Director of Public Prosecutions v Mitchell-Beecham

[2017] VCC 1834

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00015

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE MITCHELL-BEECHAM

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May and 16, 20, 24 November 2017
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v Mitchell-Beecham
MEDIUM NEUTRAL CITATION:	[2017] VCC 1834

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCING
Catchwords:             Blackmail – possess drug of dependence
Legislation Cited:     Crimes Act 1958; Sentencing Act 1991
Sentence:                 235 days’ imprisonment and Community Correction Order of 8 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O’Doherty	Solicitor for the Office of Public Prosecutions
For the Accused	Ms K. Rolfe	Daniel Taylor Lawyers

HIS HONOUR: 

1Mr Mitchell-Beecham, you have pleaded guilty to one charge of blackmail and one charge of possessing a drug of dependence, namely cannabis. 

2The circumstances of your offending is as follows: 

3On 26 August 2016, you and your co-accused Dale Lawrence viewed photographs displayed on a Samsung Galaxy mobile phone which was owned by another person.  The circumstances in which you came to be in possession of that phone were not disclosed at your plea hearing.  However, it was later determined that the phone had been reported as missing. 

4You viewed some photographs on that phone of what appeared to be military-grade firearms and ammunition, together with images which appeared to link those photographs with a particular shop in Bairnsdale.  You assumed those items were held illegally by persons connected with that shop.  You and Mr Lawrence attended at the shop and demanded $1000 cash for the return of the phone using the photographs of what you considered to be illegal weapons and ammunition as leverage.  

5That afternoon, you and Mr Lawrence entered the shop and enquired whether any person connected with that business had lost a mobile phone.  No such report was made and you left. 

6That night, you returned to the shop and produced the mobile phone to the owners of that business.  You showed them the photographs.  They recognised the man depicted in the photographs as the brother of one of the owners of the shop.  That man was then said not to be in the country.

7You and Mr Lawrence believed that the owners of the business were in possession of the guns and asked where they were.  You demanded money from them for the return of the phone and the photographs.  You both left the shop. 

8Soon after closing time, you rang the shop from your mobile phone and demanded from one of the owners $1,000 for the return of the phone or else you would go to the police.  You demanded that the money be paid and told the person to whom you were speaking that you were coming into the shop straight away.  The owner was understandably scared.  To stall you, she suggested that you return at 11am the next morning when she would have the money.  The owners of the shop attended the Bairnsdale police station that night and reported the matter.  The next morning, you were both arrested.

9Mr Lawrence took part in a record of interview with police in which he made admissions as to his conduct relating to the mobile phone photographs.  Mr Mitchell-Beecham, you declined to be interviewed by police. 

10This conduct relating to the mobile phone constituted blackmail, the making of unwarranted demands with menace to the owners of the shop, contrary to s.87 of the Crimes Act 1958. This offence carries a maximum penalty of 15 years' imprisonment.

11When police attended at your home in order to arrest you, they located in your bedroom a small quantity of cannabis, in breach of s.73 of the Drugs, Poisons and Controlled Substances Act 1981.

Sentencing principles

12Pursuant to s.5 of the Sentencing Act 1991, the purposes for which a court may impose sentences are:

a)to punish the offender to an extent and in a manner which is just in all the circumstances;

b)to deter the offender or other persons from committing offences of the same or similar character;

c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated;

d)to manifest the denunciation by the court of the type of conduct in which the offender engaged;

e)to protect the community from the offender; or

f)a combination of two or more of those purposes.

13I have had regard to s5(2) of the Sentencing Act 1991, which requires me to have regard to the maximum penalties prescribed for the offences, current sentencing practices, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offence on any victim of it, the offender's previous character and the presence of any aggravating or mitigating factors concerning the offender or other relevant circumstances.

Background

14By way of background, you are 29 years old. 

15I was informed by your counsel that your mother deserted you when you were aged about six months and you were raised by a maternal aunt and her partner.  You have only had intermittent contact with your father who you reported as being the perpetrator of frequent physical abuse upon you.  Although you attended school, I was informed that you were illiterate and innumerate.  You were the target of bullying and confrontation whilst at school. 

16When you were aged 11, you were placed in the care of the State and moved between various residential facilities throughout country Victoria.  You attempted suicide at the age of 16 and later obtained independent accommodation. 

