Director of Public Prosecutions v Edwards

[2019] VCC 1906

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00143

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN EDWARDS

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	18 November 2019
DATE OF SENTENCE:	18 November 2019
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2019] VCC 1906

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr L. Dogger	Daniel Taylor Laywers

HIS HONOUR: 

1Benjamin Edwards, you have pleaded guilty to one charge of burglary, one charge of theft simplicter, one charge of theft of firearms, though there were three guns, and one charge of prohibited person in possession of a firearm - again, there were three guns, being shotguns, involved in that.  You have also pleaded to uplifted summary matters of possess a prohibited weapon. 
And the charges carry maximum penalties of 10 years, 10 years, 15 years, 10 years, and two years, respectively.

2Insofar as the prohibited weapons are concerned, it seems to me that they simply fit into the overall scenario here, so I will simply give three months on each of those and make then totally concurrent.

3The situation is that you are now 42 years of age.  I accept that your plea of guilty was entered an early opportunity.  There is a degree of remorse,
I suppose, though for someone in your situation, it would not be a great deal of it.

4You must also, of course, get the utilitarian benefit of the plea of guilty.  It saves the victim having to give evidence, it saves police resources, and saves court time.

5You do have a very significant criminal history.  You have been gaoled on many occasions, and some of them have quite significant gaol sentences amounting to years.

6It is quite clear from this material, in my view, that at the age of 42 you have clearly become institutionalised.  This offending I am about to describe occurred within a week or so of you being released from a sentence where you served the entire sentence without receiving parole.  It is situations such as this which, in my view, exemplify the stupidity of the attitude of people refused parole when they are simply let out with no supports.  Whilst it is up to you whether you offend or not, it does not assist the community, in my view.

7In any event, the summary of the offending is that you had been out of gaol a week or so and in March 2019, you were staying with a former prison associate, Mr Peacock, and his brother.  You had been there for about four days in a house in Sale.  On the evening of 8 March, you told one of the other occupants that you were going for a bike ride.

8You then made your way to a house in Arouin Drive.  The residents of the house were away on holiday, and it was unoccupied.  You went in the backyard, and got in through an adjacent garage.  The door was locked.  You discovered a spare key to the front door of the house, and you were then able to enter the house.  That gives rise to the charge of burglary.

9I am not regarding the screwdriver that you would have had with you as a weapon, and you are simply charged with the burglary simplicter.

10You went through rooms.  You stole jewellery, and you stole some icy poles.  That gives rise to the charge of theft, which will be totally concurrent with the burglary charge.

11However, what is of real significance of this situation is that you then located a gun safe in the laundry cupboard.  You forced it open with a screwdriver, which it is believed you got from the garage.  A screwdriver was later found where you were arrested.  You found in that gun safe a number of guns.  My understanding is that you did not take all of them, but you took three shotguns.  That gives rise to the charge of theft of firearms and the fourth charge of prohibited person possessing a firearm.

12You also stole a sword and bayonet.  I have already dealt with them.

13You then took the guns back to where you were staying, and it is clear that you, having taken those shotguns, had every intention of selling them and making a profit from them.  Someone with your very extensive criminal history would have no doubt as to the sort of use that would be made of weapons such as that being released into the criminal milieu, and I do not accept any explanation to the contrary - not that any have really been given.

14In any event, the people in the house become concerned about the guns being there.  The police arrived.  They were let in.  They found the guns. 
They arrested you, and you initially at least denied having committed the burglary and said you had received the guns off another person.  At least the guns have been recovered, and I would assume, have been returned to the rightful owner, and one assumes kept in a somewhat more secure position than they were at the time.

15In brief compass, that is your offending within a week or so of getting out of gaol as a long-term institutionalised criminal - there is probably no other word for it - and whilst you may have been somewhat compromised by a medical condition as noted in the reports that have been tendered, you knew what you were doing, and that is how you survive.

16No sentence other than one of imprisonment is possible in a situation such as this, and because of the guns, it has be a significant penalty.  The offending is serious and calls for the application of general and specific deterrence, denunciation, and obviously, as I said, an appropriate punishment.

17I then look to matters personal to you, and submissions were tendered on your behalf as well as a report from a psychologist, Mr Parker.  Obviously, in this situation, I have to take into account totality.  I take into account the fact that you undoubtedly are institutionalised, that when you were last released and when you are released in the future, you will have no supports of any description.

18Your parents have apparently both passed away.  A partner who you were with for some years and had a child with you are no longer in contact with, and you have not seen the child for some years.  What is supposed to occur in these situations is anybody's guess, but there is nothing I can do about that other than have a brief look at your background and give you an appropriate sentence for the criminality of what you have dealt with.

19You grew up in Perth with your mother and half-sister.  Your parents separated when you were around about two years of age.  You are of Aboriginal origin, and during the course of your childhood, there was considerable family dysfunction.  You went to something in excess of 30 primary schools during your youth, and that is usually an indicator of what is going to become a very, very troubled adulthood indeed.

20There were all sorts of difficulties with the family.  Child Protection Services became involved, but there was apparently no removal.  The report of Mr Parker of the NDIS says that you described a:

'chaotic and highly dysfunctional childhood through to adulthood.  Not only did he witness the violence between his mother and stepfather, he was sexually abused and lived a transient life with his mother, the combination which led to criminality and drug abuse.

21It could not be put in a more succinct way.  Whether you are ever going to be able to rehabilitate I think can really only be up to you.  I have already made my feelings on parole obvious.  The risk of you reoffending if you are released into an unsupervised situation in the community is going to be almost a certainty,
I would have thought.  But again, as I have already indicated, there is very little I am able to do about it despite my personal views.

22In any event, taking those matters into account, applying as best I can the principles of Bugmy - essentially, what that says is that with backgrounds like yours, very few people have happy adulthoods.  It is not something that goes away in five minutes.

23However, on Charge 1, 12 months.  On Charge 2, six months.  On Charge 3, two years.  Charge 4, six months.  Summary matters, three months on each.

24I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3, which gives a total effective sentence of two-and-a-half years.  I direct that all other sentences be served concurrently. 

25And as I say, that is an effective sentence of two-and-a-half years.

26I direct that you serve a minimum term of two years before becoming eligible for parole, and I say that but for your plea of guilty, you would have been sentenced to imprisonment for a period of four years with a minimum term of three.

27There are no other orders I have to make?

28MR HAMMILL:  No, Your Honour.  PSD, of course.

29HIS HONOUR:  Pre-sentence detention, 254 days.  Nothing else?

30COUNSEL:  No, Your Honour. 

31HIS HONOUR:  Yes, thank you. 

‑ ‑ ‑