Director of Public Prosecutions v Joseph
[2020] VCC 1467
•18 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-20-00743
Indictment No. K12995216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN JOSEPH |
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JUDGE: | HER HONOUR JUDGE DALZIEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September 2020 |
DATE OF SENTENCE: | 18 September 2020 |
CASE MAY BE CITED AS: | DPP v Joseph |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1467 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Attempted armed robbery – Make threat to inflict serious injury – Possession of a drug of dependence – Summary charges of assault with weapon and commit indictable offence whilst on bail – Plea of guilty
Sentence:Total effective sentence of 2 years and 3 months imprisonment with a non-parole period of 14 months.
Section 6AAA declaration: 4 years imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague (Plea) Ms S. Gleisner (Sentence) | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr G. Thomas | Greg Thomas Barrister and Solicitor |
HER HONOUR:
Benjamin Joseph, you are to be sentenced today for attempted armed robbery, making a threat to inflict serious injury, possession of a drug of dependence, assault with weapon and committing an indictable offence whilst on bail. All of these charges were committed on 19 November 2019, in the central business district of Melbourne.
Incident 1: Attempted armed robbery – Victim Simon LEGG
On 19 November 2019 at about 5:45 pm Simon Legg was walking south along William Street, Melbourne, towards Flinders Street Train Station. As Mr Legg was crossing the intersection of William Street and Collins Street, he heard a male voice say 'what the fuck did you say about me?' Mr Legg initially did not take much notice as he was talking on his mobile phone. Mr Legg then heard the voice repeat the comment, and he turned around to see you behind him. He realised you were speaking to him. You then moved in front of Mr Legg, and stopped. You again asked if Mr Legg was talking about you, and then said 'give me your fucking phone'. Mr Legg said no, and asked you what you were going on about. You repeated the demand for Mr Legg's mobile phone, and produced a handle from your waist band and flicked open a blade.
Mr Legg immediately backed away from you. He saw people walking on William Street towards him, and you then ran off, south on William Street.
Mr Legg later contacted the police to report the incident and provide a description of you.
Incident 2: Threat to inflict serious injury – Victim Kris TALEVSKI
Shortly after the offending against Mr Legg, at approximately 5:50 pm, Kris Talevski and his wife were driving south on William Street in Melbourne. They were approaching Flinders Lane when Ms Talevski said 'there's a guy hitting people with a stick'. Mr Talevski looked and saw that you were hitting people with a stick, and then you picked up a rock and tried to throw it at people.
Mr Talevski got out of his car and yelled 'stop what you're doing', to try to stop you harassing people. You said to Mr Talevski 'fuck you, move away', then reached into your back pocket and pulled out a knife. You opened the knife and lunged at
Mr Talevski, shouting 'back away or I'll stab you'. Mr Talevski described your weapon as being like a Swiss Army knife, red or brown in colour, and approximately 6 to
7 inches long when unfolded.Incident 3: Assault with weapon – Victim Taki KONSTAN
Very soon after that incident you committed a further offence. At 5:55 pm Taki Konstan was walking south along King Street, Melbourne, between Flinders Lane and Flinders Street. He observed you walking beside him, matching his speed. He stopped to see what you would do. You kept walking and then turned and walked back towards Mr Konstan. Mr Konstan started walking and tried to move past you.
You pulled out a knife and pointed it at Mr Konstan, who backed away onto the street to get away from you. He yelled out that he had no money. He moved across King Street to get away from you, and into a bar to call for help. Mr Konstan described the knife as like a silver multi-tool, with blade around 10 centimetres long folded out.
Mr Konstan prepared a victim impact statement. He said your actions have made him feel unsafe walking around the city, and he worries about what could have happened to him if he had not avoided your attack. He is anxious and it troubles him that this could have occurred in broad daylight on a busy street with other people and cars around.
You were arrested around an hour later in Batman Park. When you were arrested you have a small bag with methylamphetamine in it, in your pocket. Police located a black Leatherman multi-tool in a nearby gutter.
