Director of Public Prosecutions v Beattie
[2019] VCC 1953
•25 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-01189
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSH BEATTIE |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2019 | |
DATE OF SENTENCE: | 25 November 2019 | |
CASE MAY BE CITED AS: | DPP v Beattie | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1953 | |
REASONS FOR SENTENCE
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Catchwords: Catchwords: Criminal law - Sentence – Early pleas to charges of recklessly causing serious injury, theft and commit indictable offence on bail – offender stabbed homeless victim to face using a knife – entirely unprovoked attack on an innocent victim in a busy public space – permanent disfigurement and likely ongoing adverse psychological impact on victim – relevant and extensive prior criminal record for violence, threats, unlawful possession of weapons, dishonesty and offending whilst on bail – subsequent convictions for offences of robbery and intentionally causing injury carried out in company against another member of the public approximately four weeks earlier – numerous past sentences of imprisonment – prospects of rehabilitation considered relatively poor and guarded at best – service of entire sentence for subsequent convictions incident whilst on remand for current matter - totality considerations – importance of general and specific deterrence, denunciation and protection of the community - TES of 7 years’ imprisonment with NPP of 5 years – s6AAA indication of 9 years with NPP of 7 years – PSD period of 18 days declared as already served under this sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Emma Turnbull Solicitors |
HIS HONOUR:
Introduction
1 Josh Beattie, you have pleaded guilty to an indictment containing two charges. Charge 1 alleges an offence of causing serious injury recklessly, and carries a maximum penalty of 15 years’ imprisonment. Charge 2 alleges an offence of theft, and carries a maximum penalty of 10 years’ imprisonment. You will be sentenced for those offences and not any more serious form of them.
2 You also consented to this court hearing, and pleaded guilty to a related summary offence of commit an indictable offence (namely, that same offence of recklessly causing serious injury) whilst on bail. That summary offence carries a maximum penalty of three months’ imprisonment.
3 The circumstances of this offending are set out in the typed prosecution opening and are also depicted in the relevant CCTV footage, tendered on the plea as Exhibits A and B respectively. At the relevant time, you were 29 years of age. You are now 30, having been born on 2 February 1989.
Circumstances of the offending
4 The victim of your offending, Matthew Wilson, was homeless and living on the streets of Melbourne. He survived on a disability support pension.
5 Shortly after 9.30 pm on Friday 2 November 2018, he was sitting on a set of steps outside 255 Bourke Street, Melbourne. As can be gleaned from the CCTV footage, there were many people walking past the area going about their daily lives. The camera provides an elevated view from behind the victim. There is no sound recorded on the footage.
6 You are shown to approach the victim from his left and initiate a conversation. You appear to be holding a can of drink, probably alcohol. You sat next to the victim, to his right. You asked him for a cigarette, which he provided. You remained there speaking to him for just over five minutes or so. At times you are shown in side profile, while at other times you are closer to a front on profile. As time goes on, you appear to be studying the victim intently. At one point, while he is looking to his left, you look closely towards the area of the ground in front of him.
7 Late in the interaction, you make a point of moving closer to him and angling your body. You move his take away coffee cup away. You appear to become angry and start to wave your arms about. Your demeanour at that time is erratic and aggressive. At all times, the victim remains seated and entirely passive.
8 At about that time, or shortly beforehand, you must have obtained a knife from your pants pocket. Then, without warning, and from very close quarters, you forcefully thrust that knife into the face of your unsuspecting victim. As you did so, you appear to have pushed against his face even harder, to the extent where he is pushed from a seated position onto his back. The stabbing action is swift, but brutal.
9 In the immediate aftermath, the victim is shown trying to get to his feet whilst also holding the injured right side of his face to stem the bleeding. He appears to be in considerable pain. You appear entirely unperturbed by what you have done to him. After standing up, you replace the knife in your pocket and look closely at the victim. You take a drag on your cigarette and then throw it on the ground. You then pick up the can of drink in one hand and the cigarette in the other.
