Director of Public Prosecutions v Beattie and Hogan

[2020] VCC 1560

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-20-00272
CR-20-00468

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE BEATTIE & BEN HOGAN

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2020
DATE OF SENTENCE:	25 September 2019
CASE MAY BE CITED AS:	DPP v Beattie and Hogan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1560

REASONS FOR SENTENCE
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Legislation Cited:    
Cases Cited:             
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For Kyle Beattie For Ben Hogan	Mr J. Desmond (for Plea) Mr R. Martini (for Sentence) Mr J. Barrera	Rainer Martini and Associates Stary Norton Halphen

HER HONOUR:

1Between 2 July 2019 and 1 August 2019, at times together and at times alone or in company with others, you, Kyle Beattie and Ben Hogan, broke into homes and commercial premises and stole personal possessions and cars belonging to other people.  On 1 August, when police tried to pull you both over in one of the stolen cars, you embarked, over a period of hours, in protracted, high-risk, appalling behaviour in an attempt to avoid arrest.  As a result, Kyle Beattie, you have pleaded guilty to 18 indictable offences and nine related summary offences and, you, Ben Hogan, to 11 indictable offences and three related summary offences.

2I will deal with the events of 1 August 2020, which has the most serious offending in it, first.  That afternoon you, Mr Hogan, and another man broke into a home and its garage in Montrose, stole goods worth $36,000 and a car, a Holden Senator sedan.  That is Charge 12, burglary; Charge 13, theft of the goods; and Charge 14, theft of the car. You were captured on CCTV driving away from the home in the car you and your co-offender had arrived in.  You did not hold a driver's licence.  That is Related Summary Offence 13 of unlicensed driving.

3About two hours later, you, together with Mr Beattie, were seen filling the stolen Holden Senator at a petrol station.

4The Holden Senator had an in-built tracking system.  When some hours after its theft the owner discovered it was missing from his garage, he assisted police to locate it using the tracking system.

5By 5.50 pm, about three hours after the original theft of the car, police saw the two of you in the stolen car with Mr Beattie driving at a fast speed out of a driveway in Ferntree Gully.  They followed you.  You drove onto the wrong side of the road to overtake a vehicle and turned left into Ferntree Gully Road.  The pursuit was then terminated due to the risk to public safety.  Like Mr Hogan, you, Mr Beattie, were unlicensed (this constitutes Charge 14 in respect of Mr Beattie, theft of the car by using the car without the consent of the owner, and Related Summary Offence 17 of unlicensed driving).

6From 5.45 to 7.30pm, the car was seen or detected by the tracking device in various locations in Springvale, Noble Park, Glen Waverley and Blackburn South.

7At approximately 7.32pm, in an attempt to stop you, police deployed a tyre deflation device or stop sticks at the intersection of Canterbury Road and Middleborough Road, Blackburn South.  Although both front tyres were deflated, Mr Beattie, you kept on driving.

8Police followed at a distance. Twelve minutes later, at approximately 7.43pm, you were being followed as you drove along Liddiard Street in Hawthorn.  You slowed down and the police overtook you.  As the police car stopped in front of you, and Leading Senior Constable Gribble opened the front passenger door of the police vehicle to get out, you, Mr Beattie, accelerated heavily.  You hit the rear passenger side corner of the police vehicle and continued driving on the footpath into the open passenger door of the police car, forcing it forward and crushing the front passenger panel, as you forced your way through and drove on.  The force of the collision and the extent of the damage rendered the police vehicle inoperable.  Fortunately, and I choose that word deliberately, that is, by good luck, not through any care on your part, the police members in the vehicle were uninjured.  It is this conduct of yours, Mr Beattie, which constitutes Charge 15 of aggravated intentional exposure of an emergency worker to risk by driving and Charge 16 of damaging an emergency service vehicle.

9After the collision, you turned from Liddiard Street into Glenferrie Road, Hawthorn, with another police vehicle in pursuit.  Along Glenferrie Road, you drove onto the wrong side of the road on two occasions to overtake slower moving vehicles and through an intersection against a red light at Wakefield Street.  Again, the danger was such that the pursuit was terminated.

10Minutes after the pursuit was terminated, you stopped the damaged car in the middle of Glenferrie Road, Hawthorn.  You, Mr Hogan, got out of the front passenger seat and into the front passenger seat of a vehicle which was parked in the street.  You yelled at the driver, Mr Anastasios, 'Get out of the car. Get out of the fucking car'.

11You, Mr Beattie, approached and opened the driver's side door of the vehicle and grabbed Mr Anastasios by the shirt and tried to pull him out of the vehicle.  Both of you were yelling at him and demanding he get out, but he could not because his leg was caught on the steering wheel.  He told you that you could have the car and you, Mr Beattie, let him go.  As he got out of the car, you, Mr Beattie, pushed him out of the way and sat in the driver's seat.  This is Charge 17, common assault.

12After all that, you were unable to start the vehicle as the key was not in it.  It was still in Mr Anastasios' pocket.  You abandoned the car.  That gives rise to Charge 18 of attempted carjacking.   

13Both of you then approached another vehicle, a Toyota Corolla parked approximately four vehicles in front of Mr Anastasios.  Yi Zhou and her husband, Yue Xu, were sitting in it, about to drive away from the restaurant where they had been dining.

14You, Mr Hogan, opened the front passenger door, yelling at Ms Zhou to get out.  You tried to pull her out.  Ms Zhou held on to the inside of the vehicle to try to prevent you from doing so.  At the same time, you, Mr Beattie, had opened the driver's side door and grabbed Mr Xu around the neck with one hand, undoing his seatbelt with his other.  You pulled him out of the car and threw him onto the road before sitting down in the driver's seat.  Mr Xu heard Ms Zhou yelling for help and went around to the passenger side of the vehicle.  By then, Mr Hogan, you were sitting in the front passenger seat and she was on the ground in between the gutter and the vehicle, caught in the seatbelt and unable to move.  She eventually freed herself from the seatbelt.  You, Mr Hogan, closed the passenger door and you, Mr Beattie, drove away.  It is this conduct which constitutes Charge 19 of carjacking and the Related Summary Offence 20 for you, Mr Beattie, of commit an indictable offence whilst on bail.

15Police again followed you. You travelled the length of Glenferrie Road and turned into Dandenong Road.  Police were in pursuit, with active lights and sirens.  You ignored police directions to stop.  That is related summary offence 18 for you, Mr Beattie, fail to stop vehicle on request.

16You eventually stopped behind other stationary traffic at a red light at the intersection of Dandenong Road and Hawthorn Road, Caulfield North.  You then drove at a gap between the cars ahead of you, colliding with the rear of a car owned and driven by Tan Nguyen, which was ahead of you.  The impact of the collision caused substantial damage to the car in front and caused the car you were driving to overturn, ending up on its roof.  It is this conduct which constitutes Charge 20 of damaging property for you, Mr Beattie.

17Only then were police able to arrest you.  Although trapped in the upturned car, you tried to resist and escape.  You, Mr Hogan, tried to crawl to the driver's side of the car to get away from police trying to remove you from the passenger side of the car. You, Mr Beattie, kicked Leading Senior Constable Knight to his left knee as he was trying to remove you from the vehicle.  Pepper spray was then used to subdue you. 

18Found in the car after your arrest was a Longchamp bag used by you,
Mr Beattie, containing goods suspected to have been stolen, and a Nike bag used by you, Mr Hogan, containing stolen goods suspected of being stolen, and a quantity of methamphetamine.  It is that that gives rise to Related Summary Offence 24 for you, Mr Beattie, dealing with property suspected of being proceeds of crime and for you, Mr Hogan, Charge 21, handling stolen goods, Charge 22, possession of a drug of dependence and Related Summary Offence 14, dealing with property suspected of being proceeds of crime.

19More property was later found in the abandoned Holden Senator.  That gives rise to Charges 23 and 24, each of handling stolen goods for each of you, and to Related Summary Offence 27 for you, Mr Beattie, and 18 for you, Mr Hogan, of dealing with property suspected of being the proceeds of crime.

20A blood sample was taken from you, Mr Beattie, and was later found to contain methylamphetamine (~0.27mg/L), which constitutes the basis for Related Summary Offence 33 of fail drug test within three hours of driving.

21You were arrested once removed from the overturned car and taken to the Alfred Hospital for assessment.  On discharge, each of you was interviewed and made 'no comment' interviews.  And each of you was remanded in custody, where you have remained ever since.

22The other charges to which you have both pleaded guilty are offences relating to your driving to properties, breaking in and stealing cars and other property, and driving without a licence.

23You, Mr Beattie, broke into five properties and stole things from two of them.  On one occasion, there was someone present in the house when you broke in.

24That gives rise to Charge 1, burglary of commercial premises at Montrose, Charges 2 and 3, burglary of and theft of property from a home in Glen Waverley, Charge 6, aggravated burglary of a home in Templestowe, Charge 7, burglary of a home in Lilydale and Charges 10 and 11, burglary of and theft from a home in Scoresby.

25You were also seen driving a car, bearing the registration plates of a stolen car, filling it with petrol and driving off without paying.  That gives rise to Charges 8, of handling stolen goods (the number plates), Charge 9, theft of the petrol and Related Summary Offence 31 of unlicensed driving.

26There are two further charges of unlicensed driving, Related Summary Offence 21, when you were seen driving in the course of the commission of the burglary and theft at Glen Waverley the subject of Charges 2 and 3, and Related Summary Offence 22, when you were seen driving in the course of the commission of the burglary at Lilydale the subject of Charge 7.

