Director of Public Prosecutions v Bextream
[2024] VCC 1065
•20 June 2024
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN BEXTREAM |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 3 June 2024 | |
DATE OF SENTENCE: | 20 June 2024 | |
CASE MAY BE CITED AS: | DPP v Bextream | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1065 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft – Obtain property by deception – Damage emergency vehicle by driving recklessly – Dangerous driving while pursued by police – Possession of a drug of dependence – Guilty plea – Koori Court – Bugmy principles
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Bail Act 1977 (Vic); Road Safety Act 1986 (Vic); Control of Weapons Act 1990 (Vic); Dangerous Goods (Explosives) Regulations 2022 (Vic); County Court Act 1958 (Vic)
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bugmy v The Queen (2013) 249 CLR 571
Sentence: Combination sentence - 10 months’ imprisonment – 12 month Community Correction Order – s 6AAA declaration – 18 months’ imprisonment with a non-parole period of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr G. Davis | Michaelson Lawyers and Associates |
HIS HONOUR:
1Stephen Bextream, you have pleaded guilty to:
(a) Two charges of theft contrary to s 74 of the Crimes Act 1958 each of which attracts a maximum penalty of 10 years’ imprisonment;
(b) One charge of obtaining property by deception contrary to s 81 of the Crimes Act which also attracts a maximum penalty of 10 years’ imprisonment;
(c) A charge of damaging an emergency vehicle by driving recklessly contrary to s 317AG of the Crimes Act 1958 which attracts a maximum penalty of 5 years’ imprisonment;
(d) A charge of dangerous driving while being pursued by police contrary to s 319AA of the Crimes Act 1958 which attracts a maximum penalty of 3 years’ imprisonment; and
(e) A charge of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 which attracts a maximum penalty of imprisonment for 1 year.
2In addition you accept that this court can sentence you in relation to a number of related summary offences to which you have also pleaded guilty. Those offences are:
(a) Four charges of committing indictable offences whilst on bail;[1] and
(b) Four charges of unlicensed driving;[2] and
(c) Three charges of driving an unregistered vehicle;[3] and
(d) One charge of failing to stop upon police direction;[4] and
(e) One charge of failing to stop after a vehicle collision involving property damage;[5] and
(f) One charge of refusing to undergo fluid test;[6] and
(g) One charge of possessing prohibited weapons;[7] and
(h) One charge of possessing emergency distress beacons without lawful excuse.[8]
[1] Bail Act 1977 (Vic) s 30B.
[2] Road Safety Act 1986 (Vic) s18(1)(a).
[3] Ibid, s7(1)(a).
[4] Ibid, s 64A(1).
[5] Ibid, s 61A.
[6] Ibid, s 49(1)(eb).
[7] Control of Weapons Act 1990 (Vic) s 5AA.
[8] Dangerous Goods (Explosives) Regulations 2022 (Vic) s161.
3The factual basis upon which you are to be sentenced is set out in a document entitled ‘Prosecution Opening on Plea’ dated 31 May 2024 which I note is an agreed document.
4The various charges arise from five incidents the first of which occurred on 25 November 2022. I will deal with each in turn.
The Offending
Incident 1
5On 25 November 2022, at approximately 9.15 pm, you drove to a house at Winston Street Shepparton and walked into the carport.
6The complainant, Chloe Bryant, had a Milwaukee branded ‘rattle gun’ sitting in the end of the car port. You took the rattle gun before leaving the address. I note that the item is not a gun but a power tool.
7Ms Bryant was not home, but received CCTV camera notifications on her mobile phone causing her to rush home.
8You appeared behind Ms Bryant upon her arriving at the address. The two of you had an argument during which Ms Bryant advised you the police had been called, causing you to leave abruptly.
9Mr Bryant used her mobile phone to record you getting into your vehicle and driving away.
10Ms Bryant distributed the footage of you on social media in an attempt to identify you. Approximately four days later the rattle gun appeared on her front lawn.
