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County Court of Victoria |
Last Updated: 9 December 2013
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Subject:
Catchwords:
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APPEARANCES:
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Counsel
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Solicitors
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For the DPP
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Ms S.A. Flynn
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For Accused West
For Accused Beyer |
Mr K. Reynolds
Mr M. Goldberg |
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1 Travis West and Michael Beyer, you have each pleaded guilty to one charge of
recklessly causing serious injury.
2 The victim of the assault is a man by
the name of Garry McCluskey. He lived over the back fence from the house that
you, Mr Beyer,
were occupying. You did not know him and nor did you, Mr West.
Mr McCluskey had lived in that house, or was living in that house
with his 19
year old son, and as his Victim Impact Statement makes clear, Mr McCluskey
Senior had lived in Geelong all of his life
and his 19 year old son had lived in
Geelong all of his life. It was their home, it was where their friends were, it
was where their
work was.
3 It was on Father's Day last year, 2 September,
that the offence occurred. Mr McCluskey and his son, Dylan, were at home.
There
was a knock at the door at about 6 pm. You, Mr West, were at the door.
You asked Mr McCluskey if you could speak to him outside,
and Mr McCluskey
followed you out.
4 You produced a pair of hedge clippers, long-handled hedge
clippers that you had had until then concealed behind your bag, said something
to indicate that you did not need them any more and put them down in the front
yard. You walked around the corner of Mr McCluskey's
house and Mr McCluskey
followed you and there, as you went around the house, you started to ask him
some questions about the people
who lived next door.
5 You became somewhat
hostile in your questioning, suggesting that Mr McCluskey knew more about the
people next door than he was telling
you. By that stage you had got around the
corner of the house where you, Mr Beyer, were waiting. You, Mr Beyer, punched
Mr McCluskey
twice to the head. He fell over and as he did, called out to his
son to call the police.
6 He was punched by the two of you to the head and
then when he fell over and went to the ground, the two of you began kicking him
repeatedly and very hard.
7 Dylan, the 19 year old son of Mr McCluskey, not
only called the police but was so frightened of the viciousness of the attack
that
he saw, that he locked himself inside the house whilst he waited for the
police to arrive.
8 When they did arrive, the two of you were still near
the victim and walked up and approached the police. You both appeared to be
substantially impaired by alcohol and maybe other substances and immediately
volunteered to the police that the victim had rushed
at you with an axe and you
had attacked him in self defence.
9 No axe was found and the assertion that
you had been rushed at by the victim with an axe and you had acted to defend
yourself is
a patently false explanation which the two of you, by your pleas,
have now disavowed.
10 Police saw that each of you had significant blood on
you from the assault, on your shoes, on your clothes, and on your hands and
on
your hat.
11 Mr McCluskey was taken to hospital where examination showed he
had received very serious injuries. He needed three days of immediate
hospitalisation and had to return to hospital some time later for further
procedures. He is left with residual pain, scarring and
disability.
12 An
examination showed that he had multiple cuts, lacerations, and abrasions to his
face and his left ear. A number of those lacerations
were so deep that they
needed stitches. Others required to be glued in order to try and get them
together. He also had significant
bruising over the left side of his skull and
later X-rays showed a broken nose.
13 Four of his ribs were broken and he
suffered a collapsed lung as a result of the ferocity of the attack. He also
suffered what
is described as a transverse process fracture of this third lumbar
vertebra, so that is the vertebra towards the bottom of his back;
whether it was
one or two, or whether the transverse fracture means that it could be counted as
two is a little unclear, but it was
a significant injury and, clearly, the
result of the infliction of significant force.
14 The effects on Mr McCluskey
and his son, Dylan, have been significant. Not only was he subjected to a
frightening brutal and sustained
attack where he suffered those injuries, but
his physical pain was compounded by the dismay at this random violent attack by
strangers,
people unknown to him, and for no apparent reason.
15 As he said
in his Victim Impact Statement, "You think, when you do nothing wrong, people
have no reason to have problems with you.