17Your issues relating to polysubstance abuse date back to when you were about 12 when you commenced daily use of cannabis and inhalants whilst in the care of the State. You have thereafter been a user of cannabis, alcohol, amphetamines, heroin and methylamphetamine or ice. 

18You have three children.  You have a son now aged 11 from an earlier relationship with a woman who died some six years ago.  You have two children, aged three years and ten months, with your current partner with whom you have been for the last five years or so.  You and your partner are expecting a further child in February 2018. 

19Your two youngest children reside with their maternal grandmother in Queensland.  Your eldest child does not reside with you and your partner.  He apparently resides with others in the Bairnsdale area. 

Prior convictions

20You have a number of prior convictions going back to 2007.  You have been convicted of:

·possession and use of cannabis;

·trafficking of cannabis;

·possessing a firearm;

·armed robbery;

·two convictions for recklessly causing injury;

·attempting to pervert the course of justice;

·unlawful assault;

·three convictions for theft;

·two convictions for burglary;

·unlawful assault;

·attempted robbery;

·causing criminal damage; and

·going equipped to steal or cheat. 

21It is an unimpressive list of prior convictions for a person of your age. 

Mitigating factors

22Your counsel informed me that the offending, the subject of your plea, occurred in the context of a relapse in relation to the use of methylamphetamine.  It was submitted by your counsel that the following matters mitigated in relation to your sentence:

·Your offending did not involve the use of a weapon. 

·Your offending did not involve physical violence or threats of violence.  Notwithstanding, I consider that your demand for money and your threat to involve police if not paid would have been a frightening event for the proprietors of the shop. 

·It was submitted that your offending was not sophisticated and with that I certainly agree. 

·It was submitted it was not planned.  I do not accept that.  You were in possession of a mobile phone that did not belong to you nor Mr Lawrence.  You searched through the photographs on the phone, identified firearms, identified the shop in question.  You later attended at the shop on two separate occasions and arranged to attend on a third.  This was not unplanned or spontaneous conduct.  There were a number of times when you could have stepped back and simply handed the phone into the shop or the local police.  After some thought, you chose to do neither of those things and proceeded to demand money in what I consider was a menacing way. 

·Although you did not co-operate with police in that you declined to participate in a record of interview, you did pleaded guilty to these charges at an early opportunity. Although the case against you appeared to be a strong one, to put it mildly, your plea nevertheless has some utilitarian value and has saved the community the expense and delay of a trial and meant the persons the subject of your blackmail were not required to give evidence at a trial. 

23It appears that your addiction to drugs arose as a child at an age and in circumstances where it could not be said that you were exercising a rational choice.  It was submitted that there was a link between your offending and polysubstance abuse and that your addiction mitigates your moral culpability for your offending.  Although I am not convinced about this, I accept that it is probably the case. 

24Notwithstanding, your counsel submitted that the prospects of rehabilitation are reasonable. 

·Firstly, because of your relative youth - you are aged 29;

·Secondly, because of your steady relationship with your partner and shared motivation to regain the care of your children; and

·Thirdly, by reason of your history of complying with previous rehabilitative orders and parole which were the subject of orders made in February 2012 and which were completed over a period between January 2013 and July 2014.  These matters have relevance.

25Further, I note that you were released on bail in connection with these charges on 13 February 2017 and have not offended in the interim period.  I also consider that is a relevant matter.

26I have been provided with a number of reports: 

·Dr Samuel Jolayemi, an adolescent psychiatrist, the report is dated 14 February 2003;

·Dr Robert Burke, clinical neuropsychologist, dated 13 June 2009; 

·Mr David Ball, psychologist, dated 25 January 2012; and

·Ms Deborah Smith, another psychologist, dated 20 March 2009.  

27I have read these reports but given their historical dates, I do not consider that they have added significantly to the matters set out above. 

28I have also been provided with a letter from the Australian Community Support Organisation Incorporated dated 2 March 2017, indicating that you have qualified for further treatment in relation to drugs and alcohol and would be referred to the Gippsland Lakes Community Health for ongoing support.  I understand, have been informed that you have continued to be involved with that organisation since your release on bail. 

