Director of Public Prosecutions v Bennett
[2021] VCC 194
•26 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01019
CR-20-01020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL LEIGH BENNETT AND HAMISH ALEXANDER SMITH |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2020 & 28 January 2021 | |
DATE OF SENTENCE: | 26 February 2021 | |
CASE MAY BE CITED AS: | DPP v Bennett & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 194 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Accused Bennett: Aggravated burglary – criminal damage – common assault – 21 years old - full-scale IQ of 79 – early plea of guilty – young offender - fair prospects of rehabilitation
Accused Smith: Aggravated burglary – criminal damage – common assault – possession of a drug of dependence – cannabis L – victim impact statements – 31 years of age – no criminal history - early plea of guilty – remorse
Legislation Cited: ss 77, 197 Crimes Act1958 and s.73(1) Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: DPP v Myers [2014] VSCA 314, Hogarth v The Queen [2012] VSCA 302, Guo v R [2020] VSCA 273
Sentence: Bennett: Community Corrections Order for two years and six months with conditions
Smith: Community Corrections Order for two years and six months with conditions. Fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Tatas | Solicitor for Public Prosecutions |
| For the Accused BENNETT For the Accused SMITH | Mr D McGlone Mr T Sullivan | Adrian Paul Criminal Lawyers Dribbin and Brown Criminal Lawyers |
HIS HONOUR:
1Samuel Leigh Bennett and Hamish Alexander Smith, you have both pleaded guilty to charges of aggravated burglary, damaging property and common assault. Mr Smith, you have also pleaded guilty to common assault and possession of a drug of dependence, namely cannabis L.
2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea. There was no dispute with the matters set out in that summary.
3In brief, on 9 March 2020, at approximately 1.30pm, you were both travelling to Bunnings Warehouse in Norlane, in a car driven by you, Mr Smith. Also in the car were Mr Smith’s two-year-old son and a neighbour, Karen Hill. Whilst waiting at Forster Road to turn left onto the Princes Highway, you saw the two victims, Lewan Federico and Angela Woolley, in their car at the same intersection. The victims’ car completed a U-turn on Princes Highway and turned into the service lane that led to their house.
4You both knew the victims. You, Mr Bennett, had for a period of approximately four months, lived with the victims in Norlane until 20 December 2019. You left their residence because you were unhappy with the living conditions and you believed you were being overcharged for rent. You then moved into the house of Mr Smith, your co-accused, and his family. Since that time, there has been a deterioration in the relationship between the two of you and the victims.
5As you waited to turn onto Princes Highway, you saw Mr Federico sitting on his fence. As you turned onto Princes Highway and crossed into the middle lane, Mr Federico walked across the service lane and stood on the concrete barrier that separated the service lane and the highway. He had a motorcycle chain or something similar wrapped around his hand.
6You, Mr Smith, yelled out to Mr Federico “my son is in the car”, as the car proceeded along the highway. You both saw Mr Federico swing the chain. Ms Hill then looked out the back window of the car and saw Mr Federico crouched on the road, picking up something.
7You, Mr Smith, turned off the Princes Highway and drove around the block, parking your car near Mr Federico’s house. Mr Bennett, you got out of the car and ran towards Mr Federico, who was still outside. Mr Smith, you followed, yelling “my kid was in the car”. Mr Federico, it would seem, then ran into his house. Ms Woolley was heard to scream “get them, Zeus”. Zeus being her Rottweiler dog. Ms Woolley was inside her house and, as she walked towards the front door, she saw both of you approaching. You, Mr Smith, kicked the security door open, causing the metal flywire door to fall towards Ms Woolley. As a result of your action, that flywire door was damaged. The two of you then entered the house. This conduct forms the basis of the charges of aggravated burglary and damaging property.
8You, Mr Smith, yelled at Mr Federico, stating that he had “thrown a hammer” at your car and nearly hit your child. You, Mr Bennett, then began punching and pushing Mr Federico, who fell onto a fish tank and then onto the floor. This conduct forms the basis of Charge 3, common assault. A glass pane of the fish tank was smashed and the adjacent plaster wall damaged. This damage also forms part of Charge 2, damaging property.
