Director of Public Prosecutions v Benson (a pseudonym)
[2024] VCC 912
•14 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELO BENSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2024 |
DATE OF SENTENCE: | 14 June 2024 |
CASE MAY BE CITED AS: | DPP v Benson (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 912 |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea
Catchwords: Sentencing – recklessly cause injury – intentionally damage property – make threat to kill – attempted aggravated burglary – unlawful assault – contravene family violence final intervention order – contravene family violence interim intervention order – contravene final personal safety intervention order – contravene interim personal safety intervention order – commit indictable offence whilst on bail – contravene a conduct condition of bail – possess controlled weapon without excuse – 49 year old man at the time of offending – significant criminal history with some relevant priors – history of offending under the influence of drugs – moral culpability, need for general and specific deterrence reduced due to disability – high degree of support in the community – plea of guilty following sentence indication
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Total effective sentence 16 months imprisonment plus a community correction order for 2 years; 442 days reckoned as already served; 6AAA – but for plea of guilty, sentence imposed would have been 4 years 6 months and non-parole period of 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Office of Public Prosecutions |
For the Accused | Mr L. McPhie | Balmer and Associates |
HIS HONOUR:
1Angelo Benson[1] you are charged on indictment as well as with summary offences.
[1] A pseudonym.
2On indictment, the charges are recklessly causing injury on 24 December 2022 against Flora Pittman[2] and on the same day, damaging property, namely, a glass window at her residence. On 25 December 2022, you are charged with and have pleaded guilty to making a threat to kill. On the same day, breaking a window and attempting to get into the house, that is, an attempted aggravated burglary.
[2] A pseudonym.
3You have pleaded guilty to a number of summary charges, and I will refer to those as I go through the outline of offending summarised in the prosecution opening dated 14 June 24.
4In short, you had an intervention order against you to protect both Mr Burke and Ms Pittman – two different orders.
5On 20 December 2022, you went to their house, albeit with Ms Pittman, and remained with her in the house, contrary to that order (Charge 19, a breach of condition of bail).
6The next day, 21 December 2022, you went to the house and were let in by
Mr Burke (Charge 20, breaching a condition of bail). Later that morning, there was an incident which involved violence, kicking the door, having a knife in your hand, looking for a phone, disturbing Ms Pittman while she was in the bathroom with that knife in hand. Then, when Mr Burke intervened, holding the knife up to him, close to him, and assaulting him with it (Charge 25, breaching the interim order, and Charge 26, assault with a weapon).7On the same day, you returned to the house that evening, having left in the morning, looking for Pittman and asking to be let inside.
8Mr Burke did so after speaking with you through the door (breach of a bail condition, Summary Charge 20 and Summary Charge 25, breaching the intervention order).
9Once inside, after a while there is an argument, and you kick the bathroom door and kick Mr Burke (Summary Charge 30, assault by kicking).
10After a short while, you leave the house.
11A couple of days later, on 24 December 2022, early in the morning you knocked on the door and Ms Pittman was getting out of a taxi and getting bags. You had an argument with her outside in breach of your bail, your curfew (Summary Charge 10).
12Back inside, later that morning, there is an argument between you and Pittman on the couch. You had a glass in your hand, and you caused injury to her face near her eye with the glass (recklessly causing injury, Charge 1 on the indictment). It was also a breach of the family violence intervention order and a breach of bail (Summary Charges 7 and 9).
13Mr Burke tried to intervene, but you fronted up to him, bumping chests with him (unlawful assault, Summary Charge 6; breaching the intervention order, Charge 8)
14There is further contact with Ms Pittman and again you use the glass to injure her arms rolled up recklessly causing injury, Charge 1 on the indictment).
15Soon after that you leave, as the argument continues. You cracked the front window as you are leaving (Charge 2 on the indictment, damaging property).
16The next day, 25 December 2022, you attend back at the property, knocking on the door, yelling to be let in. There is perhaps a difference in the evidence between what Burke says, namely, you said, 'I'm going to fucking kill you if you don't let me in, you dog'. The neighbour overheard things being said from his house next door, namely, 'Open the door, open the door, are you there. Can you hear. Can you open the door, please open the door'.
