Director of Public Prosecutions v Jeisman
[2022] VCC 1602
•9 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-02490
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN JEISMAN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September and 27 September 2022 | |
DATE OF SENTENCE: | 9 September and 27 September 2022 | |
CASE MAY BE CITED AS: | DPP v Jeisman | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1602 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – AGGRAVATED BURGLARY – THREAT TO INFLICT SERIOUS INJURY – CAUSING INJURY INTENTIONALLY – THEFT – DRUG USE - CRIMINAL HISTORY
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire Mr P. Botros | Mr J. Coulter |
| For the Accused | Mr C. Pearson | Mr A. Paull |
HIS HONOUR:
1 Mr Jeisman is 41 years of age. He was 38 when these crimes occurred, having been borne in March 1981. He is a Nunga man.
2 The indictment we are concerned with is L12720040.1, and contains five charges.
3 The first and most serious is the charge of aggravated burglary, which is an offence pursuant to s77 of the Crimes Act, for which the maximum penalty is one of 25 years imprisonment.
4 That aggravated burglary took place at Room 14 of the Colonial Motor Inn at 57 Fyans Street in Geelong. The matters of aggravation were the use of the box cutter and a wooden stick, which were used to inflict injury upon Mr Conway. Those injuries being the matters set out in Charge 3.
5 The circumstances as demonstrated by the prosecutor in Exhibit A, being the prosecution summary, are such that led me to express some concern to the Director and obviously to Mr Pearson, as to the appropriateness of Mr Jeisman pleading to Charge 1.
6 My role, of course, is no role in those circumstances and that matter is to be determined solely by the Director. It was so determined and the matter has proceeded.
7 However, given the issues, had this matter gone to trial as to the question of establishment of the element of burglary and as part of that element, the aspect of trespass, I consider, and there does not seem to be any dispute about this from either party, that this can only be seen as a valuable plea.
8 I accept Mr Pearson's submission in regard to the circumstances of this charge that it is very much, despite its seriousness, at the lower order of these matters, not only for the time involved but there seems to be in regard to the victim, albeit we do not have a victim impact statement, some background in regard to mutual drug dealing, some issue as to unpaid drugs and some conflict between the parties relating to that issue. It is apparently that background that led Mr Jeisman to the premises at this time on this night.
9 The threat issued when he initially arrived at the room of Mr Dallinger, was made insofar as wanting to get Mr Conway's car, and was a serious threat to cut his throat.
10 It should, as I have already said, be pointed out that he had known Mr Conway for some considerable time, apparently for some 14 years.
11 The second charge is an offence against s21 of the Crimes Act, for which the maximum penalty prescribed is one of five years imprisonment.
12 Also, as part of the process to get hold of Mr Conway's car, were the infliction of the injuries set out in Charge 3. Despite the threat to inflict serious injury Charge 3 relates to intentionally causing of injury only.
13 Clearly, from what can be ascertained, as detailed in the prosecution opening, those injuries were not serious and obviously, there is no victim impact statement filed.
14 The thefts as set out in Charge 4 on the indictment are an offence against s74(1) of the Crimes Act, which the maximum penalty is one of 10 years imprisonment. They are all items of Mr Conway's and though I do not have precise details, I would understand, given that they were found very quickly in the car driven by Mr Jeisman, most of those items would have been returned.
15 There were subsequent items found in the car and they are the basis for the summary charge 9, being possession of proceeds of crime, for which Mr Pearson pleaded guilty on behalf of his client, Mr Jeisman. The maximum penalty that is described for that offence is two years imprisonment.
16 The final charge on the indictment, Charge 5, is an unrelated charge to the other four charges. It, indeed, occurred earlier than those charges on the 28th day of October 2020 and involved a theft from BWS Newtown of two bottles of tequila, valued at $144.
17 I have been asked to sign a forfeiture order, which I will do. The PSD agreed between counsel is 655 days to date, approximately 22 months. Such was subsequently found to be incorrect and on the 27th day of September 2022 pursuant to s 104A of the Sentencing Act 1991 (Vic), I amended these reasons to now record the agreed correct pre-sentence detention of 181 days, and accordingly my declaration pursuant to s 18 of the Sentencing Act 1991 (Vic).
