Director of Public Prosecutions v Bezjak
[2023] VCC 1942
•24 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00959
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH BEZJAK |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2023 |
DATE OF SENTENCE: | 24 October 2023 |
CASE MAY BE CITED AS: | DPP v Bezjak |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1942 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160
Sentence: 14 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
For the Accused | Mr A. Cameron | Angus Cameron Lawyers |
HIS HONOUR:
1Joseph Bezjak, you have pleaded guilty to the following charges which carry the following maximum penalties:
(a)Theft, which carries 10 years imprisonment;
(b)Causing injury recklessly to an emergency worker on duty, which carries five years imprisonment;
(c)Commit indictable offence whilst on bail, which carries three months imprisonment or 30 penalty units; and
(d)Unlicensed driving, six months imprisonment or 60 penalty units. There is a discretionary disqualification.
2You have a relevant and extensive criminal history. I shall say more about this later in these remarks.
3Charge 2 is a Category 1 offence given that the Complainant was an emergency worker on duty and you were aware that the Complainant was such a person.[1] Accordingly, I must make a mandatory order for imprisonment and cannot impose a CCO,[2] or a combined order of imprisonment and a CCO.[3]
[1]Crimes Act 1958 (Vic), s18; Sentencing Act 1991 (Vic), s3.
[2]Sentencing Act 1991, s5(2G).
[3] Ibid.
4Further on Charge 2, I must impose a sentence of not less than six months unless a special reason exists.[4]
[4] Section 10AA(4).
5If I find a special reason exists, then I must impose a sentence of imprisonment (and not in combination with a CCO), a mandatory treatment and monitoring order, a residential treatment order or a Court Secure Treatment Order.[5]
[5] Section 5(2GA).
Circumstances of Offending
6The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
7On Sunday, 30 October 2022, you were at the Eastland Shopping Centre with your partner. A store employee saw you place a bottle of perfume in your pocket and approached you. You took the perfume out of your pocket and moved on. You did the same thing again and you were again approached by the store employee. An off-duty police officer was shopping in the area at the same time and saw you place another bottle of perfume in your pocket. The officer approached you and told you to put it back. You told the officer you did not know what she was talking about. She then produced her police identification badge and told you that she was a Senior Constable of police.
8It was accepted by your counsel that, at this point, although off duty, the officer was performing the duties in connection with her employment as a police officer and was therefore 'on duty' within the meaning of s10AA(9)(a) Sentencing Act.[6]
[6]1991 (Vic).
9The officer again told you to put the perfume back. You took it out of your pocket and threw it on the ground in front of the officer. You became abusive and the officer became concerned that you were about to spit on her or in her direction. The officer pushed you to the throat. You stated words to the effect of 'that's assault, you'll lose your job' and you punched the officer with your right clenched fist striking the left side of her face.
10The punch caused a small amount of blood to run down the side of the officer's face.
11Your partner stepped in and you both walked quickly from the store. It is apparent from the CCTV footage that as you left the store, you removed your T-shirt and placed it over your head in an attempt to conceal your identity.
12You entered the driver's seat of your partner's car and drove out of the shopping centre. You were not licensed to drive.
13You were already on bail for two sets of offences when you committed these offences. Your bail had been extended on 28 October 2022 – two days before this offending.
14The officer's injury was photographed at the shopping centre and then a couple of days later. The photographs show extensive dark bruising over the whole of the officer's left cheek. Fortunately, on medical examination, no other injuries were found.
15You told forensic psychologist Dr Aaron Cunningham that at the time of the offending you were using about half a gram of methylamphetamine per day and that you had used methylamphetamine on the day of this offending.
16You were arrested on 10 November 2022 and remanded in custody. You were interviewed by police and admitted stealing the perfume. You denied knowing that the person who confronted you and that you punched was a police officer. You admitted that she produced a badge, but you stated that you did not properly see it and that she did not state she was a police officer.
17You were granted bail the following day on 11 November 2022. On 31 May 2023 you were sentenced to 75 days' imprisonment on an unrelated matter. You have remained on remand since that sentence expired and it is agreed that you have now served 86 days of pre-sentence detention excluding today, which I will reckon as already served.
18At the outset of the plea, Mr Cameron acknowledged the pain and suffering you caused to the officer.
