Director of Public Prosecutions v Benkic
[2019] VCC 2185
•10 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR 18-01474
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CORI BENKIC |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 5 December 2018 | |
DATE OF SENTENCE: | 10 December 2018 | |
CASE MAY BE CITED AS: | DPP v Benkic | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2185 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Theft of firearm, burglary.
Cases Cited:Boulton v The Queen (2014) VSCA 342, R v Mills (1998) 4 VR 235.
Sentence:Total effective sentence is one year and nine months imprisonment, and convicted and ordered to serve a two year community corrections order upon completion of imprisonment term.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Nibbs | Director of Office of Public Prosecutions |
| For the Accused | Mr D. Ewart | James Dowsley & Associates |
HIS HONOUR:
1 Cori Benkic on 5 December 2018, at the Latrobe Valley County Court you pleaded guilty to the following charges on Indictment H11713631:
Charge 1, burglary. This offence has a maximum penalty of 10 years' imprisonment.
Charge 2, theft of firearms. This offence has a maximum penalty of 15 years' imprisonment.
2 Pursuant to the provisions of s.145 of the Criminal Procedure Act 2009, you consented to two related summary charges being heard at the plea hearing. You pleaded guilty to the following related summary charges:
Charge 19, deal with property suspected of being proceeds of crime. This charge has a maximum penalty of two years' imprisonment.
Charge 23, failing to stop a vehicle on the direction of a police officer. This charge has a maximum penalty of six months' imprisonment for a first offence.
3 You were arrested on 19 June 2017, you have been in custody since that time. You resolved these charges to a plea on 8 March 2018, at a committal mention stage. There was some administrative error in respect of your paperwork at the court causing a delay that is in no way attributable to you.
Circumstances of your offending
4 Between 1 and 2 June 2017, a 2008 Toyota LandCruiser bearing the registration number WFH741 was stolen from 10 Cashins Road in Middle Tarwin.
5 On 9 June 2017, this vehicle was recovered by police in Lang Lang. The vehicle was bearing stolen number plates from two different vehicles when it was recovered. Subsequent forensic investigations located your fingerprints inside the vehicle. That is related summary Charge 19, dealing in property suspect of being the proceeds of crime.
6 Between 17 and 19 June 2017, you, Mr Fulham and Ms Perry drove to an isolated farm located at 475 Gniel Road in Ouyen. The two of you entered a large shed at the property where the owner stored firearms and ammunition. That is Charge 1, burglary.
7 Using chains attached to the vehicle, the two of you then removed the gun safe from the wall and opened them. The two of you then stole six firearms and a large quantity of ammunition. That is Charge 2, the theft of firearm.
8 These firearms were registered to the lawful owners of Mr Gniel and Mr Baker, persons unknown to either of you. You were not licensed to possess these firearms. Your co-accused as I said before, Mr Fulham, was a person prohibited from possessing firearms.
9 On 19 June 2017, at about 6.36pm you and Mr Fulham were driving along the Calder Highway heading south. You were travelling in a stolen Nissan utility which had been stolen from New South Wales. At the time, the Police Air Wing had your vehicle under aerial surveillance. The police attempted to intercept the vehicle you were driving north of Kyneton on the Calder Highway. You were driving the vehicle with Mr Fulham and Ms Perry as passengers.
10 The police activated their emergency lights and sirens in an attempt to pull over the vehicle. You slowed down and stopped the vehicle in the emergency lane. However before the police could approach the vehicle, you have then taken off at speed. You then drove the vehicle diagonally across the two lanes of traffic before crossing over the median strip and onto the other side of the highway. You then drove contrary to the direction of the traffic along the north bound lanes of the highway for a hundred metres or so. The vehicle then performed a U-turn and continued travelling north along the Calder Highway. The police did not attempt to pursue the vehicle across the median strip. That was the related summary, Charge 23, failing to stop on direction of police.
11 While you were travelling north along the Calder Highway you stopped the vehicle and switched places with Mr Fulham who then commenced driving the vehicle. I will not detail Mr Fulham's driving when you were a passenger in the vehicle.