27In addition to the burglary of and theft of goods from the Holden Senator from the home in Montrose on 1 August, which occurred earlier in the day of your arrest, your fingerprints, Mr Hogan, were detected on two luxury cars stolen from the garage of a home in Harkaway, which gives rise to Charges 4 and 5, theft by use of vehicles without the consent of the owner.

28As far as the detail of these other charges are concerned, I do not consider for the purposes of sentencing or for the purpose of making my sentencing remarks properly understandable, I need give any more detail, but I will annexe the prosecution summary to these reasons for sentence, so that the full detail of that offending, as well as the other offending, is available as part of the record.

29And so it is, that each of you come to be dealt with for one charge of attempted carjacking and one of carjacking, one of car theft (relating to the Holden Senator which was used to ram the police car and was then abandoned in Glenferrie Road), two charges of handling stolen goods relating to goods found in the abandoned Holden Senator, and two charges of dealing with property suspected of being the proceeds of crime relating to goods found in your bags after you crashed the Corolla carjacked from Ms Zhou and Mr Xu in Glenferrie Road. 

30In addition you, Mr Beattie, come to be dealt with for three charges of theft, one further charge of handling stolen goods, four charges of burglary, one charge of aggravated burglary, one charge of aggravated intentional exposure of emergency worker to risk by driving, one charge of damaging emergency services vehicle, one charge of common assault and one charge of damaging property, and the related summary offences: four of unlicensed driving, one of failing to stop a vehicle on request, one of committing an indictable offence whilst on bail, and one of failing a drug test within three hours of driving.

31And you, Mr Hogan, also come to be dealt with for two additional charges of theft, one additional charge of handling stolen goods, one charge of burglary, one charge of possess drug of dependence and one related summary offence of unlicensed driving.

32The maximum penalties for these offences are one measure of their seriousness, although in this case, the more serious offences, on their objective circumstances, do not carry the highest maximum penalties. The equivalence of penalty for carjacking and handling stolen goods, and for theft, burglary, damaging property and attempted carjacking do not reflect, in this case, the relative gravity of these different offences.

33Ranked, then, in terms of highest to lowest maximum sentences prescribed by Parliament, and not as a reflection of the most serious offences before me or those which will necessarily carry the highest sentences, the penalties are these:

a)25 years in respect of aggravated burglary;  

b)20 years in respect of aggravated intentional exposure of an emergency worker to risk by driving;

c)15 years in respect of carjacking and handling stolen goods;  

d)10 years in respect of theft, burglary, attempted carjacking and damaging property;

e)five years in respect of damaging an emergency services vehicle and common assault;

f)two years in respect of dealing with property suspected of being the proceeds of crime;

g)60 penalty units or six months' imprisonment or both for a first offence of fail to stop on request or 120 penalty units or 12 months' imprisonment or both for a subsequent offence;

h)30 penalty units or three months' imprisonment in respect of committing an indictable offence whilst on bail; and

i)in respect of possession of a drug of dependence, one year imprisonment or 30 penalty units or both, if the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking or, in any other case, five years imprisonment or 400 penalty units or both.

34A term of imprisonment is mandatory in respect of carjacking and aggravated intentional exposure of an emergency worker to risk by driving, they being a category 2 offence, pursuant to s 5(2H) of the Sentencing Act 1991 (Vic), unless any of the criteria under s 5(2H)(a) to (e) apply.

35And, on the charges of aggravated intentional exposure of emergency worker to risk by driving and damaging an emergency services vehicle, the presumption of concurrency is displaced by reason of s 16(1A) of the Sentencing Act 1991 (Vic).

36Although the offence of aggravated burglary carries the largest maximum penalty, the charges of  aggravated intentional exposure of emergency worker to risk by driving, carjacking and attempted carjacking, and damaging the two vehicles you ran into, the police vehicle in Liddiard Street, Hawthorn and the car driven by Tan Nguyen which you hit in Dandenong Road, are, in my view, the most serious offences.

37They are all, in my view, bad examples of their type, because of the conduct itself and the context in which they occurred. Mr Beattie, you engaged in a protracted period of dangerous driving to avoid apprehension in a stolen car, containing stolen property and drugs, and whilst you were substance impaired and unlicensed.

38You, Mr Beattie, by your driving, imperilled not only the occupants of the cars that you hit, but other road users.  Twice, pursuits were called off because of the danger likely to be posed to the public, given the manner in which you drove away from police.  You showed a complete disregard for the safety of others, driving at speed on the wrong side of the road, through a red light, from the intersection of Middleborough Road and Canterbury Road to Liddiard Street, a distance of about 11 kilometres, on deflated front tyres and in cars unfamiliar to you. 

39In the course of the plea, Mr Desmond cavilled with the use of the verb 'ram' to describe the manner in which you hit both the police car and Tan Nguyen's car.  In my view, that description in both cases is warranted.  That you may have, on each occasion, been trying to force your way through a gap too small for your car does not mean that you did not ram the cars in order to do so.  You sped up towards the police car in Liddiard Street as it pulled up in front of you, and you deliberately drove at the rear of Tan Nguyen's car in Dandenong Road whilst it was stopped at the lights.  Even after you rolled the Corolla, as a result of the force with which you struck Tan Nguyen's car, and police were trying to remove you from the upturned car, you were intent on escape, not on the welfare of others impacted by your driving.  No setback and none of the requests to stop or pull over made you reconsider what you were doing or think about the safety of others.  You caused considerable damage to the Holden and the Corolla.  That you were unlicensed at the time adds to the seriousness of this driving and demonstrates a disregard for the road rules which operate to keep all of us safe.  The same applies to being substance impaired.

40The conduct of both of you in confronting Mr Anastasios, Yi Zhou and Yue Xu, so you could make or try to make your escape in one of their cars once the Holden had outlived its usefulness to you, demonstrated a complete disregard for the personal safety and rights of others.  The failure to be able to drive Mr Anastasios' car away did not deter you or make you pause for thought.  You pulled all three occupants out of their cars.  You treated them roughly when they became entangled by their seatbelts or were caught up in the steering wheel.  However frenzied this may sound, each of you had the presence of mind to take with you the bags containing Mr Hogan's drugs and a fair proportion of the stolen property you were transporting in the Holden.

41No victim impact statements have been filed in respect of these offences, but it is clear that it would have been a terrifying ordeal for Mr Anastasios, Ms Zhou and Mr Xu, Tan Nguyen, and Leading Senior Constable Gribble and Senior Constable Shakes when the vehicle was rammed in Liddiard Street. 

42You are extremely fortunate that no one was injured as a result of your conduct. However, it can safely be assumed that you undermined the sense of personal safety and trust that Mr Anastasios, Ms Zhou and Mr Xu had had.  You evidenced no concern for their welfare or to the damage caused to their vehicles.  That the carjacking offences were opportunistic does not diminish their seriousness or the impact on the victims.  And although police work carries with it a certain assumption of risk, so far as your driving is concerned, Mr Beattie, Leading Senior Constable Gribble and Senior Constable Shakes were entitled not to be deliberately exposed to the kind of danger that you posed to them by ramming their car while they were simply doing their job.

43Although, in the scale of things, the thefts, burglaries and associated possession of stolen property offences are less serious and, but for their connection with the more serious charges, would have been dealt with in the Magistrates' Court, they are not trifling examples of their type.  They too deserve denunciation and the sentences too must reflect deterrence.  People are entitled to expect their homes will not be broken into, that their possessions will not be picked over, and anything that takes the burglar's fancy will not be stolen, used, traded, trashed or abandoned. 

44A victim impact statement was filed by Mr Black, whose home you, Mr Hogan, broke into and stole personal items and the Holden Senator from, and whose car you, Mr Beattie, wrecked.  He describes the break-in as having had a prolonged effect on him and his family, including his young son, who until recently had been suffering recurrent nightmares of a home invasion.  He reports that he and his wife are considering selling the property because they no longer feel safe there.  Mr Black wrongly feels as though he has let his family down because he was not present to prevent the robbery from happening.  He has lost the use of one of his vehicles, which was restored only three weeks prior to the theft, and has put considerable time and expense into itemising what was stolen, dealing with insurance companies and re-securing his property.

45Another victim of theft, Mr Hosegood also filed a victim impact statement.  He reports a lasting impact on him of the theft of his belongings, which were recovered in Mr Black's car, and which relate to one of the handling stolen goods charges (Charge 23).  

46You both have considerable criminal histories.  Mr Beattie, you were only 21 at the time of these offences; you are now 22.  Mr Hogan, you were 26 at the time and are now 27.  Each of your criminal histories commenced with Children's Court appearances.  Apart from an appeal against a Children's Court sentence brought by you, Mr Beattie, for each of you, it is your first time before this court and the first time being dealt with for offences which cannot be dealt with summarily.

47Mr Beattie, between March 2015 and May 2018, you have been dealt with by the Children's Court three times (the last occasion for resentencing, following breach of a Youth Supervision Order imposed for earlier offending) and the Magistrates' Court three times.  The offences for which you were sentenced included multiple burglaries, thefts (including car thefts) and other dishonesty offences, and a range of driving offences, as well as minor drug and weapons offences.  The driving offences included three separate charges of dangerous driving while being pursued, one of failing a drug test within three hours of driving and six of unlicensed driving.  You were sentenced variously to a bond, youth supervision with a drug and alcohol treatment condition, (which you breached), Youth Justice detention, fines and a community correction order with drug and alcohol treatment conditions.  The community correction order expired two months before this episode of offending.