That's what I thought at the time.
Now I have lost faith in the way people are. I find myself not trusting anybody
for some time.
Before I gave trust from the start. I stress when walking with
people behind me. I never know any more if I could be mistaken
for another
person or be seen by the defendants or their friends. Life was not enjoyable in
Geelong for me from that day on. You
feel as though you are scared more times
than before as you are not sure of any outcome."
16 As both Mr McCluskey and
his son, Dylan, pointed out in their Victim Impact Statement, Dylan was so
traumatised by what he saw
and felt so unsafe as a result of what he saw, that
he within days went up to Queensland. In fact, he had his mother fly down from
Queensland first to be with him and then went up there. He was too afraid to go
home from the time of the assault because he too
did not know why the two of you
had picked on his father and subjected him to such a brutal attack. So they
were living, not only
with the trauma of the attack itself, but the fear of the
unknown and the fear that it may happen again for some reason unknown to
them.
17 Dylan, of course, was also deeply distressed because not only did he
witness it, but he understood how serious the injuries were
to his father and
the significance of the risk to his life from the collapsed lung.
18 Dylan
said, "My life changed a lot as a result of this. I had to leave the town I
grew up in and lived in for 19 years, for my
safety. I also left many of my
friends to move to a whole new place where I had never been before, so I knew
no-one. It was a very
hard ordeal and has taken a lot of time to start to
forget and move on, but I will always remember what happened and how scared and
stressed I felt."
19 Mr McCluskey, the primary victim, referring to Dylan's
departure, said this: "Not only myself, my son witnessed the attack and
moved
to Queensland as fear got the better of him and he didn't feel safe in his home.
I also have moved to Queensland so as I am
able to see my son and to be in an
environment where the stress of what happened isn't there every day. Worse
thing with that is
not being able to see friends on a regular basis."
20 He
said: "I had to leave my home, my home town and my life of 45 years. People I
classify as lifelong friends to be in an environment
I feel safe in as an
innocent victim. I feel safer being where I am, in an environment where I am
not feeling dread, but it doesn't
change the way I feel. It's starting over
again and at 45 years of age, I shouldn't have to. I should have been safe in
my own
home, in my home town, when I had done nothing wrong."
21 So far as
the physical impact of the injuries are concerned and the effect on Mr
McCluskey, he said this, having described the
injuries that I have already
described, he adds a bit of detail that was not in the medical reports, and that
is that the bruises,
some of the bruises were bruises of boot imprints on his
body. Three weeks after his initial admission into hospital, he had to
go back
to hospital and had a significant amount of fluid drained out of his lungs;
fluid that had not been able to be detected because
of the extent of the
bruising and swelling to his body following the beating.
22 He said: "I
suffer from back pain that restricts the things I can do and the work I can
attempt." He was unable for a sustained
amount of time, six months, he said, to
be able to obtain alternative employment upon his release from hospital and his
move to Queensland,
mainly as a result of the restrictions on his movement and
activities, as a result of the physical injuries that he sustained.
23 What
the evidence shows and what each of the two of them says in their Victim Impact
Statements shows how much more of an impact
there is on victims over and above
the physical pain and the physical injuries that are sustained. The fear, as a
result of what
has happened, but also here, not only the fear and the living
with the memory of what has happened, but the relocation, and that
is because of
the randomness of what happened to them, their failure, or their inability to
understand why he was picked on by the
two of you and attacked in the way he
was.
24 It is worth thinking about, the added impacts of these offences of
violence committed on people, that go way beyond the physical
injuries and last
long beyond time that the physical injuries heal.
25 What was the explanation
for this attack? It is hard to know. As I have already mentioned, when the
police arrived, each of you
immediately advanced an explanation that you had
been rushed at with an axe and had attacked Mr McCluskey in self defence. An
explanation
you have now disavowed.