19The police officer declined to make a victim impact statement.
Objective Gravity and Moral Culpability
20I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
21The charge of recklessly causing injury can usually be dealt with summarily. However, when it is committed in these circumstances, where you admit assaulting an emergency worker on duty, Parliament has chosen to increase the seriousness of the consequences by characterising it as a Category 1 offence, which as I say, carries a mandatory period of at least six months' imprisonment unless special reasons exist.
22You assaulted a police officer who verbally and visually identified herself to you after she caught you red-handed when you were shoplifting. You had already just been warned by the store assistant. The police officer had been off duty until she produced her identification and was not even trying to arrest you. She gave you a warning to return the goods.
23I am satisfied that the police officer only responded to your aggression when she pushed you away from her. Your response by punching her to the face when she was defenceless and trying to gain distance from you was a hostile, brutish act. It was as much a coward punch from front on.
24Mr Cameron, who appeared on your behalf, submitted that the objective seriousness of your offending should be moderated by the fact that you reacted to the officer's push and the fact that you did not use a weapon. In my view, neither of these matters should mitigate the sentence I impose.
25The assault caused some bleeding, pain and bruising, but fortunately, no other injuries. I do not have a victim impact statement, but I am sure it was a confronting and frightening episode for the officer, due to the unexpected and gratuitously violent nature of your reaction.
26I take into account the fact that you were on bail at the time you committed these offences, and that your bail had been extended only a couple of days previously. I note that you are charged with committing the offence on bail, but I will ensure that you are not doubly punished for that.
27I have read the tendered summary from the informant Kiely where you reacted violently on a previous occasion when caught shoplifting.
28Ordinarily, such offending must be met by principles of general and specific deterrence, denunciation, just punishment and a measure of protection of the community. I must however consider your moral culpability for your offending and the application of these principles in light of the submissions made by Mr Cameron in relation to your impaired mental functioning. I shall return to the sentencing objectives after I have considered your personal circumstances and psychological material.
Personal Circumstances
29You are 34 years old, being born in December 1988 in Victoria.
30You were raised by your mother. You were born when she was 15 years old. You were raised with a younger half-brother. You only met your father on one occasion when you were between the ages of approximately 10 and 12 years old; where he severely beat, raped and sexually assaulted you over the period of time you went to live with him.
31At the age of 13 you left the family home after reportedly being 'kicked out'. You experienced periods of homelessness and then were placed in residential care.
32Your counsel submits that although the record is incomplete, your childhood can be characterised as being 'marred by drugs, alcohol, violence and neglect'. As a toddler there are records of you presenting to hospital with suspicious bruises and unsatisfactory explanations for these being given by your mother. There are also records of custody orders to the Secretary of the Department of Human Services. A bundle of child protection documents tendered by your counsel and marked as Exhibit 2 refer to your exposure to domestic violence and substantial emotional trauma as well as environmental and medical neglect.
33You attended Wembley and Ascot Vale West Primary Schools, followed by Coolum, Braybrook and Chester Hill High Schools to Year 8. From your
mid-teenage years whilst detained in Parkville Youth Detention Centre you completed numerous certificates, including a Year 11 education.34You have no employment history in the community, although you currently work in the prison bakery. You have expressed a desire to work in factories upon your release.
35Your drug use commenced at an early age; you began cannabis use around the age of 10 before progressing to alcohol, ecstasy and methylamphetamines. This drug use has followed you throughout your adult life. You abused methylamphetamine and benzodiazepines intermittently and according to Dr Cunningham at the time of your offending, as I have already said, you were injecting up to half a gram of methylamphetamine a day. You apparently currently receive the buprenorphine injection whilst in gaol to curtail your addiction.
36You have a long and sustained prior criminal history; with a number of convictions for violent related offending including:
(a)Three convictions for assault with a weapon;
(b)Two convictions for intentionally causing injury;
(c)Three convictions for armed robbery and five convictions for attempted armed robbery;
(d)Five convictions for assault; and
(e)Two convictions for recklessly causing injury.