48Mr Hogan, you were dealt with by the Children's Court on four separate occasions in a 12-month period between May 2010 and May 2011.  The offences for which you were sentenced included a number of separate charges of affray and assault-type offences, including making threats of harm, some dishonesty offences including car theft, minor drug and weapons offences and one charge of unlicensed driving.  You have been variously sentenced to youth supervision, youth detention, for which further youth supervision was imposed on appeal, probation and youth attendance.

49There is then a five-year gap before you were dealt with, on two separate occasions only three months apart, in February and May 2017, in the Magistrates' Court.  On the first occasion, on a charge of robbery, you received a community correction order, which included drug and alcohol treatment and judicial monitoring, fines for possess methamphetamine and two charges of dealing in the proceeds of crime.

50The community correction order was ineffectual, as you were dealt with only three months later for a disturbingly broad range of offences involving violence, dishonesty, property damage, drugs, weapons, custody, breach of court orders and driving.  The offences of violence included robberies, recklessly cause injury, assault and resist emergency worker on duty.  The property offences were intentionally destroying and damaging property.  There were also two charges of car theft and serious driving offences including reckless conduct endangering serious injury and failing to stop on police direction, as well as unlicensed driving and driving whilst disqualified.  There are charges of breaching bail and one of conduct prejudicial to the good order of a gaol.  There are also a number of Road Safety Act regulatory charges, including failure to display ‘P plates’, fraudulent use of RSA authority and driving unregistered and non-compliant vehicles.  You were also dealt with for breach of the community correction order and resentenced for robbery.  In total, you were sentenced to a total effective sentence of six months, over half of which you had already served.

51Your criminal record says in respect of one recent sentencing disposition that you were an Aboriginal offender and recommendations were made for your safety in custody.  Enquiries were made by me of the prosecution and the defence, as I was preparing my reasons of sentence, and I was told that you do not identify as Aboriginal and that the entry to that effect on your criminal record is an error.

52Each of you demonstrates a widespread and persistent disregard for the law, and an unresponsiveness to the range of rehabilitative dispositions which have been made available to you.

53It follows from all this that, subject to considerations personal to you, denunciation, deterrence both general and specific, just punishment, and protection of the community must be given significant weight in the sentencing mix.

54When considering the appropriate sentences, the sheer number of charges, and their interconnectedness means considerations of totality and parsimony, or the avoidance of a crushing sentence, clearly bear on the individual sentences and the total effective sentence to be imposed.

55Each of you pleaded guilty and did so at an early stage.  You are entitled to have your early pleas of guilty given weight for their utilitarian benefit.  You have avoided what could have been a lengthy and costly trial or series of trials, highly likely, if not inevitably, resulting in convictions.  You have saved considerable public cost and spared the victims and witnesses the ordeal (measured in time, emotional toll and cost) of giving evidence.  You have advanced the interests of justice in not putting the Crown to proof and in not adding to the backlog caused by the combination of pre-COVID systemic delays and the additional delays in the criminal justice system we are experiencing as a result of COVID-19.  All that entitles you to a reduction in sentence.

56I am not satisfied your expressions of regret or remorse go further than regret for the position that each of you now find yourselves in.  You, Mr Hogan, wrote a letter of apology to Mr Xu and Ms Zhou.  In it, you repeated what you said to the psychologist Mr Cunningham, who assessed you for the purposes of the plea.  You said that, when under the influence of drugs, you are a different person from the person you are in ordinary life and the person you were as you wrote the letter.  I will detail later your sorry history of continued drug use, even when in prison.  I do not consider that you have shown, by your behaviour since your remand, that your remorse has gone any further than an expression of regret.  You have not demonstrated a preparedness or a sustained preparedness to give up illicit drugs, even in that controlled environment in prison.  Having said that, absence of remorse is not an aggravating feature.  It simply means remorse does not weigh heavily in your favour when assessing for either of you your prospects for rehabilitation.

57I accept, and give weight to the impact of COVID-19 on both of you in custody.  Although the prison authorities are rightly to be commended for their success in preventing COVID-19 from spreading into the prison population, I accept it is an ever-present fear in prisons that it will come in and that each of you might be affected.  I accept you are unable to make your own choices about how to manage your own risk because you are in custody.  And I accept that, despite the extraordinary efforts by Corrections and service providers to provide substitutes for face-to-face visits from friends and family, for access to education and rehabilitative programs and for exercise time and mingling  time outside cells, none of what is offered is the same or as good and comprehensive as the conditions that prisoners could experience pre-COVID-19.  I accept that there are, and are likely to continue to be, restrictions on freedom of movement, time out of cells, human contact and access to programs and services for the foreseeable future.

58Each of you also relied on principles of sentencing relating to young offenders.  Whilst recognising that chronological age is to some extent an arbitrary measure of maturity, you are far from immature, impressionable teenage first offenders.

59At  under 25 at the time of the offending, you, Mr Beattie, are still of an age when, according to the authoritative analysis of international research on the development of the brain collated by the World Health Organisation, which I accept, that the adult brain has not fully developed and impulsivity can still predominate over the behaviour regulation we should be able to expect from adults.

60At 26 at the time of the offending, Mr Hogan, even if you can be described as a young adult, the descriptor, ‘adult’, needs consideration, as well as the qualifier, young.  You have passed that 25-year age threshold for full adult maturation of the brain.

61It was not put on behalf of either of you that you are childlike, unworldly, immature,  impressionable or, to use the language used in DPP v SJK and GAS, unable to appreciate the seriousness and real consequences of your offending actions.[1]

[1]DPP v SJK and GAS [2002] VSCA 131, [61].

62Nonetheless, counsel for each of you submitted that the Mills[2] principles should apply here.  It is difficult to see how the factors identified in Mills have direct application to your cases.  Neither of you is a first offender.  Both of you have squandered the previous rehabilitative opportunities offered to you in previous sentences.  Neither of you is facing imprisonment for the first time.  You are not impressionable first offenders at risk of being influenced into greater criminal activity by exposure to older, more entrenched offenders.  Neither of you has shown the emerging appreciation of the effect of your past criminality, which imprisonment would likely set back, and which might tip the balance in a borderline case to a non-custodial option.  Your criminal histories reveal persistent criminal behaviour, some of it serious.  The offending, for each of you, is properly characterised as serious and persistent.

[2]R v Mills [1998] 4 VR 235.

63In Azzopardi,[3] the court considered how the Mills principles are affected where crimes are particularly serious or persistent.

[3]Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372.

64It concluded, having reviewed the authorities generally relating to sentence of young offenders:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth.[44] But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[4]

[4]Ibid [44].

65Regardless of chronological age, the importance of trying to avoid sending offenders who have not been in custody before, or in adult custody before, to prison, of providing an offender with targeted rehabilitative treatment, of giving credit for an emerging appreciation of the effect of past criminality, and avoiding, if reasonable alternatives are available, the risk of exposure to “hardened criminals” and a criminal milieu are properly matters to take into account in sentencing you.  So, too, if imprisonment is inevitable, of imposing the minimum term necessary to satisfy the sentencing purposes, and of structuring the sentence to encourage and maximise prospects for rehabilitation.  All of these considerations apply in your cases.

66But I am not satisfied yours are cases where, by reason of youth, the importance of encouraging rehabilitation carries greater weight than deterrence, denunciation, just punishment and protection of the community.  I do not, however, consider that your prospects of rehabilitation have been all but extinguished.  Quite simply, there is a corresponding reduction in the weight to be given to rehabilitation given your histories and the circumstances of the offending.

67You, Mr Beattie, face charges in relation to the driving on the day, which Mr Hogan does not, and you have pleaded guilty to more burglary and related offences than Mr Hogan. That will inevitably result in a higher total effective sentence for you.

68On the common charges that you face, Mr Barrera submitted that Mr Hogan played a secondary role in the joint offending.  I disagree.  There is no evidence to which I have been directed which supports that assertion.  The agreed summary is to the contrary.  You, Mr Hogan and Mr Beattie, abandoned the damaged Holden together and ran to Mr Anastasios's car.  As you, Mr Hogan, got into the passenger seat of the car, Mr Beattie was pulling at Mr Anastasios to get him out of the driver's seat.  You were both yelling at him to get out at the same time.  When Mr Beattie took his place behind the wheel, but was unable to start the car, the two of you abandoned it together, and you both ran to the Zhou/Xu car.  As you, Mr Hogan, pulled Ms Zhou out of her seat, Mr Beattie was doing the same with Mr Xu.  While Ms Zhou was in the gutter, tangled in her seatbelt, you had already taken her place.  At the same time, Mr Beattie was ejecting Mr Xu and taking his place beside you, at the wheel.

69There is no evidence to suggest that you played any lesser role in the handling of the stolen goods found in the two cars, and you were the original thief of the Holden Senator, which Mr Beattie drove with you as passenger, during the pursuit and up until the time the car was abandoned on Glenferrie Road.

70There is no basis in my view for treating you differently when assessing your moral culpability or when considering the weight to be given to denunciation, general deterrence, just punishment and protection of the community.

71You, Mr Beattie, gave a positive account of your childhood.  Your parents separated when you were young and you were brought up by your mother, apart from a period of time (you estimate it to be a year; your mother said two years) when you remained with your father after he had failed to return you after a contact visit, and which precipitated, what your mother describes as bitter, hard-fought and protracted Family Court proceedings which ultimately succeeded in having you returned to her care.  You, Mr Beattie, gave a more benign description of the impact on you of that time with your father than your mother did, and you describe your childhood and upbringing as happy.  There is no history of abuse or neglect.

