Director of Public Prosecutions v Beecroft
[2013] VCC 1390
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00796
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH BEECROFT |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 September 2013 | |
CASE MAY BE CITED AS: | DPP v Beecroft | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1390 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Sampson | |
| For the Accused | Ms J Munster |
HER HONOUR:
1 Please do not think this gives you a ticket to go around assaulting people with bottles, all right? Ordinarily a person who faces this court charged with intentionally cause serious injury can confidently, in 99.9 per cent of all cases, can confidently expect to be gaoled. Now, as I said there are in my view quite singular and unusually features relating to your case such that I am taking this step.
2 It has been not that long, it has been about eight months since you committed this offence. I also note that you pleaded guilty at the earliest opportunity and you have expressed remorse, particularly to your current treating psychologist, and have stated to a number of the psychologists and psychiatrists you have spoken to since that you cannot understand your behaviour, because you went away, you left the situation in 2009 when you were attacked by Mr Walter after an argument at the Rushall Station feeling afraid of him. So you cannot understand why you behaved as you did.
3 I think the illicit substances that you were consuming in large quantities at the time might have had a bit to do with that. A bit of Dutch courage. But you need to be extremely careful because I am placing you on - and I can only do this with your permission - a Community Corrections Order for a period of two and a half years. If you commit any offence punishable by imprisonment in that time, whether inside or outside Victoria, you will be brought back before me on a breach and I will be asked to reconsider the appropriate sentence for these charges afresh, all right? So look, you have stayed out of trouble, your father is supportive, I think you have got good rehabilitative prospects and I think you have shown a degree of responsibility in the way you have gone about this.
4 It is very, very difficult for someone to be lumbered with the sorts of psychiatric illnesses that you suffer. There is a great deal of stigma attached to them and they also can make you extremely unhappy. I certainly note the comments of Ms Lee that the obsessive compulsive disorder in your case is quite extreme. Counting and hygiene issues, the sorts of things that are classically attached to an obsessive compulsive disorder, but you do have to manage them. You have to manage them through legal, not illegal means. Xanax is only going to make it worse. I am seeing more and more people before me in this court on usually violence related offences in some way, as a result of taking Xanax, which as I understand it is used as a sort of a downer by people who have been using speed, but it clearly, from what I am seeing, has a huge mood altering affect.
5 So you need to understand that the offending, which is right out of the league of anything you have done before, it is an enormous escalation, you have no priors for violence, lies, in my view, on two bases: 1) that you are dealing with a number of difficult psychological and psychiatric issues, and 2) that you then sought to deal with them by using alcohol and illicit drugs. And it is a deadly combination. So you need to be frightened of that combination, because that is where it led you. Were you watching the footage?
6 OFFENDER: Yeah, I watched it Your Honour.
7 HER HONOUR: How did it make you feel when you saw it?
8 OFFENDER: Yeah, a bit sick when I first watched it. And then it just doesn't really look like me.
9 HER HONOUR: No. Well that is you. That is you when you have got yourself into the state you were in. That is what can happen. I do not want to add to your anxieties, I know anxiety is another problem that you have got, you are diagnosed with major depression as well. But you need to bear that in mind in order to manage your life appropriately.
10 So I am going to outline to you the core conditions that will be contained in the Community Based Order. Whilst you are on the order, as I have said, you must not commit a further offence, whether inside or outside Victoria. 2) You must report to the community corrections office, I think it will be at Carlton, within two working days of the making of this order, that is by Friday. 3) You must report to and receive visits from the community corrections officer. 4) You may not leave Victoria without the permission of the community corrections officer. 5) You must inform the community corrections officer of any change in address or employment within 48 hours of that change.
11 I think that is it, is there anything else that I have left out? Of the core conditions?
12 MS SAMPSON: No Your Honour.
13 HER HONOUR: All right. I am going to attach the following special conditions. You are going to be under supervision. I am going to order judicial monitoring, I am going to order three monthly written reports so I can keep track of your progress and I want to see you back here in court in a year to see how you are doing. I am going to order that you undergo assessment and treatment for drug and alcohol dependency and I am going to order that you receive assessment and treatment for psychological and psychiatric issues, all right?
14 Now, it probably will be the case that the community corrections will simply keep an eye on you to ensure that you keep up with the treatment you are currently receiving and that you have arranged for yourself. You are not actually doing any formal drug or alcohol counselling, are you?
