Director of Public Prosecutions v Besanko

[2020] VCC 1275

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00908

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY BESANKO

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July & 14 August 2020
DATE OF SENTENCE:	18 August 2020
CASE MAY BE CITED AS:	DPP v Besanko
MEDIUM NEUTRAL CITATION:	[2020] VCC 1275

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:            Aggravated burglary - common assault - commit an indictable offence whilst on bail

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:4 years and 6 months’ imprisonment, 3 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms E. Tueno Ms N. Stevenson	Office of Public Prosecutions
For the Accused	Mr L. Dean	Slades & Parsons

HIS HONOUR:

1Anthony Besanko, you have pleaded guilty to one charge of aggravated burglary, one charge of common assault and one transferred summary charge of commit an indictable offence whilst on bail. 

-     Aggravated burglary carries a maximum penalty of 25 years' imprisonment.

-     Common assault carries a maximum period of five years' imprisonment.

-     Committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment or 30 penalty units.

2You were born on 13 September 1985 and you are now 34 years old.  You were 33 at the time of the offending in November 2018.

3You have a criminal record, about which I will go into more detail later.

4Your co-offender in this matter is Peter John Allen, who was born on 25 January 1953 and is currently aged 67.  At the time of the offending he was 65 years old.

5The victim in this matter is a male who was born on 21 May 1982 and is currently 38 years old.  At the time of the offending he was 36 years old.

The background to the offending is as follows: 

6Mr Besanko, you are known to both the co-offender, Peter Allen, and to the victim.  The victim resided in an apartment in St Kilda.  He had met Mr Allen approximately four months before the offending and they had struck up a friendship.

The circumstances of the offending are as follows: 

7On 2 November 2018, at approximately 7.20 am, Mr Allen phoned the victim and arranged to meet at the victim's apartment. 

8At approximately 8.00 am Mr Allen rang the buzzer for the victim's apartment and was let upstairs.  He said nothing about you, Mr Besanko, being with him.

9The victim opened the door for him and Mr Allen walked in.  Mr Allen left the front door ajar so that you could enter after him without the victim's knowledge.  In the meantime you kept out of sight.  It was agreed between you and Mr Allen that when Mr Allen called your phone twice you would go to the apartment.

10At 8.01 am and 8.02 am Mr Allen called you.  At 8.03 am he sent a text to you saying, effectively, 'come in', or 'come on'.  The victim mentioned that due to issues at his pharmacy he had not been able to get sufficient doses of methadone and had had to use heroin in the interim.  Mr Allen asked if he could have a line of heroin, which the victim gave him.  There was less than 1 gram of heroin in front of the victim where he was sitting in a chair in the living room, facing Mr Allen. 

11The victim then saw you, Mr Besanko, next to Mr Allen.  You proceeded to punch the victim in the head and face three or four times.  You also tasered him, in between the punches, four or five times.  The punches caused the victim to bleed from the mouth.  These acts give rise to Charge 2 of unlawful assault.

12You were standing over the victim and asked, 'Where is my 200?', to which the victim said, 'Why didn't you call me?  I would have paid you.  I don't have it today, but I would have paid you'. 

13Mr Allen then collected the heroin that was sitting on the bookshelf, where the victim had left it, and said, 'Let's go'.  The victim yelled at him, saying that the neighbours would have already called the police.  Mr Allen said words to the effect, 'That's true, let's go', and he left the apartment.  The victim told you that Mr Allen had just taken the heroin.  You then ran out after Mr Allen.  These matters give rise to Charge 1 of aggravated burglary.   

14The victim called police, who obtained closed circuit television footage from the lobby of the apartment building and later traced you and Mr Allen to a St Kilda apartment.

15At approximately 11.50 am police entered the apartment and placed you under arrest.  They conducted a search and located a Taser in your pocket and a mobile phone.  Mr Allen was also placed under arrest and searched.  A deal bag with white powder was located in his wallet.

16Police subsequently reviewed the contents of your mobile phone and saw a number of videos which depict you and Mr Allen planning and executing the offending against the victim, and also a post-offence discussion between the two of you.  Plastic bags containing 0.24g of heroin were located in the apartment, as were plastic bags containing a total of 0.5g of methylamphetamine.

17I accept that, contrary to the assertion by the victim, the video evidence indicates that you were not hooded at the time of the incident.

18You and Mr Allen were conveyed to the St Kilda Police Station, where a record of interview was conducted.  After originally denying that you had been at the victim's apartment that morning, and denying the alleged entry and assault, you stated that you had been in the foyer of the building whilst Mr Allen was seeing the victim.

