DPP v Beroukas

Cases Cited: Dawson v The Queen [2019] ACTCA 9 DPP v Beroukas (No 2) [2024] ACTSC 294 DPP v Monaghan [2024] ACTSC 183 DPP v Rohrlach (No 2) [2025] ACTSC 192 Hili v The Queen [2010] HCA 45; 242 CLR 520 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 R v Beroukas [2021] ACTSC 172 R v Elphick [2021] ACTSC 9 R v Massey [2020] ACTSC 256 R v Massey (No 3) [2021] ACTSC 156 R v Rosewarne [2021] ACTSC 217 R v Slattery [2021] ACTSC 154 Thorn v Laidlaw [2005] ACTCA 49

Parties: Director of Public Prosecutions Jordan Wayne Beroukas (Offender) Representation: Counsel J Melloy (DPP) Z McBride (Offender) Solicitors ACT Director of Public Prosecutions Bevan & Co (Offender) File Number: SCC 28 of 2025 SCC 29 of 2025 McWILLIAM J: Offences for Sentence

1. Jordan Wayne Beroukas is before the court for sentence having pleaded guilty to the following offences: Reference number Offence Max. Penalty CAN 11991/2024 Take motor vehicle without consent, $80,000 fine, imprisonment contrary to s 318(1) of the Criminal for five years, or both. Code 2002 (ACT) (Code)

CAN 11992/2024 Drive motor vehicle without consent, $80,000 fine, imprisonment contrary to s 318(2) of the Code for five years, or both. CAN 11989/2024 Minor theft, contrary to s 321 of the $8,000 fine, imprisonment Code for six months, or both.

CAN 11994/24 Drive unlicensed, contrary to s 31(1) of $3,200 fine. the Road Transport (Driver Licensing) Act 1999 (ACT)

Conduct constituting the offences

2. The conduct that is the subject of the four offences all occurred over the weekend of 30 November 2024 to 1 December 2024.

3. The minor theft occurred first, when the offender filled up a truck with fuel at an Ampol petrol station and drove off without paying for it. The truck broke down 50 metres from the petrol station. He then returned to the Ampol station and took a bottle of Mountain Dew from the store. The total value of the petrol and the drink was $177.06. CCTV footage captured the events.

4. Later that afternoon, the offender attended a mechanic workshop in Hume. He located the keys to a blue Mazda 323. He got into the car and drove the vehicle out of the vehicle yard. The following day he attended the 7-eleven service station in Wanniassa with the Mazda around lunchtime. Police attended shortly after and arrested the offender. They returned to the vehicle, and the Mazda had an impact smash to the front windscreen panel and paint damage to the right-hand side.

5. At the time of driving the truck and the Mazda 323, the offender’s learner licence was expired, making him an unlicensed driver.

A sentence of imprisonment will be imposed

6. Accepting that imposing a term of imprisonment is a sentence of last resort, there was no issue here that a term of imprisonment was the appropriate sentence for the above offending (apart from the driving while unlicensed), for reasons that are explained below.

Consequences of conviction

7. Upon conviction for these offences, the offender will be in breach of a suspended sentence order imposed on 24 September 2024 in relation to an offence of arson, which was itself imposed as part of a re-sentencing exercise: DPP v Beroukas (No 2) [2024] ACTSC 294 (Beroukas (No 2)). That suspended sentence must now be formally cancelled under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), even though it has now expired.

8. The offender will be re-sentenced for the arson offence. It is appropriate in the circumstances here for the sentence to now be served by way of an intensive correction order (ICO), rather than to impose a full-time custodial sentence.

Applicable legal principles

9. Given that the conclusion as to the appropriate course was clear in this case, I will deal with the established legal principles affecting the court’s discretion briefly. In sentencing the offender for the driving offences, the court has, at the forefront of its consideration, the purposes of sentencing, set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting an offender’s rehabilitation.

10. The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

11. The court must take into account the nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act) and ensure that the sentence is proportionate to the gravity of the offending, with the applicable legal principles guiding the exercise of the sentencing discretion in that regard set out in Beroukas (No 2) at [29]-[32].

12. Beroukas (No 2) also sets out at [8]-[15] the principles applying to the question of whether to impose the term of the suspended sentence or whether to resentence the offender for the previous offence of arson. A more expansive discussion of those principles is found in DPP v Rohrlach (No 2) [2025] ACTSC 192 at [9]-[14].