29Further, I have been provided with a letter from one Debbie Berry, indicating that you had been providing various work for her business.  She noted that you appeared to be hardworking, polite and honest.  She was aware of your current criminal charges and the fact that you were on bail. 

30I was informed on the last hearing date and again this morning that you are no longer working for Ms Berry but are now employed on a casual basis for a moving company.  A removalist I think is probably the best word to describe that position.

31Finally, I have been provided with a letter from one Connor Beecher dated 8 May 2017 indicating that he struck up a friendship with you earlier this year and told of your assistance to him in dealing with various problems in his life.  I have taken all those matters into account. 

Sentence

32Your counsel had submitted to me that the purpose for which I am required to sentence you can be satisfied at least in part by the imposition of a community corrections order of some two years' duration.  Your counsel submitted that your involvement in the blackmail offence was somewhat less serious than that of Mr Lawrence.  I do not agree.  I consider that your respective roles were equally serious.  You had both engaged in each step of the offending conduct together with equal culpability in my view. 

33I am in possession of a report of Corrections Victoria dated 16 May 2017 in which it states that you have been assessed as suitable for a community corrections order.  I do not intend to - it would not be appropriate in my view or required - to have a further assessment.  There is nothing in the information that has been put before me that would indicate that Corrections Victoria would be likely to come to any different view if they were to assess you today. 

34I have nevertheless reached a conclusion that a community corrections order alone would not be an adequate sentence for you in all the circumstances of the case.  I consider that it is appropriate to sentence you to a term of imprisonment followed by a community corrections order. 

35I consider that it would be appropriate to sentence you on the blackmail charge to a term of imprisonment for a period of 235 days which in round figures is around about seven and a half months, followed by a community corrections order of two years' duration which would commence immediately upon your release from that term of imprisonment.

36I have imposed a slightly shorter term of imprisonment than that imposed upon Mr Lawrence, noting that his sentence was imposed in relation to the blackmail charge and an unrelated charge of theft on an aggregate basis. 

37Ms Warda, I take it your silence about the 174 days means you agree with it?

38MS WARDA:  Sorry.  Yes.  Sorry, Your Honour.

39HIS HONOUR:  Yes.

40MS WARDA:  Ought to have said 174 days' pre-sentence detention not including today.

41HIS HONOUR:  Thank you.  You have already served 174 days in custody, not including today in relation to these offences and that period will be treated as time already served as part of that 235-day sentence. 

42However, I am only able to sentence you on that basis if you are prepared to consent to the proposed community corrections order.  In fact, I am not permitted to impose such a community corrections order unless you do consent to it.  Before I ask you whether you do or do not consent to it, I shall tell you what the conditions attached to such order will be. 

43Firstly, there are a number of mandatory terms that apply to every community corrections order. They are as follows: 

a)That you must not commit whether inside or outside Victoria during the two-year period of the order an offence punishable by imprisonment. 

b)You must comply with any obligation or requirement prescribed by regulations.

c)You must report to and receive visits from the Secretary of the Department of Justice or his/her nominee during the period of the community corrections order.

d)You must report the Community Correction Centre as specified in the order within two clear days after your release from prison.  That will be - Mr Brash, just remind me - it will be the Bairnsdale office, I am certain.  Yes, Macleod Street.  You probably know where it is anyhow, I would imagine. 

e)You must notify the Secretary of any change of address or employment within two clear working days after that change.  So if you move house for any reason, you must notify them.  If you change your job, if you get a new job, if you get sacked from your job - any change, you must notify.  Pretty clear, I hope?

f)Importantly, you must not leave Victoria except with the permission either generally or in relation to a particular case, of the Secretary.  Read for that, Corrections Victoria.  Must not leave Victoria.  If you go to Albury, you have left Victoria.  And must comply with any direction given by the Secretary that is necessary to give to ensure that you comply with these orders.

44In addition to the mandatory conditions, I intend to impose upon you additional conditions.

§that you perform 150 hours of unpaid community work during the course of that two-year community corrections order.

§that you submit to any assessment and treatment including testing for drug abuse or dependency, including the provision by you of blood or urine samples as directed;

§that you submit to any assessment and treatment including testing for alcohol abuse or dependency;

§that you submit to any assessment or treatment including testing at a residential facility for withdrawal from or rehabilitation for alcohol abuse or dependency and withdrawal from or rehabilitation for drug abuse or dependency.  What that means is if Corrections Victoria deems that you require residential facility treatment then you are obliged to attend.