37You were placed on a CBO in 2008 and a CCO in 2016. You contravened both orders. In 2008 you were sentenced to 5 years, 6 months with 2 years 9 months to serve on three charges of armed robbery and five charges of attempted armed robbery. You were subsequently sentenced to a number of terms of imprisonment to be served concurrently. Then, in 2016 you were sentenced to 118 days on charges of criminal damage, assault and recklessly cause injury and other offending. In 2017 you were sentenced to 2 years, 3 months with 15 months to serve for offences of violence, including resisting a police officer, weapons offences, recklessly cause injury (which I take to be the Kiely matter for which you were sentenced to 10 months' imprisonment) and contravention of the CCO of 2016.
38Your counsel states that you have struggled with mental illness throughout your adult life. You have attempted suicide a number of times, for which you were hospitalised just prior to your offending on this occasion. You were revived by either the paramedics or your wife on each of these occasions. Further to this, you have been diagnosed with borderline personality disorder by Dr Cunningham and I will elaborate on this shortly.
39At the plea hearing I received a reference from your mother. She speaks of your troubled upbringing, the abuse you experienced whilst residing with your father in Queensland and how upon your return you became unmanageable. Despite this, your mother expresses her willingness to support you and have a meaningful relationship with you upon your release from custody if you can commit to changing your behaviour.
40I note also you report reasonably good relationships with your five half-siblings and are working towards improving these relationships by staying in contact with them whilst in custody. Upon release you intend to reside with your friend Christopher Jacesvski.
41I have read the reports of Dr Aaron Cunningham dated 6 September 2023. I will consider the contents of the report in my analysis of whether special reasons exist to exempt you from the operation of s10AA(4) of the Sentencing Act.[7]
[7] Ibid.
Special Reasons
42As I have already stated, the charge of recklessly causing injury committed on an emergency worker whilst on duty is a Category 1 offence which commences on the premise that a mandatory period of imprisonment (excluding a combination sentence with a CCO) of not less than six months must be imposed unless special reasons exist.
43Special reasons exist if it is proved on the balance of probabilities on your behalf that at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability.
44This exception does not however operate to impaired mental functioning caused substantially by self-induced intoxication.
45After interview and examination of your records, Dr Cunningham concluded that you suffer from borderline personality disorder; a trauma diagnosis associated with your severe childhood trauma and abuse. Your disorder impairs your emotional regulation and distress tolerance such that you have become paranoid, aggressive and are impulsive. Dr Cunningham concludes that:
'Mr Bezjak's borderline personality disorder contributed to his offence behaviour through the symptoms of impulsivity, anger and paranoia. Mr Bezjak can perceive threatened danger where others do not and react in excess of what is appropriate.'
46However, that is not the end of the matter. You told Dr Cunningham, as I have said repeatedly, that during your time in the community that you were injecting half a gram of methylamphetamine each day. Dr Cunningham noted that you were abusing methylamphetamine at the time of your offending. He continued on from what I have just quoted to say:
'Mr Bezjak's drug abuse would aggravate these symptoms by increasing his disinhibition and paranoia. In my opinion, Mr Bezjak's drug abuse combined with his borderline personality disorder impaired his judgement with regard to the appropriateness and consequences of his offence behaviour.'
47In the second report of the same date Dr Cunningham further stated:
'In my opinion, Mr Bezjak's borderline personality disorder and methylamphetamine abuse contributed to his perception of threat and danger and disinhibited his violent reaction. Mr Bezjak's borderline personality disorder places him at risk of violent behaviour. However, the addition of drug abuse leads to a high risk of violent reoffending.'
48Later in the same report, Dr Cunningham stated that:
'In my opinion, Mr Bezjak's drug abuse amplified his underlying borderline personality disorder symptoms increasing his risk of violent behaviour.'
49Dr Cunningham was not called to give evidence to supplement or modify his reports.
50I am satisfied that your borderline personality disorder is a severe disorder which impairs your mental functioning. However, with these various opinions expressed about your drug abuse in Dr Cunningham's report, I am satisfied that your drug use (self-intoxication) at the time of your offending substantially and materially increased you to a 'high risk' of violent offending on the day.
51In the circumstances, I am not satisfied that 'special reasons' exist to exempt you from the operation of the mandatory provision.