The nature and circumstances of the offending here

13. In relation to the theft offence, following R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38] (both of which were cited by Taylor J in DPP v Monaghan [2024] ACTSC 183 at [18]), I have taken into account as being relevant: (a) The motive for the theft; (b) The extent and value of the property taken; and (c) Whether the stolen items were of sentimental value or utilitarian value, such that they would be difficult or inconvenient to replace.

14. The offence itself was minor and this is a low-level example of the offence.

15. In respect of the offence of taking a motor vehicle without consent, applying R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [123], the features informing the objective seriousness include: (a) The degree of planning; (b) The motive for the offence, including whether it was undertaken to facilitate another offence; (c) Whether the taking caused damage to the vehicle (unless separately charged); and (d) Whether the vehicle was recovered.

16. The taking of the vehicle was pre-meditated, in that the offender plainly had to travel to the mechanic workshop in Hume. The motive was personal use. The vehicle was recovered. It is not clear whether the damage to the vehicle was pre-existing (noting that the vehicle was taken from a mechanic workshop, the vehicle may well have been there for repairs).

17. Applying Rosewarne at [124] and R v Massey (No 3) [2021] ACTSC 156 at [29], the following considerations inform the objective seriousness of the offence of driving a motor vehicle without consent: (a) The period of driving and the length of distance driven; (b) Whether the vehicle was used in the commission of another offence; (c) Whether the offender was the driver and not only the passenger; (d) The manner of driving, unless subject to a separate charge; (e) Whether the vehicle was damaged; and (f) Whether the vehicle was returned to the owner.

18. There are very few aggravating features here. This was clearly a low-level example of the offence.

19. The driving while unlicensed is a strict liability offence. On the agreed facts, there are no extenuating circumstances present.

Victim impact statements (s 33(1)(f) of the Sentencing Act)

20. There were no victim impact statements before the Court. That does not mean that there was no victim impact, but the court does not speculate about the extent of the impact.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

21. In respect of the three offences where terms of imprisonment are in contemplation, having regard to the mandatory matters for consideration under s 35(2) of the Sentencing Act, I have exercised the discretion under s 35(3) of the Sentencing Act to reduce the sentence that would otherwise have been imposed by 25% because: (a) The offender has pleaded guilty. (b) The timing of the pleas had significant utilitarian value (as to which, see Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]), being entered prior to the preparation of a brief of evidence. (c) The offences are not of such a gravity where a percentage-based approach might be considered inappropriate.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

22. The offender’s subjective circumstances were set out in R v Beroukas [2021] ACTSC 172 at [10]-[17]. In summary, he has had a disadvantaged upbringing, with schooling attendance affected and a significant period where he was without stable accommodation. His maternal aunt remains supportive. He has been in a relationship for approximately three years. He and his partner have young twins together. Both have children from previous relationships. He has a shared goal of working towards restoration of care for those children. The probable impact of any sentence on his children (s 33(1)(o) of the Sentencing Act), particularly those for whom he has primary carer responsibilities, is discussed below and has been taken into account.

23. The offender has been in stable housing since August 2022. He has capacity to work and to gain further skills, as indicated by him completing his year 10 at Canberra Institute of Technology.

Criminal antecedents of the offender (s 33(1)(m) of the Sentencing Act)

24. The offender’s criminal history is considerable and among it are convictions for the same type of offending. Such history disentitles him from leniency. He was also subject to bail conditions and multiple good behaviour orders at the time of the offending. That is an aggravating feature.

Financial circumstances of offender (s 33(1)(n) of the Sentencing Act)

25. The offender is already paying off a number of fines for unrelated conduct. He is complying with payment plans. He is dependent on social services for income. I have a concern that a further fine may be too difficult for him to manage in the short term, but it may be achievable if a longer term for payment is permitted by the court.

Remorse (s 33(1)(w) of the Sentencing Act)

26. The contents of the pre-sentence report indicated that the offender has limited memory of the offences. He acknowledged illicit substance use (s 33(1)(p) of the Sentencing Act), poor mental health and reduced overall wellbeing all contributed. He did take responsibility for his actions and indicated an awareness of the adverse impact on others. He reflected that at the time he had limited regard for the consequences of his decisions.