26 When interviewed, you, Mr West,
advanced a number of explanations. You said that Mr McCluskey had come over the
fence and had
caused property damage, banging on the fence and smashing things,
that you thought there had been a feud between Mr McCluskey and
Mr Beyer for
some weeks; that you believed that Mr McCluskey had said that he was going to
rape Mr Beyer's daughters and, at one
stage, I think also said you thought that
Mr McCluskey was the person who had raped Mr Beyer's sister, and your now
partner.
27 None of those things were true. When asked what you had done,
you said that you had hit Mr McCluskey with your hat and your thong
and asserted
that he had been swinging a lump of wood or a stick. You said that you did not
hit Mr McCluskey, but that you wished
you had and were unable to explain how Mr
McCluskey got the injuries he did.
28 On the plea it was put that you had
some sort of a belief about some of these matters, but you were unable to, but
you certainly
were not asserting that Mr Beyer had suggested that you go and
take matters into your own hands in the way you did.
29 You, Mr Beyer, were
less forthcoming in your interview with the police. You either refused to
answer questions, or responded to
the police questions in an abusive and
non-responsive manner, and on the plea it was put to me that you had no
recollection of the
events and even now have no recollection of the events, what
led up to them, why you participated, what you did, or why you did what
you did,
but you accept, having been told what had happened that the prosecution summary
is, indeed, accurate, and you take responsibility
for the conduct that is
described by Mr McCluskey and by his son.
30 It is clear from the account
that I have given, that this is a very serious example of a very serious
offence. The charge carries
a maximum term of imprisonment of 15 years. It was
a frenzied, vicious and sustained attack. After the initial blows to the head
felled Mr McCluskey, the two of you continued to attack him. He was kicked
repeatedly and hard. The force can be gauged in part
by the severity of the
injuries that I have detailed. It can also be gauged by the fact that blood
from Mr McCluskey from the lacerations,
was seen on each of you. It can also be
gauged from looking at the photographs, which show the extent of the cuts, the
swelling
and the extensive bruising to Mr McCluskey's face and body. It should
be borne in mind that those photographs were taken very soon
after the attack
when bruising is only just starting to come out. So, that, again, is a
significant indicator of the force of the
attack; and, of course, there is the
description given by Mr McCluskey and by his son, Dylan, of the force of the
blows that Mr McCluskey
experienced and Dylan saw.
31 It was, from Mr
McCluskey's perspective, a random attack on a stranger. He had done you no harm
and given you no cause to bear
him ill will. The various explanations given by
you, Mr West, are at best, or kindest, the product of your imagination, or based
on a misunderstanding about the identity of personal people you thought had done
the wrong thing by Mr Beyer.
32 At worst, it is an appalling example of drug
or alcohol fuelled vengeance directed at a person you did not know, but who you
believe,
wrongly, as it turns out, had done wrong to someone else. That you
were entirely wrong in believing that Mr McCluskey had done wrong
by Mr Beyer,
only serves to make your conduct more reprehensible and to re-enforce the need
to condemn and punish such ungoverned
and lawless behaviour.
33 None of Mr
West's explanations could have motivated you, Mr Beyer, as you knew the identity
of the people, or the person you had
a grievance against. The one who you bore
the gravest ill will was, to your knowledge, still in gaol serving a sentence
for shooting
at you. His latest act in a vendetta that, it would appear on the
material before me, each of you had sustained for a number of
years.
34 Your
inability to advance any explanation for the attack or for your participation in
it, is not, in those circumstances, a mitigating
feature. Mr McCluskey was
lured away from the safety of his home and, defenceless and unsuspecting,
subjected to a cowardly two
on one attack which gave him no opportunity to flee,
or to defend himself.
35 There was a level of planning. You, Mr West, armed
yourself with the hedge clippers, explaining you did that in case you were
outnumbered,
and then lured Mr McCluskey out of the house and down the drive to
where you, Mr Beyer, were concealed and waiting. The two of you
were ready when
the police arrived, despite your obvious intoxication, to advance that patently
false account of being rushed at
with the axe and acting in self
defence.