18
Mr Pearson accepted the accuracy of the priors which have been filed between the Court. Those priors make up some 38 pages. Unfortunately, Mr Jeisman has, as a result of the offences set out, been subject to gaol terms since the age of 17. It is somewhat distressing to read about
Mr Jeisman's life. The matters are set out in the written plea, Exhibit 1 of
Mr Pearson and in particular, Exhibit 2, which is the psychological report of
Mr Cummins, dated 7 July 2022, the conditions of which were originally diagnosed by Mr Ball in 2018 and confirmed in [4] of Mr Cummins' statement are concerning enough.
19 The history of Mr Jeisman, very limited education, very limited employment, having been an intravenous heroin user on a daily basis from the age of 12. He is now on a disability support pension and has been apparently for a period of some seven years and that is related to an acquired brain injury, of which apparently he was diagnosed in the sense of relating from his long term poly substance use or abuse, I should say.
20 Unfortunately, also, from floggings he received from his stepfather and there is also a history of abuse when he was a young boy.
21 The only fortunate thing about his history is as he said he is not violent. The record shows that. Albeit, 38 pages, one has to go back to when he was 23 to find the only violent offence, aggravated burglary of course is a very violent offence and he was convicted when he was 33 in 2014 of two of those offences. But just purely a violent offence such as unlawful assault has not occurred in his life, but for once when he was 23 in 2004.
22 So, it seems to me that it is appropriate that he is seen as a non-violent person. His explanation to the specialist was that insofar as these circumstances go, he lost the plot with his friend, Conway and to use his words as set out at [27], 'I let my temper get the better of me'.
23
The great concern that this Court has from his history is set out under the heading, mental state examination by Mr Cummins at [32] and [33], when
Mr Cummins says this: ‘On the basis of his comments at interview I formed the opinion he is significantly at risk of becoming institutionalised. In this regard I noted in the psychological report of 9/1/2018 Mr Ball was of the opinion that Mr Jeisman presented with some evidence of institutionalisation. In my opinion, when he most recently had his liberty and at the time of this offending he was suffering from a Cannabis Use Disorder which was of at least moderate severity and of an Opiate Use Disorder which was severe in type. He did report a history of traumatisation, although did not report symptoms consistent with him currently suffering from a trauma- and stressor-related disorder.’
24 As a result of the totality of those matters in Mr Jeisman's life he was diagnosed as suffering from Major Depressive Disorder with associated features of traumatisation.
25 At [42], Mr Cummins says that Mr Jeisman’s prospects for long term rehabilitation are very guarded.
26 I appreciate the outline of prosecution submissions. As Mr Pearson said, the principles of Dalgleish (2017) 262 CLR 428 have to be taken into account. The High Court set out in Dalgliesh that each case must be looked at individually and a person must be sentenced on the facts of their particular case.
27 Given the matters that I have read out from the psychological report, clearly the principles of Bugmy v The Queen (2013) 249 CLR 571, in particular at [44], are also appropriate.
28 It is particularly difficult for a Court, given such a sustained criminal history, albeit limited in the sense of violence, but unfortunately, with many, many charges of burglary, use of heroin, many theft charges, in particular shop theft and as I said, aggravated burglary at the age of 33. It must be said that Mr Jeisman only got six months at that time for that charge and that his history shows that the maximum penalty that he has received prior to these offences was in January 2018 when he got 12 months for burglary and then he got 114 days in 2019 for another burglary and theft.
29 The principles, however, still apply. The real issue insofar as assessing the submissions of Mr Pearson, which really adopted the Bugmy principles that I have already spoken about, is the appropriateness of the request for an order which includes a community correction order. As I said, it was described by Mr Pearson as his very strong submission. But in the end, a community correction order is not going to help in my view, Mr Jeisman. He is in a position now, I am told, where he has a partner, who might not be that happy with him at the moment, but a partner who is not involved in drugs. He has a son and a grandson.
30 The choice for him is very, very stark. He either, when he gets out of gaol, stops drugs forever or he is going to be institutionalised for the rest of his life. A community correction order is not going to help him in those circumstances and as I said to Mr Pearson, I do not intend to grant such an order.