10 At that point, you can be seen to walk over to the area of the ground in front of where the victim had been sitting, before you stabbed him, and pick up his hat which contained the cash proceeds of his disability pension. Charge 2 on the indictment concerns this theft of the victim’s hat and money. After doing that, you bend down so that you are very close to the victim and appear to say something to him.
11 At that point, you start to walk away, but then stop, turn and walk back towards the victim. Once you get close, you again look closely at him and appear to say something. You then walk away to the victim’s left.
12 Within a very short time, you return to the victim. You walk up to him in a very quick and aggressive fashion. As you do so, you are pointing at him with your right finger. After retreating a few steps, you repeated the action and then say something to the victim.
13 Finally, you walk away from the victim and then appear to approach another male in the near vicinity. The CCTV footage then concludes.
14 In the immediate aftermath of being stabbed, the victim sought assistance by yelling out to the members of the public who were in the area. He received no such assistance. One cannot be critical given what was likely to have been a very unexpected and confusing situation. It is not at all clear that anyone witnessed the stabbing itself. Whilst there were a number of people who must have witnessed the distressing aftermath, it would have been entirely unclear as to what had happened.
15 So it was that the victim was forced to walk to a nearby café to seek help. The owners of that business rang for an ambulance and police attendance. The victim was then taken via ambulance to the Royal Melbourne Hospital for medical treatment.
Nature of Serious Injury and Victim Impact
16 As a result of this knife assault, the victim sustained a large deep laceration on the right side of his face, extending from his ear to his chin. That wound is depicted in one of the photographs that formed part of the bundle of photographs tendered as Exhibit C on the plea hearing. On medical examination, the laceration was found to have transected the facial nerve and the Stenson’s duct. Surgical intervention was required, involving numerous sutures.[1] The victim unexpectedly left hospital the following day without any medication. He returned six days later with the beginnings of a wound infection and sialocele. The wound was cleaned and the victim was monitored for a short time before being discharged with antibiotics.
[1] The sutured area is shown post-operatively in the bundle of photographs tendered as exhibit C.
17 On 11 December 2018, the victim’s medical file was reviewed by a forensic medical officer from the Victorian Institute of Forensic Medicine. That doctor concluded that the incised wound to the victim’s face would heal, but leave a permanent scar, on a prominent part of his body. She also expressed the opinion that, as a consequence of the wound, the victim has developed two separate complications – an injury to the parotid gland and duct, and to his facial nerve – both of which had the potential for long term consequences.
18 The victim made a sworn police statement on 13 November 2018, that is eleven days after he was attacked.[2] It provides some detail as to the immediate and short term effects that this offending had on him. After being stabbed in the face, he realised he was injured and bleeding. He knew it was bad and panicked. He saw a number of people staring at him with their mouths open. He started screaming for help, but no one assisted him. The pain became unbearable over time. He then walked to a nearby café where he got help. After being released from hospital, he was in constant pain and vomiting on occasions. His face was still very swollen. People stared at him when he walked down the street. The damage to his saliva gland caused ongoing difficulties. He has been unable to sleep and feels traumatised. He has been experiencing suicidal thoughts.
[2] To be found at page 16 of the police hand-up-brief.
19 Whilst there is no further update beyond the victim’s statement and the forensic medical officer's report, I have no difficulty finding that the victim has been permanently disfigured by the resultant scarring to his face. Nor do I have any difficulty finding that the adverse emotional and psychological impact of this offending on the victim, will be significant and long term. Such physical and psychological consequences are, in my view, entirely predictable in offending of this nature.
Arrest and interview
20 I note that Mr Beattie was not arrested for some time in relation to this matter. Rather, what occurred was as follows.
21 On 7 November 2018, he was arrested in respect of a separate incident that occurred on 6 October 2018, so some three to four weeks before the stabbing of Mr Wilson. After giving a ‘no comment’ interview, he was charged and remanded in custody for that unrelated matter.