11These facts relate to charge 1 – Theft.
Incident 2
12At approximately 5:34 am on the 3rd of January, 2023, CCTV from witness Christopher Pope depicting Watson Street, Murchison, captures a black Holden sedan in the street.
13Victim Martyn Morris parked his Holden VE wagon (ending 075) on Watson Street, near his address. CCTV footage from Pope depicts you and an unknown offender get out of the black sedan. You both walk across the road to Morris’s vehicle. The unknown offender enters and steals the wagon while you run back to the sedan before both vehicles leave Watson Street in convoy.
14Between 5:00 am and 5:30 am on the same date, offender(s) attended 38 Willoughby Street, Murchison.
15Marlene Rutherford’s Mitsubishi Outlander (1UC-3IG) was parked near her address. Offender(s) gained entry to the car and stole the following items of Ms Rutherford’s property:
(a) A set of Mitsubishi car keys belonging to Ms Rutherford’s vehicle; and
(b) $250 in cash;
(c) Two commonwealth bank cards;
(d) One Victorian drivers licence in the name of Rutherford;
(e) One Medicare card in the name of Rutherford; various prescription medications; and two sets of house keys; and
(f) Various cosmetics.
16Call-charge records and event-based monitoring of your mobile phone show that it was utilising the Murchison phone tower during the above incident (Charge 2: Theft From Motor Vehicle).
Incident 3
17At approximately 7:20 am on the 3rd of January 2023 you are captured on CCTV footage entering the Shinezilla Carwash at 17 Kialla Lakes Drive, Kialla.
18You drove a black Holden Statesman (AXC-283) into the complex and parked in a carwash bay. You were followed in by the stolen Holden VE wagon (XDO-075). You are depicted walking to the tap and go EFTPOS coin-depositing kiosk.
19You used the stolen Commonwealth bank card belonging to Ms Rutherford, making four tap and go withdrawals valued at $10, $12, $12 and $10, totalling $42 (Charge 3: Obtain Financial Advantage by Deception).
20You and your co-offender used the coins obtained from Ms Rutherford’s stolen card to wash the cars. You left in the Statesman, and your co-offender left in the stolen wagon.
Incident 4 (all summary offences)
21On the 10th of January 2023, at approximately 4:20 am, you are seen on CCTV footage at the 7/11 service station at 9 Numurkah Road, Shepparton. You drive the black Statesman, which appears to have had its registration altered to appear as AXC-233, into the complex.
22You pumped petrol into the vehicle and paid using cash at the night window. Moments later you began to drive out of the service station car park as a marked police divisional van containing First Constable Smith and Senior Constable Tinning entered.
23Smith and Tinning observed the black Statesman and took up a position behind the vehicle on Wanganui Road, Shepparton.
24Police members activated the audible siren and red and blue lights behind the Statesman, directing you to pull over and stop.
25You failed to stop your vehicle and continued west on Wanganui Road at speed, failing to stop on police direction. Police pulled over, deactivated red and blue lights, and aborted the intercept.
Incident 5
26On the 12th of January 2023, police from the Shepparton CIU co-ordinated a planned arrest to be carried out at your home address of 18 Albert Street, Shepparton, utilising the assistance of the Police Air Wing.
27At approximately 9:55 am, police members from the CIU were driving west along Victoria Street in four vehicles, enroute to 18 Albert Street.
28Once at the intersection of Victoria Street and Albert Street police observed you driving the black Statesman south on Albert Street, turning in to Victoria Street.
29You were travelling slowly (approximately 20kph). Police members used their unmarked police vehicles in an attempt to contain your vehicle. You were forced off the road.
30You drove onto the footpath on the northern side of Victoria Street. You proceeded to accelerate before the two cars collided. The collision caused extensive damage to the police vehicle, setting off the airbags. It was completely immobilised and sustained significant damage to the front and has since been deemed a write-off.