15 OFFENDER: Not at the moment. I was earlier but there is a waiting list Your Honour.
16 HER HONOUR: There may well be something from community corrections, in addition, and it may well be that because you are on this order you will be able to get into a program. There is a wait even for non residential now. It is a matter of great concern, I have to say, the lack of rehabilitative drug services. The waiting list for residential programs are horrendous and to find that we are now encountering problems of getting people on to non residential drug programs is really a disgrace. We are talking about protection of the community, those sorts of services have to be available and available promptly.
17 In any event, are you prepared to comply with and be placed on such an order?
18 OFFENDER: Yes Your Honour.
19 HER HONOUR: Thanks Mr Beecroft. So what I will do - are people happy for me simply to come in to court, to an empty court, and just read it out so that the sentencing remarks can be transcribed?
20 MS MUNSTER: I am happy to do that, I am also happy to attend Your Honour.
21 HER HONOUR: What about you Madam Prosecutor?
22 MS SAMPSON: Your Honour I seek to be present if that is - - -
23 HER HONOUR: That's absolutely fine, I just don't want to be dragging you, you know, back to court when you're busy doing other things. If I do this at two o'clock, how would that work? It's just that I'm running a trial at the moment.
24 MS MUNSTER: Yes Your Honour, two o'clock.
25 HER HONOUR: Mr Beecroft doesn't have to be present. I don't want him hanging around I have given him a good idea probably in more comprehensible form than the formal sentencing remarks usually are as to my reasons for placing him on the order and what the consequences will be of breaching the order.
26 Pursuant to s.6AAA I make it clear, had you pleaded not guilty I would have sentenced you to a term of three years imprisonment and order you serve a minimum term of 20 months. All right? So, you know, not good, hey? It could have been very, very bad for you. Gaol is not a place where someone like you, Mr Beecroft, needs or wants to be. Let me give you this to sign. So it is not the last you have seen of me, Mr Beecroft. Most people leave this court fervently hoping they will never see the judge again, but sadly you and I are meeting up in a year's time, all right? I will be wanting to know how you go, so beat that in mind. But also bear in mind that I think you have shown quite a degree of courage in the way you have dealt with a number of very dehabilitating conditions and you are clearly a person of some intelligence and a person I regard as being of good rehabilitative prospects, so I wish you well.
27 OFFENDER: Thank you Your Honour.
28 HER HONOUR: All right, thank you very much, we will stand down to 10.30.
(Short adjournment.)
29 Thank you. Now we have to pretend Mr Beecroft is in the room because of the way I have framed the sentenced. Joseph Beecroft you have pleaded guilty before me to one charge of causing serious injury intentionally and one charge of handling stolen goods. You have also admitted prior convictions.
30 The facts underlying your offending are as follows:
31 You and the victim in this matter, Richard Walter, knew each other through a friend, Lee Scott, who lived with Mr Walter in a share house for about a year from 2009. On 16 December 2012 at about 6 pm Mr Walter walked from his home along Carlisle Street, Balaclava, to the Coles supermarket. He saw you standing outside Subway in Carlisle Street. You yelled at him and he turned around and made his way instead to the Woolworths supermarket.
32 On the way you approached him from behind and tapped him on the front of his jeans pockets. Mr Walter then walked into the Woolworths supermarket with you and Scott following. At the registers the two of you approached him, you saying, "Hey pretty boy." He turned around and you then punched him to the face and continued to punch him to the face and head multiple times while he tried to shield himself. A witness tried to intervene but Scott stood in his way.
33 Mr Walter stumbled into the adjoining bottle shop where you continued to punch him, picking up a one litre bottle of Bacardi rum from the display shop and striking him to the head with it twice. The bottle smashed on the last impact at which time Mr Walter was on the ground. You and Scott then left the store.
34 Mr Walter by then had lost consciousness. Police attended and he was taken to The Alfred Hospital where he was found to have suffered the following injuries: that is two open wounds to his nose, an eight centimetre linear open wound to the right side of his scalp, and a seven centimetre linear open wound at the back of his head. The scalp wounds were stitched and a CT scan disclosed acute fracture displacement of the nasal bones. He was released from hospital the next day, 17 December 2012.
35 Ultimately Mr Walter identified you as his assailant and police executed a search warrant of your home in Orange Grove, Balaclava, on 31 January 2013 where they found a black polo shirt with security and price tags from David Jones still attached to it. In a record of interview with police that day you said a friend owed you money for beer and he had payed you back by giving you the T-Shirt, which you said you knew was stolen because it still had tags to it.
36 Your actions in assaulting Mr Walter underlie Charge 1 on the indictment, intentionally cause serious injury and your possession of the black polo shirt underlies Charge 2, possession of stolen goods.