19As to the transferred Summary Charge 7 of commit an indictable offence whilst on bail, on 22 October 2018 you had been granted bail by the Moorabbin Magistrates' Court and were on this bail at the time of the offending.

As to your co-accused, Mr Allen: 

20Mr Allen's matter had resolved to a plea; however he has recently advised that he now intends to plead not guilty to all charges.

As to the background history of the matter:

·     On 9 May 2019 you were committed to stand trial on all charges.  

·     On 10 May 2019 the County Court ordered trial directions.

·     On 7 February 2020 the matter resolved to the charges on the indictment and the related summary offence currently before the court.

I now turn to your personal circumstances: 

21As noted earlier, you are now 34 and you were 33 at the time of this offending.  You have a criminal record, with some four appearances at the Magistrates' Court over the last 15 years.  Your offending has included two instances of assault as well as offences for dishonesty, road traffic and possession of a controlled weapon.  You have previously received fines on two occasions - not exceeding $400, I note – a six-month community correction order, which you did not breach, and a good behaviour bond, which again you did not breach.

22Whilst not a previous conviction for current purposes, I note that you were imprisoned for 30 days in July 2019 for trafficking in methylamphetamine and heroin.  This sentence was served whilst you were in remand custody on the current matters.

23Your early life has been tragic and was described by mental health practitioners as 'horrendous' and your developmental history as 'marked by an extraordinary level of neglect, abuse and trauma'.

24You were born prematurely, along with your twin brother.  Your mother was a heroin user and you were possibly born drug-dependant.  Your father was a mentally ill criminal.  You were physically and emotionally neglected and taken into care at age two and a half.  Your mother died in a heroin-related incident when you were three.  You were subsequently raised in an orphanage for a period before being placed in multiple foster families and, later, Department of Health and Human Services respite care.

25At times over the years you were in the care of your aunt, Ms Pam Ogle, who has also provided a supporting letter and background information to the court.  You experienced gross exposure to physical and emotional abuse in early and middle childhood, largely at the hands of your father, who was allowed access, and exposure to a world of violence and criminality.  It is likely that both your parents were mentally ill.

26Unsurprisingly, you became a troubled child with emotional and behaviour issues that led to psychiatric evaluation.  You were diagnosed with ADHD and Conduct Disorder.  Your schooling was intermittent for a variety of reasons including your behavioural circumstances, your being bullied, refusals for schools to accept you, and you had no significant schooling, I note, from approximately nine years of age.  Interestingly, I note that whilst at school you enjoyed science and maths.

27A 2002 report from the Royal Children's Hospital in Melbourne opined that you presented with Pervasive Developmental Disorder, possibly due to genetic factors but certainly due to deprived development.  That same document also reports that you had been diagnosed with ADHD at age five and medicated over the following 10 years with such drugs as methamphetamine, Buspirone, Clonidine, Haloperidol, Risperidone and Flupentixol depot.

28A neurological assessment also in 2002, by Orygen Youth Health, reported that you had several contacts with psychiatric services from an early age resulting in diagnoses ranging from Autism, Asperger's Syndrome, Pervasive Development Disorder, intellectual disability, learning difficulties, ADHD, Opposition Defiant Disorder, Conduct Disorder, Post-Traumatic Stress Disorder and prodromal Schizophrenia.

29Notwithstanding these earlier diagnoses, Dr Brewer in that report found that there was no evidence to suggest you deserve a diagnosis of intellectual disability, even at mild level.  In Dr Brewer's opinion your difficulties appeared to be more associated with a lack of appropriate role-modelling and structured opportunity for reinforcement, than to lack of intellectual capacity.

30Further pre-disposing factors to your then personal status included witnessing regular violence during development, significant separation from attachment figures during several temporary care placements, the death of your biological mother at the age of approximately three years and poor self-esteem.

31A more recent report dated 14 July 2020 from Dr Adam Deacon, consultant psychiatrist, was also tendered on your plea.  Dr Deacon, I note, had seen you previously in 2010.  Dr Deacon noted that you had experienced overt signs of major mental illness in the form of a psychotic disorder when aged 19, in the context of an assault on your foster mother.  You required psychiatric treatment at Thomas Embling Hospital and acquired diagnoses including schizophrenia and anti-social personality traits.

32In his assessment in 2010, Dr Deacon had confirmed a diagnosis of ‘schizoaffective disorder (a psychotic disorder with mood features)’.