31The commodore wagon (1PW-1AH) was driven by Sergeant Jacob Sinclair, the front seat passenger was Senior Constable Sarah Roberts, and Senior Constable Jessica Stievano was in the rear passenger seat. Sergeant Sinclair had attempted to contain your car by driving the vehicle up a driveway in Victoria Street in order to block your progress.
32The three officers sustained minor injuries as a result of the collision, which was captured by CCTV cameras at 2 Victoria Street, Shepparton (Charge 4: Damage Emergency Services Vehicle).
33After colliding with the police vehicle, you continued driving east on Victoria Street, failing to remain at the scene of the collision and fleeing from police.
34Police Air Wing were overhead and picked up the Statesman you were driving a short time later.
35Police Air Wing maintained observation of you as you continued to drive in a dangerous manner at speed through surrounding streets.
36You travelled east on John Street, where your driving was observed by witnesses Andrew Aldridge and Elodie Garcia.
37Police Air Wing observed you driving at an estimated speed of 120kph on St Georges Road, Shepparton, in a posted 50kph zone (Charge 5: Dangerous Driving Whilst Pursued by Police).
38Your vehicle finally came to a stop on Gilchrist Street. You got out of your vehicle and pushed it into Law Street. Police units attended and you were observed sitting in the driver’s seat.
39A police search of the vehicle located among other things a zip lock bag containing methyl amphetamine (Charge 6: Possess Drug of Dependence).
40You were asked to undergo a preliminary oral fluid test but refused.
Arrest and Interview
41You were formally arrested and taken to Shepparton Police Station where a formal record of interview was conducted.
42During the interview you stated:
Regarding charges 4 and 5
(a) That you tried to drive around (the police vehicle in the driveway) to avoid collision or anyone getting hurt and that was why you drove on the footpath;
(b) That you had been rammed by police;
(c) That you drove up on the nature strip to avoid any collisions; and
(d) You did not recognise the other vehicles as being police cars . . . you did not see any red and blue lights.
Regarding charge 1
(e) That although you are seen on CCTV in the garage, you did not steal the rattle gun.
Regarding charges 2 & 3
(f) That you drove to Murchison and were depicted on CCTV at the scene of the car theft but that you simply drove off; and
(g) You knew nothing about the theft of items from the Mitsubishi although you agreed that you used the stolen cards to withdraw cash at the Shinezilla car wash.
Regarding charge 6
(h) You agreed that the substance in the zip lock bag was methyl amphetamine.
43On the 25th of January 2023, Trent Freer, owner and assessor at Freer’s Panel Works in Mooroopna, examined the police vehicle (1PW-1AH). Mr Freer assessed the damage and determined the vehicle to be a total loss. A ‘Redbook’ check revealed the value of the damaged vehicle to be between $21,000 and $24,000.
Objective Gravity
44Over a period of six weeks, you engaged in what can only be characterised as a mindless crime spree.
45The dishonesty offences (charges 1-3) are relatively low level examples of the crimes which might ordinarily be expected to have been prosecuted in the Magistrates’ Court. Nonetheless they would have been disturbing and inconvenient to the owners of the property you stole.
46In stealing the rattle gun, you disturbed Ms Bryant’s privacy in what should be a safe place for her.
47You stole a number of pieces of identification from Ms Rutherford’s car as well as her car keys. You then used her bank card to obtain $42 which you used to wash two cars.
48Your later offending is more serious. Your driving on 10 January 2023 was a direct challenge to the authority of the police and could have endangered other road users.
49Your behaviour on 12 January 2023 is also concerning. In trying to avoid the police you drove on the footpath and this led to a collision with a police car causing minor injuries to three officers and serious damage to their car.
50You then drove at approximately 120 kph in a 50 kph zone while being pursued by the Police Air Wing. This was very dangerous driving by a man without a licence.
51It is an aggravating feature of your offending that you were on bail on 25 November 2022, 3 January 2023 and 12 January 2023.
Personal circumstances
52You are an Aboriginal man who was born in Shepparton in November 1991. At the time of your offending you were 31.