Sentencing Submissions
52Mr Cameron who appeared on your behalf submitted that the following factors should mitigate your sentence:
(a)Your plea of guilty was not made at the earliest opportunity, but negotiations resulted in you pleading guilty to a lesser charge. The plea therefore has utilitarian benefit. Further, the principles enunciated in Worboyes[8] are applicable;
(b)The principles in Verdins[9] should operate to reduce your moral culpability;
(c)Although serious, the offending is not as serious as the matter where Kiely was the informant. In that case, you produced a knife when challenged by the shop worker;
(d)That I must take into account in mitigation your disadvantaged childhood, in accordance with the specific and general principles enunciated in Bugmy[10]; and
(e)Whilst in prison, you are adequately medicated. Further, Mr Cameron submits that you have acknowledged the need for psychiatric, psychological and alcohol and drug support in the community. As such, your prospects for rehabilitation have not yet been extinguished.
[8]Worboyes v The Queen [2021] VSCA 169.
[9]R v Verdins & Ors [2007] VSCA 102.
[10]Bugmy [2013] HCA 37.
53Mr O'Toole who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment. Mr O'Toole submitted that a head sentence and non-parole period was appropriate but did not otherwise (as I acknowledged he could not) submit whether such a term should fall under or above the two-year marker specified in s11 of the Sentencing Act.[11]
[11]1991 (Vic).
Analysis
54I am satisfied that your plea of guilty, resulting from negotiations to a lesser plea, has utilitarian benefit and has facilitated the course of justice. I acknowledge also that you have served a period during the operation of what is the currency of what is known as the Worboyes principle, that is that you have served your time in custody whilst the threat of COVID has remained alive. Accordingly, I intend to give you some recognition for the Worboyes principle.
55I am further satisfied that your childhood was marked by profound violence, sexual abuse, drug and alcohol abuse and neglect which all fed in, as Dr Cunningham reports, into your diagnosis of borderline personality disorder. In my view, the general principles of Bugmy have application. There is no doubt that you were shaped by the environment in which you were raised. Whilst the effects of your upbringing are not ameliorated over time, your prior criminal offending raises the concomitant need to consider the protection of the community.
56Although I have concluded that you have not established special reasons, I cannot ignore the fact that your everyday functioning is impaired by your mental health condition. In Herrmann[12] the Court of Appeal made some observations about the interaction of the Verdins and Bugmy. I will consider your mental health to be a mitigating factor, but not so as to 'double count' its mitigating effect with Bugmy.
[12]DPP v Herrmann [2021] VSCA 160.
57While I consider your prospects for rehabilitation to be poor, I do note the efforts that you have made whilst you have been in custody on this occasion and I agree with your counsel that your prospects for rehabilitation are not all together extinguished. It will take hard work on your behalf when you are released. If you are not to find yourself in this vicious cycle of offending and imprisonment.
Orders
58In the end, I have decided to make the following orders.
59On the charge of theft, you are convicted and sentenced to three months' imprisonment.
60On the charge of causing injury recklessly, you are convicted and sentenced to 13 months' imprisonment, and I order that one month of the sentence on Charge 1 is to be served cumulative on that sentence.
61On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment. That sentence is to be served concurrently with the sentence on the order that I am now making.
62On the charge of unlicensed driving, you are convicted and sentenced to two months' imprisonment. That sentence is to be served concurrently on the sentence I am now ordering. I order that you serve a period of three months' disqualification for driving.
63The total effective sentence therefore is a sentence of 14 months' imprisonment.
64I note that the Crown submitted that a sentence with a non-parole period should be imposed. In my view, the objectives of sentencing can be fulfilled without setting a non-parole period.
65I declare the period of 86 days pre-sentence detention reckoned as already served and but for the plea of guilty, I would have imposed a sentence of 24 months with 18 months to serve.
66Mr O'Toole, I seem to recall there are no ancillary orders sought?
67MR O'TOOLE: That's correct, Your Honour.
68HIS HONOUR: All right. Mr Cameron, do you want to remain online so that you can speak to Mr Bezjak or will you make other arrangements?
69MR CAMERON: Yes, please, Your Honour, if I could talk to Mr Bezjak now, I would be grateful.
70HIS HONOUR: Thank you. Thank you very much. Thank you to both of you. I will now adjourn.
71MR O'TOOLE: If the court pleases.
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