Director of Public Prosecutions v Ward
[2022] VCC 969
•22 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 19-02350
CR 21-02601
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU WARD |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF TRIAL: | 7-14 December 2021 |
DATE OF PLEA HEARING: | 20 June 2022 |
DATE OF SENTENCE: | 22 June 2022 |
CASE MAY BE CITED AS: | DPP v Ward |
MEDIUM NEUTRAL CITATION: | [2022] VCC 969 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Robbery – reckless conduct endangering life – causing injury intentionally – handling stolen goods
Sentence: Convicted and sentenced on both indictments (K10331165.2 & K10331165.3) to a total effective sentence of seven years’ and nine months’ imprisonment with a non- parole period of five years’ and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For Director of Public Prosecutions | Mr R. Pirrie | The Office of Public Prosecutions |
For the Accused | Mr N. Goodfellow | Stephen Peterson Lawyers |
HIS HONOUR:
1Beau Ward, on 7 December 2021 at Latrobe Valley County Court you pleaded guilty to one charge of handling stolen goods, which was a 2018 Mitsubishi Triton ute, which was Charge 1 on in Indictment No.K10331165.3 (CR-21-02601). Your plea was taken in the absence of any jury panel members who were summons to hear and decide your trial on the seven charges which were on Indictment No.K10331165.2 (CR-19-02350).
2On 8 December 2021, your trial on the Indictment No.K10331165.2 commenced before a jury of 12 of your peers. On 14 December 2021, the jury found you guilty of the following charges on that indictment, which is No.K10331165.2:
·Charge 3, robbery of a motorcycle belonging to Harley Bale. This charge has a maximum sentence of 15 years' imprisonment;
·Charge 5, conducting endangering the life of Harley Bale by discharging a firearm. That charge has a maximum penalty of 10 years' imprisonment; and
·Charge 6, intentionally causing injury to Harley Bale. This charge has a maximum penalty of 10 years' imprisonment.
3On Charge 1, handling stolen goods which was the Mitsubishi Triton ute, on the plea indictment, has a maximum penalty of 15 years' imprisonment.
4You were acquitted of the three other charges on indictment and a verdict was not required in respect of Charge 7 on the indictment, as it was an alternative charge to Charge 6, where you had been found guilty.
5You have spent 1000 days as pre-sentence detention including this day for these matters before the court. You have admitted your criminal history set out in the filed criminal record dated 23 March 2020.
Circumstances of your offending
Charge 1 on plea indictment no. K10331165.3
6You pleaded guilty to the charge of handling stolen goods, a Mitsubishi Triton ute, registered no.1NW 7LK. The Triton ute was stolen between the 4th and 5th of January 2019 from a Unit in Mount Waverley. It is not alleged you were involved in the theft of the Triton ute.
7You have admitted to possessing, using and driving the stolen Triton ute, which had cloned registration plates, IMMHC affixed to it on 28 January 2019. The Triton ute was the vehicle you were driving when you were committing the offences of Charges 5 and 6 on the trial indictment. Your plea of guilty to this charge will be taken into account when finalising your sentence for the charge of handling stolen goods.
Charges 3, 5 & 6 on the trial indictment no. K10331165.2
Charge 3: Robbery
8The background to the offending involving yourself and your victim, Harley Bale, is that you believed that Harley Bale had been involved in the burglary of your home in late 2018, which resulted in $30,000 in cash being stolen from you. Mr Bale always denied to you and to others that he had any involvement in the theft of your $30,000.
9At the time of the offences you were 35 years of age. Harley Bale was 28 years of age. The two of you had known one another for approximately 15 years prior to the offending. In the five years immediately before the offending you had worked together on the Sky Rail project at Pakenham.
10Harley Bale owned a Suzuki motorcycle. He rode the bike to an address in Drouin. You met Harley Bale at that place. You were there with Terry Kleeven. The two of you approached Mr Bale. You confronted Mr Bale about your missing $30,000 and had, in the words of Mr Kleeven, ‘stern words’ with him. I accept that Mr Kleeven's evidence that you said, “Well, you can leave the motorbike here with me until you sort out the money that's owed to me”… “until you get the money paid back, well, mate, I'm keeping the bike”.