22 Then, on 23 January 2019, police investigating the current matter sought to interview him in custody. Through legal representatives, he indicated that he would refuse to answer any questions. As a result, he was charged on summons with intentionally causing serious injury and other charges. He was later remanded in custody on 29 January 2019, at a filing hearing.
Sentencing for unrelated offending on 6 October 2018
23 In respect of the unrelated offending which occurred on 6 October 2018,
Mr Beattie was sentenced in the Magistrates’ Court on 25 June 2019. After pleading guilty to one charge of robbery, and one charge of intentionally causing injury, he was sentenced to a straight sentence of 12 months’ imprisonment. As the entire period spent in pre-sentence detention from the date of his arrest on 7 November 2018 was declared, namely 231 days, that sentence expired on 6 November 2019.
24 Accordingly, since 7 November 2019, Mr Beattie has been in custody solely for the current matter. The relevant period of pre-sentence detention that can be formally declared for this matter is therefore 18 days, not including today.
25 The nature of the unrelated offending of 6 October 2018, is set out in the agreed police summary which was tendered as Exhibit D on this plea.
26 At approximately 9.25 am, Mr Beattie and three male co-offenders robbed a man in a Richmond street, as he made his way towards the North Richmond Community Health Centre. The items stolen included the heroin that he was proposing to use in the supervised injecting room, his mobile phone and charger, together with some cards and a small amount of cash. During the incident, the victim was grabbed and punched to the face by Mr Beattie and surrounded by all of the offenders. Demands were made, but not immediately complied with. When the victim began to walk away, he was grabbed by
Mr Beattie and one of the other offenders. Mr Beattie then held up a bottle and swung it at the victim who put his arms up to protect himself. The bottle did not make any contact. Following that, the various items were removed from the victim’s pockets. After the robbery was completed, Mr Beattie told the victim that he was going to bite his ear off. He then pushed him to the ground and bit his ear with sufficient force to cause an injury and bleeding. The victim was later treated for bruising to his upper jaw, a laceration to his right ear and an abrasion to his right arm.
27 Mr Beattie’s counsel indicated that this earlier offending, like the current offending, occurred after the use of the drug ‘ice’.
28 The convictions for those earlier offences of robbery and intentionally causing injury represent subsequent convictions for current sentencing purposes. They are, at the very least, relevant to such sentencing considerations as specific deterrence, prospects of rehabilitation and protection of the community.
Prior Criminal History
29 As revealed by the criminal record filed with this court, Mr Beattie has a very relevant and extensive prior criminal history, including as it does, numerous charges involving violence, threats, dishonesty and offending whilst on bail.
30 By way of overview, I note that he has appeared in court on twelve occasions in the nine and a half year period between 16 February 2009 and
7 September 2018. During that period, he has been sentenced for a total of seventy-seven offences. Apart from the numerous offences involving theft and other forms of dishonesty, there are others involving violence, threats of violence, and possession of weapons. Finally, I note that he has been sentenced in respect of four charges of committing an indictable offence whist on bail.
31 In respect of violence or threatened violence, I note that there are three charges of unlawful assault, one of aggravated assault of a female, one of common law assault, two of recklessly causing injury and four of threat to inflict serious injury.
32 In addition, Mr Beattie has been sentenced in respect of three charges of possessing a controlled weapon without excuse. The last of those charges was heard in December 2017 and involved the possession of a knife.
33 For his prior offending, Mr Beattie has, on occasion, been treated leniently. For example, he received an 18 month community based order on
16 February 2009, which he breached. At the breach hearing on 24 June 2009, the breach was found proven and the order was varied to one of 24 months. He breached that order also and, in breach proceedings held on
15 July 2010, the breach was found proven and he was sentenced to an aggregate term of six months’ imprisonment. On 19 September 2013, he was sentenced to a term of two months’ imprisonment, wholly suspended for an operational period of 12 months.