Voluntary treatment for matters that may have contributed to the offence (s 33(1)(t) of the Sentencing Act)

27. The offender has undertaken voluntary treatment to address his substance abuse through the Karralika program and a letter of support from his Alcohol and Drug Counsellor was before the court.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

28. The prosecution drew attention to cases commonly referred to in this court, including R v Massey [2020] ACTSC 256 at [76]-[78] and Peter v Brownlie [2023] ACTSC 198 at [51]. The submissions had also earlier relied on Rosewarne. I have taken these cases into account to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction but rather to ensure consistency in the application of the principles: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

Pre-sentence custody

29. The offender has spent 60 days in pre-sentence custody. However, he has requested that such time not be formally taken into account because it would destroy his prospects of obtaining an intensive correction order here (which cannot be imposed as part of a combination sentence).

Totality

30. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). A degree of concurrency is appropriate because the theft and the driving a vehicle were part of the one incident. The driving unlicensed was part of the same course of conduct as the driving of the truck and the taking of the Mazda 323, but the offender is not liable to a term of imprisonment for this offence.

Disposition

31. The gravity of each of the conduct constituting the offences here is relatively modest, but it nevertheless should be impressed upon the offender that a positive and supportive society depends fundamentally on people obeying the law. If he wants his children to live in a world of delight and wonder, where they feel safe, respected and valued, then he needs to model that respect for safety, whether that be paying for fuel, respecting the possessions of other people, or contributing to that general safety in the community by refraining from criminal conduct.

32. Of the variety of ways in which these offences may be sentenced, ultimately, the outcome depends largely on the court’s finding as to the appropriate outcome for the breaches of the suspended sentence. For example, it is significant that in the circumstances here, a good behaviour order cannot be imposed at the same time as an ICO: s 29(b) of the Sentencing Act. (There are circumstances in s 80 of the Sentencing Act where an intensive correction order can be made to be served concurrently with a good behaviour order, but they are not enlivened in the present case.) Accordingly, if an ICO is imposed, then of the available options under s 30 of the Sentencing Act, a fine becomes the appropriate sentence for the driving while unlicensed offence. Consequences of the offences: The offender should be resentenced for the breach of the suspended sentence

33. A sentence that has been tailored to an individual’s circumstances is in accordance with the legal principle of individualised justice discussed above. It may result in an outcome that is more merciful or tolerant than expected. Such a sentence may be described as lenient but that does not mean that it is inappropriate. Indeed, it need hardly be said that a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30]. However, where a sentencing outcome is not as expected, that gives rise to a need for caution to be exercised, to ensure that the result, though lenient, accords with proper principle.

34. These prefatory remarks are necessary because of the offender’s history concerning the sentence imposed for the arson offence. He was given the benefit of an opportunity to remain in the community by virtue of the imposition of a suspended sentence for that offence. Then he breached the good behaviour order that attached to that suspended sentence and was resentenced. He was again given the opportunity to remain in the community and has now breached the further good behaviour order that was imposed.

35. Added to that, the offending occurred just over two months into the 12-month order. There was no rehabilitation at the time the further offending occurred. The conduct constituting the breach here was the same type of offending which breached the original good behaviour order imposed. Committing an offence is a serious breach of a good behaviour order. The offender committed four offences here. The breach conduct cannot be said to have arisen by virtue of mistake or misunderstanding. The underlying offence of arson was itself a serious offence, committed while the offender was in custody at the Alexander Maconochie Centre.

36. What would be expected in those circumstances is the imposition of the full-time custodial sentence. I agree with the prosecution that all of the above matters weigh heavily in favour of imposing the previous sentence of imprisonment of 11 months and 23 days imposed for the arson offence, which was then fully suspended.

37. However, there are two matters that speak against the imposition of full-time custody. The first is that for the first time, he has undergone 4 months of residential rehabilitation and continued engagement for a short period beyond. He exited the program voluntarily due to the second matter, which is that he is now a primary carer (along with his partner) for two young children who remain in his care despite involvement with the Children, Youth and Families service (CYF). The evidence was scant on the consequences of him being taken into custody for almost a year at this point in the parenting journey. However common sense suggests that the already precarious family situation would collapse. At the very least, the hardship visited upon his partner, who has her own challenges and would become the sole carer for young twins, would be acute. It was unclear whether the children would be able to remain with their mother if the offender were to serve a full-time custodial sentence. It is often said that hardship to family is a consequence of the offender’s conduct. Even so, there are cases where such hardship is greater than what might be seen as the usual corollary of a custodial sentence. The court cannot ignore that the hardship arising from the imposition of a full-time custodial sentence here would be a disproportionate consequence of the offender’s breach conduct.

