Director of Public Prosecutions v Beattie
[2016] VCC 1871
•2 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-01727
CR-16-01728
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY MAXWELL BEATTIE |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 November 2016 |
| DATE OF SENTENCE: | 2 December 2016 |
| CASE MAY BE CITED AS: | DPP v Beattie |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1871 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Taylor | OPP |
| For the Accused | Mr G Davis | Jade Bott & Associates |
HIS HONOUR:
1Zachary Beattie, you have pleaded guilty to one charge of extortion, one charge of prohibited person possess a firearm; one charge of causing injury intentionally; one charge of trafficking in methylamphetamine and one charge of possess cannabis. You have also consented to me dealing with a related summary charge of dealing with the proceeds of crime. You plead guilty to that offence.
2The maximum penalties for the offences are as follows. Extortion, 15 years imprisonment; prohibited person possess a firearm, 10 years imprisonment; causing injury intentionally, 10 years imprisonment; traffic methylamphetamine, 15 years imprisonment; possess cannabis, five penalty units; and possess proceeds of crime, two years imprisonment or 240 penalty units.
3It is my task, as the sentencing judge to impose upon you an appropriate and just sentence, after taking into account both the circumstances of the offending and circumstances personal to you.
4The circumstances of your offending are comprehensively set out in the document entitled “Summary of Prosecution Opening” which the prosecutor read in open court. I do not intend to repeat the whole summary; it has been tendered as exhibit A.
5Briefly, in May 2016 you were dealing in drugs in Swan Hill. The victim would purchase methylamphetamine from you on credit. He became indebted to you in the amount of $800. On 7 May 2016 you decided to recover the debt. You and your co-offender drove the victim to the house where you were residing. Whilst the victim was seated on a couch in the lounge room you produced a gun that the victim described as a small silver revolver. You and the co-offender then demanded payment of the monies outstanding and proceeded to terrorise the victim by threatening him and by pointing the gun at him and pulling the trigger.
6At one stage you appeared to load the gun with bullets. This confirmed the victim’s belief that the gun was real. Your co-offender sat next to the victim and ran a box cutter up and down his leg and down his face. You then used your mobile phone to video your behaviour. The video was played in court. It shows you walking up to the victim and pointing the gun at him. You said, “Shut the fuck up you piece of shit.” The victim was crying and in fear. You put the gun near his head. The victim was cowering. You moved the gun to his knee and pulled the trigger. This was a shocking act of cruelty.
7Later, your co-offender commenced punching the victim to the face and ribs. The victim was punched to the face and knocked off his chair on three occasions. The victim was dragged to the couch and the co-offender punched him to the ribs. At this stage you did intervene by telling your co-offender, “Stop, he’s had enough.” The victim pleaded with you to allow him to get the money. He contacted his mother and told her that if she didn’t help, “They will kill me.” His mother, fearing for her son’s welfare agreed to obtain $600. An arrangement was made for the money to be left at a certain location and, after that occurred, the victim fled the area with his mother.
8At about 9 am on 12 May 2016 the police executed a search warrant at your premises. The police located the following items - 43.87 grams of white crystal like substance, which they believed to be methylamphetamine; 3.8 grams of Cannabis L; $10,500 in cash; seven rounds of ammunition and two mobile phones.
9In a shed at the rear of the property the police located a quantity of tools, which form the basis of the related summary charge of dealing with property suspected of being the proceeds of crime. The police also examined your mobile phone and discovered the video of your treatment of the victim. You were arrested.
10Mr Beattie, you have committed very serious offences.
11You used a firearm to terrorise a young man. You repeatedly pointed it towards him and threatened him. On one occasion you acted as though you were loading it with bullets. This fortified the belief of the victim that you were in possession of a real gun. In a particularly nasty act you held the gun to his knee and pulled the trigger. A little later you encouraged and supported your co-offender to repeatedly punch the victim to the face and ribs. Eventually you did tell the co-offender to stop. Your behaviour was designed to force the victim to pay you money that was outstanding. You achieved that object when the victim successfully begged his mother to pay the money.
12The victim has provided a victim impact statement and it details the profound impact the offending has had upon him.
13In addition to your violent behaviour towards the victim, you admit trafficking in methylamphetamine. Your trafficking was not at a low level. You were in possession of a significant quantity of that drug. The financial rewards for you were considerable. You had $10,500 in cash in your possession. Mr Beattie, those who traffic in methamphetamine cause great harm in our community. The court must make it clear to others in the community who may be willing to consider emulating your conduct that they will pay a heavy price upon apprehension.
14Mr Beattie, this is a case where general deterrence is a paramount sentencing consideration, both for the violence offences and the drug trafficking offence. Just punishment and denunciation of your behaviour are also highly relevant.
15Although you do not have prior history for violent behaviour you do have a large number of relevant prior drug convictions. In March 2013 you appeared in the Swan Hill Magistrates’ Court on drug offences and you were released on a community corrections order. That order had conditions that were designed to support your rehabilitation. You breached the order. In July 2015, you appeared in the Swan Hill Court for offences including traffick cannabis, traffick methylamphetamine, traffick drug of dependence, possess prohibited weapon without exemption and deal with property suspected of being the proceeds of crime. You were ordered to serve 131 days in prison with a declaration that the time had been served.
16Given this history, specific deterrence and protection of the community are also relevant sentencing considerations.
17I now move to matters that are relevant to your background and those matters in mitigation.
18You are 25 years old. You grew up in Swan Hill. Your mother and father separated when you were nine years old, although they continued to share the same house. You told Mr Simmons, a consultant psychologist, who saw you in February 2015 that you were ‘raised all right.’ You were very close to your maternal grandparents and when you were 15 or 16 you went to live with them. You told Mr Simmons that this was because you were ‘running amok and stealing.’