31 I accept that insofar as Mr Jeisman’s sentencing is concerned, I take into account the principles of Woyboyes v The Queen [2021] VSCA 169, at [39]. A plea at this stage, given the stress that the justice system is undergoing, must enhance the discount to be taken into account by a plea which assists the judicial system.
32 I also note that during the time that Mr Jeisman has been on remand for these offences, it has been a very difficult time, whereby he has been subject to lockdowns, COVID restrictions and has limitation of visitors. That would have happened really for the whole period of his remand, the whole 22 months and I also take those matters into account.
33 Analysing the matters as best I can, taking all such factors into account, being as positive as I can, as Mr Pearson said, at least for the last 22 months he has been on methadone. We know that. I indicated that I was not prepared to accept that he is necessarily off drugs, but they are the instructions, and I hope they are right.
34 What Mr Pearson says is that once he gets this gaol sentence over, hopefully, he will wake up, take the hard decisions and try and enjoy the rest of his life, so that we do not have another institutionalised Nunga person. That is not what this Court wants to see.
35 In all the circumstances I would reject the submission made by Mr Pearson, that I should impose a period of imprisonment with a community correction order.
36 I accept the proposition put by the prosecutor that the totality of factors require a sentence and a non-parole period. That is what I intend to impose.
37 Insofar as the sentence is concerned, as I said, Mr Jeisman, you do not have to stand up in the circumstances. You will be convicted of all of the charges on the indictment and the summary matter, to which your counsel has issued a plea or has placed a plea on your behalf.
38 Insofar as Charge 1 is concerned, you will be sentenced to a period of imprisonment of 36 months or three years. In regard to Charge 2, 3 and 4, they will all be part of an aggregate sentence, which I pass in regard to those matters, being the aggregate sentence pronounced in regard to Charge 1, a sentence of 36 months.
39 In regard to Charge 5, you will be sentenced to a period of imprisonment of four months and in regard to the summary charge a sentence of imprisonment of one month.
40 I order that two months of the Charge 5 sentence, that is the theft charge from the shop, be served cumulatively upon the aggregate sentence of 36 months, making a total effective sentence for all charges of 38 months.
41 I order that the minimum period to be served before you will be eligible for parole is two years, or 24 months.
Given the plea and the importance of indicating to persons who enter pleas in these circumstances, especially at these times, pursuant to s6AAA, I am required by Parliament, Mr Jeisman, to tell you the benefit of your plea. Can I tell you that had you not pleaded guilty the sentence you would have got is not 38 months with a minimum of 24 months to be served before you can get parole but a period of four years with a minimum of three years. Hence, the benefit to you of pleading guilty.
42 Madam Prosecutor, apart from me signing the forfeiture order, are there any other matters that I have got to attend to?
43 MS MAGUIRE: No, Your Honour, as the Court pleases.
44 HIS HONOUR: Mr Pearson, any other matters?
45
MR PEARSON: Your Honour has to make the declaration regarding
pre-sentence - - -
46 HIS HONOUR: Sorry. I apologise. Pursuant to - - -
47 MS MAGUIRE: My apologies, Your Honour. Yes.
48
HIS HONOUR: Yes. Pursuant to s18, I declare that the 181 days which
Mr Jeisman has served on remand be deemed service of this sentence and that a declaration to that effect be entered in the records of this Court. Thank you,
Mr Pearson for that. Anything else?
49 MR PEARSON: Not for my part, Your Honour.
50 HIS HONOUR: Thank you. Do you want me to sign this, Madam Associate?
51 ASSOCIATE: Yes.
52 HIS HONOUR: Mr Jeisman, good luck. All right. Mr Pearson, do you want to have the opportunity to talk to your client?
53 MR PEARSON: If I could, Your Honour.
54 HIS HONOUR: Yes. Is that all right - what have we got? You've got till quarter past, I think.
55 MR PEARSON: Yes.
56 HIS HONOUR: Half past.
57 MR PEARSON: I won't be long, Your Honour.
58 HIS HONOUR: Thank you, Madam Prosecutor, I appreciate your submission on sentence.
59 MS MAGUIRE: Thank you, Your Honour, if the Court pleases.
60 HIS HONOUR: Yes.
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