Director of Public Prosecutions v Dunn

[2025] VCC 115

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00151

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN DUNN

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2024 and 11 December 2024
DATE OF SENTENCE:	14 February 2025
CASE MAY BE CITED AS:	DPP v Dunn
MEDIUM NEUTRAL CITATION:	[2025] VCC 115

REASONS FOR SENTENCE

---

Subject:  Criminal law – Sentence – Aggravated burglary

Catchwords:                Serious offending – Aggravated burglary and prohibited person possess   firearm charges – serving sentence – totality – profound childhood disadvantage-occasion for leniency and mercy resulting in unusual disparity between head sentence and non-parole period.

Legislation Cited:

Cases Cited:

Sentence: Total effective sentence 27 months, non-parole period 8   months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Sheppard	Office of Public Prosecutions
For the Accused	Mr R. Edney

HIS HONOUR: 

1Ben Dunn, you have pleaded guilty before me on indictment to the following charges: aggravated burglary, two charges of prohibited person possess a firearm, theft of a motor vehicle, another charge of prohibited person possess imitation firearm, and possess a drug of dependence.  You also pleaded guilty to relevant summary offences: failing to stop, wilful damage, commit indictable offence whilst on bail, dangerous driving, dealing with property suspected of being proceeds of crime, and possess cartridge ammunition.

2The maximum penalties for the offences you face are aggravated burglary has a maximum of 25 years' imprisonment, prohibited person possess firearm has 10 years' imprisonment, theft of a motor vehicle 10 years' imprisonment, possess imitation firearm 10 years' imprisonment, failure to stop motor vehicle after an accident is five penalty units or 14 days, wilful damage to property
25 penalty units or six months, commit indictable offence whilst on bail three months maximum, dangerous driving a maximum penalty of two years' imprisonment, unlicensed driving a maximum penalty of six months' imprisonment, possess drug of dependence one year maximum, dealing with property suspected of being proceeds of crime two years' maximum, possess cartridge ammunition 40 penalty units.

3You have admitted a relevant prior record of some length.  Your matter resolved after a sentencing indication hearing. At that time, I indicated a head sentence of two years and nine months with a non-parole period of
10 months.

4There were further pleas in your case, subsequent to that indication.  With additional relevant material filed, information in relation to your son, Callan, there has been further submissions made in respect of him this morning.  This information was accepted by me and was relevant to your circumstances in custody,  and also raised considerations of mercy and leniency and I have had regard to that material.

Circumstances of the offending

5The charges before the court relate to two separate incidents and also the search of your premises. 

613 June 2023, this is the aggravated burglary and associated charges.

7The victim heard shattering glass near the rear sliding door of his resident in Maidstone.  He ran out of the premises through the front door.  He did not witness the entry of any person into the property.  The case is that by agreement Nur entered the premises while you waited in a blue Holden Commodore outside the premises.  He gained entry and left a hammer on the victim's bed.

8The police attended minutes later and saw Nur attempting to put a washing basket containing property of the victim in the passenger side of the vehicle, and you were sitting in the driver's side.  The police instructed your
co-offender and yourself to stop.  Your co-offender dropped the washing basket, got into the car, and the car drove away.  You drove away erratically, and I will not go into details as to the erratic driving, it is set out, the circumstances of offending are set out in the prosecution summary of alleged offending on sentencing indication, which was Exhibit A and forms part of these reasons for sentence.

9You and the co-offender fled on foot from the vehicle and the vehicle was extensively damaged due to your erratic driving.  You fled through the Maidstone area, jumping various fences, landing on the roof of a shed causing damage.  You could be seen on CCTV footage in the driveway of a private property.  You were carrying an imitation pistol with a silencer attached.  That has not been recovered by police.

10The police were endeavouring to track you along the route you were taking. You ended up in your partner's black Holden Commodore sedan and were travelling in that whilst being observed by police.  The police located the blue Commodore and located within it a loaded Sterling 0.22 calibre rifle with the barrel sawn-off; a black bag containing mail belonging to the victim of the burglary; various other items.