72You were troublesome at school, attended four primary and three secondary schools and were expelled from some of each of your primary and secondary schools for fighting and cannabis use.  You left school at 16 and demonstrated a capacity for work, often maintaining employment for sustained periods, although that has been impacted by your drug use and imprisonment.

73You have had one significant and long-term relationship, which ended in late 2018.  That was one marked by substance abuse by both you and your partner.  You have and continue to have the support of your mother.

74A childhood history of behavioural disturbance has unfortunately had added onto it, significant polysubstance abuse.  You have tried, but been unable or unwilling, to address your substance abuse in the past.  On your last release from custody, arrangements were made for you to attend Odyssey House, and your mother collected you from gaol and drove you straight to Odyssey.  Unfortunately, you only lasted five days and you report that this offending occurred during a time of high drug use, following the failed Odyssey attempt.

75Although there is a history of three attempts at self-harm over a period of just over 24 hours in late 2018, following the breakup of that significant romantic relationship, and the manifestation of some depressive symptoms, Mr Simmons, the psychologist who assessed you for the purposes of the plea, rules out any mental illness.  In his view, your current depressive symptoms are reactive to the uncertainty of your disposition. Mr Simmons also rules out any intellectual impairment.  Not surprisingly, he is of the opinion that you meet the criteria for substance use disorder.  He noted that you have never made any significant attempt to address your substance use and that you are aware that you will need to do so if you are to make any changes.

76Mr Simmons concluded that your history suggests that there are some prospects for rehabilitation, given that you have a history of being able to maintain employment and were regarded as a hard worker.  He notes that, should you not be able to address your substance use, it is likely you will continue to demonstrate poor judgment and commit further offences.

77Whilst Mr Simmons describes your pattern of offending as revolving around stealing cars and associated offences, rather than involving a more extensive pattern of behaviour, that is clearly understating the matter so far as this offending is concerned, when you look at the carjacking and attempted carjacking offences.  It also undervalues the seriousness of the offences related to the ramming of the police car and Tan Nguyen's car in your attempts to avoid arrest.  It also ignores the burglary offences related to stealing property and the considerable amount of stolen property found in your bag and in the stolen Holden, after your eventual apprehension.

78Mr Desmond submitted the aggravated intentional exposure of emergency workers to risk by driving and carjacking were relatively low examples of these admittedly serious offences.  I disagree.  I have already detailed the matters I considered made them bad examples of their type.  That no weapons were used in the carjackings, that there was no violence other than that needed to pull these innocent, defenceless and unsuspecting people out of their cars, simply means there is an absence of other features which would have made the carjacking and attempted carjacking even more serious.  Your conduct in ramming the police car as the passenger door was open, clearly in order to allow the passenger to alight and apprehend you, driving on the footpath to overtake on the inside, in that narrow street, scraping or crushing the passenger side of the police car as you did so and pushing the open door forward on and into the front quarter panel, cannot, in my view, reasonably be characterised as low end seriousness of an offence of this type.  Again, that it was not worse, or the worst example of its type, does not diminish its seriousness.

79You are fortunate, Mr Beattie, to have family support.  Touching testimonials were provided by your mother and your sister.  You have a history I have noted of holding down gainful employment and being regarded as a hard worker.  Although none of these things stopped you from committing these offences or other offences in the past, they are clearly positive factors and your supports remain available to you if you choose to avail yourself of them.

80You are not blighted by mental illness or intellectual disability. You have made efforts during your time in custody, despite the reduction in programs, to consider your drug use and its relation to this offending.  You have produced urine screen results showing clean results on 15 random samples taken between 2 September last year and 26 August this year.  This is indeed promising.

81Mr Simmons recommends that you would benefit from a referral to drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies.  I endorse those recommendations.  I urge the Corrections authorities to make available to you, both during your sentence and, if you are considered appropriate for parole, as I hope you are, on your release on parole, such programs as will assist you to address your substance abuse and to understand its impact on your poor decision-making and criminal behaviour.

82In my view, your prospects for rehabilitation are best characterised as guarded.  If you can remain substance-free during the balance of your sentence and on release, can benefit from the family support and alcohol and other drug support available to you and engage in meaningful and lawful work, you have the capacity to live a happy and offence-free life.

83You, Mr Hogan, have a criminal history that is more extensive than Mr Beattie's, and involves a wider range of criminal conduct that I have detailed, but you have relatively few prior convictions for burglary and associated offences.  Your offending falls, at least by reference to the times that you were sentenced, into two relatively discrete periods, with a considerable gap, five years, between the Children's Court matters and the adult offences.  Given your age and the time since you fell within the jurisdiction of the Children's Court, your Children's Court history carries less weight in my view than your adult offending when assessing specific deterrence and your prospects of rehabilitation.  

84You have a troubling past and recent history of committing the sort of serious driving offences relating to avoiding police pursuits for which your co-offender, Mr Beattie, is to be sentenced.  So far as you are concerned, that is relevant to assessing your preparedness to remain in the car with Mr Beattie at the wheel and to participate (as an equally responsible participant, as I have found) in the carjackings in an attempt to avoid apprehension.

85Your childhood was one where you were exposed to the violence of your drug abusing father, to his criminal and antisocial behaviour and, later, to your stepfather's violence to your mother.

86Like Mr Beattie, your parents too separated when you were young.  And like him, you too were wrongfully removed from your mother by your father. In your case, you were taken from school and held for some days before you were found and removed.  After that, it seems, the contact with your father continued but was supervised.  He also was abusive and you report a more negative effect on you than does Mr Beattie of the paternal influence on your life.  Dr Aaron Cunningham, who assessed you for the purposes of the plea, said of your childhood, '… his father was an alcoholic who engaged in recreational drug abuse.  He was subject to his father's violence and made to engage in antisocial acts for the amusement of his father's friends'.

87Your mother re-partnered when you were 10 and you report conflict with your stepfather, because of his violence towards your mother. You left home as a result of the conflict with your stepfather at the age of 18.

88You report your relationship with you mother, as a child and continuing now, as good.  She remains supportive of you and has offered you a place to live with her upon your release, which you have accepted as I understand it.  You also report good relationships with your siblings.  Your younger brother had an accident when he was two and was left with an intellectual impairment.  On all reports, you have been a protective brother to him and he is affected by his inability to see you and relate to you as he used to, since you have been in custody.

89Like Mr Beattie, you too report exhibiting behavioural problems at school and were expelled on several occasions.  You too began using drugs early, cannabis at 12, then cocaine, MDMA and amphetamines before becoming a regular amphetamine user from about the age of 19.

90You too have had periods of sustained employment, but interrupted or brought to an end by your drug use.  You demonstrate a capacity for work and, if drug-free, to maintain and sustain employment.

91You described yourself to Dr Cunningham as being a different person when you are on drugs and as being 'disgusted' by your behaviour.  The gravity of the charges you face and the considerable period that you have spent in custody, have not, until very recently it would appear, provided you with the impetus to address your drug use.  You have been detected and punished on a number of occasions for possessing and using non-prescribed buprenorphine, which you told Dr Cunningham you were using to 'escape boredom'.

92You also told him that you had never engaged in any drug rehabilitation or detox.  You have now successfully completed a five session, individual counselling program provided by Caraniche between May and July this year.  According to the Caraniche report, individual counselling is provided to offenders in need of support in relation to their AOD problems which cannot be addressed in a group setting.  The report says that individual counselling provides a treatment plan tailored to the individual needs of the participant.  I am told your last positive drug screen was on 14 July, and your most recent, in August, was negative.  It is to be hoped this is a promising sign of change that you will be able to sustain.

93Dr Cunningham reported that you did not present with any mental illness.  He assessed your personality traits and psychopathology using the MCMI-IV assessment tool.  On the personality pattern scales, there was significant elevation on Antisocial Personality Disorder.  He noted this “indicates a personality that sees itself as unfettered by the restrictions of social customs and the constraints of personal loyalties; values the image and enjoys the sense of being free; is unencumbered and unconfined by persons, places, obligations or routine and rarely constrains the expression of offensive thoughts and malevolent actions”.

94This certainly is consistent with your behaviour, not only during the police pursuit, but over the whole range of offences committed during the offending period.  But I say that bearing in mind the charges that you fall to be sentenced on, and not the additional or separate charges that Mr Beattie faces.

95Troublingly, since your remand, you have been hospitalised for stab wounds to your neck received in a brawl involving three other prisoners. On two other occasions you were seen with injuries to your face and hand, consistent with being involved in other episodes of violence.  The brawl in which you were stabbed was captured on CCTV. You and the three other prisoners involved have been charged with affray.  Those charges are still pending.  You were transferred to a management unit as a result and have remained as a management prisoner ever since.

96The effect of this is that you have been subjected to a more restrictive time in custody by reason of loss of privileges and transfer to management units, not because of COVID 19, but because of your own behaviour.  I accept though that, because of COVID-19, the restrictions in those already restricted regimes are greater and so I take into account the effect of COVID-19 in the manner that I have already referred to.

97I have referred to the hospitalisation for stab wounds.  In the course of treatment, a polyp was detected on your vocal cord.  According to the Corrections’ affidavit which was filed in response to concerns raised about your conditions and treatment in custody, you were referred to the St Vincent's Ear, Nose and Throat clinic.  Surgical removal was recommended and you were placed on the surgical waitlist.  You have indicated that you do not, at present, consent to surgery and you remain on the waitlist.

98In the COVID-19 environment, in which we are all existing, it is understandable that surgery presents an added risk of exposure to COVID-19 and, for those in custody, an unenviable balancing between the speedy removal of the polyp and unnecessary exposure to risk.  In addition, clearly the additional burden of what would be a total of 30 days of quarantine relating to prisoner transfer for the purpose of the surgery is a heavy burden, and it is understandable that you have chosen to defer that surgery until the conditions are less onerous.