9Ms Woolley attempted to drag you, Mr Bennett, off Mr Federico by pulling your hair and kicking you. As she pulled you back towards the front door, you, Mr Bennett, continued hitting Mr Federico. Mr Smith, you then told Mr Bennett that you both needed to leave. You then turned towards Ms Woolley, causing her to let go of M Bennett and placing her in fear. Your action towards Ms Woolley is the basis of the separate common assault charge against you. As you were leaving, you, Mr Smith, yelled at Mr Federico, warning him not to come near your car with your son in it.
10As a result of your conduct, Mr Federico received injuries to the back of his head, scratches to his left elbow and a cut to his ankle. He did not seek medical attention.
11Later that afternoon, you were both arrested. At the time of your arrest, Mr Smith, you had possession of approximately one gram of cannabis. This forms the basis of the drug possession charge against you.
12You both participated in recorded interviews with police.
13Mr Bennett, you initially said that Mr Federico slapped the chain on the side of the car, nearly hitting the window next to Mr Smith’s young child. You and Mr Smith then decided to take matters into your own hands. You said it was a split second decision and you acknowledged that you should have called triple zero. You gave an account admitting that you and Smith forced your way into the house and that it was your intention to assault Mr Federico. Your account of what happened both outside and inside the house was at some odds with the prosecution summary, which was not disputed by your counsel at the plea hearing. In a further statement made to police, you stated that Mr Federico had swung the chain at Smith’s car but did not hit it.
14In your interview, Mr Smith, you stated that you saw Mr Federico swing the chain in a whipping motion, hitting your car around the left rear fender. You said you could not recall what you did immediately after this incident as you were blacking out. You stated that you must have gone around the block and parked near Mr Federico’s house. Once out of the car, you ran towards the house, not knowing what you were going to do when you approached Mr Federico. However, you said you wanted to go and “sort it out man to man”. You denied damaging the front door and could not recall entering the house.
Maximum penalties
15The following maximum penalties apply:
Charge 1 – aggravated burglary, 25 years’ imprisonment.
Charge 2 – criminal damage, 10 years’ imprisonment.
Charges 3 and 4 – common assault, 5 years’ imprisonment.
Charge 5 – possession of a drug of dependence, 5 penalty units.
Victim impact statements
16Ms Woolley provided a victim impact statement. It is clear that your offending has had a significant impact upon her psychological state of health. In the months immediately after the offences, Ms Woolley began experiencing disrupted sleep, flashbacks of the incident, intense feelings of fear and anger, and general feelings of being unsafe within the community. Because of her anxiety, she found it difficult to work and her enjoyment of life was greatly diminished. She has been receiving treatment from a psychologist for her continuing symptoms.
Personal circumstances
17I turn now to your personal circumstances, Mr Bennett. You are now 21 years of age. You were 20 years of age at the time these offences were committed.
18You now live with your parents and 24 year old brother in Mount Martha. This is part of your conditions of bail.
19You come from a good family. Your father, a qualified nurse, now works as an Uber driver and a bus driver. Your mother is a primary school teacher at a local Catholic school. You now appear to have a good relationship with your parents, although you acknowledge that over many years, that relationship had been problematic. Your brother recently completed a Bachelor of Science degree, majoring in Statistics. He is employed as a delivery driver whilst looking for work in his specialist field.
20You describe having been raised in a loving and caring family. However, because of your own personal issues and difficulties, on which I shall shortly elaborate, you were made a ward of the state at the age of 15.
21You attended Mornington Secondary College for Year 7 and part of Year 8. You then attended Mount Martha Community College, but ultimately withdrew from studies because you were struggling intellectually.
22You were assessed by Jeffrey Cummins, consulting and forensic psychologist, and his report dated 7 October 2020 was tendered on your behalf and marked Exhibit B4.