33At the time of your assessment with Dr Deacon on 14 July this year you did not present with signs of active psychotic symptoms and it appeared that you were compliant with your prescribed medication (which is Risperidone) in prison, and your psychotic illness is well-managed.

34In paragraph 13 of his report Dr Deacon opined that your mental illness 'appears to be irrelevant in the context of the offence matters.  Instead it relates to anti-social behaviour involving three men involved in drug use and dealing'.

35In my view this comment by Dr Deacon must be considered in the context of
Dr Deacon's full report, and I take it to mean irrelevant to the issue of your moral culpability for the offending.  In my view your mental condition is clearly relevant to the current offending as part of the personal circumstances to be taken into account in sentencing.  You first received a diagnosis of schizophrenia when you were aged approximately 19 and this diagnosis was confirmed by Dr Deacon when you were assessed for a separate matter in 2010.  Your psychotic illness is currently stable whilst being managed by appropriate medication.

36I note that your mental health diagnosis has been accepted as the basis for your admission into the National Disability Insurance Scheme; however there is no evidence that your moral culpability is reduced by any schizophrenic influence at the time of offending. 

37I further note that your history of illicit substance abuse is limited and whilst there is evidence of some regular methamphetamine use prior to these offences, you do not appear to have a long-term substance abuse addiction.

38The offence of aggravated burglary amounts to serious offending which is reflected in the high maximum penalty imposed by Parliament.  In this case the offending was aggravated by several factors including that:

·     you were in company,

·     the offending involved a level of planning and subterfuge,

·     you were armed with a weapon,

·     you used the weapon on the victim by the administration of an electric shock that was repeated,

·     you further assaulted the victim by punching him to the head and face,

·     you knew the victim was inside his home when you entered,

·     you attended there for the purpose of enforcing a drug debt, and

·     you were on bail for other offending at the time.

39The victim impact statement tendered provides eloquent testimony to the physical pain and continuing shock that is commonly experienced by victims of this type of offending.    

40In mitigation I have taken into account the submissions made by your counsel and accept, in particular:

·     your plea of guilty for its practical value and as an indication of some remorse,

·     your very tragic early life experiences which have deprived you of appropriate nurturing and personal development,

·     your compromised mental health including underlying psychotic propensity,

·     the conditions of your time in remand custody, including transfers due to assault and the greater restrictions due to the COVID-19 pandemic,

·     the very limited family and other support you have whilst in remand custody, and

·     the relative lack of previous serious offending.

41I have very carefully considered the appropriateness of a sentence comprising custody together with a community correction order.  You have been assessed as suitable for such an order.

42You have had a difficult life and you are vulnerable to erratic behaviour.  You have already served a considerable time in custody under difficult circumstances and there is considerable support available to you within a disability insurance program that would assist your compliance and rehabilitation.  On balance, however, your culpability for the offending was high and I do not consider that such a disposition adequately addresses the egregious circumstances of this offending and the need for denunciation, general and specific deterrence and the protection of the public.  This type of offending in the context of illicit drug behaviour is not uncommon and requires stern condemnation from the Courts.  In the present circumstances your difficult personal circumstances must give way to the seriousness of offending.   

43Mr Besanko, on Charge 1 on the indictment of aggravated burglary, you are convicted and sentenced to 4 years' imprisonment.

44On Charge 2 on the indictment of common assault, you are convicted and sentenced to 12 months' imprisonment.

45On transferred Summary Charge 7 of commit an indictable offence whilst on bail; you are convicted and sentenced to 1 month’s imprisonment.

46Charge 1 is the base sentence.  I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.  The sentences are otherwise concurrent.

47The total effective sentence is 4 years and 6 months' imprisonment.

48I direct that you serve a minimum of 3 years' imprisonment before being eligible for parole.

49As to the term of imprisonment, you were remanded on 2 November 2018 and have been in custody since then, of which 30 days was imprisonment on another matter. So pursuant to s.18(4) of the Sentencing Act I declare that the period of 625 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

50Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed on Charges 1 and 2 on the indictment is 6 years' imprisonment with a minimum period of 4 years to be served before eligibility for parole.

51The prosecution has also sought forfeiture and disposal orders, to which you have consented, and I also make those orders today.

52Thank you to each counsel for attending.  If there are no further matters this matter will finally conclude.  Are there any other matters from counsel? 
Ms Stevenson?

53MS STEVENSON:  No, Your Honour.

54HIS HONOUR:  Mr Dean?

55MR DEAN:  No, Your Honour.

56HIS HONOUR:  Thank you.  This court can now be adjourned.

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