Director of Public Prosecutions v Benjamin
[2023] VCC 1978
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-01264/5
THE DIRECTOR OF PUBLIC PROSECUTIONS
| v |
| SALLE BENJAMIN LOMARY LOKODU |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2023 | |
DATE OF SENTENCE | 26 October 2023 | |
CASE MAY BE CITED AS: | DPP v Benjamin & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1978 | |
Subject:CRIMINAL LAW
Catchwords: Pleas following sentence indication hearings – assault with intend to rob; causing injury recklessly- Renzella time
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2020] VSCA 169; R v Renzella [1999] VSCA 85; Bugmy v R (2013) 302 ALR 192
Sentence: Lokodu- sentenced to an 18 month Community Corrections Order with 150 hours of community work; drug and alcohol rehabilitation; supervision – this sentence takes into account 6 months of Renzella time; Benjamin -sentence deferred for a period of 6 months pursuant to s 83(1A) Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
| For the Accused Benjamin For the Accused Lokodu | Mr J. Mortley Ms A. Sharpley (Plea) | Emma Turnbull Lawyers Leanne Warren and Associates |
HER HONOUR:
1 Mr Lokodu, you have pleaded guilty to a charge of assault with intent to rob, which carries a maximum penalty of 15 years' imprisonment and a charge of causing injury recklessly, which carries a maximum penalty of five years imprisonment.
2 Mr Benjamin, you have pleaded guilty to one charge of assault with intent to rob, which carries a maximum penalty of 15 years imprisonment.
3 The circumstances in which you both came to commit those offences are set out in the summary of prosecution opening for plea. At the time of offending, Mr Benjamin, you were aged 27 years of age. Mr Lokodu, you were aged 28.
4
There were two complainants, David Bayoc who was aged 30 years and
Jacob Bayoc, who was 27 years at the time. They are both brothers and a relevant person is Nyanak Yoah, who is an associate of each of you. Both the complainants and the co-accused were residing at an address in Sunshine West.
5 At about 6.50 pm on 5 November 2019, which here I will pause and note is nearly four years ago, the two victims, David and Jacob were at Yoah's address.
6 Now Jacob observed a white car parked nearby with a Caucasian female with blonde hair waiting in the driver's seat. Jacob recognised you, Mr Lokodu, sitting in the passenger seat of the white vehicle and he recognised you as he had previously resided with Yoah, who of course was your mutual friend.
7 You, Mr Lokodu, was observed to be in possession of a machete in a green coloured sheath, slung around your shoulder. As Jacob entered Yoah's address he recognised you, Mr Benjamin, standing near the front door. Jacob believed you to be a relative of you, Mr Lokodu. Mr Benjamin, you were also observed to be in possession of a machete.
8
Jacob sat down in a chair where he was confronted by you, Mr Benjamin, who used words to the effect of, “Where's my money, where's my money?”, which Jacob took to be related to a debt owed by a cousin. He refused to give you,
Mr Benjamin, anything.
9 Upon refusal, you, Mr Benjamin, demanded he hand over his mobile phone.
10 David came inside the house as he overheard yelling from the vehicle and he recognised you both. David heard you both demand $150 from Jacob. David used words to the effect of, “How come you're holding a machete to a kid for $150? I will pay you the money if you need it”.
11 You, Mr Benjamin, replied, “Who are you?” and then you, Mr Lokodu, swung the machete you were carrying at David and missed.
12 There was further conversation, and someone said to you, Mr Benjamin, that if you wanted the mobile phone you could have it and for them to just talk. And it was recalled that you, Mr Lokodu, were standing near the front door pulling the machete on David and attempting to strike him. This is the offending referrable to Charge 1, assault with intent to rob.
13 Yoah at this point stated, “Not in here, I have my kids”. David ran outside the house and was chased by you both into the front yard. Both of you began swinging machetes at David, who picked up a red pushbike that was laying in the yard to defend himself.
14 While this occurred, you, Mr Benjamin, was heard saying to you, Mr Lokodu, “Johnny, why are you doing this? All right, put it down, put it down”. As David picked up the pushbike he held it up in the air in front of himself as a shield and you, Mr Lokodu swung the machete and struck David on the middle finger of his left hand, which is the offending referrable to your Charge 2, of recklessly cause injury.
15 David dropped the pushbike and ran away. Jacob called Triple 0 and requested police attendance.
16 You, Mr Benjamin, observed Jacob on the phone and used words to the effect of, “Jacob, come on, put the phone down, let's talk” before leaving the scene with you, Mr Lokodu, in the white vehicle. And as I have said, Triple 0 was called first by Jacob and then by David.