When you were interviewed, you told the police that you were walking along in the city and a bloke came up to you with his phone in his hand. You said this man moved very close to you, almost touching you with his phone, and you were paranoid about this because someone had tried to access your superannuation whilst you were in custody recently.[1] You asked the other person to leave, and you and he had a verbal argument and a slight push and shove. You said you were hurt more than the other man.[2] You also had a verbal argument with the man's wife. This does not appear to be the incident involving Mr Legg, as might be suggested by the reference to the phone, as there was no woman with Mr Legg. It may have been a pre-cursor to the incident with Mr Talevski.[3]
[1] RoI Q&A 25 - 28
[2] RoI Q&A 31
[3] RoI Q&A 65
In relation to the incident reported by Mr Talevski, you said:
12.1. You did not have a stick and did not throw anything (Q63, 78-81). You said the man was yelling at you when he saw you arguing with a woman and wanted to do something about it (Q65).
12.2. You did not have a knife, you did not make the comment 'back away or I'll stab you'. Though you may have said 'fuck off you cock sucker or I'll punch you in the face', but did not mention anything about a knife and you did not have a knife. (Q67-72)
In relation to the incident reported by Mr Konstan, you said it did not happen, and that you did not have a knife (Q95-105). You said that the Leatherman that the police found was not yours.[4]
[4] Q&A 128-129, 138
These offences were the final in a series of street attacks and confrontations in which you were involved. I note that whilst you have yet to be sentenced upon those matters Ms Cidoni was told that you were intending to plead guilty to the following offences.
14.1.24 June 2019 – at around 12.45 pm unlawful assault on a woman in La Trobe street, by pushing her into a wall and then kicking her when she was on the ground;
14.2.24 June 2019 – at around 9. 15 pm unlawful assault upon a man in Elizabeth Street, Melbourne;
14.3.25 July 2019 – loitering, and possession of 0.312 grams of methylamphetamine;
14.4.20 August 2019 – threat to inflict serious injury and possession of a controlled weapon, at North Melbourne; you threatened a man with an angle grinder, and threatened to set him alight, shave his beard off and cut his head off;
14.5.29 August 2019 – near Melbourne East Police Station, failing to comply with directions of police, discharging a missile and possession of a dangerous article; and
14.6.10 November 2019 – damaging a vehicle by scratching a panel of a car with a tool.
You are not, of course, to be punished for these offences now, but they demonstrate that the offences before me were part of a lengthy period of escalating aggressive conduct by you, sometimes involving a weapon or improvised weapon.
You have relevant prior convictions, commencing in Victoria in June 2017 in the Magistrates' Court. You have been sentenced to bonds, fines, community correction orders and jail. You also have a criminal record from appearances in Tasmania, mostly for driving related matters and possession of cannabis, although there is one charge of using abusive language to a police officer for which you received a fine.
Your most recent court appearance was on 14 September 2019 when you were sentenced to one month imprisonment for assault with weapon, assault by kicking, possession of methylamphetamine, and committing an indictable offence on bail, these arose from an assault in Elizabeth Street in the city, and your possession of 0.742 grams of methylamphetamine.
Personal Circumstances
You were born and raised in Tasmania. You had a reasonably happy childhood, and you are still in contact with your parents. You have two siblings, but historically have not had a good relationship with your sister and you alienated your brother by reason of your behaviour in the context of drug addiction.
You had two significant relationships in Tasmania, and then formed a relationship with a woman with whom you moved to Victoria in 2016, when you were 29. You lived with her until 2018, and upon that relationship ending you were homeless for most of the time. You were homeless when the offences before me were committed. Your lawyer says you had lost your identification documents, bank cards and Medicare card, and you were cut off from Centrelink payments. You were homeless, experiencing paranoia in the context of your drug use, and behaving in an irrational manner. You felt unable to function in the community.