34 On 5 April 2017, he was given a combination sentence of 116 days’ imprisonment, (which equated to the period spent in pre-sentence detention) and a 12 month community correction order. The latter component was breached. At the breach proceedings held on 1 December 2017, Mr Beattie was sentenced to an aggregate term of 7 months’ imprisonment for which no period of pre-sentence detention was declared.
35 A review of this criminal history reveals that Mr Beattie has received seven immediate terms of imprisonment ranging from one day up to a total effective sentence of three years and three months, with a non-parole period of 21 months. The latter sentence was imposed on 9 July 2010, and represents the longest sentence to date. It is not the only previous sentence involving a head sentence with a non-parole period, however. On 17 April 2015, Mr Beattie was sentenced to a total effective sentence of 18 months with a non-parole period of 12 months.
Personal circumstances
36 Mr Beattie’s personal circumstances may be briefly described as follows.
37 He was 29 at the time he committed the current offences and is now aged 30.
38 His parents separated when he was only two years old. Three years later, his mother entered into a new relationship with a man who was to become
Mr Beattie's stepfather. They had three children together, one girl and two boys. Thus, Mr Beattie has three younger siblings, a half-sister and two half-brothers.
39 His stepfather was physically and verbally abusive towards both Mr Beattie and his mother.
40 Mr Beattie’s school years were difficult. He experienced behavioural problems and had difficulties focusing on his school work. He was suspended from school on several occasions. He was diagnosed with ADHD.
41 He completed Year 8 in high school and Year 9 at a TAFE college. He then completed Certificates 1 and 2 in Motor Mechanics.
42 At around 14 years of age, he left his mother’s home and lived with friends, while still completing his education.
43 Throughout his life, he has worked in various jobs, mostly labourer's jobs such as bricklaying, plastering and concreting. He has also worked for a number of motor mechanic employers. However, he has not worked for a number of years now.
44 Mr Beattie has had one serious relationship, which lasted about seven years and produced one child, a daughter who is now aged five. Due to the drug problems experienced by both parents, that girl is in foster care on a permanent basis. Mr Beattie has had regular supervised contact with her, when not in custody. Since being in custody, he has received regular visits from her.
45 Mr Beattie has a very serious and entrenched drug problem. He commenced drinking alcohol and using cannabis at age 14. He stopped using cannabis on a regular basis at age 18. He has used MDMA (ecstasy) on a sporadic basis since his teenage years. He started using methamphetamine at age 16 and has continued to use that drug ever since. He commenced using heroin at age 18 and became a daily user of that drug. More recently, he has been on methadone on an intermittent basis. He is currently on 65 milligrams.
46 He has attempted detoxification a number of times in the past, including a five month residential rehabilitation stay at Odyssey House about five years ago. Prior to his present incarceration, he had done an assessment session and was planning to return there for rehabilitation. He currently plans to do this upon his eventual release.
47 He has tried to remain drug-free whilst in custody. He tested positive for methylamphetamine in two urine screens conducted in the early part of his most recent sentence, but has otherwise not used drugs.
48 Mr Beattie has previously suffered with depression, for which he is currently taking Lexapro.
49 In the context of his drug use, he has occasionally felt paranoid and attempted or threatened to harm himself, resulting in a number of hospital admissions, including an overnight admission on one occasion, in recent years.
Matters in mitigation
50 It must be noted at the outset that there is little that can be said by way of mitigation for this offending.
51 Of most significance, is the fact that Mr Beattie has pleaded guilty at an early stage of these proceedings. Not at the earliest stage, but at an early stage. Mr Beattie pleaded not guilty at a straight hand-up-brief committal. The matter then resolved at an initial directions hearing in this court, with a plea of guilty to the current charges. Two things should be noted in that context, however. First, his legal representatives had felt it necessary to seek a professional opinion regarding a possible mental impairment defence. And, second, the prosecution withdrew a more serious offence of intentionally causing serious injury.
52 On account of pleading as and when he did, Mr Beattie is entitled to a commensurate discount in his sentence. It has saved the community from the cost and time of a trial and spared the victim from the ordeal of giving evidence.