36 Given the sustained nature of the attack and the injuries that
you inflicted upon Mr McCluskey with your fists and with kicks,
the absence of
use of other weapons is no mitigating feature either.
37 Neither of you are
strangers to the criminal justice system. You, Mr West, have been sentenced, on
my count, on ten occasions,
for offences involving personal violence or making
threats to kill or injure people. On four occasions you have been sentenced for
weapons offences, and five or six times, for offences involving damage to other
people's property.
38 In addition, you have numerous convictions for
dishonesty offences and driving offences, including exceed the prescribed
content
of alcohol and driving whilst disqualified, as well as various other
summary offences.
39 You have been dealt with on 12 occasions, on my count,
for breaching court orders, community-based orders, suspended sentences,
or
intervention orders, and on 11 occasions you have been dealt with for breaching
orders made by a court which prohibited you from
driving or possession weapons.
It is an appalling criminal history.
40 You have received the full range of
sentencing dispositions, from adjournments without conviction, to terms of
imprisonment immediately
served.
41 Mr Beyer, you have been sentenced, on my
count, on three occasions for offences of violence. On four occasions for
offences involving
drugs or alcohol and on single occasions for breach of an
intervention order, property damage offence, and dishonesty offences.
You too
have been before courts for other summary offences. You have never before been
sentenced to a term of imprisonment.
42 Subject to matters affecting your
moral culpability, it is clear that denunciation, deterrence, both general and
specific, and
punishment, must loom large in the sentencing of you.
43 The
sentence that is otherwise appropriate must be reduced, and reduced
significantly by reason of your early guilty plea. I accept,
as I was told,
that it was entered at the earliest possible opportunity. Not only that does
mean there is the utilitarian benefit
attached to that of saving the time and
cost of trial, but you have spared the victim the ordeal of re-living the
events, and vindicated
his truthfulness in his account of what
happened.
44 The significance of your guilty pleas to considerations of
remorse, I will address separately when I deal with matters personal
to each of
you.
45 So far as considerations of parity are concerned, there is no basis
for distinguishing between the roles of the two of you, but
it is clear that I
must consider the differences arising from the matters personal to you in
ultimately deciding in the exercise
of the intuitive synthesis what is the
appropriate sentence, having regard to all matters relevant to each of
you.
46 So far as you are concerned, Mr West, you are now just 33 years of
age and as your criminal history suggests, you have a long history
of abuse of
drugs and alcohol. Your mother gave evidence on the plea. You grew up in a
supportive family environment. You were
diagnosed with ADHD at the age of ten
and you were medicated in a way that controlled your behaviour, although you
were very thin
and small as a result and suffered from problems of self esteem
associated with your size. Notwithstanding that, your schooling
was
unremarkable and you were, I am told, a keen and talented footballer playing
with both the North Shore and Corio Football Clubs
through the juniors and up
through to the under 20s.
47 You started using drugs at about the age of 14,
and your drug use has escalated over time. Not surprisingly, given your history
of abuse of drugs and alcohol, your employment history has been
sporadic.
48 You have been exposed to a number of significantly traumatic
events in your adult life. When you were about 20, your uncle was
severely
assaulted and you came across him after he had been dumped, bound and wounded
outside the house.
49 When you were a little older, you moved into your own
accommodation and your housemate, who was a good friend of yours, and who
had
suffered from depression, ultimately took his own life. You were the person who
discovered his body in your house.
50 More recently, in 2011, a friend of
yours, a neighbour and friend, was shot and killed by police in the course of an
arrest in
St Kilda. It would appear that after each of these traumatic events,
your drug use escalated.
51 In recent times you formed a relationship with a
young woman, the sister of Mr Beyer, your co-accused. She, as I understand it,
continues in the relationship with you and you want that relationship to be
there and to continue after your release.