19
You were not a good student and you left school at the end of year 10.
Mr Simmons conducted IQ tests in 2015 that showed an IQ of 67, which places you in the below average range of intellectual functioning. This may offer an explanation for your poor performance at school.
20Mr Simmons says this about your life after leaving school, “Since leaving school, apart from about three months working at a caravan park, he has been in no significant employment. He admitted to smoking amphetamines and not being bothered to work, adding that he made more money selling drugs.”
21Alcohol and drug abuse have figured predominantly throughout your teenage and adult years. You were a heavy drinker of alcohol by the age of 16. When you were 18 you were using cannabis heavily and by the age of 21 methylamphetamine. Given these facts, it is no surprise to read Mr Simmons' assessment that your adolescence and adult life has been “fairly chaotic.” Apart from one court appearance for the offence of drive whilst disqualified, all your other prior court appearances are alcohol or drug related.
22In recent years you have suffered a large number of family bereavements. In his report, Mr Simmons says this, “Mr Beattie revealed that while there have been many deaths in his maternal extended family over the years, of more significance was the fact that his maternal grandfather died three years ago at the age of 65, which appears to be the trigger for his mother descending into drug use. She passed away two years ago, with his maternal grandmother dying about 12 months ago at the age of 63, passing away quietly in her sleep.” The death of your mother was particularly traumatic because you were in custody when she became unwell and you had to take responsibility for the decision to turn off her life support systems. The authorities did make arrangements for you to attend the hospital and see your mother for the last time. Mr Simmons notes in his report that these deaths have left you with grief issues. Clearly it would be beneficial for you to receive appropriate counselling and support to deal with this.
23The chaos in your personal life has also been marked by instability in your various relationships. You have two daughters with two separate mothers. Your child Mia is now three years old and the child Lola two years old. Your family is involved in Mia’s life and you want that to be maintained. You have a new partner who is actively involved with Mia every second weekend and you are anxious for that to continue.
24You have been given opportunities to change your behaviour. In 2011 you were put on a bond to be of good behaviour with a condition to attend and participate in drug and alcohol counselling with Mr Gordon Leshke or his nominee. In 2013 you were placed on a community corrections order with conditions that were designed to facilitate your rehabilitation. In early 2015 Mr Simmons saw you whilst you were on remand. He suggested in his report that you would benefit from a referral to a residential rehabilitation program. It would appear that pursuant to that recommendation you spent two periods of time in the Bunjilwarra program. The first period was 16 March 2015 to 18 April 2015. You were exited from the program. You were allowed back into the program on 11 May 2015 and you completed the program on 23 June 2015. Bunjilwarra is a 12-bed residential rehabilitation program and healing service for Aboriginal young people aged between 16 and 25 years. It is located in Hastings. It aims to assist young people to “manage their drug and alcohol issues through active participation in therapeutic and structured programs designed to assist them to develop their living skills, and to strengthen their cultural identity and wellbeing.” You were unable to maintain a drug free status after completing the program. At the time of the current offending you were again deeply engaged in drug abuse.
25Mr Beattie, your inability to stop using drugs, your inability to stop offending and the escalation in the seriousness of this offending explain why I am guarded about your prospects for rehabilitation. Clearly your prospects would be greatly enhanced if you were able to stop using drugs.
26You entered an early plea of guilty. In addition, your plea has spared the victim from the trauma and stress associated with giving evidence. The plea has also saved the community the cost and expense of a criminal trial. I am satisfied that you are remorseful. You will be given appropriate credit for all of these matters.
27You are still a relatively young man. Rehabilitation is generally an important principle for the young offender. However, in these circumstances where you have been given opportunities to change your behaviour and failed to do so and where you have also committed very serious criminal offences, the principle becomes less prominent. Whilst I am not saying that it has no role to play in this case, the weight to be given to the principle is not as pronounced as it would otherwise be.
28Whilst your counsel did not submit that this is a case where your low IQ operates to trigger the Verdins principles, the fact of your low intelligence is a matter that I take account of, in a general way, in determining sentence.
29You consented to having the charges heard in the Koori Court. In doing so, you agreed to participate in a process that involved appearing before Elders from the Koori community. The process is described as a “sentencing conversation.” The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in the process is not easy. Indeed, it is challenging and your active participation in the process is a factor that mitigates punishment. It was obvious to me from the way you participated in the sentencing conversation that you were truly sorry for what you had done and that you do understand the havoc drugs have caused in your life.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
30Your counsel submitted that an appropriate order in your case would be a sentence of imprisonment, followed by release on a community corrections order. I was not persuaded by the submission. Notwithstanding the matters in mitigation, the nature of this offending requires me to impose a term of imprisonment that is commensurate with its seriousness.
31Mr Beattie, would you please stand?
32You will be convicted and sentenced as follows. On the first charge, three years imprisonment; on the second charge, six months imprisonment; on the third charge, 12 months' imprisonment; on the fourth charge three years imprisonment; on the fifth charge, fined $250, and on the related summary offence, four months' imprisonment.
33I order nine months of the sentence on Charge 4 and three months of the sentence on Charge 3 be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 1. This makes a total effective sentence of four years.
34I fix a minimum term of two years and six months before you will be eligible for release on parole. I declare that you have served 204 days by way of pre-sentence detention.
35If you had pleaded not guilty and been found guilty after a trial, the total effective sentence imposed would have been six years with a minimum term of four years and three months.
36I make the forfeiture and disposal orders sought by the prosecution. I also order you to pay compensation to Maureen Saville in the amount of $600. You can be seated there. Is there anything else?
37MS TAYLOR: No, Your Honour.
38MR DAVIS: If the court pleases.
39HIS HONOUR: Thank you. Mr Beattie can be removed.
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