53You are the younger of two children born to Lisa Bextream and Leon Strangways (deceased). You have never met your father and have no contact with your mother who you describe as a drug addict. You have no contact with your sister Tiffany.
54You told psychologist Ms Lechner that you ‘saw some hectic shit’ when you were living with your mother which you consider has desensitized you to violence.
55Your mother lost custody of you and your sister when you were six and the two of you then lived with your grandparents until you were eleven by which time they had both died. There was very little stability in the home – your ‘Pop’ drank heavily and could be abusive.
56At the age of 11 you were taken into the custody of the State which placed you with a number of foster families. Ultimately you were placed with Ms Kerry Verhoven who you refer to as your mother and who participated in the sentencing conversation in court which I will discuss further later in these reasons.
57You attended primary school in Shepparton but had difficulty learning. You told psychologist Ms Lechner that you were diagnosed with ADHD. You told her you attended school until year 11 but are not sure if you finished the year.
58You have a chequered work history. You started but did not complete a welding apprenticeship in 2019.
59You have struggled with drugs and alcohol since your teens. You started using Ice when you were about 17. Ms Lechner considers that you present with symptoms of drug addiction and that you have previously found attendance at a residential rehabilitation facility to be helpful.
60You have not sustained a long-term intimate relationship. However, you have been in a relationship with Tori and the two of you have a 15-month old son called Titan who was born after you were remanded in custody in January 2023.
61You were assessed by psychologist, Ms Carla Lechner on 7 May 2024. Ms Lechner’s report dated 10 May 2024 was provided to the court by your lawyers.
62In her report, Ms Lechner states that you evidence symptoms of Complex PTSD characterized by chronically low self-esteem and avoidance (through substance abuse). Although Ms Lechner did not formally assess your cognitive ability, she concludes that your low average/borderline intelligence level means that you have limited capacity for reflective and consequential thinking on account of your chronic drug use and social and emotional immaturity. This is relevant to your moral culpability for this offending.
63Because of your history of head injuries, Ms Lechner recommends a neuropsychological evaluation. She considers that your underlying trauma has never been addressed.
64To minimize the risk of you becoming caught in a cycle of recidivism, Ms Lechner recommends ‘intensive therapeutic work’.[9] Ms Lechner states that due to your neurocognitive difficulties, it is important that you are not overloaded with demands.
[9] Exhibit D3, 6.
65You have a relevant criminal history dating back to 2010 when you were nineteen. Ms Lechner opines that this ‘has arisen in the setting of long-standing and chronic drug addiction with underlying mental health issues’.[10]
[10] Ibid, 1.
66You have been convicted of a number of dishonesty and driving offences since that time appearing in the Magistrates’ Court regularly.
67The most serious offending was an aggravated burglary involving a firearm for which you were sentenced in this court in 2015 to a total sentence of 5 years with a 3-year non-parole period. You also have a number of convictions for possession of methylamphetamine.
68You have been given the opportunity of serving a sentence in the community on a number of occasions. As noted in the pre-sentence report from Corrections, you have contravened three such Orders and your Parole Order was also cancelled.
69You have been in custody in relation to this and other offending since early 2023. A letter of support dated 30 May 2024 and authored by Brady Jones, Aboriginal Engagement Worker, Wadamba Aboriginal Prison to Work Program is before the Court. Mr Jones gave oral evidence at your plea hearing.
70In his letter, Mr Jones explains that you were referred to Wadamba on 16 October 2023 and you have ‘maintained excellent engagement’ with the programs and have ‘continually expressed a sincere desire to secure meaningful and sustainable employment in the hopes of staying out of prison for good’. This is very positive.
71Mr Jones explains that Wadamba will continue to support you to find work post-release and that discussions are ‘ongoing with different employers’ in this regard. In his oral evidence, Mr Jones confirmed his readiness to assist you post-release.
Sentencing Conversation
72Although you have been before the courts regularly, this is the first time you have appeared in the Koori Court. All of your previous experiences of the Justice system have been in the mainstream courts. An integral part of the Koori Court process is the ‘sentencing conversation’ which is steered by two Aboriginal elders or respected persons.