12 At about 7.30 pm, you and Mr Fulham abandoned the vehicle after a police chase and fled on foot into the pine forest. Police officers and the K9 units searched for both you and Mr Fulham, which they had located you at about 8.27 pm.
13 You were all arrested at the scene. A search of the stolen vehicle located four of the firearms that had been stolen from Gniel Road farm in Ouyen, along with the associated ammunition.
Personal Circumstances
14 I have been told a little of your personal circumstances. You were 23 years old at the time of the offending, you are now 24. You are an only child. You have been brought up predominantly by your mother, Tevi Cope, who works as a drug rehabilitation counsellor. She was here at court on the day of your plea and she is here today. Your father has drug addiction problems and as I understand it you have little to do with him.
15 You completed your primary school education at Wonthaggi. You completed your secondary education at Year 10 level and obtained an apprenticeship as a carpenter. You completed two years of that trade but became bored and ceased that apprenticeship. You then commenced work as a renderer and hard plasterer. You are not formally qualified in this trade. You have conducted your own business as a renderer in the Pakenham area. You intend to return to that work upon your release from prison. You will live with your mother.
16 You have a criminal history. On 3 July 2009, at the Dandenong Children's Court you were placed on a good behaviour bond without conviction for charges of indecent assault, burglary and theft. On 8 April 2010, at Korumburra Children's Court, you were again placed on a good behaviour bond without conviction for shop theft and failing to answer bail. And finally, on 5 February 2015, at the Dandenong Magistrates' Court, you again were placed on an undertaking to be of good behaviour with anger management programs for criminal damage and an unlawful assault charge. Since your arrest on 19 June 2017, you have been in custody for 539 days of pre-sentence detention not counting this day. It has been your first time in prison.
17 I do not have any psychological report in relation to you and was told that you have no psychological problems by your counsel. You are remorseful for your offending and you accept your responsibility for it. It was your use of “ice” that drove you to this offending.
Sentencing Considerations
18 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
19 I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
20 I am also required to take into account current sentencing practices in fixing your sentence. Those enquiries are directed particularly bot not exclusively to the kinds of sentences imposed in comparable cases and statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another, and in your case they are from Mr Fulham.
21 I am mindful of the provisions of the Sentencing Act and in particular s.5 (4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
22 I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and as you know I have had you assessed for a community corrections order. You have been assessed as being suitable. That is not the end of the matter.
23 You have pleaded guilty to these charges. It was indicated at the earliest stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice, there is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.
24 Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates remorse on your part.
25 Your plea of guilty to these charges was resolved on 8 March 2018, at the committal mention stage. Somehow due to an administrative error at the Magistrates' Court you were permitted to stand trial. This has caused a delay in the final resolution of your charges which is no fault of yours and now there has been what I would describe as an unacceptable delay. The effect of the delay is that you have been in remand awaiting resolution of your case, this is your first time in custody and the extended period of uncertainty for your future whilst on remand must be taken into account in your final sentence for this offending.
26 At the time of your offences you were 23 years old. You have spent nearly 18 months on remand in adult prison. As I say this has been your first time in custody.
27 You are a relatively young offender and Mills' case has application in your sentencing process. The three propositions from that case are as follows:
i. Youth should be a primary consideration for a sentencing court.
ii. In the case of youthful offenders, rehabilitation is usually far more important than general deterrence. Individualised treatment focusing on rehabilitation is to be preferred.
iii. A youthful offender is not to be sent to an adult prison if such disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment maybe quite high in the case of youthful offender and where the offender has not previously been incarcerated a shorter period of imprisonment maybe justified.
28 I do not accept your counsel's submission that the offences of burglary and theft of firearms charges are at the lower end of this type of offending. Theft of guns from farms has become a more prevalent offence, and whilst the firearms are secured in gun safes, their isolated location means that such offending is offending on a soft target. In this case only four of the six guns have been recovered by police. I find these offences had premeditation and planning in relation to them.