11The robbery is the taking of the bike in the context of this threatening confrontation with Mr Bale. I find beyond reasonable doubt that you took the motorcycle from Mr Bale in circumstances of your threatening language and demeanour. Whilst there is evidence of injury to Mr Bale around the time of this robbery, I am not satisfied beyond reasonable doubt that you assaulted Mr Bale at the time of the robbery.
Charge 5: Reckless Conduct Endanger Life
Charge 6: Intentionally Cause Injury
12The jury convicted you of charges of recklessly engaging in conduct placing Mr Bale in danger of death and intentionally causing injury to Mr Bale. These two charges arise from a shooting by you of Mr Bale on
28 January 2019. You arranged for Tilly Edwards to get Mr Bale to drive her to Weebar Road in Drouin on a false arrangement to go to see a person by the name of Ryan Quinn to retrieve her handbag. Your intention was to confront and shoot Mr Bale.13Mr Bale and Ms Edwards were in Mr Bale's vehicle in Weebar Road in Drouin when you drove up in the Triton ute. You shot a firearm in the direction of
Mr Bale as he sat in his vehicle with Ms Edwards. The bullet went through
Mr Bale's right arm and the shrapnel was found in the cabin of his car that day. Mr Bale was taken to hospital and treated for a gunshot wound to his right arm. Mr Bale was treated overnight and then released from hospital the next day.14Professor Odell described the injury to Mr Bale's right arm in the following terms:
'Mr Bale was admitted to the Emergency Department at the Warragul Hospital at 0642 hours on 28/01/2019 with an alleged gunshot wound to the right forearm. Examination revealed apparent entry and exit wounds on the forearm with strong pulses and good movement of the wrist and elbow joints. An X-ray revealed multiple metallic foreign bodies, most likely shot pellets. There was no bony injury. The projectile track passed through the brachioradialis muscle which is involved in the elbow flexion. Mr Bale was transferred to Dandenong Hospital where he was operated on the following day to debride (clean out) and repair the injury. Multiple foreign bodies were removed. There was no vascular (blood vessel) or nerve involvement. He was treated with simple analgesic and antibiotics and discharged on 30/01/2019 with his arm in a sling. No information is available regarding his subsequent progress.
Still quoting Professor Odell:
'Although the gunshot wounds have a potential to cause serious injury and death, in this case the wound was relatively superficial and passed through a muscle without damaging any other structures likely to affect the function of the limb. It was not a life threatening injury. Complications that could possibly be associated with injury include infection, scarring, pain and weakness of the forearm flexion, but there is no information regarding whether Mr Bale experienced any of these. Although it required surgical repair, in the absence of any long term complications, this injury would be expected to heal uneventfully and was not serious'.
15The consequences of your shooting at Mr Bale are a perfect example of “good luck rather than good management”.
Personal circumstances
16At the time of your offending you were 35 years old. You are now 38. You grew up in the Warragul area. You are the youngest child in your family. You have three brothers and two sisters. Both of your parents are alive. Your father has been diagnosed with lung cancer in 2021 and is currently undergoing radiation therapy.
17On your reporting to Dr Aaron Cunningham’s, a forensic psychologist, you grew up in a supportive and caring family. You retain strong support from your family despite your history of alcohol and drug use, combined with your criminal history. You struggled academically in your school years due to your inability to concentrate at school. You completed Year 11 at Neerim District Secondary College and then commenced employment.
18Your first work was at Radford abattoirs where you remained for some seven years. At the age of 23 you changed your employment to concreting. You have continued to work consistently in the concreting role. You had a period in 2013 to 2015, where you were a fly in and fly out mine worker to Onslow in Western Australia. You worked on the Sky Rail project at Pakenham up to 2018 when you were incarcerated for other offending. Upon your release you returned to casual concreting work with Mr Ketteringham, who has provided a reference to this court, which was part of Exhibit 3. Mr Ketteringham describes you as a ‘very hardworking person’ and that he would give you a job, in his words, 'in a heartbeat'. Clearly, you can be a positive contributor to society and your family if you choose to be a law-abiding person.