11A second incident occurred days later, on 17 June. Mr Tong was driving along in Maidstone.  You, again in company with Mr Nur, were in a Holden utility.  You began driving behind Mr Tong's vehicle, sped past, applied the brakes and pulled back, driving the utility next to Tong's vehicle.  You pulled the utility in front of Tong's vehicle and blocked both lanes of traffic. 

12You exited the seat of the vehicle you were driving.  You had your hands in fists, balled into fists.  You approached the vehicle.  You said 'where are you going?', 'what are you doing?'  'My missus lives down that street'.   He said, 'I am just driving'.  You said 'that's all you better fucken be doing'. 

13You got back into the car and took off through a red light, conducted a U-turn, went through that intersection a second time.  You were apprehended by police some time later, arrested and searched.  I will not go into all the details of what was then located back at your premises, but in relation to drugs of dependence and items such as the black 3D printed plastic handgun, form part of the charges before me.

14The objective gravity of the offences before me are serious and particularly the aggravated burglary, being a party to any aggravated burglary is a serious matter.  It carries a maximum of 25 years' imprisonment.  The possess firearm charges are also serious; one is a sawn-off weapon.  A prohibited person such as yourself presents as a danger when you have got access to firearms, imitation or otherwise and your conduct bears that out, your criminal history bears that out.

15The conduct must be denounced.  You need to be deterred, and others need to be deterred.  General deterrence is significant for offences of this nature.

16I do accept that drug addiction and drug use has been central to the offending in the incidents before me, but also your prior history and that addiction has its roots and its foundation in profound disadvantage and trauma in childhood.  There is simply no doubt about that, that you did not have much of a chance in life starting out and there has been a range of forces that impacted upon you during your development, and continued into your teenage years, that led you into those negative peer associations, drew you towards drug addiction, and these factors go hand in hand with other criminogenic factors such as instability in housing, experiences in custody, and so on and so forth. 

17It is well understood by the courts that someone who has experienced your life trajectory is vulnerable and susceptible to the sorts of influences and the vulnerability to substances that you have battled during your life. 

18I am not going to go into fine detail as to your personal circumstances.  I did receive on the plea and the further plea a substantial amount of material documenting your life.  It is to the credit of your legal representatives, your counsel Mr Edney and his instructor, that this was a very well-prepared plea.

19I received materials emanating from your custodial experience in relation to urine screening.  I received the wise-employment post-release employment plan and certificate of program completion ADAPT from July 2023.  Important materials that went into background as to your life, but also significant personal matters to you, cognitive and psychological that are relevant from a sentencing perspective, including a psychiatric report by Dr Takyar from September 2021; neuropsychological report by Jane Lofthouse from 2012. 

20These historic records are of great assistance and do not lose their importance due to the dated nature of them.  They provide a longitudinal assessment and view of the difficulties you have battled with throughout your life.

21A psychiatric report from Dr Pariera, Area Mental Health June 2015; a psychiatric report from Dr Ventura from 2019; a Carla Lechner report from 2012; and another addendum report from the same year from Carla Lechner; Western Health discharge summary from September 2017. 

22I was also provided with Northern Territory Foster Care records of various dates, and all of this material corroborates and allows me to accept without any reservation whatsoever, that you are entitled to the mitigation that flows from the application of the Bugmy principle with full effect. 

23You spent your formative years in foster care.  I was told that you went into foster care at six months of age.  I am not going to go into detail about the traumas you experienced but these included sexual abuse as a child.  I accept that unreservedly in the detail that it is set out.

24Whilst I have dealt with those early experiences in brief terms, it in no way undermines the significance of childhood trauma and its links with, as I have stated, illicit substance use, gravitation towards negative peers, and descent into a lifestyle which exposes you to a number of criminogenic factors and many of those relate to schooling, employment, housing, as well as experiences in custodial settings.

25Your relationship history has been set out helpfully by Mr Edney in Exhibit 1, his outline of submissions.  I will not reproduce that detail in these reasons but of significance of course is your relationship with Ms Patman and your son, Callan, who has been the subject of discussion on the further pleas and also again this morning.  It came as a shock to you in custody when you became aware that your former partner was no longer able to care for Callan. 