23Mr Cummins was provided with a number of medical records relating to you. A patient health summary from your general practitioner, Dr Ledger, referred to a history of Attention Deficit Hyperactivity Disorder, Autism Spectrum Disorder, behaviour difficulty, obesity, a diagnosis of Oppositional Defiant Disorder in 2012, and a diagnosis of depression in 2014. You have been placed on numerous medications to assist you with your health difficulties. I shall not refer to all of the reports to which Mr Cummins referred, but note that the Monash Health file reported that in 2015, you were referred to the “Early in Life Mental Health Service” due to persistent poor mood and increasing behavioural outbursts, primarily in the family home. Mr Cummins noted that you had been admitted to the Box Hill acute inpatient psychiatric unit for a crisis admission when you were threatening to use a knife at your home address.
24You told Mr Cummins that you were bullied throughout primary school and that you had an anger problem. You also stated that you had a learning difficulty.
25In relation to you being placed in care at the age of 15, you stated that it was because of arguing with your parents and smashing things at home. You also got into physical confrontations with your brother. The family took out an intervention order against you, and the Department of Health and Human Services then became involved.
26You have been on the Disability Support Pension since the age of 16. The only employment you have had was a paper round at around the age of 14. You told Mr Cummins that you are interested in undertaking a panel beating and or a motor mechanic’s course.
27At the age of 14 you commenced smoking cannabis. Between the ages of 15 and 18, you were typically smoking cannabis on a daily basis in large quantities. In 2019, you began to reduce your dependency on cannabis and, since being granted bail, you stopped using cannabis. You were under the influence of cannabis at the time you committed these offences. You have not used any other illicit drugs but have been, over the years, prescribed medication. Mr Cummins noted that you were commenced on Ritalin at the age of seven.
28Mr Cummins asked what your thoughts were about your offending. You told him:
“Well I’ve changed my behaviour. I was being threatened by Federico. I’ve been told I could go to jail. I’m trying not to think about the possibility of going to jail, but I think I wouldn’t cope in there. I’m concerned that I’ll be bullied about my weight.”
29Mr Cummins formed the view that your offending was most probably reflective of a build-up of frustration and anger towards Mr Federico based upon your belief that Mr Federico had mistreated you and had taken financial advantage of you.
30You told Mr Cummins that you moved to Geelong and began living with Mr Federico for approximately three months before you moved out. You discovered that the rental on the property you were living at with him was $350 a fortnight, but you were required to pay him $400 a fortnight in rent. On discovering this, you moved in with your co‑accused and his partner and children.
31On mental state examination, you did not present as being intellectually disabled, but it was considered that you had difficulties with expressive language and that your presentation was generally consistent with you being on the autism spectrum. Your presentation was also consistent with you suffering from chronic symptoms of anxiety and depression. Your self-esteem was chronically low and, in Mr Cummins’ opinion, the fact of being bullied in primary school has impacted on you in an adverse manner, even to this date.
32Mr Cummins stated:
“Mr Bennett has been variously diagnosed with ADHD, a learning difficulty, ASD, an Oppositional Defiant Disorder, an Anxiety Disorder, a Depressive Disorder, an expressive and receptive language difficulty, an Intermittent Explosive Disorder, obesity, and parent-child relational difficulties.”
33
Mr Cummins assessed your risk of committing a further offence of violence as moderate, and considered it necessary and appropriate that you participate in an anger management program. Mr Cummins recommended that a
neuro-psychological assessment be obtained.
34On 26 October 2020, you were assessed by Dr Sara Fratti, senior clinical neuropsychologist with Arbias.
35On testing, you performed within the borderline to low range on a global measure of your intellectual ability. You had a full-scale IQ of 79 which ruled out a diagnosis of intellectual disability. Nevertheless, she considered that you undoubtedly have a range of cognitive limitations that have been present since childhood. Your medical history, clinical presentation and results on formal testing are consistent with neuro-developmental disorders of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, which were likely exacerbated by reason of your limited adherence to pharmacological treatment, longstanding mental health factors and heavy cannabis use. Dr Fratti stated that should you resume cannabis use, you will be at high risk of deterioration and relapse in acute mental health.