19You have had two significant relationships. The first relationship was with Tammy. From that relationship you have one child, Tahlia, who is now 15 years of age. You continue close contact with Tahlia and have a positive relationship with her. Your second relationship was with Taya. The relationship was between 2009 and 2016. There are two children of that relationship aged 10 and eight years old respectively. The relationship breakdown has resulted in court appearances and intervention orders against you and a parenting plan in respect of your two younger children. Your intention is to continue contact and support with your younger children under the parenting plan when you are released from prison.
20You have been assessed by Dr Aaron Cunningham, forensic psychologist, for the purposes of this plea. His report dated 16 June 2022 was Exhibit 2. He found you have a weakness in verbal comprehension, which may have explained your difficulties at school. You do not have an intellectual disability. Your counsel properly conceded that there are no Verdins case considerations in this sentencing process.
21You have been a drug user. You commenced using cannabis at age 16. You later experimented with amphetamines and ecstasy. In your time as a
fly in and fly out worker between 2013 and 2015 you stopped using drugs. In 2016 when your relationship with Taya broke down you commenced using methylamphetamine and GHB. The offending in this case was committed in and around people from the drug milieu. So much was obvious to all in the courtroom as relevant witnesses gave evidence in this case.22You have admitted your prior criminal history. It is extensive and relevant. Your criminal history includes the following:
·On 23 January 2001 at the Moe Magistrates' Court you were dealt with for burglary and theft and placed on a community based order for three months.
·On 30 November 2001, again at the Moe Magistrates' Court, you were dealt with recklessly causing injury. Again you were placed on a community based order for four months.
·On 9 April 2002 at the Moe Magistrates' Court you were dealt with for intentionally cause injury. You were fined $600.
·On 24 April 2003 at the Moe Magistrates' Court the charges were criminal damage, discharging a stone and assault in company. You were placed again on a community based order for a period of 12 months.
·On 14 July 2003 at the Moe Magistrates' Court you were dealt with for recklessly causing injury and unlawful assault and placed on a community based order for five months.
·On 16 December 2005 at the Moe Magistrates' Court you were dealt with for unlawful assault for which you were fined $1000 and a charge of making a threat to kill for which you were sentenced to two months' imprisonment, wholly suspended for a period of 18 months.
23Up to 2005 you were what is referred to in the registry at the Latrobe Valley Magistrates' Court, a ‘frequent flyer’ at Moe Magistrates' Court, but the suspended sentence appears to have shaken your criminal bent at that time.
24Your criminal history then resumes in 2016. It is a gap of some 11 years. This coincides with the breakdown of your relationship with Taya and you taking up the use of methylamphetamine.
·On 16 September 2016 at Latrobe Magistrates' Court for charges of criminal damage, unlawful assault and contravening a family violence order, you were convicted and it was adjourned until15 September 2017.
·On 16 June 2017 you were dealt with again at Latrobe Magistrates' Court for possessing methamphetamine, persistent breach of a family violence intervention order and offending whilst on bail, and you were sentenced to 180 days concurrent with other sentences. You appealed that sentence.
·On 23 June 2017 at the County Court in Latrobe Valley for those charges your appeal was allowed and you were convicted and sentenced to 60 days' imprisonment.
·On 26 August 2018 at the Latrobe Magistrates' Court you were dealt with for driving whilst under the influence of drugs, trafficking in cannabis by two charges, possessing a controlled weapon, dealing with proceeds of crime on two occasions, possessing a prohibited weapon and offending whilst on bail, and you were sentenced to an aggregate sentence of 90 days.
25On my calculations you were released from prison at the end of October 2018 in respect to that last court order and within weeks you offended in respect of Charge 1 on the trial indictment. Clearly, the two short terms of imprisonment in 2017 and 2018 did not have any specific deterrent effect upon you.