37 I now turn to your personal circumstances. You are 33 years old and were 32 at the time of the offending. You are the second of two children born to your parents who separated when you were four, thereafter you being raised by your mother, an art teach in Tasmania. Your father, an engineer and builder, was often absent and you lost contact with him during your childhood. Neither of your parents have ever been in trouble with police.
38 You have an older 37 year old sister who is a lawyer living in Hobart and a half sister aged 40 who is a chemical scientist and academic living in Perth. Notwithstanding the highly educated and law abiding nature of your family there had been mental health issues, your father a regular sufferer of depression, and your mother suffering an obsessive compulsive disorder, both parents having received treatment of their various psychiatric conditions over the years.
39 You completed Year 12 at Hobart College and enrolled in a Bachelor of Arts at Hobart University in 1997 when you were 17, however you deferred after six months and have never returned to higher education. You left Hobart to live in Melbourne later that year, where you undertook a 12 month retail traineeship at Woolworths in Elsternwick. You then became involved in the underground graffiti scene and moved to Sydney when you were 19 after police raided your home, although you were not charged with anything at that time.
40 In Sydney you worked at the Woolworths Town Hall supermarket for several years before returning to Tasmania in 2004 to connect with your family. You went back to Melbourne in 2005, returned to Tasmania in 2006 for about 12 months working as a labourer for a catamaran manufacturer, then had a verbal disagreement with your father and returned to Sydney where you couch surfed for a time.
41 You left again to return to Melbourne, and then to Tasmania, for various periods of time, finally arriving back in Melbourne where you have lived since 2008. You lived in the Coburg area in 2009 for about two years then moved suburbs, finally settling in Balaclava, and having resided in your flat in Orange Grove since November of last year.
42 In 2009 and 2010 you undertook a 13 week painting and decorating pre-apprenticeship course at Epping TAFE and then worked for six months as a painter and decorator for a subcontractor in Box Hill. You then worked for five or six months for the Boroondarra Council as a road worker and last worked for a six month period as a builders labourer for VICON. While working there you injured your back, you had to attend for rehabilitation, although surgery has not been carried out.
43 Ultimately in 2012 you were placed on a disability support pension which you remain upon, but of significance you were placed on it not because of physical but because of psychiatric and psychological problems that had bedevilled you for a number of years.
44 It appears from an early age you developed obsessive compulsive disorder, which can be genetically transferred from parent to child, and then in about 2008 developed symptoms of depression. I was given a wealth of psychological material. It appears evident that for several years now you have dealt with your worsening symptoms by regularly abusing licit and illicit substances. It appears that following your back injury you developed some sort of dependency on Valium and other analgesics that were prescribed to you and that has led, in turn, to a dependency on Xanax, which you have used in the same sort of way, but which is available to you in an underground fashion on the street.
45 You have been a periodic binge drinker and have, on what appear to be on limited occasions, used methylamphetamine or ice.
46 The psychological reports were extremely interesting and useful. In her report dated 8 August 2013 psychological Lina Lee stated she saw you for psychological treatment for about a year between October 2011 and October 2012 for a total of 18 sessions after you were referred there by a job services agency at the time you hurt your back. You chose to continue seeing her for psychological problems. She noted that you suffered from obsessive compulsive disorder, with a long history of symptomatology which she described as permanent and which had a significant impact on your occupational and social functioning and ability to complete daily tasks.
47 After therapy failed to result in an improvement in symptoms she referred you to psychiatrist Dr Lynnette Yong. In Dr Yong's report, dated 15 July 2012, she described your family history of depression and obsessive compulsive disorder, and then referred to you suffering a post-traumatic stress disorder and mood problem. At that time in July she said that you presented, "In the context of worsening symptoms and struggling to connect with others and enjoy things in life."
48 Dr Yong believed that your OCD symptoms had been more prominent in the previous seven years, that you had to do mental counting checking and had contamination issues. Of particular significance, in my view, insofar as this case is concerned, she described you as having been involved in an assault incident in about 2009 when your ear was cut off after a man stabbed you, and that you still suffered flashbacks about the incident. That incident, in fact, was an incident where the victim in the intentionally cause injury matter was Mr Walter, who was your assailant.
49
It was both Ms Lee and Dr Yong's view that you had developed a post traumatic stress disorder as a result of the assault inflicted upon you by
Mr Walter.
50 Ms Lee noted that when she saw you, you tended to speak to her on a fairly regular basis, about the assault by Mr Walter upon you, and this is well before the actual assault occurred. In her report she stated:
"Joseph did speak to me about Richard Walter during a few of our sessions. While I did not think he was likely to commit an act of violence against him I did encourage him to speak about his preoccupation with Richard to Dr Yong...I believe this preoccupation with Richard (that is Mr Walter) was symptomatic of his OCD and the post-traumatic symptoms he experienced after Richard Walter attacked him several years ago."