73You actively participated in the sentencing conversation on 3 June 2024 with two local Elders - Aunty Pamela Pederson and Aunty Laurel Robinson. Your mother also participated. I observed that you took the conversation very seriously and were open and honest in your self-reflection. It would not have been easy for you to open up about your failings in the way that you did and this is to your credit.
74During the conversation you became very emotional about your life and the mistakes you had made. You told the court that you wanted to improve yourself and change your ways. Your foster mother Ms Verhoeven expressed her love and support for you and encouraged you to return to playing football.
75During the sentencing conversation both elders expressed the view that you need support once you are released to prevent relapsing into drugs and crime.
76The elders remarked about the high quality of your paintings. They encouraged you to concentrate on your artwork as a way of building up your self esteem. You embraced this idea.
77Much of the conversation concerned the importance of your role as a father to your infant son Titan. Aunty Pam Pederson emphasised your responsibilities as a parent and you accepted that this is a very important part of your life. On several occasions you told the court that you wanted to be a better parent than your own parents had been to you.
78The objective of the Koori Court is to ensure ‘greater participation of the Aboriginal community in the sentencing process of the County Court through the role to be played in that process by the Aboriginal elder or respected person and others’.[11]
[11] County Court Amendment (Koori Court) Act 2008, s 1.
79In sentencing you, this Court may inform itself as it ‘thinks fit’.[12] I have taken into account your active participation in the sentencing conversation in determining your prospects of rehabilitation and the appropriate sentence to impose.
[12] County Court Act 1958 (Vic), s 4G (3).
Matters in mitigation of sentence
80Your guilty pleas at an early stage are very significant. They represent an acceptance of responsibility for your offending and demonstrate your remorse. They save the court and prosecuting authorities the time and expense of a trial. Witnesses are spared the inconvenience and stress of giving evidence. These are important matters to your credit.
81Secondly, your participation in the sentencing conversation is an important consideration. You were challenged about your offending and your irresponsible and dangerous driving by Aunty Pam Pederson. You took this on the chin and expressed your disappointment with yourself. This is not an easy thing to do in a public forum in front of a stranger like me. I accept that you approached the conversation with sincerity.
82Thirdly, I accept that your moral culpability for your offending is reduced by reason of your traumatic childhood. Yours is a case which enlivens the Bugmy principle. As the High Court explained in that case:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way[13]
[13] Bugmy v The Queen (2013) 249 CLR 571.
83Ms Lechner’s report explains that, due in part to the experience of your formative years which were characterized by exposure to abuse, emotional neglect, abandonment and rejection, you have limited capacity for reflective and consequential thinking.[14]
[14] Exhibit D3, 6-7.
Rehabilitation
84Your history of offending combined with your drug abuse means I must be guarded about your prospects of genuine rehabilitation.
85There are some reasons for optimism in this regard. The birth of Titan and your wish to be a good father are strong motivators for you. You have the support of your foster mother Ms Verhoeven with whom you will live on your release from custody. Mr Jones will assist you to find employment.
86I will order that you participate in programs designed to address the underlying causes of your offending.
87However, as you heard from the elders on 3 June 2024, ultimately it is for you to make something of your life. You are no longer a young man. It is time to change your habits.
88I have tried to structure a sentence in a manner that promotes your rehabilitation as I am required to do under the law.[15]
[15] Sentencing Act 1991 (Vic), s 5(1)(c).
Consideration
89At the conclusion of the plea hearing, I ordered that you be assessed for a Community Correction Order. In a report to the Court dated 7 June 2024, Corrections consider that you are suitable for such an Order despite assessing you as a high risk of general re-offending and noting your poor compliance record.
90When I asked your counsel Mr Davis why you would engage with a community-based sentence more fully than you have done in the past, he submitted that the birth of your son Titan is a ‘game changer’.