99I do not have evidence of the nature of the polyp, the risk, or potential risk it poses to your health and I do not have evidence that imprisonment of itself has delayed or impeded your access to treatment. I do accept that additional time is likely to pass before you can have it removed, because of the combination of COVID-19 and the added impact of the prisoner quarantine to which I have referred.  I accept that, whilst the polyp remains and is not removed, it is likely to be more difficult for you to focus on your rehabilitation. In addition, the restrictions on accessing medical care more speedily without the burden of quarantine by reason of COVID-19 is a burden to take into account.

100It was also submitted I should reduce your sentence because you sustained injuries as a consequence of the offending behaviour.  That is, it was put you have suffered extra-curial punishment.

101In my view, you do not qualify for a reduction of sentence on that basis.  You suffered what appears to be soft tissue injury to the backs of your legs as a result of being struck to your legs with a baton and as you were trying to escape.  It would appear that the pain or temporary tenderness to the backs of your legs disappeared very shortly within days.

102I am also told that you suffered back and elbow pain, not from the arrest itself but as a result of the car rolling immediately before the arrest.  The Justice Health records indicate that you presented at various times requesting pain relief up until May this year but that the pain appears to have resolved and there is no report of residual disability or discomfort since then.  It is not suggested that you have been unable to access appropriate or adequate medical care for those injuries in custody and I do not consider that they carry any weight or operate to reduce the sentence by reason of what has been described as extra-curial punishment.

103Your prospects for rehabilitation, in my view, like those of Mr Beattie, can, at best, be regarded as guarded.  That you have a supportive family, can live on your release with your mother, continue to enjoy her support and that you have demonstrated in the past a capacity to hold down employment for sustained periods, all count in your favour. Although again, I note that did not stop your offending in the first place.  According to Dr Cunningham, you are aware of your risk factors for offending, namely substance abuse and association with negative peers.

104If you address your substance abuse and choose a peer group who hold down gainful employment, do not abuse substances or engage in criminal behaviour, and if you accept the support from your family, your prospects for rehabilitation will be enhanced.  So, too, will your prospects be improved if you engage in counselling and behavioural change programs, designed to address your anti-social attitudes and behaviours.  I urge the Corrections authorities to make targeted drug and other problem behaviour programs available to you, in custody, and to work with you towards a supervised release, on parole into the community and to continue to supervise you upon release. 

105In my view, for both you and Mr Beattie, supervised released on parole will be of more assistance to you and the community in keeping you drug and offence-free upon your release.

106In order to encourage those prospects for rehabilitation for each of you, I have structured a sentence so as to allow for a considerable gap between the head sentence and the non-parole period.  Encouraging each of you to work towards release on parole and to take advantage of supported and supervised release into the community, provides you and the community with the best opportunity to fulfil the potential that each of you clearly has and should be able to put to better use.

107Both of you have remained in custody since being charged.  All that time counts as pre-sentence detention for you, Mr Beattie, but you, Mr Hogan, have been sentenced on three separate occasions for clusters of offences all occurring before the earliest offences on this indictment.  That means that, of the time that you have spent in custody, less than half of that or 147 days are eligible to be counted as pre-sentence detention for these offences.  Despite the age of these earlier offences for which you have been dealt with since being remanded in custody, I consider it likely, having regard to totality, that I would have allowed some concurrency, if I had been sentencing for them at the same time as for these.  And so, I have made a modest reduction in the cumulation I would have otherwise ordered for the burglary and related offences to reflect that.

108Charges 15 and 19 are Category 2 offences and there is a presumption of Cumulation in respect of Charges 15 and 16.

109Having regard to the need to reflect totality, I do not consider that total cumulation in respect of charges 15 and 16 is warranted.  However, some is, having regard to the reversal of the presumption in favour of concurrency applying to the other charges.

110Having regard to the number of charges, I have structured the sentence in this way.

111In relation to the burglary and related offences, I have imposed the same sentence for each type and, rather than doing fractional amounts of cumulation for each, I have selected the first of the burglary offences, the first of the theft offences, the first of the dealing with the proceeds of crime offences and the first of the handling stolen goods offences for each of you as, in effect, a sample offence. I have made partial cumulation order in respect of them. There is unfortunately a level of artificiality with this.  It is just meaningless to be able to try and do individual orders for concurrency or cumulation between each separate charge.  It is not because the first case of each type is worse than any other; it is just simpler in terms of trying to structure the sentence.

112There are forfeiture and disposal orders sought.  They are consented to, apart from, on behalf of Mr Beattie, a Hilfiger jacket that you were wearing at the time of the commission of some of the offences.

113Although worn when committing a number of the offences, I am not satisfied that it was worn for purpose of, or to facilitate the commission of any offence.  It was not worn as an item of disguise (like a balaclava is) or, so far as I can discern, as a deliberate symbol, intended to intimidate or to show association with a particular group or philosophy (such as outlaw motorcycle gang patches).  I am told the jacket has sentimental value because your mother gave it to you.  Although, Mr Beattie, you showed scant regard for the possessions of others, many of which no doubt had sentimental as well as monetary value, I am not going to order the forfeiture of the jacket.  Maybe it will stand as a reminder to you, Mr Beattie, of the importance of valuing and respecting the property of others. By allowing you to keep it, I hope it serves as a reminder, if tempted on release to revert to your old habits of burglary and theft, that this Court returned your property and that you should repay the exercise of the discretion in your favour by respecting the property of others. By thinking that, just as your jacket means something to you, the things that you so thoughtlessly stole from others will mean something to them.

114I am ready now to proceed to sentence and because of the complexity of the sentencing exercise, I will sentence you, Mr Beattie, first and then I will sentence you, Mr Hogan, second separately.  So, for those of you who are following the indictment, it may be a little complicated but bear with me.

115Kyle Beattie, on all charges, both on the indictment and the related summary offences to which you have pleaded guilty, you are convicted.

116On Charge 1 of burglary, you are sentenced to be imprisoned for a period of nine months.

117On Charge 2 of burglary, you are sentenced to be imprisoned for a period of nine months.

118On Charge 3 of theft, you are sentenced to be imprisoned for a period of six months.

119On Charge 6 of aggravated burglary, you are sentenced to be imprisoned for a period of one year.

120On Charge 7 of burglary, nine months.

121On Charge 8 of handling stolen goods, six months.

122On Charge 9, theft of petrol, one month.

123On Charge 10, burglary, nine months.

124On Charge 11, theft, six months.

125On Charge 14, theft, that is driving a vehicle without permission, six months.

126On Charge 15, aggravated intentional exposure of an emergency worker to risk by driving, three years' imprisonment.

127On Charge 16, damaging an emergency services vehicle, one year.

128On Charge 17, common assault of Mr Anastasios, six months.

129On Charge 18, attempted carjacking, two years.

130On Charge 19, carjacking, three years.

131On Charge 20, damaging property, two years.

132On Charge 23, handling stolen goods, six months.

133And on Charge 24, handling stolen goods, six months.

134For the related summary offences, on Charge 17 of unlicensed driving, one month.

135On Charge 18 of failing to stop on request, one month.

136On Charge 20, committing an indictable offence whilst on bail, one month.

137Charge 21, unlicensed driving, one month.

138Charge 22, unlicensed driving, one month.

139Charge 24, proceeds of crime, three months.

140Charge 27, proceeds of crime, three months.

141Charge 31, unlicensed driving, one month.

142And Charge 33, fail a drug test within three hours of driving, $1,500 fine.

143I make the sentence on Charge 19, the carjacking, the base sentence.

144And I make the following cumulation orders. All cumulations are to be cumulative upon the base sentence and upon each other: Charge 1, six months; Charge 3, three months; Charge 6, one month; Charge 8, two months; Charge 14, two months; Charge 15, one year and six months; Charge 16, two months; Charge 18, one year; Charge 20, one year; Related Summary Offence 17, one month; and Related Summary Offence 24, one month.

145That makes a total effective sentence of eight years and I fix a non-parole period of six years.

146I declare that 421 days have been spent as pre-sentence detention and I direct that they be counted and reckoned as part of the sentence already served.

147Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have imposed a total effective sentence of 11 years and six months and fixed a period of nine years as the non-parole period.

148On Charges 14, 15, 18 and 19, all licences are cancelled and you are disqualified from obtaining a further licence for a period of four years.  That period of disqualification is to commence today.

149I make the forfeiture and disposal orders sought, save for the Hilfiger jacket and I declare pursuant to s 89C of the Sentencing Act that Charges 15, 18 and 19 were committed whilst under the influence of drugs.

150I think that is all the orders that should be made in respect of Mr Beattie.  Mr Martini, can you start checking those while I deal with Mr Hogan's sentence?

151Mr Hogan, on all charges, both the indictable offences and the related summary offences to which you have pleaded guilty, you are convicted.

152On Charge 4 of theft of a vehicle, you are sentenced to be imprisoned for a period of one year.

153On Charge 5 of theft of a vehicle, you are sentenced to be imprisoned for a period of one year.

154On Charge 12 of burglary, nine months' imprisonment.

155On Charge 13 of theft, six months' imprisonment.

156On Charge 14, theft of a vehicle, one year imprisonment.

157On Charge 18, attempted carjacking, two years' imprisonment.

158On Charge 19, carjacking, three years' imprisonment.

159On Charge 21, handling stolen goods, six months' imprisonment.