51
Dr Yong was also of the view that you were suffering symptoms of a post-traumatic stress disorder resultant upon Mr Walter's attack upon you.
Dr Yong stated that you did not strike her as violent or aggressive and Ms Lee believed that you would only have behaved in a violent manner if you were under the influence of substances at the time. In fact your instructions to your counsel and indeed to psychologist Jeffrey Cummins, whose report was also tendered on the plea, were that on the day of this offending you had drunk a great deal of alcohol, you had taken a number of Xanax tablets, and two days before had smoked methylamphetamine. It would appear that initially you had very little memory of the actual event.
52 You said to Mr Cummins:
"I saw Walter. It was like all of a sudden I just thought about the fact that he'd struck me with a glass and I nearly lost my hear, and then I must have sort of lost the plot."
53
You told Mr Cummins that in fact you had no idea Mr Walter was living in the area where you lived until you saw him on that particular day. It was
Mr Cummins' view that it was of considerable significance that it was
Mr Walter who had assaulted you in December 2009 and stated:
"In my opinion it was apparent from his comments at interview he was traumatised by his assault and he had developed a post traumatic stress disorder in response to this assault."
54 I am now going to refer to your prior criminal history, which is quite limited.
55 In 1998 you were convicted for being drunk and disorderly in a Hobart street after binge drinking.
56 In 1999 you were dealt with for stealing a shirt, at which time you were 19.
57 In 2003 you were fined for shoplifting which related to theft of a shirt when you were homeless in Sydney, and which you apparently took to sell.
58 In 2005 in Hobart you were placed on an 18 month adjournment without conviction for stealing, which occurred when you were drinking in a hotel and took $50 left on the counter.
59 In May 2003, in Victoria, you were placed on an adjournment without conviction for theft and criminal damage relating to your graffiti activities.
60 In June 2008 you were placed on a six month Community-based Order on charges of threatening to inflict serious injury and unlawful assault which arose at the North Melbourne train station during an argument with a ticket inspector to whom you made a threat. You successfully completed that CBO and there has been no further offending. It is quite clear in my view that the offending that has brought you before the court on this occasion represents a gross escalation of any previous offending behaviour by you.
61 Mr Cummins and Ms Lee have given important opinions about the connection between your offending on Mr Walter and the assault that he perpetrated against you. I have already stated Ms Lee's opinion that at the time you were speaking to her about Mr Walter you had a preoccupation with him which was symptomatic of your obsessive compulsive order condition. Mr Cummins stated:
"In my opinion it is very probable there was a nexus between him being assaulted by Mr Walter on 12/12/2009 and his assault on Mr Walter on 16/12/2012. In my opinion at the time of assaulting Mr Walter he was suffering from mental illnesses including PTSD and OCD. In my opinion these conditions would have impacted on his reasoning ability although he stated in interview he had no recollection of making a decision, even a spontaneous one, to assault Mr Walter."
62 Unsurprisingly in his victim impact statement Mr Walter speaks of a continuing fear he experiences on a daily basis as a result of the attack upon him and an unsurprising diminution in his general feelings of security in his life and increased apprehension about his safety on a general basis. Whilst Mr Walter was never charged with the attack upon you it has not been denied by the prosecution that you were indeed a victim of the assault perpetrated by him. Whilst in no condoning the considerable violence you inflicted upon Mr Walter, I do regard it as significant that at the time of this offending you were experiencing post traumatic stress disorder arising directly from his attack upon you in addition to other longstanding psychiatric conditions. I accept this was a spontaneous and unpremeditated attack which, although vicious (and I have viewed the CCTV footage) was of short duration, that is about 30 seconds.
63 Your counsel informed me you have very little recollection of the event and whilst Mr Cummins notes you have had some difficulty in expressing remorse for the incident, you have expressed regret, and remain concerned about the motivation for this offending behaviour. I am satisfied, and I note the prosecution does not resile from this, that there is a clear link between your offending and a psychological condition, that is your post traumatic stress disorder arising from the attack upon you by Mr Walter as well as your obsessive compulsive disorder and anxiety and depressant issues, which have driven you to self medicate, using primarily Xanax, but also at this time alcohol and a short lived use of small amounts of methylamphetamine.
64 I am, in other words, satisfied that limb one of Verdins has direct application to your case and that the moral culpability for your offending should be substantially reduced. I regard this coming together of a series of events as being quite singular and I accept that what you have told Mr Cummins was in fact correct, that it was a spontaneous reaction to seeing Mr Walter and that in all the circumstances, for the reasons essentially that I have outlined, as I have said, your moral culpability has been substantially lessened.
