Director of Public Prosecutions v Bysouth

[2018] VCC 1471

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00572

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN BYSOUTH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	12 September 2018
CASE MAY BE CITED AS:	DPP v Bysouth
MEDIUM NEUTRAL CITATION:	[2018] VCC 1471

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic (Plea) Ms J. Dunham (Sentence)
For the Accused	Mr N. Rolfe (Plea) Ms D. Carolan (Sentence)

HER HONOUR:

1Nathan Bysouth, you have pleaded guilty before me to one charge of aggravated carjacking, one charge of dangerous or negligent driving whilst pursued by police, one charge of criminal damage, one charge of theft, and you have also pleaded guilty to the summary charges of drive whilst disqualified, stating a false name to police, and committing an indictable offence whilst on bail, which matters have been uplifted to be heard in this plea hearing, pursuant to s.145 of the Criminal Procedure Act.

2The facts underlying your offending are as follows.  At the time of this offending you had gone down to stay with your mother in Carrum Downs.  At about
11.30 am on 28 December 2017, you started drinking with your cousin,
Mr Wilson.  At about 7.45 pm, Mr Wilson called Frankston Taxis and requested a pick-up for you and him from your home address.

3At about 7.50 pm, the taxi driver, Mr Rajesh Dinesh, who is the victim in this matter, arrived in his taxi.  He worked as a part-time driver.  On his arrival, the two of you got into the taxi and you sat in the front passenger seat and
Mr Wilson sat in the back left passenger seat.  Despite numerous requests, you failed to put on your seatbelt. 

4Mr Dinesh drove about 100m away from where he picked you up, at which time you produced a large 20cm bladed kitchen knife, pointed it to his stomach and made demands for Mr Dinesh to pull his car over, saying, "I'm going to stab you if you don't get out in two seconds."  Mr Dinesh very much feared for his safety as you repeatedly made stabbing motions very close towards him, holding the knife against his stomach and continuing to make threats.  He became terrified he would be stabbed.

5Mr Dinesh pulled the taxi over near the intersection of Hall Road and Frankston-Dandenong Road and got out of the car, picking up his wallet and mobile phone.  You slid across into the driver's seat and drove away at a fast rate of speed towards Frankston.  Mr Dinesh contacted police and reported the incident.  He was extremely upset and very concerned because his taxi licence, with his personal details was in the glovebox and he was worried that you might find out where he lived and he had also left his house keys in the taxi.

6Because the taxi was fitted with a GPS tracker, police were able to obtain updates on where the car was.  Your actions in taking the taxi underlie Charge 1 on the indictment, aggravated carjacking. 

7The inside of the taxi was covered by a camera which recorded this incident.  While driving, you ripped the camera from its cradle and threw it into the front passenger well, causing minor damage and preventing further recording.  These actions underlie Charge 3 on the indictment, criminal damage.

8You stopped the car at a Woolworths supermarket on the Nepean Highway in Seaford and went into the store.  This was at about 8.09 pm.  Soon after, police caught up with the car.  As police approached, you drove off north along the Nepean Highway.  Police activated lights and sirens and attempted to intercept the stolen taxi.  You immediately accelerated away from the police, reaching a speed of about 130kph in a 70kph zone. 

9Police chased the car for a short distance until you drove onto the wrong side of the road, overtaking oncoming traffic and narrowly missing another car and nearly causing a collision.  Because of the risk to public safety caused by your dangerous driving, police stopped maintaining speed and distance and continued to follow the taxi along with other police units while the taxi was still being tracked by GPS.

10At about 8.17 pm, you drove through a red light at the intersection of McLeod Road and Station Street in Seaford and this was seen by another police unit who unsuccessfully tried to stop the car using a tyre deflation device. 

11At about 8.25 pm, you stopped the car at the intersection of Beach Street and Kelman Road, where it was abandoned, and you ran off.  The driving that I have just described underlies Charge 2 on the indictment, dangerous driving whilst being pursued by police. 

12At the time of your driving, your licence was suspended and had been since
21 July 2014.  The fact that you were driving whilst your licence was disqualified underlies that summary charge of driving whilst authorisation suspended. 