36
Overall, you impressed as cognitively, socially and emotionally immature with a limited capacity to engage in reflective thinking. You have difficulty seeing the world from the perspective of others and have had difficulty managing your negative symptoms since a very young age, with an inclination to react without assessing the potential consequences of your actions. Your understanding of the seriousness of the offending and your associated lack of regret are probably limited, according to Dr Fratti, by your reduced insight and difficulties with expressing and communicating your feelings beyond a basic level. However, purely on cognitive grounds, you have the capacity to understand the implications and seriousness of your conduct. Dr Fratti stated that individuals with ADHD and ASD typically operate by acting first and thinking later, and have deficits understanding that people other than themselves have thoughts and intentions and they often have trouble interpreting those thoughts and intentions. Dr Fratti considered that sentencing you to a custodial sentence will likely cause greater hardship because of your medical diagnoses. She also considered that because of your borderline intellect, you will be much more vulnerable to exploitation and manipulation. Dr Fratti stated she would be particularly concerned about
anti-social peers in prison taking advantage of you and the impact that would have on your mental health.
37Also tendered on your behalf was a report dated 9 September 2020 from Emma McCarthy, manager, behavioural support and forensic mental health support team, at WeSupportU. Ms McCarthy confirmed that you are currently being provided services including a forensic mental health support worker, support coordination and behavioural support intervention.
38Of some concern, she stated that your relationship with your family members remains tense and conflictual. WeSupportU has also provided you with assistance in relation to your court case and coping skills to assist you to manage situations that give rise to your anxiety. You have been successful in your engagement with WeSupportU services and you make frequent contact with your support workers.
39Exhibit B3 is a report dated 13 October 2020 of Brien Lobascher, intensive therapeutic support worker with WeSupportU. He has seen you on a regular basis since August 2020. Mr Lobascher reported that you have been engaging in and are receptive to counselling and intensive support. Whilst there has been some progress made in achieving your set goals, Mr Lobascher reported that you continued to struggle with managing your family relationships.
40A further report from him dated 18 January 2021 was tendered. You continued to access the services provided on a regular basis. Since his earlier report was written, Mr Lobascher reports a successful review in your NDIS funding package which enables further services to be provided, including the prospect of a TAFE training course and an assistance program providing a pathway to automotive training. You and your father continue to work on a car that you purchased and you have been able to complete a series of driving lessons in the hope that you will obtain a driver’s licence. You are enrolled, he said, in a Chisholm Institute of TAFE Certificate 2 Automotive course. This is a pre-apprenticeship course and your ultimate goal is to undertake a full motor mechanic apprenticeship midway through 2021. I have also been provided with a behaviour support plan under the NDIS scheme and have read its contents.
41Exhibit B4 is a letter from your father dated 20 October 2020. He confirmed that there were initial difficulties when you returned home, but now that you have a case worker, the relationship with your family members has improved. Your father confirmed that you are working on a car that you purchased and that it is your intention to become a motor mechanic. You are also contributing to the house by cooking at least twice a week and sharing housekeeping duties. Your father acknowledges that he and your mother have made changes to their own behaviours in an effort to improve the family dynamics.
42You have admitted your prior convictions which consist of three separate appearances at the Melbourne Children’s Court between 11 October 2016 and 21 June 2017. Mr McGlone, who appeared on your behalf, attributed those previous offences to the difficulties you were experiencing following your removal from your parents’ home.
43I turn now to your personal circumstances, Mr Smith.
44You are 31 years of age and grew up in Tasmania. Your parents continue to live in Tasmania. Your father runs a hairdressing business and your mother works in administration at the ABC. You report that your parents have always been supportive and you had a mostly functional and cohesive upbringing. However, as you grew older, you developed a strong dislike for your father, which you say you are now over. You completed Year 10 and had no difficulties academically. Nevertheless, you had trouble engaging in education because of cannabis use throughout the week and drinking on weekends. It was because of your abuse of illicit substances that at the age of 16, you were requested by your parents to leave home.