26You became very concerned for his whereabouts, his whereabouts were unknown to you, and you became further concerned when Child Protection information came to light in relation to Callan, and again further concerned when you became aware that he was detained in Youth Detention in a - bittersweet is perhaps not the word - but you wryly observed, I was told, that at least you knew where he was and that he was safe.  It has impacted upon you significantly witnessing from the location in which you are in, in prison, witnessing your son being exposed to the same influences and commencing to tread the same path that you did.  That has caused you great distress in custody and I have no difficulty accepting that.

27I have received two letters from you, and I have read them carefully.  I accept the sentiments expressed in those letters are genuine and I have taken those sentiments and heartfelt expressions of your situation, but also your son's situation, into account with mitigatory effect.

28It became an issue during the further pleas that there may be a prospect of you being released with some certainty onto a community corrections order, in order to support Callan and in order to, as best you are able, provide some stability in his life.  You did not want to see him travel the same road you have travelled. 

29It was accepted by me that intergenerational trauma was a relevant factor on the materials.  The submissions that were made were again well supported by the documentation.  It was also apparent to me that the hardship you had experienced in custody was greater due to this; not simply the stress of what was occurring with your son and his lack of supports, his lack of parental supports or other supports in the community, and I accept that stress and distress would have cut deeper and been harder to bear given the intricacies of what I will broadly refer to as the intergenerational trauma aspect of that experience.

30I have concluded that that is a factor which gives rise to an occasion for mercy. But the need for general deterrence remains in your case, it remains an important and significant factor. 

31Specific deterrence does have some role to play although I am satisfied, based on all the material before me, that from where you currently sit you have a genuine desire to rehabilitate and I am satisfied you have prospects, you are not without prospects of rehabilitation.

32The maximum penalties that apply to particularly aggravated burglary, but also proper consideration of offences of prohibited person possess firearm, have led me to the conclusion that gaol terms are the only appropriate sentences and that a gaol term in combination with a community corrections order that would see you released around the same time as the non-parole period that I propose to set, would simply not meet the sentencing requirements and sentence factors that I must balance in this case.

33Another significant sentencing consideration in your case is the application of the totality principle.  It is set out helpfully in the prosecution materials and also a helpful email to the court, and also in the materials from Mr Edney. 

34The sentence you have been undergoing, the length of time you have been in custody, what you have been in custody for, and I have to have regard to the entire period of custody, the totality of the offending, that is including what you have recently served sentence for and the offending before me, and as best I am able adjust my sentences in order to reflect the totality of the offending.  And your sentences are moderated substantially due to the application of the totality principle, but also for the reasons I have stated.

35There is material before me that leads me to accept that your cognitive profile is a relevant sentencing consideration and a matter through which I assess your moral culpability, as I do the profound disadvantage and childhood trauma.  I assess your moral culpability in that light.  Your moral culpability for descending into drug use and vulnerability to drug use is barely existent for someone who commences drug use at the age of 12, in the life circumstances and instability that you were experiencing in the years leading up to that age.

36So, all of those features give rise to the leniency and mercy that the sentences I am about to impose reflect, as does the principle of totality.

37You have pleaded guilty and you get a discount for pleading guilty.  There is certainly significant utilitarian value to pleas in relation to a rambling incident or incidents like the two that are the subject of the charges; that would take some court time to work through, so there is certainly a utilitarian benefit there.  I am also satisfied that your pleas are reflective of contrition and remorse in your case, and I arrive at that conclusion in a wholistic way based on all of the materials, the way you have conducted yourself during the various pleas, but also in particular your letters to the court.

38I am satisfied that certainly in the last 12 months or so, 18 months or so, you have done everything that you can whilst in custody to try and prepare yourself for release.  You have housing available to you. There is a letter provided to the court in relation to work prospects. 

39I am comforted that the housing in South Melbourne is still available and the prospect of being paroled is outside the ambit of this court, of course, but you will be eligible for parole very soon and it is certainly hoped and expected, given the work that you have done and given what is available to you outside of prison, that you would be granted parole and to the extent that these things are relevant, based on the materials before me and the thorough and comprehensive documented plea that has been presented on your behalf, I endorse you being released on parole once eligible.