13When you left the taxi you stole about $100 cash, being the takings of the day, and the house keys belonging to the victim, Mr Dinesh.  After running from the car you concealed the stolen keys under a pot plant at a house at 163 Beach Street in Frankston.  Those actions underlie Charge 4 on the indictment, theft.

14At about 8.30 pm police recovered the taxi and inside it found the knife you had used against Mr Dinesh under the mat.  A bottle of Port, which Mr Wilson had carried into the car was found in the front passenger footwell.  You were identified from CCTV images. 

15At the time of the offending, you were on four sets of bail for four charges of repeated breaches of bail conditions, seven charges of breach of family violence intervention orders, two charges of theft and assaulted related matters.  Your offending therefore amounted to the summary offence of committing an indictable offence whilst on bail. 

16At about 12.30 pm on 29 December 2017, you were arrested at your home.  At that stage, you gave a false name, Christopher Dale.  The giving of that information underlies summary offence, state false name.

17On the way to the Frankston police station, you took police to 163 Beach Street in Frankston, where you showed them the pot plant in the backyard where you had concealed the keys.  These were subsequently returned to Mr Dinesh.  You made a "no comment" record of interview.  You have remained in custody since you were arrested on 29 December 2017.  Mr Dinesh declined to make a victim impact statement.

18The maximum penalty for aggravated carjacking is 25 years' imprisonment. Section 10(A)(D) of the Sentencing Act 1991 requires that a term of imprisonment imposed for this offence should result in a sentence with a non-parole period of a minimum of three years unless the court finds that special reasons existed for this not to be imposed.

19The maximum penalty for dangerous driving whilst being pursued by police is three years' imprisonment.  The maximum penalty for criminal damage is ten years' imprisonment.  The maximum penalty for theft is ten years' imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or three months' imprisonment.  The maximum penalty for driving whilst disqualified - or in your case, drive whilst authorisation suspended, is two years' imprisonment.  The maximum penalty for stating a false name is five penalty units. 

20I now turn to your personal circumstances.  You are now aged 29.  Your mother was the eldest of four children, born to your grandmother, an aboriginal woman who was a part of the stolen generation.  She was taken from her family when she was born in New South Wales.  When she was eight she was placed with the Bysouth family Frankston.  Fortunately for her, this placement was a successful one and, indeed, she ended up marrying the son of her foster parents, your grandfather, Mr Bysouth. 

21Your grandmother had four children and your mother, Babbette, was the eldest of those four children.  She, unfortunately, entered into a history of poor relationships. 

22Your grandmother, during the Koori Court conversation and on the plea, outlined how the marriage between your father and your mother was a happy one until they accompanied your grandparents to a work project in New South Wales when you were about three.  Your mother was not happy there.  She took you and returned to the Dandenong area where you had been living.  Your father returned but their relationship then broke down and he essentially disappeared from your life.

23Your mother then formed a second relationship with a man by whom she had two children.  He was an extremely violent and dangerous man.  Your grandmother detailed how you grew up in a situation where you were both assaulted by your stepfather and also took the role of protector for your mother when he assaulted her. 

24Along the way your mother developed an alcohol problem.  Your grandmother described her as having been an entrenched alcohol for many years and then in about the last five years, unfortunately added to that substance abuse problem by becoming addicted to ice.

25She eventually left that violent relationship and formed a relationship with another man by whom she had a further three children.  Your grandmother, in the meantime, had moved to Bendigo with your grandfather.  Your grandfather is a concreter by profession and your grandmother worked for Centrelink for about 30 years.

26She kept in contact with you and when you were about 14 she decided that the position that you were in, in your mother's care, could no longer be tolerated and she took you and your half-brother, Chris, to live with her in Bendigo.  You remained in Bendigo with your grandmother for many years. 

27You left school during Year 10 and started working with your grandfather as a concreter.  You are a skilled and qualified concreter and have worked in that profession on and off for years.  It appears, however, that the damage done by the abuse that you suffered whilst living with your mother has left its mark.