29 You have a limited criminal history. Your relevant matters for theft and burglary are Children's Court matters that are now eight years old. You were drawn to this offending by your co-accused Mr Fulham. Mr Fulham says as much. Nevertheless you are responsible for your own actions including these offences. The totality of your offending is different to your co-accused Mr Fulham. In the car chase of 19 June 2017, you stopped and got out of the driver’s seat. Mr Fulham then took over driving for the major part of the ensuing car chase. You were not at the time of the offending a prohibited person on the Firearms Act.
30 Your relevant criminal history was limited. Whilst parity between offenders is a sentencing consideration, the stark difference in offenders by criminal history and overall involvement in the offending itself ameliorate this consideration and principle in your case.
31 I assess your prospects of rehabilitation as good if you are able to control your addiction to ice. You have been in a protected environment of prison for nearly 18 months. If you can build on that drug free time upon your release you will be able to return to your trade as a renderer and with the support of your mother take up a law abiding life as you advance to the mature age of 25 years.
32 In order to assist you a community corrections order with supervision and drug and gambling rehabilitation conditions for the burglary charge will reinforce your rehabilitation prospects.
33 Would you stand please?
34 On Charge 1, burglary, you are convicted and placed on a two year community corrections order which commences upon your release from prison. You are to be supervised, you have drug rehabilitation treatment, you have gambling rehabilitation treatment or assistance. You are to be judicially monitored and the date for that I think is 4 April 2019 the first judicial monitoring. You are to be supervised by Pakenham Community Corrections Service when you get out of gaol.
35 On Charge 2, theft of the firearms, you are convicted and sentenced to 18 months' imprisonment. That is the base sentence.
36 On summary Charge 19, dealing with proceeds of crime, you are convicted and sentenced to six months' imprisonment
37 On summary Charge 23, you are convicted and sentenced to three months' imprisonment.
38 In respect of cumulation, the base sentence is Charge 2 of 18 months and two months of summary Charge 19, and one month of summary Charge 23 are to be cumulated upon that base sentence. That is a total effective sentence of 21 months.
39 I am not fixing a non-parole period. The reason I am not declaring a non-parole period is first of all you have served most of the time to start with. The second part is, I want to ensure that you serve the full 21 months and then are released to a CCO and the reason for that is that the punishment is followed by the rehabilitation immediately rather than having a complex system where the Parole Board may or may not be involved when I want you on a community corrections order.
40 Your pre-sentence detention is 539 days. But for your plea of guilty I would have sentenced you to three years and six months with two years and three months' non-parole period.
41 In respect to summary Charge 23, your licence to drive a motor vehicle is cancelled and you are disqualified from driving for a period of six months from today.
42 I order a s.464ZF which is a forensic sample order.
HIS HONOUR: Just so that you understand what that is Mr Benkic. The authorities take a swab from inside your mouth and they are able to do that, if you do not comply they can use reasonable force to do it.
OFFENDER: Yes.
HIS HONOUR: I think I have to have a community corrections order prepared. I've just been corrected, 14 April is not the judicial monitoring day, I think it's a holiday. It is 4 April 2019. What that means Mr Benkic, is that after you are released from prison which will be just before you are 25 I think on my calculations, you will be out for a little while, I want to see how you are going on 4 April. So you will have to go to Melbourne County Court at 9.30 in the morning.
OFFENDER: Yep.
HIS HONOUR: Mr Ewart, if you wouldn't mind - - -
MR EWART: Yes Your Honour.
HIS HONOUR: - - - taking it down and showing Mr Benkic. Do those numbers add up Mr Nibbs?
MR NIBBS: Yes Your Honour, I'm just looking in terms of the non declaration of parole.
HIS HONOUR: Right. Thanks. If I declare it - - -
MR NIBBS: I just want to check that you – you have to provide reason for not.
HIS HONOUR: Yes thanks. The reason I am not declaring a non-parole period is first of all by the time you have served most of the time to start with, that is the first thing. The second part is I want to ensure that you serve the full 21 months and then are released to a CCO and the reason for that is that the punishment is followed by the rehabilitation immediately rather than having a complex system where the Parole Board may or may not be involved when I want you on a community corrections order. Do you have any questions
Mr Ewart?
MR EWART: No thanks.
HIS HONOUR: Thanks. All right you can remove the prisoners thanks. Thank you.
2
0