45You commenced an apprenticeship as a painter and decorator at the age of 16, however, because of substance abuse issues, you did not complete that apprenticeship until you were aged 22. You have had an inconsistent employment history because of your drug addiction.
46You have had two significant relationships. You have a child from your first relationship who is now aged six. You separated from your son’s mother when he was very young. Approximately three and a half years ago you formed a relationship with your current partner, Emma Maybery. Together, you have a son aged two. Emma has a six year old son from a previous relationship who lives with you and whom you treat as your own son.
47A report from David Ball, forensic psychologist, was tendered on your behalf. Mr Ball assessed you on 1 September 2020. You told Mr Ball that you started drinking alcohol when you were aged 13 and reported hazardous levels of consumption on a fortnightly basis. You also commenced to use cannabis at around that time. You were using opiates from the age of 17 and methylamphetamine from the age of 20. You told Mr Ball, “I had lost myself for many years. I was completely psychotic”. From about the age of 22, you began to try and address your drug abuse problem. You were not successful in giving up all drugs. When you saw Mr Ball, you told him that your recent habit of cannabis use had ended and that you had not used any illicit substance in over six months.
48With regard to the offending, you stated that you were withdrawing from substance abuse and that you had only a vague recollection of the events. You told Mr Ball - “I went cold turkey within two days prior to the incident and was having trouble controlling my emotions.” You said you became enraged when Mr Federico ran at your car with a chain in his hand and hit the car. You said that you believed your son had been placed in danger and thought that if you did not do something about it, Mr Federico might do it again.
49Mr Ball stated that you expressed sincere regret and remorse for your actions. You told him that you were sorry that your conduct had impacted everyone and that you had no intention to act that way. You acknowledged that there was no need for such behaviour.
50Mr Ball, based on his clinical interview with you and the history you gave him, stated that you suffer from a severe cannabis use disorder – in early full remission. Mr Ball was careful to note that his opinion is based solely on your report. He considered that your safe management in the community presents with few challenges. He considered that you would benefit from treatment aimed at drug relapse prevention and mood management.
51Mr Sullivan, who appeared on your behalf, tendered two employment references from John Krohn, dated 20 October 2020 and 21 January 2021. Mr Krohn knows you only in a professional capacity. You have been an employee under his management since 30 September 2020 at Southern Star Windows. He is aware of the charges, but nevertheless states that you have proven to be a reliable team member, showing maturity, honesty, accountability and remorse for your conduct. He stated that provided you remain out of gaol, you will have ongoing fulltime employment at Southern Star Windows. You successfully completed the three month probationary period with that company.
52Mr Sullivan also tendered several urine drug screen results dated 28 September 2020, 7 January 2021 and 18 January 2021. The results were negative for illicit drug use.
53At the original plea hearing, on 22 October 2020, your partner, Emma Maybery, gave evidence on your behalf. She herself does not use alcohol or drugs but was aware of your high dependence on cannabis. Ms Maybery gave evidence of the positive change in your personality since you quit using cannabis. She stated that you were a lot calmer, more energetic, and more open to discussions. To the best of her knowledge, you quit smoking cannabis on your most recent birthday and have not used for approximately six months.
54You do not have a criminal history and I was informed that there are no matters pending against you.
55Mr Sullivan further informed me that you work on average between 40 and 44 hours per week. You support Ms Maybery, who lost her job as a result of the Covid-19 pandemic, and the children.
56A further development is that you have made application to obtain custody of your six year old son, Riley. He is currently in the care of the Victorian Department of Human Services and has been returned to his maternal grandmother in Tasmania. The reason for this is that his mother is no longer able to care for him because of her own drug and mental health issues.
57It was the submission of both defence counsel that I should place each of you on a community correction order. Ms Tatas, who appeared on behalf of the Director of Public Prosecutions, submitted that in each of your cases a community correction order was within range. She submitted that aggravated burglaries vary in their objective seriousness and that the offence in this instance was a “low range” example.