28You became addicted to ice in your 20s.  The situation was that whilst a teenager, you formed a relationship with a girl and with her you had two children.  That relationship ended because she lived in Deniliquin and did not want to leave, and you returned to Bendigo.  You have had trouble maintaining contact with your children and I understand this is a source of distress for you.

29You formed a second relationship which your grandmother described as "toxic" because that relationship involved abuse of ice and alcohol.  You had three children in that relationship.  That partner stopped using drugs but there has been a great deal of anger between you and she, and you have had difficulty maintaining a relationship with her and, in particular, with your children.

30Despite the best efforts of your grandmother, you have been addicted to ice for a long period of time and along the way, unsurprisingly, have continued to get into trouble with police.  There were a number of Children's Court appearances but essentially the criminal record that I have begins in 2007, with an appearance at the Bendigo Magistrates' Court, when you were fined for assault police and resisting police.

31In August 2008, you were placed for 11 months in a youth training centre on charges of recklessly causing injury, robbery, and this was then followed by a further sentence of six months in 2010, this time in adult custody, on charges of robbery, recklessly causing injury, unlawful assault, intentionally damaging property and driving offences.

32Then in 2012 you received a term of 18 months' imprisonment on charges of drink driving, driving whilst disqualified, recklessly causing injury, affray, and possessing a general category handgun.  Along the way, there have also been convictions for being drunk in a public place.  On that occasion in 2014 you were also dealt with for possession and use of methamphetamine.  You appealed that sentence which was reduced to a term of imprisonment which had already been served. 

33In 2017, you were placed on a Community Corrections Order for six months on charges of contravening a family violence intervention order, which related to your former partner, possessing methamphetamine, unlawful assault, and contravening bail conditions. 

34The tragedy around your offending is that you had been trying hard at that time to wean yourself off amphetamine use and you had been doing quite well.  You were residing up in the Bendigo area.  However, you decided that you wanted to spend Christmas with your mother, at her invitation.  You went down there with a cousin from Deniliquin who also has a drug and alcohol problem. 

35Once you got to your mother's, the situation clearly was that there was ice and alcohol available to you; you fell off the wagon in a very dramatic way.  I am satisfied that at the time of this offending you had been drinking and using ice over about an eight-hour period. 

36The plea hearing was conducted via the Koori Court procedure where you participated in a conversation at the table.  You participated, in my view, frankly, openly and well.  You have made a decision since in custody that you must desist from drug use.  You have remained drug free whilst in gaol.  It was quite clear that that is something you had been able to do.  It is well-known, of course, that drugs are available in gaol but you have kept yourself drug free in that time.

37You have done a number of drug, alcohol and anger management courses whilst in custody and I accept that it is difficult, on remand, to access courses which are in short supply and have long waiting lists.  You work as a billet in movement control and the position of a billet is clearly a position of trust.  You expressed great distress at the conversation table about your inability to have contact with your children.  Your counsel submitted to me that I should find that there were exceptional and compelling circumstances in your situation such that I should find that the mandatory minimum term of three years for the aggravated carjacking should not apply in your case.

38He relied on your very difficult and traumatic background for, really, the first 14 years of your life.  The problem that I indicated to counsel, as I have indicated to you, Mr Bysouth, is that whilst I accept you have had an extremely traumatic history, the seriousness of your offending is such that even without the mandatory direction from the legislation, I would regard three years as an appropriate sentence to impose upon you, unfortunately, for what you did to the taxi driver that day.

39It was extraordinarily dangerous and violent.  Whilst the victim in this matter declined to make a victim impact statement, I am quite sure he has suffered enormous emotional trauma as a result of what you did.  It must have been a completely terrifying incident.  I am satisfied that you are remorseful for your offending.  I have no doubt in accepting that and indeed you expressed remorse in strong terms during the conversation. 

40You retain the support of your grandmother and I regard that as a very positive factor in your life.  You also have a new relationship with a young woman who attended the conversation with you, has attended the plea hearing and has attended court today.  You have got positive factors in your life. 

41There has been an amount of testing of you, including neuropsychological which did not find any sign of acquired brain injury (which there had been a concern that had occurred as you had been involved in a car accident where you were 29). 