160On Charge 22, possess drug of dependence, one month imprisonment.

161On Charge 23, handling stolen goods, six months' imprisonment.

162On Charge 24, handling stolen goods, six months' imprisonment.

163On Related Summary Offence 13, unlicensed driving, one month's imprisonment.

164Related Summary Offence 14, deal with proceeds of crime, three months' imprisonment.

165And Related Summary Offence 18, proceeds of crime, three months' imprisonment.

166I make the sentence on Charge 19, carjacking, the base sentence and make the following partial cumulation orders. All cumulations to be served cumulatively upon the base sentence and upon each other: on Charge 4, six months cumulative; on Charge 12, six months cumulative; Charge 13, three months cumulative; Charge 18, one year cumulative; Charge 21, two months cumulative; Related Summary Offence 13, one month cumulative; Related Summary Offence 14, one month cumulative.

167That makes a total effective sentence of five years and seven months and I fix the period of three years and six months as the time to be served before being eligible for parole.

168I declare that 147 days have been served as pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served, and I declare pursuant to s 6AAA of the Sentencing Act that, but for the pleas of guilty, I would have sentenced you to a period of eight years' imprisonment with a six year non-parole period.

169On Charges 4, 5, 14, 18 and 19, all licences held by you are cancelled and you are disqualified for obtaining a further licence for a period of two years and I make the forfeiture and disposal orders sought.

- - -

ANNEXURE

IN THE COUNTY COURT OF VICTORIA    

CourtReference: CR-20-00272 & CR-20-00468

AT MELBOURNE  Indictment No:         C1912840 CRIMINAL JURISDICTION

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

KYLE BEATTIE

&

BEN HOGAN

AMENDED SUMMARY OF PROSECUTION OPENING UPON PLEA

Date of document:    2 September 2020

Filed on behalf of:  The Director of Public Prosecutions

Prepared by:
ABBEY HOGAN
Solicitor for Public Prosecutions 565 Lonsdale Street
Melbourne Vic 3000

Ms. Natalie Burnett, Barrister Solicitor’s code: 7539

Telephone :   [phone]
Direct:           [phone]
Reference:     1904307/1904317

The Offenders

1.     At the time of the offending, Ben HOGAN, was 26 years old and Kyle BEATTIE was 21 years old. Both offenders were unemployed of no fixed abode.

2.     HOGAN is now 27 years old and BEATTIE is now 22 years old. HOGAN and BEATTIE are co-offenders in relation to Charges 14, 18, 19, 23 & 24 on Indictment Number C1912840.

Circumstances of offending

2 July 2019

3.     On Tuesday the 2nd of July 2019 at approximately 5.50 a.m., Offender BEATTIE and an unknown Co-offender attended unoccupied commercial premises at 972 Mount Dandenong Tourist Road, Montrose. The offenders gained entry by smashing the lower window pane of the front glass doors. The offenders opened various cupboards and doors before Offender BEATTIE attempted to jemmy open the shutter door of the cigarette case at the rear of the counter however he was unable to force the case open. In the process, Offender BEATTIE injured himself leaving a small quantity of blood on the shutter door (Charge 1- Burglary- BEATTIE). After a few minutes the offenders left the store.

4.     CCTV footage at the premises captured the offending. Both offenders partially covered their faces to conceal their identities. No items were stolen during the burglary.

5.     A blood swab from the cigarette case was later analysed and matched to Offender BEATTIE.

4 July 2019

6.     On Thursday the 4th of July 2019 at approximately 2.21 p.m., Offender BEATTIE and an unknown Co-offender attended victim Tony XU's residence at 105 Coleman Parade, Glen Waverley.

7.     The offenders attended the address in a brown coloured Holden Commodore sedan, registration ZMK641. The offenders got out of the vehicle and walked around to the front of the property.

8.     Offender BEATTIE returned to the vehicle and drove out of the driveway. He was not licensed to drive a vehicle (Related Summary Offence- Charge 21- Unlicensed driving- BEATTIE).

9.     Approximately one minute later, Offender BEATTIE returned to the property on foot and walked towards the front door. The offenders used a wooden bench at the front door to climb over the balcony on to level one of the premises. The offenders forced open the glass doors to the master bedroom, gaining entry to the premises (Charge 2- Burglary- BEATTIE).

10.  The offenders searched the house stealing various items including three wrist watches, Chinese currency and jewellery. At approximately 2.46 p.m. the offenders exit the premises via the garage carrying the stolen items (Charge 3- Theft- BEATTIE).

11.  The offending was captured on CCTV footage at the premises. The value of the stolen property is approximately $4,500.

Between 4 and 5 July 2019

12.  Between the 4th and the 5th of July 2019, two unknown offenders committed a burglary on victim Peter SHANNON’s residence in Harkaway while he was asleep.

13.  The offenders gained access to the garage via an unlocked door and stole two vehicles: a white Land Rover wagon, registration AMD234, and a black Jaguar XK Tourer sedan, registration BAD804. The offenders accessed the vehicles which were both unlocked with the keys inside before manually opening the garage door.

14.  SHANNON was alerted to the burglary after reviewing CCTV footage at his premises when he awoke in the morning.

5 July 2019

15.  At approximately 1.42 p.m. on the 5th of July 2019, stolen vehicle BAD804 was recovered by police on Mount Dandenong Road, Kilsyth. At the time of recovery, the vehicle was bearing false registration plates, ASU834, which were stuck to the back of the original registration plates, BAD804. The vehicle was towed by police for examination.

16.  Four latent fingerprints being three right index prints and one right ring print were located on the front of registration plate, BAD804. These were matched to Offender HOGAN (Charge 4- Theft of motor vehicle- HOGAN).

17.  On Thursday the 18th of July, 2019 stolen vehicle AMD234 was recovered by police on the Western Ring Road, Broadmeadows. The vehicle was towed by police for examination.

18.  Latent fingerprints were lifted from the vehicle and the following fingerprints were matched to Offender HOGAN: left middle finger from front passenger on window trim top and right palm on the bonnet (Charge 5- Theft of motor vehicle- HOGAN).

19.  The Land Rover wagon and the black Jaguar XK Tourer sedan were valued at

$100,000 each.

20.  Charge 4 and Charge 5 are on the basis of Offender HOGAN using the motor vehicles without the consent of the owners.

8 July 2019

21.  On Monday the 8th of July 2019 at approximately 1.16 a.m., Offender BEATTIE and Co-offender Chance TAYLOR attended victim Phillip WHITE's residence at 5 Burleigh Drive, Templestowe. BEATTIE walked up the driveway and motioned to Co- offender TAYLOR. The offenders then forced open the electric garage roller door. Offender BEATTIE entered the garage and removed a water pressure cleaner which he used to wedge open the garage door. Both offenders dismantled a sensor light attached to the garage. Offender BEATTIE then returned to the garage while Co- offender TAYLOR waited outside. Approximately 30 seconds later, Offender BEATTIE exits the garage and both offenders left the residence (Charge 6- Aggravated Burglary- BEATTIE).

22.  At approximately 1.30 a.m., WHITE was asleep in bed when he was awoken by a motion sensor alarm activated in his garage. WHITE walked downstairs to his garage and noticed the interior light on in his partner's blue Holden Commodore sedan, registration ABU604. Upon closer inspection, he observed that the front driver’s door was slightly ajar. WHITE discovered his garage door resting on the water pressure cleaner and two damaged sensor lights which were cut and pulled off the roof.

23.  CCTV footage at the residence captured the offender’s faces and Offender BEATTIE’s distinctive tattoo on his left hand. No items were stolen during the Aggravated Burglary.

10 July 2019

24.  On Wednesday the 10th of July 2019 at approximately 4.12 p.m., Offender BEATTIE and an unknown Co-offender slowly drove a white Land Rover Sport 4WD, bearing registration 1KM5WD, past the driveway of victim Nicholas BOOTH's home address at 25 Beaulieu Avenue, Lilydale. Offender BEATTIE parked the vehicle in the second driveway located off Sonia Close and walked to the front door of victim BOOTH's premises before ringing the doorbell. He then returned to the vehicle, reversing it out of the driveway and on to the lawn between the driveway and BOOTH's double garage brick shed. He was not licensed to drive a vehicle at the time (Related Summary Offence- Charge 22- Unlicensed driving- BEATTIE).

25.  The offenders exited the vehicle and opened the side gate next to the garage before walking around the side of the property and forcing entry via a door to the shed and garage area. The offenders rummaged through the garage area and a silver Prado 4WD vehicle (Charge 7- Burglary- BEATTIE).

26.  The victim’s son, Bailey BOOTH, returned home whilst the offenders were inside the property. BOOTH observed the Land Rover Sport 4WD parked on the nature strip

and heard the shed door close. BOOTH called out and observed the front double roller door open and the offenders running out to the Range Rover. The offenders jumped into the vehicle and drove away.

27.  The offenders were captured on CCTV footage at the premises. BOOTH filmed the offenders leaving the property on his phone as well as having dash cam footage of the incident in his vehicle. No items were stolen during the Burglary.

19 July 2019

28.  On Friday the 19th of July 2019 at approximately 7.00 p.m., the victim Lyle KARAM parked his vehicle, a gold Mitsubishi Lancer sedan registration 1KT11R, on the street outside 2/11 June Crescent, Templestowe. Between 7 p.m. and 11 a.m. on Saturday the 20th of July 2019, unknown offenders stole the registration plates from KARAM’s vehicle.