40Taking into account all of the sentencing considerations I am asked as best I am able, including of course general deterrence, the need to denounce your crime on behalf of the community, the need for specific deterrence, community protection, but also to have regard to your prospects of rehabilitation and assessing the impact of other important sentencing considerations such as totality, I sentence you as follows, Mr Dunn.

Sentence

41On the indictment - and I will start off by, I will break it up into the incidents.

42Incident 1, the indictment, Charge 1, aggravated burglary, you are sentenced to 22 months' imprisonment.

43Prohibited person possess a firearm, Charge 2, you are sentenced to
20 months' imprisonment.

44Theft of a motor vehicle, six months' imprisonment, that is Charge 3.

45Failing to stop a motor vehicle, that is a relevant summary offence, seven days.

46Wilful damage, one month imprisonment.

47Prohibited person possess an imitation firearm, Charge 4, 18 months' imprisonment.

48Commit indictable offence whilst on bail, seven days' imprisonment.

49Incident 2, dealing with property suspected of being proceeds of crime, six months' imprisonment.

50Prohibited person possess a firearm, Charge 6 on the indictment, 20 months' imprisonment.

51Possess cartridge ammunition, fined $1,000.

52Possess drugs of dependence, fined $400.

53I make the following orders for cumulation.  Charge 1 on the indictment is the base sentence of course.  Two months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.  One month of the sentence imposed on Charge 4 is to be served cumulatively on the sentence imposed on Charge 1.  One month of the sentence imposed for dealing with property suspected of being proceeds of crime is to be served cumulatively on the sentence imposed on Charge 1.  One month of the sentence imposed on Charge 6 is to be served cumulatively on the sentence imposed on Charge 1.  That makes a total effective sentence of 27 months' imprisonment.

54I set a non-parole period of eight months and that represents of course a significant disparity between the head sentence and the non-parole period.  It is also a little less than what I indicated at the sentencing indication and that essentially reflects the aspect of mercy and hardship in custody that I have accepted arises as a result of all of the circumstances relating to Callan and its impact upon you.

55Pursuant to s6AAA, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a two-and-a-half-year non-parole period.

56Can someone help me with PSD.  Have we got a?

57MR SHEPPARD:  My calculation is that it's 179 days PSD.

58MR EDNEY:  That is correct, Your Honour, thank you.

59HIS HONOUR:  Agreed.  I declare that you have served 179 days of the sentence I have imposed as pre-sentence detention.

60I make orders against your licence, as I must in relation to the dangerous driving charge, and also theft of motor car charge.  I make an order of six months disqualification.  That can sit against both charges, that it's one disqualification.

61Are there forfeitures and disposals?

62MR SHEPPARD:  I am not instructed to make those applications today.

63HIS HONOUR:  All right.  All right, Mr Dunn, what that means if you're going to be eligible for parole within a couple of months.  So I know there's a lot of steps that need to be taken and you'll be able to undertake those and prepare for parole.  I know that parole is no certainty, but I've crafted this sentence, taking everything that I can into consideration, with that in mind.

64Anything else?

65MR EDNEY:  As Your Honour pleases, just one matter.  I am sure it still happens, but it used to happen when a sentencing judge would refer the sentencing remarks and reports to the Adult Parole Board for their consideration and this may be an appropriate case for Your Honour to do that.

66HIS HONOUR:  I'm happy to do that.  The sentencing remarks will probably take a week or two to revise and I wouldn't give over all the material, given the conditions under which some of the material was given ‑ ‑ ‑

67MR EDNEY:  Yes, yes, I accept that, Your Honour.

68HIS HONOUR:  ‑ ‑ ‑ given to our chambers and that material will be - what will have to be retained as an exhibit.

69MR EDNEY:  Yes, of course.

70HIS HONOUR:  But my copies will be destroyed.  Yes.  No, I will do that,
Mr Edney, I will look into that.

71MR EDNEY:  Thank you, Your Honour.

72HIS HONOUR:  All right, anything else?  No?  All right, all the best.

‑ ‑ ‑