42However, I very much take into account the remarks of Dr Gunvant Patel of Forensicare who in his report dated 7 March 2018 stated that whilst you did not have a significant mental illness, he believed your main psychological problems seemed to be difficulty dealing with distress and anxiety and that you have a tendency to respond with aggression towards others who you see as causing your distress.  He stated:

"My Bysouth has described a pattern consistent with using alcohol and ice to self-medicate as a means of distress management.  However, the use of these substances has both, at times, led him to become more disinhibited and aggressive, as well as possibly experiencing transient ice-induced perceptual disturbances."

43What he means there is that when you get distressed, you turn to alcohol and ice.  This makes you aggressive and violent but it also seems that you are starting to hear voices and, indeed, you talked at the conversation table about the distress that you experience whilst in custody that your mind never stops working and that you have difficulty sleeping.  You were placed on medication, Seroquel, but you are no longer on that medication in custody and this is causing you some distress.  And it is my comment that you do need to be assessed for medication for this mental agitation you are clearly experiencing. 

44Dr Patel stated that your childhood was marked by exposure to severe domestic violence as well as direct physical abuse.  He said:

"It would also appear that he tried to be protective towards younger siblings and therefore may have faced more of his father's violence.  As a result, Mr Bysouth experienced both jealousy and resentment at his sense of feeling deprived of care and attention like his peers as well as having been conditioned by his experience to violence as a means of expressing distress and frustration."

45What that means is that the terrible example of your stepfather has led you to use violence when you are under stress. 

46You were diagnosed as suffering an unspecified personality disorder.  It was recommended that you receive psychological assistance.  And whilst I know this is of short supply in custody, it is my recommendation, and these sentencing remarks will be forwarded to the gaol, that you do receive counselling and assistance whilst in custody.

47In her psychological report dated 7 February 2018, psychologist Gina Cidoni stated that you suffered from what she described as elevated mood, saying, "He can be overacting, impulsive, distractible and restless."  She said she believed you had paranoia, a lot of suspicion, a belief that people would take advantage of you, you had difficulties in concentration and poor judgment skills.  She stated:

"He has a number of personality characteristics that have been associated with substance use or abuse problems where he acknowledged excessive use of addictive substances and he resorted to drugs a coping mechanism."

48On testing, she found that you had a borderline cognitive function with a full scale IQ of 79.  She found that you had depression and hypomania, anxiety, mild bizarre sensory experiences, paranoia and poor coping under stress.  She noted that you had been battling an addiction to ice.  This has escalated from 2012.  She said this has interfered with clear thinking and judgment.  She stated:

"During his last period on bail, his drug use was excessive, and in addition to the recent matters, he also faces very serious matters in the County Court."

49And I note that you are unable to recall very little of the events that have brought you here before court because of the drug and alcohol-addled state you were in at the time. 

50Whilst I take into account the mitigatory factors such as your plea of guilty, your remorse and the support that you have of your grandmother, your behaviour on this occasion was incredibly aggressive and incredibly dangerous.  It may have been that drugs and alcohol lay under it.  But the problem is you keep using these substances and when you do, you can see how you behave, Mr Bysouth; you are incredibly violent and very dangerous and I must take into account protection of the community.

51As I stated at the time of the round table conversation, if you had killed someone when you were driving on the wrong side of the road, you would be looking at a decade or more in gaol, ten years or more in gaol, that is how bad it got.  Now, if that had happened, you would never be able to establish a relationship with your children that you want. 

52And you also have to understand that if you keep using drugs and alcohol, you are never going to get the access to your children that you want and you are not going to be a good parent to them in any event.  You made it very clear that you love your children, that you have never harmed them, that you have never raised your voice to them.  But if you want to have proper access to them and you are using, it is inevitable that you will raise your voice, that you could harm them if they were with you whilst you were under the influence of drugs and alcohol.  And if you do not attend to getting off drugs and alcohol, your life is not going to change. 

53Insofar as the submission as to the circumstances of exception surrounding your case, such that I should not find that the mandatory minimum apply, it is my view this is not a submission that I need deal with in this case.  As I have stated, even without that direction, I would have found that the circumstances, despite the strong mitigatory factors in your case would mean that three years' imprisonment was applicable, therefore I do not need to engage in discussion of whether or not you fall into that category. 