26You presently have served 1000 days on remand for these charges. You have a trusted position at Fulham Prison. You have completed numerous courses to do with drug addiction and other employment related courses. You do have the capacity and inclination to gain employment upon your release from custody. Dr Cunningham very carefully and correctly summarises your path of rehabilitation perfectly. He says as follows:
'In my opinion, Mr Ward would benefit from maintaining stable accommodation and employment in the community. He would benefit from prioritising his family. Ceasing drug abuse and associated peers would be the main factors in decreasing his risk of reoffending. Maintaining stable employment, accommodation and family connections would improve his prospects of his rehabilitation'.
Sentencing Considerations
27The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
28I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. I am also required to take into account current sentencing practices in fixing your sentence.
29That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
30Current sentencing practices are only one of the considerations I am required to take into account when fixing your sentence. The offending spans a period of 10 November 2018, which is Charge 3 on the trial indictment, and 28 January 2019, which is Charges 5 and 6 on the trial indictment, and the single charge of handling stolen goods on the plea indictment.
31In determining the sentence for the handling of stolen goods charge in respect of the Triton ute, I take into account your plea of guilty to that charge. The plea of guilty was entered immediately before the commencement of the trial for the other charges. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. Your plea to this charge limited the number of witnesses required in the trial charges and provided certainty of outcome for that charge.
32Your plea of guilty to that charge also had a forensic advantage for you in the context of the trial charges. Nevertheless, it is a clear acknowledgment by you of acceptance of your criminal behaviour in respect of handling stolen goods, being the Triton ute. I accept there is a demonstration of remorse on your part. These matters of your plea are reflected in the sentence and the degree of cumulation for this particular charge in the total sentence for all of your criminal behaviour in these proceedings.
33Your offending is serious. The seriousness of the criminal behaviour is indicated by the following matters:
(1) you used a stolen vehicle in the commission of the trial Charges 5 and 6;
(2) you used a firearm to commit the Charges 5 and 6;
(3) you planned the shooting by using a third person, Tilly Edwards, to get your victim, Mr Bale, to the scene of your ambush of Mr Bale;
(4) you discharged the firearm in the proximity of two persons being Mr Bale and Ms Edwards;
(5) you discharged a firearm in a public place;
(6) you were motivated in this offending by revenge and retribution against Mr Bale because you believed he had stolen $30,000 from you;
(7) the shooting event has taken place two months after you have committed the robbery if the motorcycle from Mr Bale for the same 'reason'; and
(8) you used a firearm in circumstances where you had prior convictions for possessing a prohibited weapon and possessing a controlled weapon without excuse, as I was told it was a sword. This offending is an up-scaling of your use of weapons in the past.
34I have previously dealt with your prior criminal history and your personal circumstances in these reasons for sentence and I will not repeat them again. The relevance of your criminal history is that you have prior convictions for violence to persons, dishonesty and damage to property. You have previously served two short terms of imprisonment for some of that offending.
35You have been in custody on remand for a total of 1000 days including this day. I take into account the delay between the time of your arrest and the time of sentence. The delay is in two distinct parts. The first part is between your arrest and the verdict on 14 December 2021. In that period the natural anxiety occasioned to you due to the extended period calls for some mitigation of sentence. The delay was caused in part by the delay in trial listings due to the COVID-19 pandemic. The second part of the delay is between conviction and plea hearing, which is approximately six months, when you have the additional anxiety of knowing that you are to be sentenced for very serious offending. I have taken the unfairness occasioned by the total delay in fixing your final and total sentence into account.
36I note for completeness that in your case you were granted bail in April 2020 but had it revoked in December 2020. In your cased there is no relevance of the other aspect of delay, which usually involves rehabilitation and lack of offending in the interim period.
37I take into account that for nearly all of the time you have been in custody you have been subjected to COVID-19 restrictions for prisoners. These restrictions include multiple occasions of quarantine and lockdowns due to virus outbreaks within the prison system. You have not been able to receive personal visits from your family members. The availability of courses and counselling are reduced by COVID-19 restrictions, and the effect of the pandemic restrictions is to make your time in custody more onerous than at normal times. Further, whilst you have been in custody, two of your grandparents have died and you were unable to attend their funeral because of your custodial circumstances.
38You have made some efforts whilst on remand to take advantage of such courses that have been available to you at Ravenhall Prison. Whilst in Fulham Prison you have been given a trusted position of a cleaner in the reception section of the prison.