53 While taking such a course is indicative of Mr Beattie accepting legal responsibility for what he did, I am of the view that at most, it demonstrates only limited remorse on his part. His conduct towards the victim after he had stabbed him was callous and revealed not a scintilla of regret or compassion. He made no admissions or proffered any explanation for that offending to police. In the face of a relatively strong case based on the CCTV footage, at least for the causing of serious injury, the decision to resolve the matter in the way that it was, appears to have been a very pragmatic decision on his part.
54 Mr Beattie has indicated through his counsel that he remains committed to his young daughter and to seeking assistance with his serious drug addiction. I am prepared to accept that such is the case. Finally, I also note that
Mr Beattie has an established work history, until recent years, and if able to remain drug free, there is no reason to think that he could not obtain further employment in the future.
Gravity of the offending
55 The offence of recklessly causing serious injury is an intrinsically serious one, as is reflected in the maximum penalty of 15 years’ imprisonment fixed by Parliament.
56 There are a number of features of this offence which mark it as a grave example of its type. Not an example of the worst category, as that phrase has been defined by the High Court in The Queen v Kilic,[3] but a very serious example nonetheless.
[3] (2016) 259 CLR 256.
57 This was a stabbing with a deadly weapon. It involved the forceful thrusting of a knife into the face of an entirely innocent, passive and unsuspecting victim. It was carried out at close quarters and the targeting of the victim’s face was a quite deliberate act on the offender’s part. The offence was wholly unprovoked, brazen, vicious and cowardly. It occurred in a public street at night when there were a number of other members of the public in the area, some of whom had the misfortune to witness the immediate aftermath. Unsurprisingly, the physical injury inflicted was very serious. The face is a very sensitive and visible area of the person and there is something truly shocking about disfiguring someone in this manner. This was not a reckless use of a knife in the sense that it was just waved in the immediate vicinity of a victim with contact incidentally being made to the face. This was a reckless use of a knife that involved a stabbing to the facial area of the victim by design. The moral culpability for such an act must be adjudged very high indeed. The use of a knife in this way increases both the probability of serious injury and the degree of seriousness of the probable injury.[4]
[4] Ashe v The Queen [2010] VSCA 119, at [27]; Ejupi v The Queen [2014] VSCA 2, at [28].
58 Whilst the offence was not the subject of any significant planning, nor was it wholly spontaneous either. In the end, there was a calculated decision to retrieve the knife from the pocket and then use it against the victim.
59 Another serious aspect of this offending is the targeting of a vulnerable, homeless person. As the victim’s statement makes clear, Mr Beattie knew that the victim was homeless at the time of this offending. Such members of our community are extremely vulnerable and at risk of being harassed and assaulted on a daily basis. As this offending demonstrates, they are not even safe in a busy area of the city. The courts must denounce such attacks in strong terms and provide some measure of protection in the sentences imposed.
60 The theft offence is itself quite serious, involving as it did, the stealing of a financially strapped victim’s pension money, at a time when he was in no position to put up any verbal or physical protestation. It was a callous and mean-spirited act in the extreme.
Relevant Sentencing Principles
61 For obvious reasons, general deterrence assumes primary significance in this sentencing exercise.
62 Denunciation is very important, as also is specific deterrence and protection of the community.
63 This represents a significant escalation in the degree of seriousness of the offending in which Mr Beattie is prepared to engage. It is disturbing to say the least. And, it is not the first time that he has chosen to offend against an innocent member of the public.
64 Just punishment is another relevant consideration. This offending is of such a nature and level of seriousness, that a substantial sentence is called for.
65 Consideration must also be given to Mr Beattie’s age and prospects of rehabilitation. Based on the available material, I consider those prospects to be relatively poor and guarded at best.
66 Totality considerations also arise in this case and assume some importance.
67 First, as the offences were all committed in the one course of offending, and within a brief period of time, care must be taken to ensure that the punishment imposed, properly reflects the degree of criminality involved. That said, each of the offences involves its own degree of criminality and warrants its own punishment. However, a sensible degree of concurrency is warranted as between Charges 1 and 2 and, in the case of the related summary offence, total concurrency.
