Director of Public Prosecutions v Besenyei
[2020] VCC 501
•1 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02015
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARNABAS BESENYEI |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2020 | |
DATE OF SENTENCE: | 1 May 2020 | |
CASE MAY BE CITED AS: | DPP v Besenyei | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 501 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – unplanned and opportunistic offending – mental health – – borderline personality disorder – substance abuse – disadvantaged upbringing – early plea of guilty – COVID-19 – combination sentence
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: 294 days’ imprisonment and a 12-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Roper | Office of Public Prosecutions |
| For the Accused | Mr D Care | James Dowsley & Associates |
HER HONOUR:
1 Barnabas Besenyei, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.[1]
[1]Crimes Act 1958 (Vic) s 75A.
Circumstances of offending
2 The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea[2] and I sentence you on the basis of the facts set out in that document. Those facts may be briefly summarised as follows.
[2]Exhibit 1.
3 On 12 July 2019, you entered the Savers store in Footscray and filled a trolley with various items. You came to the attention of staff as you appeared substance affected, and you fell in the store. You told staff you felt dizzy due to your medication. You then continued to walk around before trying to leave the store with the trolley.
4 Three staff members were standing near the store entrance. One staff member, Daniel Drayton, took hold of the trolley to prevent you from leaving. You produced a 20cm knife; made threats to another staff member, Zenaida Villanueva, saying “get back or I will stab you”; and lunged at Ms Villanueva. The three staff members stepped back for fear of being stabbed. You then took several items, being one pair of sneakers and five polo shirts, from the trolley and walked out of the store. The items were valued at approximately $30.
Procedural history
5 Later that day, you were arrested around the corner from the store where you were sitting, unconscious, against a shop window. You were still in possession of the stolen goods and the knife.
6 You were conveyed to Footscray police station and interviewed. You admitted attending the store and being in possession of a kitchen knife, which you said you use to cut apples. You denied having an intention to hurt or steal. You said that you did not recall the incident because you had taken more than your prescribed medication which caused you to have “black outs”. You were very remorseful for your conduct and for any fear caused to the victims.
7 You entered a plea of guilty to the sole charge of armed robbery on 30 September 2019, four days before the committal case conference.
Personal circumstances
8 You gave a history of your personal circumstances to Dr Nina Zimmerman, Consultant Psychiatrist, which was outlined in her report dated 4 March 2020,[3] and can be briefly summarised as follows.
[3]Exhibit D.
9 You are now 39 years of age. You were born in Hungary and are the second youngest of five children. You describe growing up in a violent household with a father who was in and out of prison.
10 Your family moved to Australia via Yugoslavia when you were seven years old. You spent time in a refugee camp in Yugoslavia where you experienced traumatic events. When you eventually arrived in Australia, you did not speak English but learned to do so over the following 18 months.
11 You describe difficulties at school, including being bullied. You moved interstate, and therefore schools, on several occasions and you say this was because your father was a criminal. Despite this, you were able to complete Year 11.
12 You parents divorced in 1992 and you no longer have contact with them. You have a strained relationship with many of your siblings.
13 You were married at the age of 20 and have two children; a daughter who is now 18 years of age and a son who is 14 years of age. Your marriage broke down in about 2010. You had supervised visits with your children for a period, but you are no longer allowed to have contact with them and have not seen them for several years.
14 You worked in warehousing for about five years but subsequently received a Disability Support Pension because of your backpain and mental health conditions. You commenced a tertiary course in counselling in about 2015 but did not complete it.
15 You described a long history of mental health issues dating back to high school. You have been taking Lithium, a mood stabiliser, for many years. You also have a long history of illicit drug use, including cannabis and methamphetamine.
16 Your formal diagnosis appeared to have changed over time. Dr Zimmerman diagnosed you with borderline personality disorder and polysubstance misuse.[4] However, in the past you have been diagnosed with schizophrenia, bipolar disorder, and depression with suicidal thoughts.
[4]Exhibit D, [57](a).
17 You were first admitted to a psychiatric unit in about 2003, when you were 23 years old and have since been admitted to psychiatric units on nine further occasions. You were most recently admitted on 21 July 2018.[5] You were also admitted to a continuing care unit between 31 July 2018 and 28 August 2018. You have been a voluntary patient at each admission.
[5]Exhibit B describes the lead-up to that admission.
18 In February 2019, you moved into supported accommodation at Footscray House and continued to reside there at the time of your offending. An entry in your clinical file dated 1 July 2019 (which was 11 days prior to the offending) states that you were quiet and frequently making suicidal threats.[6] Staff at Footscray House requested a review by the mental health team because they felt unable to cope with your presentation. On assessment you reported poor mood, poor sleep, suicidal thoughts and distress, and stated that you were using ice and cannabis in order to cope. It appears there was a plan to link you into further supports.
[6]Exhibit E.
19 You have had five previous court appearances, some of which are for relevant offences,[7] but you have never previously received a custodial disposition. This offence occurred during the operational period of a Community Correction Order (‘CCO’) but before you had commenced any therapeutic aspect of that order.
[7]Unlawful assault, shopsteal, assault with a weapon, theft, use controlled weapon without excuse, and go equipped to steal/cheat.
Plea in mitigation
20 Your counsel relied on your deprived and disadvantaged background as warranting a moderation of the role that general deterrence plays in your sentencing disposition.
21 Your counsel noted the context of your offending being a decline in your psychological state in the few days prior to that offending, including expressions of suicidality, which was noted by staff at your accommodation. You were overdosing on prescription medication and were also self-medicating with methamphetamine and cannabis. You were distressed and seeking a review of your medication.