You say that you wish to return to live in Tasmania to be near your family. You are attempting to reconnect with your sister, who has been diagnosed with a very serious illness, and is undergoing treatment.
You finished year 11 and then completed a boilermaker apprenticeship. You worked at a mine for eight years until it was closed in 2016. Losing that job was one of the reasons you made the move to Victoria. You worked in a factory for two years, from 2016 to 2017. You last worked in 2017. Your work history, prior to your descent into drug abuse, was very good, and your trade qualification makes you employable in future.
Mental Health and Drug Abuse
You were diagnosed with epilepsy at age 13, and have been prescribed medication for that. Your last seizure was in 2015. You told Ms Cidoni that alcohol consumption was not a problem for you. You started smoking cannabis when you were a teenager but stopped when you were doing your apprenticeship. Your criminal record from Tasmania includes matters related to cannabis in November 2015 and April 2016.
You say you were introduced to methylamphetamine by a work colleague in 2016, after your move to Victoria. You developed an addiction to that drug, which you kept from your family. You told Ms Cidoni that you had been using methylamphetamine daily. She reported:
'He understood his mental health was impacted when he was taking methamphetamines. He said he became very paranoid and believed things that didn't exist. He said the paranoia was triggered by an incident where he was certain his phone was hacked and an attempt was made to take his superannuation. He reported this paranoia has eased since he stopped the dug use in custody. He thinks his best hope to give up drug use is to return to Tasmania around his supportive family as he has no one here'.
Ms Cidoni also reported:
'He said he was convinced that his phone was hacked and his details stolen. He also said people tried to steal $10,000 from his superannuation. He said at the time of the offending, he believed the victims were involved'.
Ms Cidoni considered that you have a persistent depressive disorder and have had symptoms related to this for more than two years. She also diagnosed you as having anxiety and stimulant use disorder from 2017 with the onset of your abuse of methylamphetamine. She noted that you reported thoughts consistent with drug-induced psychosis related to your paranoid belief that people were going to steal from you and steal your superannuation.
Ms Cidoni concluded her report saying:
'Mr Joseph requires intensive treatment for his drug problem. The concern is if he is released in the community and required to remain in Victoria, he will relapse and potentially reoffend. Ultimately he should return to Tasmania where he can be supported by his family'.
Defence Submissions
Your lawyer made the following submissions:
27.1.He submitted that your plea of guilty was offered at the earliest reasonable opportunity, and that this gives rise to a significant mitigation of your sentence for several reasons. First, as indication of your remorse. Secondly, for its utilitarian value as no witness have needed to be called. And, finally, as your plea has facilitated the administration of justice. This last aspect carries particular weight in view of the effect of the COVID-19 restrictions upon the operation of the courts. I accept these submissions.
27.2.He described your offending as random, disorganised, and void of planning or pre-meditation. I also accept those characterisations.
27.3.He submitted that your offending occurred in the context of you having reached a very low point in your life. Your addiction and the attendant effect on your mental health had spiralled out of control and it can be seen from the offences you had committed in the months prior to that, that you were in a particularly bad state.
27.4.You were homeless and you had lost your cards. You were experiencing drug-induced paranoia, albeit with a degree of factual foundation in relation to your superannuation. When you started getting into trouble you were in denial. You felt ashamed and overwhelmed and did not turn to your parents for help as you did not wish to worry them.
27.5.Whilst you had had some periods in custody before these offences they had not been long enough for you to become sufficiently clear of your addiction to have insight into its damaging effect upon you. The period of nearly 10 months that you have been on remand have given you the opportunity to re-evaluate your life and form a real determination to turn things around.
27.6.You have mostly been on remand at MRC, with limited time out of cell. For around one month you have been at Marngoneet, where there is no lockdown. You have been employed in garden there, but there are no courses available at the moment due to the COVID-19 restrictions. This has also had an effect on getting ready for parole, with there being a significant likelihood, he submitted, that you might not get parole. Your lawyer noted that it can be very difficult to organise a move to interstate whilst you are on parole.