17In any case, the plea indicates that you accept you made the threatening remarks (Charge 3 on the indictment, making a threat to kill; Summary Charge 16, breaching the intervention order, breaching bail, Summary Charge 17, and Summary Charge 18, breaching the bail by being close to the address).
18Mr Burke was inside, and he hears you breaking a window and he leaves the house and cannot see what you are doing. This was an attempt by you to get into the house (Charge 4 on the indictment, attempted aggravated burglary).
19Police were called, and on 27 December 2022, two days later, they find you drug affected in Broadmeadows and take you to hospital. You were not fit to be interviewed.
20You have remained in custody since that arrest.
21A couple of months later, on 16 February 2023, you received a 5-month sentence for other offending, not to do with these incidents.
22There are no victim impact statements. Both Ms Pittman and Mr Burke attended court today and support you, albeit there are still intervention orders that need to be dealt with, providing that you must not have contact with them contrary to that order unless and until they are changed.
23To date, in light of that other sentence and various things, you have served
442 days in custody - that is, just shy of 15 months.24I accept that for a good year of this proceeding, you had instructed your lawyers to try and settle the case properly so that you can plead guilty. That is important because it means that you accept what you did was wrong and that you are willing to avoid any witnesses coming to court and to cooperate with the court in sentencing these crimes.
25That is a big step because sometimes people do not admit their crimes and they need to learn, usually by way of punishment, that they must front up and accept what they have done. In your case, that is not something that I have to achieve by way of sentence. And that is to your credit.
26Mr McPhie, your counsel, instructed by Ms Oliver, his instructor, have prepared a very comprehensive set of documents to help me understand the progress you have made over the past 15 months.
27They include Exhibit A – a statement about your disability, Exhibit B – a report by Dr Judy Tang, Exhibit C – an assessment report by an occupational therapist, Exhibit D – a psychological report by Carla Ferrari back in 2018, Exhibit E – a letter from Mr McNut, who is helping you on your NDIS plan, Exhibit F – the NDIS plan itself, Exhibit G – a letter from Ms Kemp who is your support coordinator.
28Exhibit H is a certificate about a drugs awareness program you did last November. Exhibit I – a letter from Mr Harding from Hard Cuddles, who helps you to think better about what you're doing. Exhibit J – a letter from Ms Brereton from GEO Healthcare about your counselling. Exhibit K is a disability overview report. And Exhibit L is a justice plan, a proposal about what conditions you should have when you are released.
29All of those documents, most of them I had when I gave an indication back in March about the maximum sentence that I would impose if you pleaded guilty. I indicated then that the maximum sentence, including time on parole, would be three years and nine months. But I did not have a number of key pieces of information at that time.
30One of them was your disability overview report and the justice plan. They set out that you have got a very high degree of support available for you. Secondly, and most importantly, it sets out your accommodation, which as you might know, is hard to come by and you have been waiting for it. As I said to Mr McPhie, too many cases in this court involve people in your shoes who do not have anywhere to go, and the services cannot find a place for them.
31As I indicated to Mr McPhie in March, that sentence indication I gave could change if there was more certainty about the support package because in my view, for somebody with the challenges that you face, having a support package that gives you somewhere to live and the support that you need means that I can substantially shift the focus of sentencing onto rehabilitation, without risking people in the community.
32You have got a significant criminal history, and I am not going to go through it. But you know you have been in trouble before and some of it is for relevant offending. A lot of it relates to offending whilst you have used drugs. So, punishment for you has to involve a degree of protecting the community from you getting into trouble again.
33Without accommodation or support, the only way to achieve that is to keep you locked up. But because of the good work of Ms Oliver and Mr McPhie and those support workers you have, I am able to see a different type of sentence to deal with that risk and also your own rehabilitation.
34Having received all that material and heard from Mr Triandos and Mr McPhie again, I can see that instead of locking you up for three years and nine months with the possibility of release if things are in place down the track, I can give you a certain release date, because those things are available now.
35That does not mean that you will not have to return to court or that you are home free. It means that if you agree and sign your agreement to a community corrections order, then I will give you one. And that is a bargain. I do not mean that in the sense that you are getting off easy. I mean in the sense that this is a formal agreement between you and me.