52 A neuro-psychological report
prepared for a court hearing in 2009 indicated your formal psychometric scores
were in the lower range
of the average to borderline level. Some of your test
performances on neuro-psychological tests indicated that you have a considerably
deteriorated level of cognitive functioning in memory and some executive
abilities.
53 The author of the report, Dr Vowels, said that that indicated
the possibility of an acquired brain impairment, probably from the
cumulative
trauma resulting from your abuse of alcohol and drugs, as well as the toxic
impact of the substances themselves.
54 In Dr Vowels' opinion, the precise
basis of your disabilities cannot be attributed exactly, given the period of 12
to 15 years
in which your lifestyle has exposed you to drug and alcohol risks,
as well as the cumulative trauma to the brain which this often
leads
to.
55 Dr Vowels took a history of head trauma and said that the report of a
motor vehicle accident at the age of 20 seemed to be the
most serious source of
potential head injury, but assaults, falls and overdoses, could not be
discounted.
56 At the time of the commission of this offence you were on what
was initially called CREDIT Bail, but then became known as ARC Bail,
supervised
by the assessment and referral court list in the Magistrates' Court at
Melbourne.
57 The six progress reports and the final report from the
C.R.E.D.I.T. or A.R.C. scheme, revealed that in October 2011, when you were
first placed on C.R.E.D.I.T. Bail, you initially engaged well with your case
managers and with the support and rehabilitative services
that were made
available to you.
58 By June 2012 you had been charged with some further
offences and your case managers were noting concerns about your increasing
levels of substance abuse.
59 By July 2012, your case manager noted that
there appeared to be a significant decline in your capacity and motivation to
refrain
from substance abuse. There had been continuing concerns about your
attempts to obtain more Xanax than your prescribed level from
your doctor, and
you were ultimately banned from the doctor's premises after you were found
injecting drugs in the toilets at the
surgery.
60 The final ARC Report
recorded that you had reported only intermittent brief periods in which you were
managing to abstain from
heroin and other illicit substances.
61 Since being
charged with this offence, you have been remanded in custody. Drug screen tests
show that you have been drug and alcohol
free whilst in custody. You have
engaged in, and completed as many courses as you could, as were available to
you. They include
some vocational courses and many directed towards management
of your behaviour. Management of conflict, as well as drug and alcohol
harm
reduction and stress reduction related programs.
62 These matters I will
count in your favour when considering your prospects for rehabilitation. First,
that you have a mother and
a partner who continue to support you; that gives you
clearly something to look forward to and support upon your
release.
63 Second, you have shown that you can at least for short periods,
benefit from structured supervision and support and, third, that
you have used
your time in custody well, remaining substance free and engaging in courses to
better equip you for coping with the
inevitable greater temptation to relapse
into drug and alcohol abuse upon release.
64 Although I accept that you have
used your time constructively in custody, nothing was put before me to indicate
that you have expressed
any remorse for the effect of your conduct on the
victim. In the circumstances, I do not consider the fact of the guilty plea
itself
is evidence of remorse, and there is no other evidence or material before
me, which would permit me to make a finding that you are
remorseful in the sense
of remorseful for your conduct, so far as the victim is concerned, and the
impact of your behaviour on him.
65 Matters also relevant to fixing the
appropriate sentence for you, arising out of matters personal to you, relate to
your criminal
history and your history of substance abuse. The correlation
between your substance abuse and your violent offending is clear.
Your
impairment on this occasion by drugs and alcohol is no mitigator, and you must
be taken to have been well aware of the correlation
between substance abuse and
violent behaviour. You were on bail at the time of the commission of this
offence and had been accepted
into a supported bail program designed to give
active support in addressing your substance abuse. Despite that intensive
support,
you ultimately relapsed again into drug use and alcohol
abuse.
66 Your extensive criminal history and your long history of drug and
alcohol abuse, point to the need to impose a sentence which has
a significant
component of specific deterrence. The weight to be given to specific deterrence
must be tempered by recognition of
the limitations imposed upon you by your
cognitive deficits, as described in Dr Vowels' report.