17 Police then attended the scene and an investigation commenced.
18 David was treated by attending paramedics from Ambulance Victoria, was conveyed to the Western Hospital in Footscray and then transferred to the Sunshine Hospital for treatment.
19 As a result of your Charge 2, Mr Lokodu, that is the machete striking David's middle finger, he sustained an incision and displaced fracture requiring two separate surgeries. This is the injury referrable to the recklessly cause injury.
20 As I have mentioned, a police investigation ensued, including the analysis of call charge records.
21 In consequence of that investigation you were each arrested and your property was searched.
22 On 30 September 2020, you, Mr Benjamin, were interviewed at Sunshine police station where you made certain admissions in relation to the crime but also denied the principal offending.
23 Now, as far as the procedural history, your matters each proceeded through contested committal hearing where witnesses were cross-examined. Your matter was then committed for trial in this court and the trial was listed to commence on 15 August of this year.
24 After an indication that I offered by way of likely sentence that I would impose, each of your matters resolved on or about 18 August. These are late pleas of guilty but importantly they led to the trials not proceeding, which in turn meant that the complainants and witnesses were saved the stress and inconvenience of having to testify before a jury, an enormous saving for the court, in terms of not having to proceed to trial, and not having to inconvenience jurors with attending for trial.
25 This is of significant utilitarian benefit, particularly in the current era where at the time you entered the pleas the effect of delays and a backlog caused by the COVID-19 pandemic was very much felt by this court.
26 I mitigate sentence on the basis of your pleas and their timing. The significance of that plea in the current era, pursuant to Worboyes[1] and the fact that I infer that your pleas of guilty are indicative of some remorse.
[1]Worboyes v The Queen [2021] VSCA 169
27
As I have mentioned in the course of argument, I consider the objective gravity of each of your offences to be high. Weapons were used in respect of
Charge 1 and they were committed in company. It was a frightening event, involving a demand of payment for a relatively modest sum of money that did not require that element of drama and extremity, would have been very frightening. And also, your Charge 2, Mr Lokodu, resulted in an injury.
28 I note and take into account that your moral culpability was affected by each of your drug use at the time and now, nearly four years later, I am pleased to report that you have both matured out of your regular use of drugs. And that means that whilst your moral culpability at the time was high and effected by that interest in drug usage that you have managed largely to move past that.
29 In relation to you, Mr Lokodu, I have had the benefit of very careful submissions and reports tendered. I note and take into account your previous history, the fact that you are now 31 years of age, 28 at the time of the alleged offending, the fact that you were born in Khartoum, Sudan and raised by your two older sisters, housed together with your paternal uncle and his wife.
30
Your mother and older brother, who was only six years old at the time, were killed in war when you were only three months of age, which is extremely upsetting even to report. Your father lived and worked in Libya to financially support the family. You did not even know your father until approximately
11 years of age. I was told that you were raised in a neglectful and abusive environment, I am sorry to say, exposed to wartime violence and aggression. You experienced starvation. You were beaten. You were not allowed to obtain an education and you were also the victim of extremely distressing abuse.
31 I take into account not only that history but the High Court decision in Bugmy[2] obliges me to give considerable weight to the fact of your extreme childhood disadvantage and trauma and I do so in mitigation of sentence.
[2]Bugmy v R (2013) 302 ALR 192
32 I was told that you arrived in Australia at the age of 14 and attended a few different schools before finishing school to your enormous credit at Sunshine North Technical College. You went on to complete an apprenticeship in bricklaying and you worked as a bricklayer for some years before your first period on remand in September 2017.
33 You spent some time on remand in relation to a matter that has since resolve in this court and I have the benefit of Judge Gaynor's reasons for sentence.
34 Since that release from custody you have been employed consistently. You have been working as a bricklayer. Then you moved on to another firm and continued bricklaying and in December 2022 you commenced your own bricklaying business.
35 You have a loving relationship which has had its ups and downs but I am told that you are now re-partnered and you are the proud father of two children. You are a hands-on father I am told, who is involved in the daily care of your children.
36 You have had issues in the past with alcohol and drug use and at the time of your offending you were using methylamphetamines but you are currently abstinent, which is to your enormous credit. You also prioritise your physical health and wellbeing.
37 I was told and accept that you have a complex mental health presentation, including among other things, persistent depressive disorder, post-traumatic stress disorder and you have experienced drug induced psychosis.
38 An expert tells me that you likely suffer from longstanding post-traumatic stress disorder and depressive symptoms as a result of your severe trauma history, which makes you more vulnerable in custody and increases the burden of imprisonment.
39
You do have a prior criminal history, which is now spent in the Children's Court, which I will put to one side. Subsequent to this offending you were convicted and sentenced to 10 months imprisonment in combination with a community corrections order for 18 months. And whilst you have served 608 days pre-sentence detention in that matter you were only sentenced to 10 months imprisonment, which actually allows me to take some of that time in the proper application of the principle in the case of Renzella[3], applied many times in many subsequent cases. And I plan to draw a further six months from that
pre-sentence detention and make a note that I take that into account in deciding to impose a community corrections order in your case.
[3]R v Renzella [1999] VSCA 85.
40 I have indicated that I have accepted your counsel's submission with respect to the significance of the guilty plea, the application of the Bugmy principle.
41 I note that you are not an Australian citizen and were I to sentence you, you might be vulnerable for deportation, even though you have lived in Australia for more than half your life.
42 And there has been a significant period of delay during which you have shown your enormous capacity to rehabilitate, as well as experiencing worry about the charges hanging over your head.
43 You have been assessed as suitable for a community corrections order. In spite of your counsel's submissions that you have excellent prospects for rehabilitation I note and accept the assessment by the Office of Corrections that you are a medium risk of reoffending. And I consider your prospects for rehabilitation to be good. They will be improved if we can keep a watchful eye on you over the next short period of 18 months under the community correction order.
44 You expressed some reservations about entering into an order because of your other responsibilities. I urge you to agree to the terms of that order because it saves me from having to sentence you to immediate custody.
45 Now, moving on to your personal circumstances, Mr Benjamin, over the course of time I have come to learn and understand more about your personal circumstances.
46 You were understandably reluctant to talk about your childhood. You were born in Sudan. Your mother and siblings fled the war to Egypt and subsequently arrived in Australia when you were aged 12. Your father remained in Sudan and has never come to Australia.
47 You have mentioned that you saw dead people and horrible things when you were young, which is something that horrifies me and you have declined to speak further on the topic. Although, as time has gone on you have been willing to share more.
48 Cautiously, given the lack of detail, I am also prepared to infer that the principles that I have explained outlined by the High Court in the case of Bugmy and applied many times in many later cases, also apply to you in relation to your childhood disadvantage.
49 On arrival in Australia, you settled in Sunshine. You attended the English language school for about nine months, but you never attended any primary or secondary schooling.
50 You have difficulties with reading and writing. You have worked as a shopping trolley collector in the past. You have worked as a factory labourer. You have picked fruit casually and since you have arrived in Melbourne, after living in other States, in 2011 you have worked for family and friends as a handyman, phone repairer, brick layer, home maintenance and landscaper.
51 You have also had issues with drugs in the past and I am pleased to report that in spite of one matter that your counsel has told me about this morning, which I am prepared to put to one side, you have not had any missteps in relation to drug use in the years since the offence. And like with your co-accused, I am prepared to infer that your prospects for rehabilitation are also good.
52 The difficulty that you have faced is that you have a reasonably long prior criminal history, involving a significant number of appearances before the court.
53 I have got seven prior court appearances for offences, including property offences, drug offences, failure to comply with bail and failure to comply with CBOs.
54 I have to weigh that history against the fact that for the nearly four years since this offence you have managed to stay out of trouble. So, that is quite a difficult balance to make. Because when it comes to looking at your behaviour on the day, I look at those priors and think it really does not weigh well for you as a moral gentleman.
55 But I also need to take into account what you have done in the four years since and what you are now doings.
56 Now, in the course of the last few months I have seen that you have started a business, that you have started growing. I have heard that you have managed to get your first clients, which as you might have heard us discuss and as a previous business person I know, it is really hard getting those first clients. Keeping them and getting new clients is also a challenge.
57 I am taking a particular interest in allowing you to grow this business. It sounds like it has been an ambition for such a long time, that it might be a good opportunity for you to have the benefit of a judge who is interested in watching you grow as a business person and as a handyman.
58 And even though in the past I have indicated that the circumstances of offending call for a combination sentence to be imposed or a sentence of that family, especially given your history, I also have to take into account your rehabilitation and you are proving yourself to be a good hard worker and the start of being a very good business person.
59 So, I would like to continue to watch that over the next six months.
60 For both of you I need to reflect in my sentence the fact that these are offences that make me feel unsettled to the stomach. They do not represent your character. They are nasty offences involving violence, property offending, you are in company, you are using weapons.
61 I need to impose sentences that deter you both from doing the same thing, including the context, which is deterring you from taking drugs, deterring you from chasing debts, deterring you from this family of behaviour and also need to deter others from similar sort of offending,
62 I need to punish you. I need to denounce your behaviour, which is where I say this is not on. It is just not the way that we roll. It is not the way that either of you roll but here we are.
63 But importantly, I also need to take into account rehabilitation as a sentencing purpose. And by reason in particular, of what you have been able to show us over the past four years, I am prepared to impose sentences that continue to allow for that rehabilitation.
64 Now, Mr Lokodu, I will trouble you to stand just for a moment if you do not mind, because I am now about to pass sentence. I have already told you the sentence that I plan to impose and you have had a chance to think about it.
65 The sentence will be this. On both charges you will be convicted and placed on a community corrections orders for a period of 18 months from today with conditions, including that you perform 150 hours of unpaid community work, that you be assessed and treated for drug and alcohol rehabilitation and that you attend for supervision.
66 All of the hours that you spend in rehabilitation and treatment will be credited towards the 150 but those 150 hours serve to punish you also for my responsibilities to the community to show that I am telling you that this behaviour is not on. Are you prepared to enter into that order, sir?
67 ACCUSED LOKODU: Yes, Your Honour.
68 HER HONOUR: Yes. Thank you. You may be seated and counsel, as I have mentioned in a note to my order, I will indicate that the total effective sentence would have included a combination of six months custody plus that community corrections order. But I will also note that those six months will be effectively treated as having been served by remand time that was not credited towards any other order. All right.
69 As far as the 6AAA declaration in relation to Mr Lokodu, because of the subtlety and complexity I am going to indicate that had Mr Lokodu ran the matter to trial and been found guilty I would have imposed a longer sentence. The comment that I will make is that because of the facts of this case, including the long delay, it is impossible for me to be more precise in a practical sense as to what that sentence ought have been.
70 Now, let me pause there for one moment. Ms Gray, any issue with the facts? Any issue with the law? Any issue with sentence or the order or the comment?
71 MS GRAY: No, Your Honour.
72 HER HONOUR: Thank you. Mr Petric, likewise?
73 MR PETRIC: Likewise, Your Honour.
74 HER HONOUR: Next is Mr Mortley, I am simply going to order that your client be deferred for six months and I will explain that to him directly in a moment. Any issue with that proposed order?
75 MR MORTLEY: No, Your Honour.
76 HER HONOUR: Thank you. While I am on a roll, Mr Petric, any issue with that?
77 MR PETRIC: No, Your Honour.
78
HER HONOUR: All right. Mr Benjamin, could I trouble you to stand, please? In relation to your case, sir, I am not going to proceed to sentence you finally. Instead, I am going to defer sentence for a period of six months, so that in six months' time I can get a short update from your barrister in relation to what I expect will be the very good news that you have not committed any further offences. You have got nothing coming up and that your business has continued to grow and I will look forward to details about that. Are you prepared to continue to observe your bail conditions and stay out of trouble for
six months?
79 ACCUSED BENJAMIN: Yes.
80
HER HONOUR: Yes. You may be seated, sir. I will indicate, please,
Mr Mortley, that if your client complies with the conditions that I impose by way of that deferral, including compliance with bail in the meantime, at this point for a period as yet undetermined between six and 12 months. It is my intention, my provisional intention to release him on a community correction order appropriately tailored.
81 MR MORTLEY: If the court pleases.
82 HER HONOUR: Yes. Thank you. Now, any ancillary orders sought in relation to Mr Lokodu, Mr Petric?
83 MR PETRIC: No. I don't have any instructions, Your Honour. No.
84 HER HONOUR: Yes. Thank you very much. Are there any other – now we'll find a date in six months' time. Any other applications to make or orders sought?
85 MS GRAY: No, Your Honour.
86 MR MORTLEY: No, Your Honour.
87 MR PETRIC: No, Your Honour.
88 HER HONOUR: All right. Thank you. Let's find a date in six months. Yes. We'll give a fixed date. Six months is April, 26th. As busy as everyone is, can I please pre-suppose that you might be available on 26 April, if I were to list it, say, at 10 o'clock on that date for short further plea/sentence.
89 MR MORTLEY: Your Honour, it is six months in advance. That poses no problems for me.
90 HER HONOUR: Good. Mr Petric?
91 MR PETRIC: I am actually in trial before Your Honour. So, that might work out well.
92 HER HONOUR: Good. All right. Should either of you face difficulties with 10 o'clock on 26 April, then closer to the time, please send an email and I will arrange an administrative adjournment or an administrative abridgement. All right and I will extend bail on the same terms and conditions to that date. Thanks very much for all teams, especially for coming back on so many occasions and your patience. I have also benefitted immensely from the detail that you have all included in your submissions, particularly if I may say, the process of updating submissions between sentence indication and plea. The judge is always assisted by the revision of submissions, as you have, between sentence indication and plea and I am indebted. Thanks.
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