58All counsel referred to the decisions of the Victorian Court of Appeal in DPP v Myers[1] and Hogarth v The Queen.[2] I have had regard to the principles stated in each of those cases.
[1] [2014] VSCA 314
[2] [2012] VSCA 302
59In assessing the nature and gravity of your offending, I have regard to the following matters:
(i)You and the victims were all known to each other.
(ii)The offending was not premeditated or planned, it occurred in the heat of the moment and, to use Ms Tatas’ words, in response to a provocative and potentially dangerous act by Mr Federico in circumstances where you both perceived that Mr Smith’s two-year-old son was potentially in harm’s way. Nevertheless, this is still to be regarded as a confrontational aggravated burglary, the grievance arising only minutes earlier.
(iii)The aggravated burglary was committed by the two of you forcing your way into the premises by kicking the screen door, intending to assault Mr Federico. However, when you initially approached Mr Federico he was outside of his house. You both followed him into the house.
(iv)Neither of you was in possession of a weapon.
(v)You both knew that Mr Federico and Ms Wooley would be inside of the house.
(vi)The incident occurred shortly after 1:30 pm and was over very quickly.
60Although the offence of aggravated burglary is itself a serious offence, as may readily be appreciated from the maximum penalty of 25 years’ imprisonment, I need to assess carefully the seriousness of the offending before me. In this case, I accept that the seriousness of your offending falls towards the lower end of the scale. I have particular regard to the manner in which this unfortunate incident unfolded, that the intent to enter the premises only occurred when Mr Federico ran into the house, that you both acted in the heat of the moment without thought to the consequences of your behaviour, there was no premeditation, the offending occurred during the daytime and you were both unarmed.
61With regard to the other charges arising at the home of Mr Federico and Ms Wooley, I accept that they also fall towards the lower end of the scale of seriousness. The injuries received by Mr Federico were minor and did not require medical attention. The assault on Ms Wooley did not involve physical contact but was constituted by you, Mr Smith, putting her in fear. The property damage was relatively minor and was a result of the altercation.
62You have both pleaded guilty at an early stage. Your pleas of guilty reflect an acceptance by each of you of your responsibility for the offending and a facilitation of the course of justice. You have spared the need for witnesses to give evidence at trial and saved the court and community the time and cost of a trial. This is a particularly significant consideration in the current Covid-19 climate.
63I accept that in your case, Mr Smith, you are genuinely remorseful for your conduct. I do not make the same finding in respect of you, Mr Bennett, but in that context I have regard to the opinion of Dr Fratti that your lack of regret is probably limited by your reduced insight and difficulties with expressing and communicating your feelings beyond a basic level.
64In your case, Mr Bennett, I have regard to the fact that at the time these offences were committed you were a young offender and so the principles of rehabilitation have particular importance in your case. Since these offences were committed you have returned home to your family and have undertaken a number of positive steps towards your rehabilitation, including engagement with the WeSupportU organisation. You report also that you have ceased to use cannabis.
65Recently in Guo v R[3], a case involving a far more serious instance of aggravated burglary, Priest and Weinberg JJA stated in respect of the young applicant before the court:
Ultimately, we concluded that, in light of the applicant’s prospects of rehabilitation — and notwithstanding the seriousness of his offending — a sentence involving his further confinement was not called for. As to that, we consider that the observations of Sir John Young in Chmil bear repetition:[19]
I think it should be remembered that in the long run the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal.
[3] [2020] VSCA 273 at [29]
66Mr Bennett, I consider that your recent efforts to rehabilitate demonstrate that you have fair prospects and also demonstrate an intention by you to become a productive member of the community. You do, however, still have a long way to go down the path towards your rehabilitation. It may not be easy but if you can be rehabilitated this will best serve the community in the long run. You have not been in any further trouble since these offences were committed.
67I also have regard to the fact that when you committed these offences you were labouring under significant neurodevelopmental disorders and long-standing mental health issues. Your cognitive abilities, whilst not considered to be within the range of intellectual disability, are nevertheless moderately to severely below persons of similar age. In my opinion, these considerations serve to reduce your moral culpability. The fact that you were under the influence of cannabis on this occasion does not, however, excuse or justify your conduct.