39I assess your prospects of rehabilitation as guarded. Dr Cunningham has assessed your risk of future violent offending as moderate. On the positive side you have no mental or intellectual impairment that would inhibit your capacity for rehabilitation. You have the support of your family, both from your parents and connection with your children. You also have the prospect of employment as a concreter on your release from custody. The concern I have for your rehabilitation is twofold. First, you have a history of drug use and alcohol fuelled violence. Second, in this offending the robbery of the motorcycle did not satisfy you in your request for return of your money, so you raised the level of offending by shooting a person.
40The period between the two events was two months. This is indicative that if you do not get your way, you will up the ante regardless of the consequences of your criminal actions.
41I accept your counsel's submissions that there should be substantial concurrency between the sentences in respect of Charges 5 and 6 on the trial indictment. The dishonesty charge, that is Charge 3 on the trial indictment and the plea charge, are separate offending and require only limited orders for concurrency so the concurrency and cumulation will not offend the principle of totality in sentencing.
42The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and protection of the community dictate that the only appropriate sentence is a substantial term of imprisonment with a
non-parole period fixed.43I sentence you as follows:
44In respect of Indictment No.K10331165.2, which is case number is CR 19-02350, this is the trial indictment, Mr Ward. On the charge of robbery, you are convicted and sentenced to two years and six months. On the charge of conduct endangering life, you are convicted and sentenced to five years' imprisonment. That is the base sentence. In respect of Charge 6, intentionally cause injury, you are convicted and sentenced to four years' imprisonment.
45In respect to those matters, one year and six months in Charge 3 and nine months of Charge 6, will be served cumulatively on one another and on the base sentence.
46I will now move to the Indictment No.K10331165.3, and that is case number CR 21-02601. This is one charge of handling stolen goods. You are convicted and sentenced to two years' imprisonment. Six months of that sentence is to be served cumulatively on the sentences that I have just announced in
CR 19-02350. That is for the two indictments, the two lots of charges the total effective sentence is seven years and nine months.47I fix a non-parole period of five years and three months in respect of both of them.
48In respect of the plea indictment, pursuant to s6AAA, but for your plea of guilty in respect of the handling stolen goods charge, I would have sentenced you to three years' imprisonment. I have not nominated a non-parole period because it is nonsensical in the sense of the context of this sentencing process.
49I declare your pre-sentence detention of 1000 days including this day and it to be deducted administratively and I have signed the disposal and forfeiture orders sought.
50Is there anything - - -
51MR GOODFELLOW: As Your Honour pleases.
52HIS HONOUR: First of all, does the arithmetic add up?
53MR GOODFELLOW: Can I just clarify the order for cumulation, Your Honour, on the robbery charge?
54HIS HONOUR: Yes, certainly, yes certainly. So if we start with the trial indictment, on Charge 3 there is one - this is the cumulation numbers. One year and six months.
55MR GOODFELLOW: Yes, Your Honour.
56HIS HONOUR: Charge 5, it is five years but that is the base sentence, and Charge 6, it is nine months cumulated, and then in respect of the plea charge there is six months to be cumulated on those.
57MR GOODFELLOW: Yes, Your Honour.
58HIS HONOUR: So that should be a total of seven years and nine months.
59MR GOODFELLOW: I agree with that, Your Honour.
60HIS HONOUR: Thanks. Is there anything further I need to do?
61MR GOODFELLOW: No, Your Honour. Would Your Honour just bear with me a second.
62HIS HONOUR: Yes, certainly.
63MR PIRRIE: Yes, it is good.
64HIS HONOUR: Are you satisfied that is correct?
65MR PIRRIE: Yes, Your Honour.
66HIS HONOUR: Thank you. Mr Ward, what I will do is I will leave this link open so that you can speak with Mr Goodfellow about the sentence and whatever else you need to speak to him about. Mr Pirrie will leave the room and so will I and it will just be my tipstaff here to make sure that the technology works, all right?
67ACCUSED: Yeah.
68MR GOODFELLOW: If Your Honour pleases.
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