54In my view also there must be a serious sentence imposed for the driving that you engaged in on that day.  It is to be hoped that you are placed in an appropriate prison environment given your Aboriginality and the strong ties you have to your own culture.  And I understand that Loddon Prison would be the most appropriate placement for you. 

55It is not my role to direct where you serve a term of imprisonment but I do think it is worthwhile making the observation that you would probably make best progress in somewhere like Loddon Prison if that is a possibility.  The psychological and psychiatric reports will be forwarded to the gaol so they know all about you. 

56However, in all the circumstances, Mr Bysouth, I must sentence you as follows.  On Charge 1, aggravated carjacking, you are sentenced to three years' imprisonment.  On Charge 2, dangerous or negligent driving whilst pursued by police, you are sentenced to two and a half years' imprisonment.  On Charge 3, criminal damage, you are sentenced to three months' imprisonment.  On Charge 4, theft, you are sentenced to three months' imprisonment.  On the summary charge of drive whilst authorisation suspended, you are sentenced to six months' imprisonment.  On the summary charge of state false name, you are fined $100.  And for the summary charge of committing an indictable offence on bail, you are sentenced to two months' imprisonment.  The base sentence will be the sentence imposed on Charge 1, aggravated carjacking.  I order that 18 months of the sentence imposed on Charge 2 and that one month of the sentence imposed on Charges 3 and 4, three months of the sentence imposed for driving whilst disqualified and one month of the sentence imposed for committing an indictable offence on bail be served cumulatively to the sentence imposed on Charge 3 and all other sentences, which should give a total effective sentence of five years.  I order that you serve three years before becoming eligible for parole. 

57On Charges 1 and Charge 2 and the summary charge of driving whilst disqualified, all licences are disqualified.  There is a 12 months disqualification in relation to Charge 1, 18 months in relation to Charge 2 and I will make it 12 months in relation to summary charge drive whilst disqualified; they will all run concurrently. 

58MS DUNHAM:  Yes, Your Honour.

59HER HONOUR:  And so there is a total effective disqualification of 18 months. 

60MS DUNHAM:  Yes, Your Honour.

61HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six and a half years with a minimum term of four and a half years.  That is what I would have sentenced you to if you had pleaded not guilty; do you understand that,
Mr Bysouth?  All right.  What is the PSD?

62MS DUNHAM:  Two hundred and fifty-seven days, Your Honour.

63HER HONOUR:  Does that include today?

64MS DUNHAM:  No, Your Honour.

65COUNSEL:  No.

66HER HONOUR:  All right.  I declare that 258 days of this sentence have already been served by way of pre-sentence detention, so that is - you have already done 258 days; do you understand that, Mr Bysouth?  Is there anything else?

67Could I also note I received a letter of report from Dallas Whittickum of the Bendigo and District Aboriginal Co-operative, where your mother also works, where it was stated that you have been supported by them for several years and that in the months leading up to the day of this offending, there had been a great improvement, that you had engaged really well and stating:

"Nathan has demonstrated many protective measures in regards to his children and appears to have been abstaining from previous problematic use much of the time to get his life in order." 

68You had also maintained rental accommodation, which you had been setting up in order to see your kids.  So it is such a shame, Mr Bysouth, that you just fell off the wagon on this day.  Again, remember the discussion, it probably means you have to stay clear of your mother because this is what it has led to.  All of this has happened because you used; you were doing so well before that.  So all I can say is, Mr Bysouth, please do not give up hope.  Please view this time to do whatever you can for yourself in gaol.  We just talked about the only way this can change is if you can change and hopefully despite this period of time which I know is a terrible blow to you, you will be able to get your life back on track again, all right? 

69You can do it.  You started doing it well.  It was just because you went to the wrong place and used again.  And it seems that you have done very well whilst you are in gaol in maintaining the lifestyle there that you have.  All right, sir?  Is there anything you want to say to me?  No.  All right, thank you very much.  I will just sign the order.  Thank you, and we will stand down.

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