68Mr Smith, whilst you may no longer be considered a youthful offender, I have particular regard to the fact that you have not been in trouble with the law before this offending, nor after it. You too appear to have ceased your use of cannabis. You are in full-time employment and support a young family. It is your hope, as I have already mentioned, to take on the care of your six year old son who is currently the subject of a protection application. You have engaged lawyers to assist you in that endeavour. You understand that to be successful in your application, you must remain drug free and stay out of trouble.
69In sentencing you I am also required to have regard to the principles of deterrence, both general and specific, denunciation and protection of the community. Persons who are minded to commit such offences must understand that they will be met with stern punishment. The sentence must also deter you both from the commission of further offending. Your conduct on this occasion must, through the sentences to be imposed, manifest the courts denunciation of your conduct. Persons cannot take the law into their own hands.
70I am also required to have regard to current sentencing practice in respect of the offences you committed. Whilst a term of imprisonment is often imposed in respect of the offence of aggravated burglary, in appropriate cases a Community Correction Order may be imposed. There are a number of such cases set out in the Judicial College of Victoria’s Sentencing Manual. In my opinion, the learned prosecutor was correct in her concession that in respect of each of you, a Community Correction Order is in range given the circumstances of these offences as well as your personal circumstances. Furthermore, I consider that each of the sentencing considerations I am required to take into account may be satisfactorily addressed with the imposition of a Correction Order.
71At the conclusion of the plea hearing on 28 January 2021 I requested that you both be assessed for a community correction order. I have since received assessment reports and you have both been found suitable for a Community Correction Order. Although, you Mr Bennett, have been assessed as a high risk of general reoffending, you are nevertheless considered suitable. The assessing officer noted that since the commission of these offences you have made positive changes to your life which have been of significant benefit.
72You, Mr Smith, expressed your remorse for your actions and demonstrated insight into your conduct stating that you went too far. You have been assessed as a low risk of general reoffending. Despite that assessment, I do not accept all the recommendations of the assessment officer and will impose conditions of supervision as well as other conditions I consider necessary.
Sentence
73You are both convicted of each of the offences and, subject to your agreement, you are to be placed on a Community Correction Order for a period of two years and six months commencing today.
74In your case, Mr Bennett, for the offences of aggravated burglary, property damage and common assault you are convicted and, subject to your agreement, you are to be placed on a community correction order for a period of two years and six months commencing today with the following conditions:
The Order will last 30 Month(s) and commences on 26th February 2021 and ends on 25th August 2023.
You must attend at the Rosebud Community Correctional Services office within two clear working days after the commencement of this Order.
The mandatory terms that apply to all Community Correction Orders are as follows - and I will ask you, Mr Smith, to listen in on this because I am not going to repeat the mandatory conditions. It is important you both understand the conditions of the orders:
You must not commit another offence for which you could be imprisoned during the time that the order is in force;
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means, essentially, that you must not turn up at the Community Corrections Office or for community work intoxicated either by alcohol or drugs;
You must report to, and receive visits from, the Secretary (or his/her delegate);
You must report to the Community Corrections Centre within two clear working days of the order starting;
You must let a community corrections officer know within two clear working days of you changing your address or job;
You must not leave Victoria without first getting permission to do so from the Secretary (or his/her delegate);
You must obey all lawful instructions from and directions of the Secretary (or his/her delegate).
Mr Bennett, the conditions that apply to you in addition to those mandatory terms are the following:
You must perform 150 hours of unpaid community work over a period of 30 months as directed by the Regional Manager.
I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
If you fail to comply with this aspect of the order, the Secretary to the Department of Justice (or his/her delegate) may give you a direction to perform additional hours of unpaid community work in accordance with section 83AU of the Sentencing Act.
You must also be under the supervision of a Community Corrections Officer for a period of 30 months.