67 On the other hand,
the history, in particular, history of violence, and the exacerbating effects of
your abuse of drugs and alcohol
now compounded by the likelihood of cognitive
deficits resulting from that, means that protection of the community must also
play
a role in sentencing.
68 I accept the submission that the sentence
should be structured so as to allow scope for supervision on parole, should the
Parole
Board see fit to release you. That, of course, is a matter for the
Parole Board, not for me.
69 Mr Beyer, you are just short of your 36th
birthday. You have been out of the paid workforce for some years whilst
undertaking
the care responsibilities for your two daughters, now aged 12 and
14, as a sole parent. You left school relatively young and you
told the
psychologist, Ms Lechner, who assessed you and provided a report for the
hearing, that you estimate you have been in work
about 50 per cent of the time
since leaving school.
70 You are a qualified crane driver operator with a
work history both in the docks and in construction. It is clear that you are
employable and I am told that you are intending to look for paid work upon your
release, that your children are old enough now for
you to feel able to go back
into the paid workforce.
71 You have only two recent court appearances, one
for assault and one for cultivation, possession and use of cannabis. Before
that
you had amassed convictions at a steady rate between 1995 and 2007. At
least two of your convictions for violence, those in 1999
and 2011, are, I was
told, the result of assaults on a man who was acquitted of the rape of your
younger sister. He, in turn, is
the man who I have already referred to, who is
still serving a prison sentence for shooting you.
72 Following the shooting,
you had engaged in counselling with a psychologist, Sarah Gale. I was provided
with a copy of the VOCAT
application for funding for counselling by VOCAT. She
recommended that you embark upon cognitive behavioural therapy in order to
reduce the symptoms of post-traumatic stress disorder that the history that you
provided to her indicated had arisen since the shooting.
73 She reported that
you had been well engaged and co-operative during the four sessions of treatment
that you had had with her before
the VOCAT application was lodged.
74 Ms
Lechner reports that you have a longstanding history of depression and still
exhibit symptoms of post-traumatic stress disorder
arising out of the shooting
incident.
75 On the history that she obtained from you, she said you have a
longstanding history of abuse, mainly of alcohol, but to a lesser
extent of some
illicit drugs and that you have compounded your depression and anxiety by
increasing your alcohol intake in a misguided
attempt to address the depression
and anxiety. She notes that your substance abuse is linked to a propensity for
aggressive behaviour.
76 I am told, and I accept, that after you were
remanded in custody and after you had sobered up, you were shocked and ashamed
when
you were told what you and Mr West had done to Mr McCluskey. I am told,
and I accept, that as a result, you, from that moment on,
accepted that you
would have to serve a term of imprisonment and did not pursue any further bail
applications, acknowledging that
you might as well start doing your punishment
and serving your time from then.
77 You too have applied yourself in custody
to doing as many courses as have been available to you. Many of those have
been directly
related to addressing substance abuse and anger management issues.
78 Consistently, with what you instructed your counsel, and with what you
told Ms Lechner, as to your feelings of shame and regret
for what you have done,
you wrote a letter of apology to Mr McCluskey which was tendered on the
plea.
79 Although you say the day is still a blur to you, you make no excuses
for your behaviour and take full responsibility for it. I
accept that you are
genuinely remorseful for the impact of your offending on Mr McCluskey and that
the insights that you have expressed,
and the apology that you have given, count
in your favour when assessing your prospects for rehabilitation.
80 Also
relevant to your prospects for rehabilitation are your family commitments. That
is, the support that you provide to your
daughters, and the support that you
receive from their love, and the support that you receive from your extended
family. Your sister,
Mr West's partner, has assumed primary care of the
children whilst you have been in custody and, as I understand it, has indicated
her preparedness to continue to do so.
81 I accept that your long history of
responsibility for the children and your commitment to caring for them again
upon your release
provide a strong motivating factor for you to address your
substance abuse and an incentive to remain offence free upon release.