22 Your counsel noted that the offending occurred while you were heavily substance affected, that it was unsophisticated and opportunistic offending that lasted a very short time with no application of force, and that the offensive weapon was only produced in your last moments in the store. Finally, it was noted that only limited property - worth $30 - was taken.
23 Your counsel relied on your very early plea of guilty. It was submitted that the plea was of utilitarian benefit in saving the expense and inconvenience of a trial, and was also indicative of acceptance of responsibility, remorse, and a willingness to facilitate the course of justice. In your case, you expressed your remorse both at the time of the police interview and to Dr Zimmerman.
24 It was submitted that limb five of R v Verdins (‘Verdins’)[8] is enlivened in that, as indicated by Dr Zimmerman, a custodial sentence will weigh more heavily on you than on a person in normal health due to the existence of your borderline personality disorder. I note with some concern that you suffer from chronic severe back pain for which you were taking Lyrica,[9] and that you were taking Lithium prior to your remand, but that neither of these medications, nor any antidepressant nor anxiety medication have been provided to you in custody.
[8](2007) 16 VR 269 (‘Verdins’).
[9]Exhibit C.
25 Your counsel tendered evidence regarding the supports which are available to you upon your release from custody. A letter from your Mental Health & Wellbeing Australia support worker states you have been engaging with that service since March 2019 for support in implementing and using your National Disability Insurance Scheme (‘NDIS’) Plan in order to build your capacity to live independently and improve your mental health and wellbeing.[10] A revised NDIS Plan[11] details available funding for accommodation and other supports. Finally, a letter from your Salvation Army Housing and Homelessness Worker[12] states that crisis accommodation is available to you immediately after your release and that Footscray House is open to you returning there in the future.
[10]Exhibit G.
[11]Exhibit H.
[12]Exhibit F.
Prosecution submissions
26 The prosecution conceded the early plea of guilty and the relevance of limb five of Verdins, and agreed that a combination sentence was open in the circumstances of your case.
Analysis and conclusions
27 In sentencing you, I must have regard to the gravity of your offending, your personal circumstances, and the principles of denunciation, general and specific deterrence, just punishment, protection of the community, as well as your prospects of rehabilitation.
28 Whilst the offending must have been frightening for the victims, I take into account that it was unsophisticated, very short-lived, committed whilst you were clearly affected by prescription medication, as well as illicit substances, and in the context of a clear deterioration in your mental health over the preceding days, for which you had sought treatment. Fortunately, there was no application of force and you produced the knife only when attempting to leave the store. Only a very minimal amount was taken. Whilst it is an aggravating feature of your offending that it occurred whilst you were on a CCO, I note you had not yet commenced any therapeutic aspect of that order. Nor have you ever committed an offence of this kind before.
29 I accept the matters relied on in mitigation on your behalf. You have had a background characterised by exposure to parental neglect, domestic violence and alcohol abuse, physical abuse, displacement and periods in refugee camps, as well as dislocations during your formative years with periods in Adelaide, Perth and Melbourne. I accept that some moderation of the principle of general deterrence is appropriate. You expressed remorse at the time of interview, pleaded guilty at the earliest opportunity, and expressed further remorse when interviewed by Dr Zimmerman. You suffer from asthma and from a chronic back injury. During the 294 days (not including today) that you have spent in custody, you have not had access to painkillers for your chronic back pain, nor to the Lithium you have been prescribed for some years, nor to any other medication for your psychological state. In addition, your time in custody over the past two months has been more onerous because of the introduction of stage three restrictions to curb the spread of COVID-19. During this period, visits to the prison and all educational programs have been suspended. As an asthmatic, you are more vulnerable than other prisoners to an outbreak of the virus and have experienced additional anxiety due to this possibility in recent months.
30 Given this offending occurred during a period when your mental state was unstable, and before you were able to obtain the treatment you sought, I consider that your prospects of rehabilitation, with appropriate treatment, are quite reasonable. I note the report of Corrections dated 29 April 2020 indicates that you are suitable to undertake a CCO. The recommended conditions included supervision, treatment for drugs, alcohol and mental health, and the imposition of an unpaid community work requirement with the stipulation that the hours of treatment taken may be counted towards all the hours of community work ordered.
31 In all the circumstances, I consider that the imposition of a combination sentence involving time served, plus a 12-month CCO, adequately addresses all the relevant sentencing considerations.
Sentence
32 Would you please stand?
33 On the one charge on the indictment, armed robbery, you are sentenced to a term of imprisonment of 294 days, in addition to a Community Correction Order for a period of 12 months.
34 I declare that you have served 294 days’ pre-sentence detention, not including today, and I direct that these be entered into the court records and deducted administratively.
35 In relation to the Community Correction Order, you will be subject to supervision, and required to complete 50 hours of unpaid community work, as well as undertaking treatment for your drug and alcohol use, and mental health. I direct that up to 50 hours of your participation in counselling may be credited towards hours of unpaid community work.
36 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, one year from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Sunshine within two clear working days, which will be 5 May 2020. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
37 OFFENDER: Yes, I do, Your Honour.
38 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
39 OFFENDER: Yes, I do, Your Honour.
40 HER HONOUR: I indicate pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have imposed a sentence of 18 months’ imprisonment and a 12-month CCO.
41 The prosecution has sought forfeiture and disposal orders in relation to items connected to your offending. You have consented to those orders through your counsel and I will make that order in chambers.
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