65 Further, Mr Cummins and Ms Lee both believe that because of your post traumatic stress disorder, OCD and depression, time in custody would be more difficult for you than someone who does not suffer from these mental health conditions. In her report Ms Lee stated she believed imprisonment would likely lead to a deterioration in your mental health.
66
You have also attended for several months this year upon psychologist
Dr Julie Janef, undergoing cognitive behavioural therapy to reduce the symptoms of what she described as "major depression, obsessive compulsive disorder, paranoia, aggression, and his dependency on substance abuses with a view to reducing his offending in the future." She stated you were progressing well in treatment, were consistently compliant and committed, and that there had been a slight reduction in your overall psychological symptomatology, particularly your obsessive and paranoid thinking.
67 She said that you had expressed deep feelings of regret, shame and remorse for your actions in relation to Mr Walter, and it was also her opinion that you are poorly equipped to cope with a custodial sentence, because you are inexperienced, that is have never been to gaol before, and your diagnoses are untreated. Furthermore she believed these diagnoses have reduced your coping skill to below the norm in any event, which she believed would place you at a constant risk of mental decline and aggravation in a custody setting, particularly with respect to your OCD and major depressive order, stating:
"Prison is a risky environment for these conditions because the setting requires people to remain in a constant state of anxiety and hyper-vigilance."
68 It was her view your best chance of rehabilitation lay in continuing your use of existing services in the community.
69 You were supported in court by your father who also wrote a reference describing the difficulties in your upbringing, stating that he was aware of the full history leading to the assault, and knows that you are sorry and wish some conciliation could have been reached before this most recent confrontation between the two of you. Your father also commented on your continued efforts to deal with your drug abuse difficulties and to seek psychological treatment for your mental disorders. He stated that your relationship had been strengthened considerably since you sought his help and guidance in about the last three months.
70 You continue to reside at private rental in Orange Street in Balaclava. Ordinarily the sort of attack you unleashed upon Mr Walter, resulting in the charge of intentionally causing serious injury, is one where the only appropriate response by a court would be to impose a sentence of imprisonment to be immediately served. The maximum penalty for intentionally causing serious injury is 20 years imprisonment, a high maximum penalty in the range of maximum penalties available for criminal offending, and it is a most unusual situation that an offender facing such a charge is not so sentenced. However, for a number of reasons it is my view that circumstances exist in your case where this is not an appropriate penalty. I have reached this decision after much anxious consideration, notwithstanding that your counsel conducted her plea on the basis that you would ultimately be sentenced to a gaol term, and that this was a course urged upon me by the prosecution.
71 First, as I have said, I am satisfied there is a real link between your psychological and psychiatric state and the offending, which is of a singular nature, such that the moral culpability in this situation is substantially lessened. Second I am satisfied that your current psychiatric and psychological difficulties, which are of many years standing, are such that a term of imprisonment would be much more difficult for you than other prisoners. Third is my view that this offending is out of character for you. Whilst you have a prior criminal history it does not involve violence in any shape or form. Fourth, a plea of guilty was entered at the earliest stage and I am satisfied, notwithstanding your difficulties in expressing outright remorse to Mr Cummins, that you have expressed regret and remorse to others, such as your treating psychologist Dr Janef, and that you are remorseful for your behaviour and concerned about the reasons lying behind it and that there should be a discount in terms of that particular factor.
72 Fifth, I am satisfied you have good prospects of rehabilitation. I have reached this conclusion on the basis of your limited prior criminal history, the unlikelihood of circumstances combining as they did on this occasion, which led in my view directly to this offending, and the fact that you have not subsequently offended and indeed have actively sought and are continuing to undergoing treatment and assistance for your psychiatric and substance abuse difficulties. You also have the support of your father as well as stable accommodation. Sixth, in all the circumstances it is my view that your rehabilitation and ultimately the safety of the community are best served by you continuing with treatment for the significant psychiatric and substance abuse difficulties, which I regard as related, that you suffer. I am satisfied that a term of imprisonment would most likely result in a psychiatric setback and that the gains that you have made to date would all too readily be lost.
73 I am satisfied that the conditions I can impose on the Community Corrections Order are sufficient to ensure your continued rehabilitation and the general protection of the community which I must therefore have regard. In all the circumstances, therefore, I propose placing you on a Community Corrections Order for which you have been assessed and found suitable. The details of that will appear on the transcript of this morning's proceedings. Thank you very much.
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