36If you agree to do the things in your justice plan, and you agree to do the things in your community correction order, then I will agree to let you out and to keep you out for as long as you are doing those things. In my view, in light of the disability that you live with, your moral culpability and the need for specific deterrence and general deterrence by way of imprisonment are very much reduced.
37The orders I am going to impose are orders that will allow you to engage with all of the services set out by Ms Kemp in her letter and in the justice plan. The orders are also taking into account that since your arrest, you have spent
five months in custody, three of those months since you got arrested on this matter, on another matter.38So, that increases the length of time you have been out of the community. I am also significantly assisted by the fact that you have been diagnosed and given a justice plan assessment since you went into custody. This is a level of support you have never had before. So, I can treat this case as a new start.
39The sentences are going to be as follows:
Summary Charge 19, a breach of bail: convict and discharge.
Summary Charge 20, a breach of bail: convict and discharge.
Summary Charge 25, a breach of intervention order: one month imprisonment.
Summary Charge 26, assault with a weapon, and Summary Charge 30, assault by kicking: an aggregate of six months' imprisonment, in relation to which one month will be cumulative plus a CCO.
Summary Charge 10, a breach of bail: convict and discharge.
Charge 1 on the indictment, reckless cause injury: 10 months plus a CCO.
Summary Charge 7, breach of intervention order: 1 month.
Summary Charge 9, offending on bail: convict and discharge.
Summary Charge 6, unlawful assault: 1 month.
Summary Charge 8, breach of intervention order: 1 month.
Charge 2 on the indictment, the damage to window will be 6 months plus a CCO, 1 month of that to be cumulative.
Charge 3 on the indictment, threat to kill: 4 months plus a CCO, 1 of those months to be cumulative.
Summary Charge 16, breach of intervention order: 1 month.
Summary Charge 17, convict and discharge for offending on bail.
Summary Charge 18, breaching a condition of bail: convict and discharge.
Charge 4 on the indictment, attempted aggravated burglary: 10 months plus a CCO, 3 of those will be cumulative.40That makes a total effective sentence of 16 months plus a CCO for two years.
41The CCO will have conditions as recommended by Corrections:
- you must undergo assessment and treatment if required, including testing in relation to drug use.
- you will be supervised.
- You must comply with the conditions of the justice plan.
- there will be judicial monitoring with the first date for the judicial monitoring will be 21 August at 3.30 pm. If everything is going well, I won't require representation. If there are problems, I will.42I make the disposal order in relation to the items seized, unopposed.
43The sentence I would have imposed, had there not have been a guilty plea, is a total sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months.
44Are any other orders required?
45MR TRIANDOS: No, Your Honour.
46MR McPHIE: No, Your Honour.
47HIS HONOUR: Thank you both for your help, it's not been a simple matter.
Mr Benson, you can stand up. A lot of what I've just said was to help your barrister understand why I've done what I've done. He can talk to you to explain the details that matter. The important thing is from my perspective, you've done everything you can to get better and to plan out a future that will keep you out of trouble.48I want to congratulate you for doing that. I think the minimum that you have to serve for punishment's sake is 16 months. That means in about 5 or so weeks, you will be ready for release. In that time, I'm told and I expect you will have people to meet at Francis House and you'll be able to talk with them and transition from prison to there in a way that's calm, comfortable, safe, and steady for you, without shocks, no destabilising and no return to drug use.
49It also gives all of the support workers a nice easy timetable to work towards. If there's any problem with that, I expect to hear from the parties, and they'll bring it back to court. After you're out for about a month, that's when I'll see you back here. I'll want to hear how you're going, because part of the bargain between you and me on this order is, if you're honest, and you try, and you do your best, I will be flexible and I'll respond to your needs.
50All right? If you get a parking fine, I won't send you back to gaol. But if you relapse and start getting into more trouble, that's back on the table. So, when things get hard, the first thing you must do is talk to one of your workers and be honest with them. And they can talk to your lawyers. If needs be and if things need to change to help you, we can come back to court. Is that a deal?
51OFFENDER: Thank you.
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