Your past
work history and your qualifications as a crane driver, indicate you have good
prospects of obtaining gainful employment
which again is a positive factor in
assessing the prospects for rehabilitation.
82 Ms Lechner assessed you as
having a low to moderate risk of future violent behaviour, using on an
assessment tool, the historical
clinical Risk 20 Inventory. That assesses
historical factors such as previous violence, substance abuse issues, clinical
factors
such as insight, impulsivity and mental illness, and protective factors,
such as support networks and exposure to stress. She notes
the matters I have
already referred to on the positive side, that is your insight, your willingness
to be involved in treatment and
what she describes as pro-social attitude. Your
good employment prospects and strong family supports.
83 She said if you
engage in ongoing therapy that addresses your post-traumatic symptoms, and your
depressed mood state, and your
substance abuse, your risk level is likely to
decrease.
84 She said your risk rating was highest on historical factors
specifically your involvement in previous violence. She notes that
your
symptoms of major depression and unresolved post-traumatic stress can hamper or
impact on your judgment and your substance abuse
potentiated propensity for
violent behaviour.
85 I consider too for you there should be a considerable
gap between the head sentence and the non-parole period. I consider that
is
warranted in order to allow you the prospects of the benefit of supervision upon
parole, if the Parole Board sees fit to release
you.
86 As this analysis
shows, the personal circumstances of each of you are quite different and, in my
view, justify the imposition of
different sentences upon each of you
notwithstanding the equality of role and equality of responsibility for the
roles that you played.
87 Your prospects, Mr Beyer, for rehabilitation are
greater, that is, better, than those of Mr West. The history of violence is
substantially
less. Your substance abuse is predominantly alcohol related and
whereas yours, Mr West, is a more intractable, more complex mix
of various
illicit drugs and alcohol.
88 You, Mr Beyer, have better prospects, in my
view, of addressing your alcohol and other substance abuse, and better insights
into
your behaviour. In my view, that should be reflected therefore in a
difference in both the head sentence and the non-parole period
applicable to the
two of you.
89 Could you now please stand, Mr West.
90 Travis West, on the
charge to which you pleaded guilty, you are convicted. You are sentenced to be
imprisoned for a period of
six years and I direct that you serve a period of
four years before being eligible for parole.
91 I declare that you have
spent 270 days in pre-sentence detention and direct that that be counted and
reckoned as part of the sentence
already served.
92 Pursuant to s.6AAA of the
Sentencing Act I note that but for your plea of guilty I would have sentenced
you to a term of imprisonment of nine years and would have fixed a
period of six
years and six months as the period you would have had to have served before
being eligible for parole.
93 Can you please remove Mr West.
94 (Prisoner
West removed.)
95 Mr Beyer, can you please stand. Michael Beyer, on the
charge to which you have pleaded guilty, you are convicted. You are sentenced
to be imprisoned for a period of five years and I fix a period of three years as
the term that you must serve before being eligible
for parole.
96 I declare
that you have served 270 days in pre-sentence detention and direct that that be
counted and reckoned as part of the sentence
already served.
97 Pursuant to
s.6AAA of the Sentencing Act I declare that but for your plea of guilty, I would
have sentenced you to a term of imprisonment of seven years and six months and
fixed a period of five years as the term you would have had to have served
before being eligible for parole.
98 Pursuant to s.464ZF of the Crimes Act I
make the order for the taking of a forensic sample. That is to be by way of a
buccal sample
and mouth swab. I must inform you, Mr Beyer, that if you do not
co-operate in the provision of that sample, then the police are
authorised to
use reasonable force to obtain the sample and are likely to use the more
invasive means of obtaining it, namely a blood
sample. Do you understand
that?
99 PRISONER BEYER: Yes.
100 HER HONOUR: Thank you, could you
remove Mr Beyer please.
101 (Prisoner Beyer removed.)
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URL: http://www.austlii.edu.au/au/cases/vic/VCC/2013/951.html