91As noted earlier, a significant part of the sentencing conversation at the hearing of your plea concerned Titan. You must put into actions the verbal commitments you made to the Elders and the court in this regard. Actions speak louder than words.
92I have concluded that a combination sentence appropriately addresses the sentencing considerations of general and specific deterrence, denunciation, community protection and promotion of your rehabilitation. I have had regard to the case of Boulton[16] in making this assessment noting that such a disposition combines both punishment and rehabilitation.
[16] Boulton v The Queen [2014] VSCA 342.
93I have had regard to the principle of totality both as between the different offences presently before the court and another matter that was referred to by your counsel. You were recently sentenced to imprisonment for 300 days reckoned as time served by the Magistrates’ Court for a breach of a CCO. This ‘used up’ much of the pre-sentence detention that would otherwise have been available in this case.
Sentence
94On charge 1 theft, you are convicted and sentenced to 4 months’ imprisonment.
95On charge 2 theft, you are convicted and sentenced to 4 months’ imprisonment.
96On charge 3 obtaining property by deception you are convicted and sentenced to 1 month’s imprisonment.
97On charge 4, damaging an emergency vehicle by reckless driving, you are convicted and sentenced to 6 months’ imprisonment in combination with a Community Correction Order of 12 months’ duration on the conditions explained later in these reasons.
98On charge 5, dangerous driving while being pursued by police, you are convicted and sentenced to 5 months’ imprisonment.
99On charge 6, possession of a drug of dependence, you are convicted and sentenced to 1 months’ imprisonment.
100Summary charges 2, 5, 7, 11 and 23 are dismissed pursuant to section 76 of the Sentencing Act 1991 (Vic).[17]
[17] As a result of recent amendments to the Bail Act 1977, it is no longer an offence to commit an indictable offence while on bail.
101On summary charges 3, 8, 9, 12, 13, 14, 24, 25, 26 and 27, you are convicted and sentenced to an aggregate sentence of one month’s imprisonment.
102On summary charges 30 and 31, you are convicted and sentenced to an aggregate sentence of one month’s imprisonment.
103The sentence imposed in respect of charge 4 is the base sentence.
104I order that one month of the sentence on each of charges 1 and 2 and 2 months of the sentence on charge 5 be served cumulatively on the base sentence.
105All other sentences are to be served concurrently with the base sentence.
106The total effective sentence is therefore imprisonment for 10 months to be followed immediately by a CCO of 12 months with the following standard conditions
§you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
§you must comply with any obligation or requirement prescribed by the regulations;
§you must report to, and receive visits from the Secretary during the period of the order;
§you must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;
§you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
·you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
§you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
107In addition, the special conditions will be:
(a) You must perform 100 hours of unpaid community work;
(b) You must participate in treatment and rehabilitation programs as directed for mental health, drugs and alcohol and programs to reduce offending.
(c) 40 hours to count against the UCW hours
(d) You will be under supervision
(e) I will judicially monitor you with the first monitoring session which you must attend on 2 December 2024 at 9:30 am.
108If you breach any condition of the order you can be brought back to court and sentenced for up to 3 months in jail for breaching the order and you may be re-sentenced on the original offending.
109If you are having difficulty complying with the order you may apply to this court to vary a condition.
110I declare pursuant to S 18 of the Sentencing Act 1991 (Vic) that the 225 days you have served on remand in relation to this offending be reckoned as time served in respect of the sentence I impose today and the records of the court shall reflect this.
111I make the disposal order and the forfeiture orders sought by the prosecution noting that they are not opposed.
112Pursuant to s 6AAA of the SA, I indicate that, but for your pleas of guilty, I would have sentenced you to 18 months in custody with a non-parole period of 12 months.
113Finally, consequent of your conviction on charge 27, you are disqualified from obtaining a driver’s licence for a period of 4 years (being the statutory minimum). Similarly on charge 5 and on charge 12 you are disqualified from obtaining a driver’s licence for periods of 1 year, and 6 months, respectively. Those periods commence today.
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