Director of Public Prosecutions v Benjamin

[2024] VCC 1274

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01265

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALLE BENJAMIN

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2024, 11 June 2024
DATE OF SENTENCE:	19 August 2024
CASE MAY BE CITED AS:	DPP v Benjamin
MEDIUM NEUTRAL CITATION:	[2024] VCC 1274

REASONS FOR SENTENCE

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Subject:  SENTENCE – Criminal Law

Catchwords:  Sentence following deferral period – violent offending – parity – co-offenders – low risk of reoffending – new business – drug habit at the time of offending – demonstrated rehabilitation – war torn trauma background

Legislation Cited: Crimes Act 1914 (Vic), Sentencing Act 1991 (Vic)

Sentence:12 months Community Correction Order with 100 hours of work; 6AAA declaration – a longer sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Accused	Mr J. Mortley	Emma Turnbull Lawyers

HER HONOUR:

1Mr Benjamin, you may remain seated.  We have been here before as you may remember, in October last year, on your plea of guilty to a charge of assault with intent to rob which carries a maximum penalty of 15 years' imprisonment.  I sentenced you to a period of deferral which was to allow you the opportunity to demonstrate, what at that time, was just a thought in your mind, which was that you had business services that you were able to offer that you thought might end up becoming a good business.  This was important for a few different reasons, to you and to the community. 

2Firstly, it allowed you to show your potential and it allowed you to start creating a future for yourself and your family by way of using your hard work and your skills as a handyman to start developing a private clientele who might be willing to pay for your services.  The community could be seen to be benefiting from that because, as we now know, you pay tax on each of the payments that are made to you by customers, and from time to time on the income which is the money that you receive from those customers, less the cost of the business. 

3You are growing as a business person as well as a tradesman and I have seen that you are now generating more money than you spend which, as you might know as a businessman,  is a bit tricky in that first year or two of your practice because you get, you know, a bunch of clients and then suddenly you wonder where your next client is going to come from.  But now, 10 months have passed, and you are starting to show the basis of a profitable business which is to your enormous credit. 

4It also turned out that my caution, my optimism, about how you would do in the future turned out to be well founded because you have managed to show nearly another year without slipping back, I am told, into earlier activity which made you more prone to commit criminal offences such as by engaging in drug taking activity which you know – as recently as speaking to the Office of Corrections- you have been perfectly honest with them.  But that was what contributed to your offending in the past and that that is behind you because you are straight up, you have got priorities like running a business and making a real fist of being a man with grown up responsibilities. 

5That is why you would prefer to keep it in your past.  The fact that you have managed to put your drug taking in the past, and in turn, you have put your criminal offending in the past, because I have seen your criminal priors and I discussed them nearly a year ago, is a credit to you.  The offence before me, as you may remember, was one of real violence, which was turning up into a person's private home, with another person, and making demands in relation to what you said was your money, was a very frightening and violent event. 

6Ten months ago, when I needed to sentence you, the prosecution was saying the only way I can sentence you was to sentence you to gaol and then release you on a community correction order.  Now, 10 months on, with all of this progress in the meantime, it allows me to sort of see you in a more sort of 'big picture way', so I do not just have to have a look at the circumstances of offending which were very bad, I can also start having a look at your opportunities in the future.  You were recently interviewed by the Office of Corrections, and this is where I start seeing aspects of your character sneaking through, again to your credit.

7The Office of Corrections noted:

'that you were polite, engaged and responsive to all questions put to you.  You are willing to comply with a community correction order and you have some understanding as to what you did wrong and why you did it.  "I was a bit lost and confused.  I am now back on track".  You understand that your drug use at the time which was ice and cannabis played a contributing factor'.

8The office of Corrections considers that you are at low risk of general re-offending.  I am a bit cautious because you do have a few matters in your priors and as we know drug addiction is really hard to kick.  So that there might be ups and downs in your business or in your personal life that might tempt you to start taking drugs and that makes you more likely to do other things.  But the Office of Corrections, who are the experts, believe that that is now in your history.  I reminded myself of what I took into account 10 months ago when I sentenced you to your deferral. 

9I was told about your childhood and your journey to Australia.  I was told about your work history and, I was told about your prior criminal history, which at the time was seven prior court appearances for offences including property offences, drug offences and failures to comply with orders.  At the time it was nearly four years since you had committed that offence.  We are now up to the point happily where it is nearly five years and I will make the same comment that I did then, which is you have managed to stay out of trouble, yet nearly another year out of trouble, and now you have got all of these good jobs in your favour with a growing business.

10In all of the circumstances, knowing the matter as I do and taking everything i need to into account, including to the extent that I need to, the parity principle of sentencing, which is where I need to impose similar, not identical, sentences on you and your co-accused at the time I intend to pass the following sentence.  On the charge of assault with intent to rob, if you are willing to agree, I am prepared to convict you and place you on a community correction order on that charge for a period of 12 months from today, with the condition that you perform 100 hours of unpaid community work. 

11If you are willing to enter into that order, which will include certain conditions.  One of which is just for you, which is 100 hours of unpaid community work and a bundle of other conditions that are imposed on everyone, including that you must turn up at the Sunshine Office of Corrections within two business days.  If you are willing to enter into that order and agree to those conditions, then you are able to be released from this court and from this hearing today.  But if you disobey the reasonable instructions of the Office of Corrections in the administration of that order, or if you re-offend, then you will need to come back before me, and I will need to re-sentence you on the assault with intent to rob as well as any other offences that you might commit in the meantime.

12This order works for a number of different reasons.  It punishes you as I must do, and it also assists in you staying out of trouble.  It is just a reminder of the fact that I need to send a message to the community that this type of offending will not be tolerated, and I need to remind you that this has to be in your history, sir, rather than in your future.  Are you willing to enter into the community correction order in those terms?

13OFFENDER:  Yes.

14HER HONOUR:  Yes.  In that case, would you like to leave the dock and come back and sit behind Mr Mortley?   We will get the documents ready and signed and then once you have signed the order, you will be free to go.  Mr Mortley, would you mind remaining in court with your client for a moment while my associates prepare the orders?

15MR MORTLEY:  Certainly, Your Honour.

16HER HONOUR:  And I will make sure it is signed before your client does and then he is free to go.

17MR MORTLEY:  As the court pleases.

18HER HONOUR:  As far as the 6AAA, in this circumstance, it is difficult to disaggregate simply the plea of guilty from the other factors including the period of deferral.  The 6AAA will be a longer sentence as it is very difficult for me simply to isolate the plea of guilty part as a factor of mitigation, as opposed to the fact that it goes hand in hand in my view with the period of deferral.  So I will add to my order that had your client pleaded not guilty at trial, but been found guilty, I would have imposed a longer sentence.  Were there any ancillary orders sought?

19MR PETRIC:  No, Your Honour.  Thank you.

20HER HONOUR:  Okay, thank you.  Are there any other applications to make orders sought in that matter or does that bring it to an end?

21MR MORTLEY:  That concludes the matter, Your Honour.

22HER HONOUR:  Okay, thank you.

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