38. On very fine balance and noting the offender was still a youthful offender at the time of the breaches, the appropriate course of action is to refrain from imposing the full-time custodial sentence that remains hanging over his head. That requires the court to re-sentence the offender. I rely on my previous consideration of the relevant circumstances in Beroukas (No 2) at [26]-[45] but have also refreshed my memory from the documentation that was originally before the court on the initial sentence.

39. In addition, the offender has spent a period of time in what might be classified as a quasi-custodial environment. I have taken that into account in determining the length of the sentence to be imposed and the manner in which the sentence should be served. Those matters explain why the sentence to be imposed is not of an increased duration. I also consider that in the circumstances of this offender, a longer sentence would not serve any particular deterrent purpose, either general or specific. Either, this offender will realise how close he is to losing his freedom and to destroying his family unit in its current form, and the prospect of increased care arrangements for his other child and will focus all his energy on putting his children first and becoming the best parent and partner he can be, or he will continue to conduct himself in a way that brings him into contact with the justice system, with whatever consequences follow.

40. In the meantime, supervision will be required as an additional measure to protect the community. Given the breach, such supervision must clearly be of a closer and more targeted kind than that ordinarily arising where a sentence is suspended.

41. In considering the manner of the sentence to be imposed, I have also given consideration to the views expressed by those who assessed the offender when he was considering whether to pursue a drug and alcohol treatment order. The offender has managed to abstain from drugs for a period of nine months, confirmed by regular testing with corrective services and CYF. He is a fair way further along the rehabilitation path than he was this time a year ago, when he was before the court for breaching his good behaviour order. As the health assessor explained, placing individuals with different levels of risk and treatment in the same intensive program can be counterproductive, because the low-need participants might be adversely affected by exposure to higher-risk peers.

42. I consider that this offender still requires targeted intervention to cement the path that he is now on, and this will be achieved by an ICO. The offender has consented to that manner of serving his sentence. He has been found eligible and suitable for such an order following an intensive correction assessment and I accept the opinion of the assessing officer in both those respects. I will not impose a specific rehabilitation condition because the offender has participated in a formal rehabilitation program and a degree of flexibility is now required to support that progress.

43. As I said at the outset of the discussion as to the ultimate disposition, the consequence of that conclusion with regard to the suspended sentence influences the ultimate disposition in terms of the sentences for the primary offences. The above matters and the nature of the offending are such that an ICO is the appropriate sentence here.

Orders

44. The orders of the Court are: (1) In respect of the offence of take motor vehicle without consent, contrary to s 318(1) of the Criminal Code 2002 (ACT) (Code) (CAN 11991/2024) the offender is convicted and sentenced to a term of imprisonment for six months reduced to four months and 15 days on account of his guilty plea, to commence on 22 September 2026 and conclude on 5 February 2027. (2) In respect of the offence of drive motor vehicle without consent, contrary to s 318(2) of the Code (CAN 11992/2024), the offender is convicted and sentenced to a term of imprisonment for 4 months, reduced to 3 months on account of his guilty plea, to commence on 1 January 2027 and conclude on 31 March 2027. (3) In respect of the offence of minor theft, contrary to s 321 of the Code (CAN 11989/2024), the offender is convicted and sentenced to a term of imprisonment of 2 months reduced to 1 month and 15 days on account of his guilty plea, to commence on 16 March 2027 and conclude on 30 April 2027. (4) For the offence of driving while unlicensed, contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CAN 11994/24) the offender is convicted and fined $350 with 12 months to pay. (5) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of Jordan Wayne Beroukas is cancelled and the offender is resentenced for the offence of arson, contrary to s 404(1) of the Code (CAN 1240/2021) to a term of imprisonment of 11 months and 23 days (reduced from 14 months) to commence on 22 October 2025 and conclude on 14 October 2026. (6) The total effective sentence is 1 year 6 months and 9 days. (7) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 the sentence is to be served by intensive correction in the community, with the core conditions contained in s 42 of the CSA Act 2005.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: