Director of Public Prosecutions v Benjamin
[2023] VCC 1069
•20 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL JURISDICTION | Revised Suitable for Publication | |
Case No. CR 22-02201
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE IAN BENJAMIN |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2023 | |
DATE OF SENTENCE: | 20 June 2023 | |
CASE MAY BE CITED AS: | DPP v Benjamin | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1069 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated Burglary – Common Assault – Serious enduring mental illness
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence:3 years imprisonment with a non-parole period of 18 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecution |
| For the Accused | Mr L. Waugh | Michaelson Lawyers and Associates |
HER HONOUR:
1 Kane Ian Benjamin, you have pleaded guilty before me to one charge of aggravated burglary and one charge of common assault. You have also pleaded to a rolled-up summary charge of indictable offence, committing an indictable offence whilst on bail, which was uplifted pursuant to s145 of the Criminal Procedure Act 2009.
2 The facts underlying this offending are as follows. It involved an attack upon the victim Lee Armstrong, who lived at Sydney Road, Benalla. There were two accused in this matter, Hayden Espangne and Darren Finnis. Espagne and Armstrong were co-accused in a criminal incident in Benalla in December 2021 and Espagne, Armstrong and Espagne's younger brother, Dalton, were charged as a result, Dalton subsequently being held in custody.
3 On 9 April 2022, Espagne was at home with Finnis and yourself and told you both that he had listened to a record of interview by Mr Armstrong in relation to the incident I have mentioned and that he believed his brother was in custody due to what Mr Armstrong had told police. Espagne rang Mr Armstrong, became involved in a heated argument with him, and then asked Finnis and you to go with him to the address in Sydney Road. Espagne carried an imitation firearm and you had a baseball bat with you.
4 At about 2.52 pm, the three of you attended the house at Sydney Road, Benalla, in a car driven by Espagne. The house was on a one-acre block, with a four bedroom house at the front and large tin shed at the back which was accessed by a driveway.
5 At the time of the offending the house was unoccupied and Mr Armstrong was in the shed. Another man, Will Gipp, who was also known to the three of you, was present in the backyard.
6 Espagne parked his car so it partly blocked the driveway, got out of the car and you and Finnis followed him. This was all seen on CCTV footage and sound could also be heard. Espagne walked down the driveway in an aggressive manner shouting at Mr Gipp, 'Gippy, where is he, where the fuck is Leroy?' and he pulled the imitation firearm out of his shorts, continuing to ask where Armstrong was. Mr Gipp told Espagne to leave him alone. Then Espagne pointed the imitation firearm at Gipp and went to the shed. You followed behind Espagne carrying a silver baseball bat and you also said, 'Leave Will alone and just get Leroy'.
7 A next door neighbour Ranjit Singh, heard the commotion, walked outside and saw the three of you walking down the driveway, heard the yelling and saw Gipp run off toward the back fence of the property. He went inside and called his wife, who was working nearby and who had better English than he and asked her to call the police.
8 Once inside, Espagne assaulted Mr Armstrong pushing him outside the shed and as soon as he did so you struck him to the head with the baseball bat. The three of you then walked back to the car following this assault. These actions underly Charge 1 on the indictment, aggravated burglary and Charge 2 common law assault.
9
The three of you drove away from the premises. Police attended about
15 minutes later. Mr Gipp initially told police that he did not see anything and nothing had happened. They then spoke to Mr Armstrong, seeing blood on his nose and at that back of his head, Mr Armstrong saying that he'd been working on his car and an angle grinder had flicked up and struck him on the face, causing him to fall over. He did not reveal any assault and repeatedly said nothing had happened.
10 Police then viewed the CCTV footage I have described and identified Espagne but Gipp and Armstrong refused to provide any statement.
11 Eventually, police saw the black Holden Cruze, which was the car driven by Espagne, driving along Church Street, Benalla and followed that car, eventually locating it parked in a driveway further down in Bridge Street. Espagne and Finnis were stopped and searched by police, who suspected they were involved in an assault on Mr Armstrong.
12 Espagne was arrested and taken to the Benalla Police Station and then police re-attended at the Sydney Road property, to check on the complainant and seized a baseball bat which had been left broken in two pieces and had what appeared to be blood on the bottom part. The complainant continued to be adamant that nothing had happened and refused to give police any information.
13 At the time of this offending, you were on bail.
14 On April 13 2022, police attended Oak Avenue, Benalla where you lived and you made admissions to them about knowing the location of the imitation firearm and walked police to where it had been concealed in a log stump under dirt in a cleared area about 100 metres from your home.
15 A search warrant executed on your address located clothing worn by you and as seen on the CCTV footage and you were taken to the Benalla Police Station where you were interviewed. In that interview you were cooperative with police, telling them that Espagne was angry, believing that Armstrong had caused his brother to be gaoled and that he directed you and Finnis to go with him to the complainant's house where you followed him as you described, 'like a sheep'.
16 You said you used to play baseball and you had the bat with you. You said that the imitation firearm was gas operated and fired gelatine bullets, then described arriving at the premises and the events taking place.
17
You said that you saw Armstrong approaching you holding a crowbar and then essentially said you hit him with the baseball bat but could not remember where but that he went to the ground. You said you felt bad when you saw
Mr Armstrong crying and injured as he had never done anything against you and you expressed remorse for your actions.
18 This matter proceeded by way of a contested committal hearing on 23 November 2022, at which you were committed and a plea of not guilty entered. A trial date was set down but following a sentence indication in this court on 10 May 2023, a plea was entered and accepted on 8 June 2023.
19 The maximum penalty for aggravated burglary is 25 years imprisonment or 3000 penalty units. The maximum penalty for common law assault is five years imprisonment of 600 penalty units. And the maximum penalty for committing an indictable offence on bail is three months' imprisonment or 30 penalty units.
20 I now turn to your personal circumstances. You are 40 years of age and have been remanded in custody since your arrest in relation to this matter.
21
Turning to your background and family, you are one of three children born to your family and were raised in the family home in Wallen.
You had what appeared to have been hyperactivity and psychological problems from an early age and were attended upon by child psychologists but found school difficult.
22 When you were 14 you were diagnosed with Guillian-Barre syndrome, which is a condition where the immune system attacks the nerves and resulted in your being temporarily paralysed from the neck down. You were unable to cope at school, leaving in Year 9, shortly after your 16th birthday.
23 You worked for a short time in businesses run by your father but were unable to hang onto any work and since the age of 21 have been the recipient of a disability support pension due to mental illness.
24 When you were 20 or 21 you were diagnosed with a schizoaffective disorder, which is a serious enduring mental illness with symptoms including persecutory delusions, auditory hallucinations, irritability and instability in mood. You have required over the years intensive mental health treatment, including the prescription of anti-psychotic and mood stabilising drugs.
25
I was referred to two psychiatric reports by Dr Kevin Ong. In those reports, Dr Ong confirmed the illness that you suffer. Importantly, you are being properly medicated in gaol. You receive an injectable anti-psychotic medication which is delivered by DEPO on a fortnightly basis. You receive another oral
anti-psychotic medication daily and a mood stabiliser daily.
26 You appear not to have found your time in gaol particularly difficult. You have been held in Ravenhall. Dr Ong stating,
'Mr Benjamin stated that he spends his days watching television, enjoying sitcoms in particular. Apart from the occasional lap around the yard he does not participate in regular physical activity'.
27 Dr Ong said that you denied any problems with other prisoners or staff, that you were in a shared cell with another person, with whom you got along but were not working and had not undertaken any courses.
28
Importantly, in talking about the offending with Dr Ong you said you had known Mr Armstrong for many years, that you were normally friends with him, that you had a foggy recollection of events but were not taking your anti-psychotic medication at the time, so were in a more paranoid and angry state than when you did take it. You also said that it was likely you had been using ice in the lead-up to this incident. You stated that you were unable to recall details of the altercation but did not dispute that a baseball bat and imitation handgun may have been used and you stated you were usually friendly with
Mr Armstrong and felt bad for what had occurred.
29 Fortunately for you, you have a house in Benalla which was bought for you by your parents. You are in a relationship and are supported by that person whilst in custody and it is your intention to return living at your home once you are released from custody.
30 It was Dr Ong's opinion that you had a well-established diagnosis of schizoaffective disorder, which he described as a serious mental illness stating,
'When unwell, Mr Benjamin experiences elevation in mood state, grandiose and paranoid delusions, pressured speech, irritability, poor sleep and associated erratic behaviour'.
31 He noted that your history of offending, to which I will shortly refer,
'Appears to often occur in the context of substance abuse, potentially being psychiatrically unwell, as well as acquisitive offences in order to finance substance abuse'.
32 He believed that as a result of your mental illness you were likely to experience incarceration as being more onerous compared to a prisoner without your mental illness. That may have been the opinion of Dr Ong. However, it does not seem that that is the way things are working out for you because of where you are being held, Mr Benjamin. You are being properly medicated. You have not reported any particular difficulties within the gaol and indeed, your psychiatric health appears to be better managed in gaol than was the case in the community.
33 However, notwithstanding the illness that I am satisfied you suffered, nor the fact that at the time of this offending you appear not to have been taking your medication and using drugs, these matters pale somewhat as a matter of mitigation in the face of your prior criminal history which is extensive.
34
It begins in 2002, relatively mildly, where you were dealt with in the
Magistrates' Court for possessing cannabis, and an unregistered handgun without a licence for which you were placed on adjournment to an undertaking to be of good behaviour.
35 However, in May 2006, you were sentenced to a two years' sentence of imprisonment with a non-parole period of 12 months on two charges of armed robbery. Then in 2009, you were gaoled for five years and four months with a non-parole period of three years in relation to charges of robbery, recklessly causing serious injury, theft and possessing a drug of dependence.
36 You were dealt with in 2015 on charges of unlawful assault and threatening to inflict serious injury and criminal damage. In 2017, you were fined for possessing cannabis and resisting an emergency working on duty.
37
In August 2017, you were placed on a community corrections order
for 24 months on charges of aggravated burglary, theft of motor vehicle, intentionally destroying property and resisting a police officer. In
September 2017, you were placed on another community corrections order for recklessly causing injury and committing an indictable offence on bail.
38
Another community corrections order was imposed on a charge of unlawful assault in 2018. In 2020, you were placed on yet another community corrections order on charges of making a threat to kill, assault with a weapon, possessing a controlled weapon without excuse, intentionally destroying property, intentionally damaging property, committing an indictable offence on bail and possessing cannabis. And you last appeared in the
Benalla Magistrates' Court in March 2021, in relation to a variation of your community corrections order.
39 Therefore, you have been before the courts on a number of occasions for serious violent matters. You have incurred significant gaol sentences and indeed it would appear that you were still on a community corrections order at the time you committed these offences against Mr Armstrong.
40 Aggravated burglary is a serious crime. One can have great sympathy for the fact that ever since you were a very young man, Mr Benjamin, you have been in the grip of a mental illness. You are much more fortunate than many other people in your position, having parents who clearly cared for you and who loved you and who bought you a house. And I understand that your father was very ill with pancreatic cancer at the time of the offending and subsequently died and that you were in a state of some distress at the time.
41 It was Dr Ong's opinion that you are best managed in the community under the auspices of an area mental health service. Dr Ong put it this way,
'To reduce Mr Benjamin's risk of re-offending in the future he would benefit from ongoing treatment delivered by an area mental health service, direction to undertake AOD counselling pertaining to relapse prevention, as well as a NDIS application in order to ensure participation in meaningful activity'.
42 He notes that when in the community you do very little with your time.
43 I will ensure that these sentencing remarks and the psychiatric reports are forwarded to the Parole Board for consideration. But it is my view that only a term of imprisonment (and this was conceded by your counsel at a sentence indication) is appropriate in this case.
44 I take into account the circumstances you were in at the time. I take into account your mental illness. The suggestion by Dr Ong was that,
'Despite no clear evidence to suggest that he was floridly psychotic at the time of the alleged offending, I respectfully suggest that Mr Benjamin would have been in a heightened state, characterised by poor planning, impulsivity and irritability due to suboptimal medication compliance as well as the effect of methylamphetamine'.
45 He stated that whilst there had been a significant improvement in your overall mental state while in prison,
'It is my contention that delivery of mental health treatment remains best done within a health care setting in the community rather than a custodial environment'.
46 That may be Dr Ong's opinion, Mr Benjamin but the problem is when you are in the community you stop taking your medication. You take ice and you engage in persistent offending. This is serious offending and I need to say to you that if you continue in this manner you are going to be spending longer and longer periods of time in gaol. You have priors for causing serious injury, for armed robbery, for robbery and this is the second time you have been before a court for aggravated burglary.
47 Now, unless you want to take up permanent residence in a cell in Port Phillip, Mr Benjamin, you need to make sure when you are released into the community that you take responsibility for your mental health, that you take your medication and that you should (and it is my strong recommendation) if you are released on bail, that you undertake treatment for drug use. You are making a life that is already difficult because of your psychiatric illness far, far worse.
48 In sentencing you I do take into account the matters put to me on your behalf. The plea of guilty is a late plea but I also accept that you were cooperative with police. You gave them important information and I also accept that you are remorseful for your offending against Mr Armstrong.
49 The plea of guilty is deserving of significant consideration pursuant to the decision of Worboyes, where by the Court of Appeal made it clear that more than ordinary moderation should be given to pleas of guilty at a time when these courts are seeking to make their way through the backlog caused by the pandemic restrictions.
50 These are matters I take into account. I also take into account to some extent that prison is perhaps more difficult for you than other prisoners but I certainly do not find that your mental health difficulties has been in any way worsened by your time in custody. In my view, they have improved as they often do in cases such as yours.
51 General deterrence is also an extremely important sentencing principle. What that means is when people engage in violent offending it is important that courts sentence in a way the sends out a message to others in the community about what penalties they can expect to face if they behave in the way that you did.
52 I also take into account the fact that you appear in the community not to take care of your mental illness properly, that you use drugs and that despite the support of your family and now the support of your girlfriend, who I note at one stage ended the relationship because you were using ice, so she is clearly an appropriate person to have in your life. You continue to lapse into behaviour which has serious repercussions for people in the community, such as Mr Armstrong.
53 As I have said to you, Mr Benjamin, you need to make a decision about whether you want to spend the rest of your life in and out of gaol because with your priors no court is now going to consider anything but gaol for you. You have been given an extraordinary number of opportunities on community corrections orders for serious offending, including aggravated burglary in the past and you simply have not taken advantage of them.
54 It is a matter for you but I have no hesitation in sentencing you today to a term of imprisonment comprising a maximum and minimum term.
55 The offending all arose in the one incident and I therefore propose to sentence on an aggregate basis.
56 As I said, this is serious offending and I propose to deal with you by way of a term of imprisonment comprising a maximum and minimum term. Because the charges before this court all arose from the one incident, I propose sentencing you on an aggregate basis.
57 You are sentenced to a term of imprisonment of three years and ordered to serve a non-parole period of 18 months.
58 What is the PSD, please?
59 MR GRAY: The PSD is 433 days, Your Honour.
60
HER HONOUR: I declare that 433 days have been served by way of
pre-sentence detention. Now, do you understand what I just said to you,
Mr Benjamin?
61 ACCUSED: Yes. I do, Your Honour.
62 HER HONOUR: And do you understand what I said about your behaviour in the community?
63 ACCUSED: Yes.
64 HER HONOUR: Look, I can give you all the sympathy in the world for your mental illness. It is very difficult. It is a real burden to bear but it is also your responsibility to manage it. All right? You need to keep on proper medication and you require a great deal of assistance. You are on two anti-psychotic medications and a mood stabiliser. You need a lot of help with your mood. No doubt when you are off your medication you feel extremely unhappy and angry. Is that correct?
65 ACCUSED: Yes, Your Honour.
66 HER HONOUR: All right. Just look after your mental health, Mr Benjamin. Because at the age of 40, your priors are so bad that with this last crime as well any further offending and you are just going to be looking at years and years in gaol. Am I clear?
67 ACCUSED: Yes, Your Honour.
68
HER HONOUR: Thank you. Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of
four years and four months and ordered that you serve a minimum term of
three years and two months.
69 MR WAUGH: And the disposal order, Your Honour.
70
HER HONOUR: Yes. I make the disposal order and I will get that - I have got it here. I might as well sign it while I have got it. Thank you very much.
There you are. Thank you very much. Anything else that I need to attend to?
71 MR GRAY: No, Your Honour.
72
HER HONOUR: Thank you. We will stand down till 11 o'clock. Thank you,
Mr Waugh.
73 MR WAUGH: As Your Honour pleases.
74 HER HONOUR: Thanks, Mr Gray. Thank you very much.
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