21 July 2019

29.  On Sunday the 21st of July 2019 at approximately 11.18 p.m., Offender BEATTIE drove to the 7-11 service station at 335 Dorset Road, Croydon in a black Holden Commodore utility, bearing stolen registration plates 1KT1lR (Charge 8- Handling stolen goods- BEATTIE). He was not licensed to drive a vehicle (Related Summary Offence- Charge 31- Unlicensed driving- BEATTIE).

30.  He parked at a petrol bowser and filled the vehicle with approximately $62 worth of fuel before driving off without making any attempt to pay. The offending was captured on the 7-11 CCTV footage along with the tattoo on his left on his left hand (Charge 9- Theft- BEATTIE).

22 July 2019

31.  On Monday the 22nd of July 2019 at approximately 1.20 a.m. Offender BEATTIE and Co-offender Chance TAYLOR attended X3E sports at 4/1271 Ferntree Gully Road, Scoresby. They attended in separate vehicles with Offender BEATTIE in the same Black Holden Commodore utility as the day earlier. The offenders gained access to the premises by forcing open the front door (Charge 10- Burglary- BEATTIE). Once inside the offenders stole various items including car accessories. (Charge 11- Theft- BEATTIE)

32.  CCTV footage at the premises captured the offending and Offender BEATTIE in the same red Hilfiger jacket, blue ripped jeans and white runners worn during the offending in Charge 7.

1 August 2019

33.  On Thursday the 1st of August, 2019 at approximately 2.30 p.m., Offender HOGAN and an unknown Co-offender attended at victim Adam BLACK’s residence at 23 Aileen Avenue, Montrose, in a black station wagon of unknown registration. CCTV footage at 22 Aileen Avenue captured the offending.

34.  The Co-offender reversed the black station wagon into the driveway of BLACK's residence and remained in the vehicle while Offender HOGAN approached the front door. Offender HOGAN returned to the vehicle and the Co-offender parked the vehicle on the nature strip outside the residence. The Co-offender forced open a key safe on the side of the garage which contained keys to the premises and keys to a vehicle parked in the garage. The offenders then entered the house using the keys (Charge 12- Burglary- HOGAN).

35.  The offenders ransacked a number of rooms stealing numerous items including jewellery, electronic items, keys and tools valued at $36,000 (Charge 13- Theft- HOGAN).

36.  The offenders stole BLACK’s vehicle, a Maroon 1998 Holden Senator sedan, registration 1PQ1KY. The Holden Senator sedan was valued at $3,000 and was fitted with an in-built tracking system known as TrackSolid (Charge 14- Theft- HOGAN).

37.  At approximately 3.02 p.m., CCTV footage captured the Co-offender driving stolen vehicle 1PQ1KY out of the garage. Offender HOGAN got out of the passenger seat and drove away in the black station wagon followed by the Co- offender in stolen vehicle 1PQ1KY. Offender HOGAN was wearing a black jumper with a white motif on the front, white t-shirt, black pants and white shoes. Offender HOGAN was not licensed to drive a vehicle (Related Summary Offence- Charge 13- Unlicensed driving- HOGAN).

38.  At approximately 4.25 p.m., Offender HOGAN and Co-offender Kyle BEATTIE attended the BP service station located at 382 Canterbury Road, Ringwood, in stolen vehicle 1PQ1KY (Charge 14- Theft- BEATTIE). Charge 14 is on the basis of Offender BEATTIE using the motor vehicle without the consent of the owners.

39.  CCTV footage captured Offender HOGAN exiting the front passenger side of the vehicle and Co-offender BEATTIE filling the vehicle with fuel. Offender HOGAN paid for the fuel and food items before returning to the vehicle which was driven away by Co-offender BEATTIE.

40.  Offender HOGAN was captured in the same clothing worn during the offending in Charge 12, Charge 13 and Charge 14. He was also wearing a pair of orange and black gloves clipped to the top of his pants.

41.  At approximately 4.50 p.m., BLACK was alerted to the burglary after his wife arrived home to find the garage door open and his vehicle missing. BLACK logged into the Tracksolid application on his mobile phone which displayed the location of the tracking system in his vehicle. The system showed the vehicle to be stationary at 267 Windermere Drive, Ferntree Gully. The location was unfamiliar to BLACK and he contacted '000' to report the burglary.

42.  At approximately 5.30 p.m., police were patrolling the vicinity of Windermere Drive, Ferntree Gully when they observed stolen vehicle 1PQ1KY exiting the driveway of number 267 at a fast rate of speed. Offender BEATTIE was not licensed to drive a vehicle (Related Summary Offence- Charge 17- Unlicensed driving- BEATTIE).

43.  Officers followed the vehicle and observed it travelling onto the wrong side of the road to overtake a vehicle and turning left into Ferntree Gully Road. Officers terminated the pursuit due to the risk to public safety and last observed the vehicle turning right at speed into Scoresby Road.

44.  At approximately 5.45 p.m., police contacted BLACK and obtained the location of the vehicle in Ellen Street, Springvale from his tracking system. At approximately 6.13 p.m., police were patrolling the area and observed the vehicle in the vicinity of number 276 Springvale Road. Officers observed the vehicle travelling into Balmoral Avenue and turning into Regent Avenue before they lost sight of it. Acting Sergeant WINDER obtained a link from BLACK to access the vehicle’s live tracking data and relayed this information over the police radio.

45.  Acting Sergeant WINDER observed the vehicle travelling along Heatherton Road, Noble Park and through a red turning arrow on Heatherton Link Road on to the Princes Highway. Acting Sergeant WINDER pulled over and observed the vehicle travelling on Ferntree Gully Road, Glen Waverley.

46.  At approximately 7.00 p.m., police were patrolling Dorset Road, Bayswater and followed the vehicle to Blackburn South. At approximately 7.32 p.m., a tyre deflation device was deployed at the intersection of Canterbury Road and Middleborough Road, Blackburn South and both front tyres of the vehicle were deflated.

47.  The vehicle continued travelling along Canterbury Road with police following at a distance. At approximately 7.43 p.m., the vehicle travelled into Liddiard Street Hawthorn. Senior Constable SHAKES accelerated passed the vehicle which started to slow down. At the same time Leading Senior Constable GRIBBLE opened the front passenger door of the police vehicle and was about to get out when the vehicle accelerated heavily and collided with the rear passenger side corner of the police vehicle. The vehicle then mounted the gutter and travelled along the footpath while continuing to collide with the passenger side of the police vehicle (Charge 15- Aggravated offence of Intentionally exposing an emergency worker to risk by driving- BEATTIE).

48.  The force of the impact caused the passenger door to bend forward and crushed the front passenger panel of the police vehicle. As a result the police vehicle was inoperable (Charge 16- Damaging an Emergency Service Vehicle- BEATTIE). CCTV footage from 3 Liddiard Street Hawthorn captured the vehicle colliding with the police vehicle containing Leading Senior Constable GRIBBLE and Senior Constable SHAKES.

49.  After the collision, the vehicle continued along Glenferrie Road Hawthorn and Sergeant Paul EGAN initiated a pursuit. The vehicle travelled onto the wrong side of the side on two occasions to overtake slower moving vehicles and through an intersection against a red light at Wakefield Street. The pursuit was terminated as the vehicle approached the Monash Freeway.

50.  Approximately two minutes after the pursuit was terminated, the vehicle stopped in the middle of Glenferrie Road Hawthorn outside number 114. Offender HOGAN exited the front passenger seat and approached the front passenger side of victim Andrew ANASTASIOS’ vehicle, a BMW Xl wagon AKD408, which was parked in the street. Offender HOGAN sat in the front passenger seat and yelled at ANASTASIOS, "Get out of the car, get out of the fucking car".

51.  Co-offender BEATTIE then approached the driver's side door of the vehicle. He opened the driver's door and grabbed ANASTASIOS by the shirt, trying to pull him out of the vehicle. Both offenders yelled at ANASTASIOS to get out of the vehicle, but he was unable to move as his leg was caught on the steering wheel. ANASTASIOS told Co-offender BEATTIE that he could have the car and he would get out before Co-offender BEATTIE let go of him. As ANASTASIOS got out of the vehicle, Co-offender BEATTIE pushed him out of the way and sat in the driver's seat (Charge 17- Common assault- BEATTIE).

52.  Co-offender BEATTIE was unable to start the vehicle as ANASTASIOS was in possession of the car key. Both offenders exited the vehicle and ran south along Glenferrie Road (Charge 18- Attempt to commit an indictable offence-

Carjacking- BEATTIE & HOGAN). The Attempted Carjacking was captured on CCTV from the Malvern Authorised Newsagency at 114 Glenferrie Road, Hawthorn.

53.  ANASTASIOS was very shaken up but suffered no physical injuries.

54.  Co-offender BEATTIE committed the indictable offence of Attempted Carjacking whilst on bail. (Related Summary Charge 20 – Commit Indictable Offence Whilst On Bail- BEATTIE).

55.  The offenders then approached victim Yi ZHOU’s vehicle, a silver Toyota Corolla sedan, registration 1NJ9LO, which was parked approximately four vehicles in front of ANASTASIOS' vehicle. ZHOU and her husband, victim Yue XU, were about to leave in the vehicle after finishing dinner at a restaurant.

56.  Offender HOGAN opened the front passenger door of the vehicle 1NJ9LO, yelled at ZHOU to get out and tried to pull her out of the vehicle. ZHOU held on to the inside of the vehicle to try to prevent him from pulling her out.

57.  At the same time, Co-offender BEATTIE opened the driver's side door and grabbed XU around the neck with one hand and undid XU's seat belt with his other hand. Co- offender BEATTIE pulled XU out of the car and threw him onto the road before sitting in driver’s seat.

