yes.
194MR GRIGOR: But I imagine that might take more than five minutes.
195HER HONOUR: Well, we will come back - what we will do is - obviously he is in custody, so I cannot just close the door and let everyone go and him wander around. You know how - well, he is in custody.
196MR GRIGOR: I am happy for security to remain here or your staff.
197HER HONOUR: Well, you certainly would be. It is up to them though, they may not want to. So, the plan would be this, and if the security do not agree, then forget it. All right?
198If both security are prepared to stay with your client, and if G4S are also going to stay - and Mr Butler has to stay - he will not listen, but he will have to stay - but if everybody else cleared the room, we would come back. But your client is in custody. He is not going anywhere. So it would have to be up to these two officers and G4S to say that is okay with them. Maybe the door can be locked out there, which might be the best way.
199But I am prepared to - subject to their attitude, which might be "Nah, go downstairs and do it properly," I am prepared - to subject to their attitude, but if they are at all uncomfortable with any of this, it is not happening.
200MR GRIGOR: That is all right.
201HER HONOUR: So, the ball is in your court, madam at the back, how do you feel?
202VOICE (from body of court): Yeah, that is fine.
203HER HONOUR: Are you sure?
204VOICE: Yes, Your Honour.
205HER HONOUR: You are not feeling pressured by me?
206VOICE: (No audible response.)
207HER HONOUR: Was that a "No"?
208VOICE: That is a "No".
209HER HONOUR: Good, I have got to get that out. And what about you, sir?
210VOICE (from body of court): Yeah, (indistinct).
211HER HONOUR: You are okay with that?
212VOICE: Yes, that is fine.
213HER HONOUR: Yes, you do not feel pressured?
214VOICE: No.
215HER HONOUR: Madam?
216VOICE: I am fine.
217HER HONOUR: All right. And you can lock that door?
218VOICE: Yes, I can.
219HER HONOUR: Excellent. Well, that is what we will do. It has to be done. That is the only way it can happen, Mr Grigor, without you going downstairs.
220MR GRIGOR: That is fine.
221HER HONOUR: I am happy to accommodate that.
222MR GRIGOR: I have got no objection there, Your Honour.
223HER HONOUR: Right. Excellent. So that means that everyone will have to go out, including Ms Jackson and myself. You will have that opportunity but it has got to happen quickly, so we will be back here at the latest at 10 to and we continue on from there. Ten minutes is all you are going to get, all right?
224MR GRIGOR: Sure.
225HER HONOUR: Right. Thanks.
226(Short adjournment.)
227HER HONOUR: All right. Thanks. How did you go?
228MR GRIGOR: Thank you for your time, Your Honour.
229HER HONOUR: That is all right.
230MR GRIGOR: In relation to the informant with the surname spelt W-o-j-c-i-k ‑ ‑ ‑
231HER HONOUR: Yes?
232MR GRIGOR: ‑ ‑ ‑ there is no issue whatsoever with the summary. In relation to Informant Garner, with the more serious charges, I am instructed that the matter resolved during what is called a sentencing indication before the magistrate and it was a negotiated summary. There was no dispute that my client discharged the firearm. It was disputed and accepted upon the plea in the negotiated summary that he was not aiming at her. It was aimed into the air.
233HER HONOUR: Yes, I see. And that was the reckless conduct endanger life as well.
234MR GRIGOR: That is so. Yes.
235HER HONOUR: Right, well I think I have got that. All right. So, with that rider to it - that is his understanding of it - I assume the prosecution, you do not want to adjourn this to find out that you cannot get hold of - well, what do you want to do?
236MS MAHADY: No, Your Honour, and I think that is consistent with the charge - reckless conduct ‑ ‑ ‑
237HER HONOUR: No.
238MS MAHADY: ‑ ‑ ‑ that he did not aim it at her.
239HER HONOUR: Yes.
240MS MAHADY: He might get a different charge if he actually aimed it at her.
241HER HONOUR: Yes. Probably, I would have thought.
242MS MAHADY: Yes.
243HER HONOUR: So, what we will do is at least that is on transcript, all right? I will work just on that basis - that brief summary and that is it. But, I think for completeness - because I did receive it, even though I am not working on that basis at all - that it needs to be marked as an exhibit. So, what I am going to do is mark that exhibit - that summary of W-o-j-c-i-k - because I cannot pronounce it.
244MS MAHADY: I think it is Voichick.
245HER HONOUR: That will do.
246MS MAHADY: Only because I have got a friend who has a W ‑ ‑ ‑
247HER HONOUR: Similar.
248MS MAHADY: Yes.
249HER HONOUR: I will accept that. Anyway, that will become exhibit - what are we up to, letters?
250MS MAHADY: Letters. C, Your Honour.
251#EXHIBIT C - Summary of Wojcik.
252HER HONOUR: And do you have a copy, madam - I did not bring it up with me. Do you have a copy of that other one ‑ ‑ ‑
253MS MAHADY: I am sorry, Your Honour. No, I have not. I just brought it on my phone.
254HER HONOUR: Ms Jackson, where is it? You have got ‑ ‑ ‑
255MS JACKSON: I do not. There is nothing on there.
256HER HONOUR: Well, it must be down in my chambers. That one will be marked as Exhibit D when I get a chance downstairs.
257MS MAHADY: Does Your Honour just need the name of the - I can ‑ ‑ ‑
258HER HONOUR: No. The informant?
259MS MAHADY: Yes.
260HER HONOUR: Yes, that would help.
261MS MAHADY: Just excuse me for one moment.
262HER HONOUR: It was the one that was under the usual summary page.
263MS MAHADY: Garner.
264HER HONOUR: Garner.
265#EXHIBIT D - Summary of Officer Garner.
266HER HONOUR: So that will end up going onto the file somewhere and I think that covers everything. So, what we will do is we will now proceed to sentence unless there is an adjournment being sought and I take it there is not? Am I correct?
267MR GRIGOR: That is right. No, no application.
268HER HONOUR: All right. Excellent. Right, remain seated, Mr Beasley, just for the moment please.
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