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
75In your case, Mr Smith, for the offences of aggravated burglary, property damage, and two charges of common assault, you are convicted and subject to your agreement, to be placed on a community correction order for a period of two years and six months commencing today, with the following conditions - each of the mandatory conditions I earlier stated apply to you. If you need me to repeat those, please let Mr Walsh know and I will do so. In addition to those mandatory conditions, I also impose the following conditions:
The Order will last for 30 months and commences on 26th February 2021 and ends on 25th August 2023.
You must attend at the Geelong Community Correctional Services office within two clear working days after the commencement of this Order.
You must not commit another offence for which you could be imprisoned during the time that the order is in force;
You must perform 170 hours of unpaid community work over a period of 30 months as directed by the Regional Manager.
I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
If you fail to comply with this component of the order, the Secretary to the Department of Justice (or his/her delegate) may give you a direction to perform additional hours of unpaid community work in accordance with section 83AU of the Sentencing Act.
You must be under the supervision of a Community Corrections Officer for a period of 30 Month(s).
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
Mr Smith, on the charge of possession of Cannabis you are convicted and fined the sum of $200.
You should both understand that if you breach the order you are liable to being charged with an offence and being brought back before me for the breach. I will then have a number of options including re-sentencing you on these charges.
76Mr McGlone and Mr Walsh, do you need time to explain the conditions to your clients and the effect of the order?
77MR McGLONE: I will be giving my client a call, Your Honour, and so I will do that after this matter is concluded.
78HIS HONOUR: Mr Walsh?
79MR WALSH: No, Your Honour. I will be taking the same course of action.
80HIS HONOUR: All right.
81MS TATAS: Your Honour, there is just an application for a disposal order in relation to the cannabis.
82HIS HONOUR: Yes. Thank you. I will get to that. I need to ask, however, each of you, whether you consent to being placed on the community correction order and whether you understand the terms of the order.
83Mr Bennett, do you understand the conditions of the community correction order?
84OFFENDER BENNETT: Yes, I do, Your Honour.
85HIS HONOUR: Thank you. And do you understand that if you breach the order, you could be brought back before the court?
86OFFENDER BENNETT: Yep.
87HIS HONOUR: And face punishment for breaching the order?
88OFFENDER BENNETT: Yep. I understand.
89HIS HONOUR: All right. And do you agree to being placed on a community correction order?
90OFFENDER BENNETT: Yes, I do.
91HIS HONOUR: All right. Thank you.
92Mr Smith, do you understand the terms and conditions of your order?
93OFFENDER SMITH: Yes, Your Honour.
94HIS HONOUR: Do you understand that if you breach it you may be brought back before the court and resentenced?
95OFFENDER SMITH: Yes, Your Honour.
96HIS HONOUR: And also face an additional charge of breaching the community correction order?
97OFFENDER SMITH: Yes. Yep.
98HIS HONOUR: All right. Do you consent to being placed on the community correction order?
99OFFENDER SMITH: Yes, I do.
100HIS HONOUR: All right. Very well.
101Mr Bennett and Mr Smith, had it not been for your pleas of guilty to the charges, I would have imposed a Community Corrections Order of four years with the same conditions save that the community work hours in both your cases would have been 250 hours.
102And I do make the disposal order sought by the prosecution in relation to the cannabis.
103MS TATAS: As the court pleases.
104MR McGLONE: As Your Honour pleases.
105HIS HONOUR: Are there any other matters?
106MS TATAS: Nothing from me, Your Honour.
107MR McGLONE: Nothing from me, Your Honour.
108HIS HONOUR: All right.
109MR WALSH: Nothing from me, Your Honour.
110HIS HONOUR: Mr McGlone, I think I stated your client was granted bail in February 2020 but I do not think that could be right given this offence was committed in March 2020. I will correct that in the sentencing remarks in due course.
111MR McGLONE: As Your Honour pleases.
112HIS HONOUR: Thank you to all counsel for your assistance in this matter. I will now adjourn the court.
113MS TATAS: As the court pleases.
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