58.  XU heard his wife ZHOU yelling for help and went around to the passenger side of the vehicle to help her. XU observed Offender HOGAN sitting in the front passenger seat and his wife on the ground in between the gutter and the vehicle. ZHOU was caught in the seat belt and unable to move. Once ZHOU freed herself from the seat belt, Offender HOGAN closed the passenger door and Co-offender BEATTIE drove away in the vehicle (Charge 19- Carjacking- BEATTIE & HOGAN).

59.  Part of the incident was captured by witness Janine ROUSE who was filming the incident on her phone across the street. The Toyota Corolla sedan was valued at

$27,000.

60.  ZHOU and XU were very shaken and terrified.

61.  Police were patrolling Glenferrie Road, Hawthorn when they observed Co-offender BEATTIE driving away in ZHOU’s vehicle. Police followed the vehicle and observed it turning onto Dandenong Road. Co-offender BEATTIE stopped the vehicle at a red light at the intersection of Dandenong Road and Hawthorn Road, Caulfield North before attempting to drive between a gap of stationary vehicles also stopped at the intersection (Related Summary Offence- Charge 18- Fail to Stop Vehicle on Request- BEATTIE).

62.  Co-offender BEATTIE drove forward, colliding with the rear of victim Tan NGUYEN's vehicle, a black BMW Xl wagon registration VAE101. The impact of the collision caused the front wheels of the vehicle to lift off the ground, flipping the vehicle onto its roof (Charge 20- Damaging property- BEATTIE).

63.  Sergeant CHURCH and Senior Constable HAMALAINEN approached the front passenger side and attempted to remove Offender HOGAN from the vehicle. Sergeant CHURCH struck the Offender’s legs with his baton a number of times as he was attempting to crawl towards the driver’s side. He was removed from the vehicle and placed under arrest.

64.  At the same time, Leading Senior Constable KNIGHT and Senior Constable RATTRAY approached the driver's side door. Leading Senior Constable KNIGHT attempted to grab hold of Co-offender BEATTIE when he kicked out, striking Leading Senior Constable KNIGHT to his left knee. Senior Constable RATTRAY deployed OC spray and removed from Co-offender BEATTIE from the vehicle, placing him under arrest.

65.  During Offender HOGAN’s arrest, police located a black Nike branded shoulder bag containing the following items:

-Black Tommy Hilfiger wallet, Victorian Driver licence and Medicare card in the name of Jordan FREEMAN (Charge 21- Handling stolen goods- HOGAN).

-Two zip lock bags containing methylamphetamine (Charge 22- Possession of a drug of dependence- HOGAN).

-Visa gift card, Bunnings gift card, Vietnamese currency, 2 gold rings, silver token,

$1020.20 in cash, Tag Heuer watch, pocket watch, gold chain, gold watch and a gold necklace (Related Summary Offence- Charge 14- Deal with property suspected of being the proceeds of crime- HOGAN).

66.  During Co-offender BEATTIE’S arrest, police located a black Long Champ branded cross body bag containing the following items: Audi car key, portable charger, packet of cigarettes, gold coloured necklace, $940.35 in cash, nine foreign currency coins, purple coin purse and a pink Collette coin purse (Related Summary Offence- Charge 24- Deal with property suspected of being the proceeds of crime- BEATTIE).

67.  The offenders were transported to the Alfred Hospital under police guard for assessment due to their involvement in the collision.

68.  A blood sample taken from Co-offender BEATTIE was later analysed and found to contain methylampetamine (~0.27mg/L) (Related Summary Offence- Charge 33- Drive Whilst Exceeding PCA- BEATTIE).

Arrest and Interview

69.  On the 2nd of August 2019, Offender BEATTIE was released from the Alfred Hospital and transported to the Box Hill Police Station for interview. He made no comment and was remanded in custody.

70.  On the 3rd of August 2019, Offender HOGAN was released from the Alfred Hospital and transported to the Melbourne West Police Station for interview. He made no comment and was remanded in custody.

Further investigation

71.  On the 5th August 2019, police examined the stolen Holden Senator sedan registration, 1PQ1KY. Latent fingerprints were lifted from the vehicle and the following fingerprints were matched to Offender HOGAN: right palm and right middle finger on the rear passenger window.

72.  Police also located the following property in vehicle 1PQ1KY:

-Black handbag, BMW key, Ausnet vest, collectors coins and gold necklace (Related Summary Offences- Charge 18 (HOGAN) & Charge 27 (BEATTIE)- Deal with property suspected of being the proceeds of crime);

-Paddington bear soft toy, Subaru car key with victim HOSEGOOD’s tag attached, sleeve containing collectors coins, Pandora charm in box, binoculars, collectors

coins and Nokia mobile phone being property belonging to Robert HOSEGOOD

(Charge 23- Handling stolen goods- BEATTIE & HOGAN);

-Michael Kors handbag and personal cards in the name of Van THANG (Charge 24- Handling stolen goods- BEATTIE & HOGAN); and

-Keys attached to Australian Institute of Management Lanyard, keys attached to Falls Creek lanyard, knuckledusters and a pair of orange and black Maxitek gloves.

73.  On the 7th of August 2019, BLACK viewed CCTV footage from the BP service station in Ringwood on the 1st of August 2019. BLACK observed that Offender HOGAN was wearing a pair of orange and black gloves which were stolen from his residence during the Burglary.

Chronology- HOGAN

Date

Event

5 August 2019

Filing Hearing

28 October 2019

Committal Mention

25 November 2019

Further Committal Mention

3 December 2019

Special Mention

19 February 2020

Committal (submissions only)- matter resolved and listed for County Court Plea

31 July 2020

County    Court    Plea    listed-    Defence   adjournment application- not opposed.

Matter joined with Co-offender BEATTIE’s County Court Plea on 4 September 2020

4 September 2020

County Court Plea

Chronology- BEATTIE

Date	Event
5 August 2019	Filing Hearing
28 October 2019	Committal Mention
25 November 2019	Further Committal Mention
17 January 2020	Further Committal Mention
18 March 2020	Further Committal Mention- matter resolved and listed for County Court Plea
4 September 2020	County Court Plea

Maximum Penalties

Aggravated Burglary	25 years imprisonment
Aggravated offence of Intentionally Exposing	20 years imprisonment

an Emergency Worker to Risk by Driving1
Carjacking				15 years imprisonment
Handling stolen goods				15 years imprisonment
Burglary				10 years imprisonment
Theft				10 years imprisonment
Attempt     to Carjacking	commit	indictable	offence-	10 years imprisonment
Damaging property				10 years maximum
Damaging an Emergency Service Vehicle2				5 years imprisonment
Common assault				5 years imprisonment
Deal with property suspected of being the proceeds of crime				2 years imprisonment
Commit Indictable Offence Whilst on Bail				30 penalty units or 3 months imprisonment
Unlicensed Driving				60 penalty units or imprisonment for not more than 6 months
Fail to Stop on Request				60 penalty units or imprisonment for 6 months or both for a first offence 120 penalty units or imprisonment for 12 months or both for a subsequent offence
Possession of a Drug of Dependence				If the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking: 1 year maximum or 30 penalty units or both; or in any other case: 5 years maximum or 400 penalty units or both
Driving Whilst Exceeding PCD				12 penalty units for a first offence, 60 penalty units for a second offence, 120 penalty units for any subsequent offence

1 Section 317AD of the Crimes Act 1958- Note: Section 16(3D) of the Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence against this section must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

2 Section 317AG of the Crimes Act 1958- Note: Section 16(3D) of the Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence against this section must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

Timing of Plea

74.  The Prosecution accepts that the pleas were entered at an early stage.

Criminal History

75.  A Criminal History for each Offender will be filed with the Court.

Mandatory Provisions – Sentencing Act 1991

76. The Aggravated offence of Intentionally Exposing an Emergency Worker to Risk by Driving (Charge 12) and Carjacking (Charge 16) are Category 2 offences under section 3(1) of the Sentencing Act 1991. In sentencing an offender for a category 2 offence, a court must make a custodial order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless any of the criteria under section 5(2H)(a)-(e) apply.

Cumulation

77. The Aggravated offence of Intentionally Exposing an Emergency Worker to Risk by Driving (Charge 12) and Damaging an Emergency Service Vehicle (Charge 13) are offences listed in section 16(1A) of the Sentencing Act 1991. As such, every term of imprisonment imposed must be served cumulatively unless otherwise directed by the Court.

Serious Motor Vehicle Offences

78.  The Aggravated offence of Intentionally Exposing an Emergency Worker to Risk by Driving (Charge 12) is serious motor vehicle offence pursuant to section 87P of

the Sentencing Act 1991. As such, a court must disqualify the offender from holding or obtaining a driver licence for a period not less than 24 months pursuant to section 89(2)(b).

Licence Disqualification

79. Under section 89(4) of the Sentencing Act 1991, if an offender is convicted of stealing or attempting to steal a motor vehicle (Carjacking), the court must make a driver licence order cancelling any licence or permit the offender holds and/or disqualifying them from obtaining one for the period of time specified by the Court.

80. Under section 89C of the Sentencing Act 1991, a court, in addition to making an order under section 89(1), (3) or (4), may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence.

Pre-Sentence Detention

81.  To be confirmed.

Victim Impact Statements

82.  To be confirmed.

Ancillary Orders

83.  Application is made for a Disposal Order.

84.  Application is made for a Forfeiture Order.

85.  Compensation Order- to be confirmed

Section 6AAA of the Sentencing Act 1991

86.  The Court is reminded of the obligations under this section.