68 The second way in which totality considerations arise, relates to the fact that Mr Beattie has served the entirety of his 12 month sentence, for the unrelated offending on 6 October 2018, while also being held on remand for the current matters. The only way in which this matter can be addressed is by an appropriate moderation of sentences for the current offences. I intend to adopt that course. The effect is the same as if it had been open to this court to order a moderate degree of concurrency, as between the two sets of offending.
Sentencing submissions
69 Understandably, each of the parties acknowledged that only a sentence involving a head sentence with a non-parole period was open in the circumstances of this case
70 Defence counsel urged the court to impose a non-parole period that would foster and encourage what prospects exist and to provide the necessary encouragement for Mr Beattie to pursue his rehabilitation, through drug treatment and counselling, and continued contact with his daughter.
71 I intend to do that, although there are limits to what this court can do, given the other sentencing considerations that must be considered in the mix.
Other Sentencing Considerations.
72 I have had regard to the relevant sentencing snapshots from the Sentencing Advisory Council, as well as to the summary of cases prepared by the Judicial College. Such information can only ever be of limited assistance and I note that the parties did not seek to draw my attention to any truly comparable cases.
73 In the end, it is important to give effect to individualised justice, by paying close attention to the individual circumstances of this offending and this offender.
Permissible use of the CCTV footage
74 Before announcing the sentences in this case, I want to just say something about the fact that the offending is captured by CCTV cameras and I have taken the opportunity to view such footage, both in court during the plea and again in my chambers. Fortunately, it does not show the victim’s injury. There is a photograph that does so.
75 However, in my view, one cannot truly appreciate and understand the context and nature of this offending, without viewing that footage at least a couple of times. Bare words in a prosecution opening cannot fully capture or convey that context and appreciation.
76 But, I have also been astute not to let such graphic footage assume a greater level of influence in the sentencing process than it deserves. In this context, it is worth repeating the observations made by the Court of Appeal in the case of Mogoai v The Queen[5] at [8], as follows.
“…The video graphically depicts the assault…It was, to say the very least, a nasty assault, and the video is sickening to watch…Although the court must be careful not to succumb to an emotional response to the violence perpetrated, and must approach the circumstances of the offence (and those of the offenders), in a balanced and objective manner, nonetheless, the video footage helps to gauge the gravity of the offending. Further, the footage assists in assessing the effect on the victim.”
[5] [2014] VSCA 219.
77 Whilst the nature of the offending in that case was different to that in the present case, the observations are, in my view, nonetheless apposite and worth keeping in mind.
Sentence
78 Having carefully considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to sentence Mr Beattie as follows. He will be convicted on each charge and sentenced to the following terms of imprisonment.
79 On Charge 1, causing serious injury recklessly, six and a half years. This will be the base sentence.
80 On Charge 2, theft, 18 months.
81 On the related summary charge of commit indictable offence whilst on bail, one month.
82 I make the following order for cumulation.
83 Six months of the sentence imposed on Charge 2 is to be served cumulatively on the base sentence.
84 The total effective sentence is therefore seven years’ imprisonment.
85 In respect of that head sentence, I fix a non-parole period of five years.
Pre-sentence detention
86 The period of 18 days 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 records of the court.
Section 6AAA declaration
87 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Mr Beattie pleaded not guilty to the charges for which he has received terms of imprisonment today, and been convicted of them, he would have been sentenced to a total effective sentence of nine years’ imprisonment with a non-parole period of seven years.
Other Matters
88 Counsel, are there any matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
89 MR RAIMANDO: No, your Honour.
90 MR KOZLOWSKI: No, your Honour.
91 HIS HONOUR: Very well. Mr Beattie may now be taken back downstairs, thank you.
92 OFFENDER: Thank you, your Honour. Thank you very much.
93 HIS HONOUR: Adjourn the court sine die at this stage, thank you.
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