§that you attend for programs that address factors relating to your offending behaviour; and

§that you be supervised, monitored and managed as directed by the Secretary of the Department of Justice or his/her nominee.

45Now, Ms Rolfe, do you want to discuss those conditions?  Explain anything?  Any queries your client might have?

46MS ROLFE:  May I just briefly approach, Your Honour?  

47HIS HONOUR:  Yes, please.  Yes?

48MS ROLFE:  Mr Mitchell-Beecham instructs that he consents to the community corrections order in those terms, Your Honour.

49HIS HONOUR:  Yes.  On the basis of that consent, on the charge of blackmail, you are sentenced to 235 days' imprisonment.  I declare that you have served 174 days in pre-sentence detention, not including this day.  And I direct that such period be recorded as part of the sentence of imprisonment that I have imposed as already served.

50With regard to the offence of possession of cannabis, you are convicted and fined the sum of $250. I declare that pursuant to s.6AAA of the Sentencing Act that had you not pleaded guilty to these offences I would have sentenced you to a term of imprisonment of 15 months for blackmail and a fine of $500 for possession of cannabis.

51Now, in terms of ancillary orders.  What is outstanding there, Ms Warda?

52MS WARDA:  A forfeiture and disposal, Your Honour.  The forfeiture is in respect of the phone which I am not sure if that was made on the last.  Sorry, that may have been made on the last ‑ ‑ ‑ 

53MS ROLFE:  I have got a note that that was made.

54MS WARDA:  That may have been made.  And there's a disposal order, Your Honour, in respect of the - that has been made, I am told, Your Honour.  I apologise.  That has been made.  Sorry ‑ ‑ ‑ 

55HIS HONOUR:  Yes, I think they have.

56MS WARDA:  ‑ ‑ ‑ having come into it at a late stage.

57HIS HONOUR:  Section 464ZF already done?  Not need another one?

58MS WARDA:  No, it has previously been ‑ ‑ ‑

59HIS HONOUR:  Yes, and on that basis, Mr Mitchell-Beecham, you are required to sign the terms of community corrections order.  I will show it first to Ms Rolfe. 

60MS ROLFE:  Your Honour, perhaps at this juncture, if I could just note some custody management issues.  

61HIS HONOUR:  Yes.  And what do you want to bring to my attention?

62MS ROLFE:  Just reference to or confirmation that the medication that is referred to in the letter dated
24 November that was filed.

63HIS HONOUR:  Yes.  I just have not got that immediately in front of me. 

64MS ROLFE:  There is three medications referred to, Your Honour.

65HIS HONOUR:  What date are you referring to?

66MS ROLFE:  The 24 November.  Letter of Dr Ken Zeids.

67HIS HONOUR:  I think have the - yes.  There's nothing in that one.  Is there two communications from the doctor on that date, is there?

68MS ROLFE:  There is, Your Honour, but the medications are also referred to in the letter dated 20 November.

69HIS HONOUR:  Look, rather than waste time for me to find it again, can you hand up - have you got a copy of that?

70MS ROLFE:  I'll hand it up, Your Honour.

71HIS HONOUR:  Yes, what did you want me to note about that?  That he's currently on those medications?

72MS ROLFE:  If Your Honour could note that he's currently prescribed those medications and requests that his mental health be monitored, there also be a reference to his recent abdominal pain.  I note those matters out of an abundance of caution.

73HIS HONOUR:  Yes, well in the note I'll note that he is currently prescribed the medications set out, namely - my pronunciation may be lacking - Esomeprazole EC in capsule form, Mirtazapine tablets and Somac EC tablets in the strengths noted in the letter.

74MS ROLFE:  Thank you, Your Honour. 

75HIS HONOUR:  That there's a request that his mental health be monitored and it should be noted that he's complained in recent times of abdominal pain.

76MS ROLFE:  As Your Honour pleases.  Thank you - has that document been signed?  May I approach Your Honour?

77HIS HONOUR:  Yes, certainly.  Yes, thank you, Mr Mitchell-Beecham may be taken downstairs.  Thank you.

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