27.7.You are keen to return to Tasmania, and to avoid relapsing into using methylamphetamine. You are aware that you need to take steps to do that, but given your current circumstances and stage in the process of dealing with your addiction, you do not have a clear plan, yet, about how to achieve that.
Your father gave evidence in the plea hearing. He told me about your youth and work in Tasmania, and of his willingness to support you upon your release. He said that despite being shocked by the offences you have committed, he and your mother love you and want to help you. He said your family would take an active part in supporting you to deal with your addiction, and to get your life back on track.
Prosecution Submissions
The prosecution noted that Charges 1 and 2 were serious offences, as reflected by the maximum terms. You were armed with a knife in respect to all of the offences. The prosecutor submitted that general deterrence, specific deterrence and protection of the community were important sentencing factors, and that your personal circumstances should not overwhelm these considerations.
The prosecutor referred me to two cases involving the offence of attempted armed robbery. Each case involved a relatively low level instance of the offence, was unsophisticated and apparently without planning. While these cases do not limit the sentencing discretion, those cases demonstrate the seriousness with which the Court of Appeal treats the offence of attempted armed robbery.
The prosecution accepted that yours was an early plea of guilty and that this warranted significant mitigation for the reasons put forth by your lawyer.
The offences were committed whilst you were on bail, which is an aggravating factor in itself, and which also gives rise to the operation of s.16(3C) of the Sentencing Act 1991.
Your offending was committed whilst affected by methylamphetamine and you have a history of similar offending. The prosecutor did not submit, however, that this aggravated your offending, but at the same time, your offending could not be said to be out of character.
Gravity of Offending
In respect to Charge 1, I cannot be sure whether your motivation for this offence was a paranoid belief about the phone carried by Mr Legg or by a desire to get money. I accept that your thinking was disordered by reason of your drug use and the associated effect on your mental health. In respect to this, and the other offences before me, your irrational and aggressive behaviour must have been very frightening to your victims, particularly in view of you being armed with a knife. Mr Talevski was brave to go to the assistance of others, but it is most regrettable that he had to do so.
Violence against innocent persons going about their business in city streets is to be condemned. Our community wishes to be protected from such activity. I consider that general deterrence, denunciation and protection of the community must carry real weight in the sentencing exercise.
Prospects of Rehabilitation
Taking into account your personal history, your work history, drug abuse history and the current support of your family, I consider that you do have the ability to get your life back on track. Central to this is that you address your drug addiction with the assistance of appropriate medical and other professionals.
You told Ms Cidoni that you acknowledge that you need to stay off drugs, and that you believe you can do this if you return to Tasmania. Your abstinence in custody is a step in the right direction, and moving away from Victoria and back to where you can be supported by your family would also undoubtedly be beneficial to you, but you will need to seek out and engage with other supports to keep drug free.
The support of your family is important, and your desire to get back into the work force is also a positive for you. I consider you do have reasonable prospects for rehabilitation, provided you take steps to address and manage your drug addiction.
Totality
Whilst these offences were committed within a short time, your offending targeted three separate victims. Some cumulation is warranted between each offence, to reflect the separate criminality and separate victims. Whilst s.16(3C) of the Sentencing Act 1991 provides that each sentence for an offence committed whilst on bail should be served cumulatively upon each other, this is subject to the principal of totality. I will now tell you what the sentences are.
On the indictment charges, Charge 1, attempted armed robbery, sentence is two years. Charge 2, threat to inflict serious injury. The sentence is six months.
Charge 3, possession of a drug of dependence, I find the charge proven and you are discharged on that charge. On the related summary offences, Summary Charge 4, assault with weapon, the sentence is three months' imprisonment.
Summary Charge 7, commit an indictable offence whilst on bail, the sentence is one month. The sentence of two years on Charge 1 is the base sentence. I direct that two months of the sentence on Charge 2 and one month of the sentence on
Summary Charge 4 is served cumulative upon each other and upon the sentence on Charge 1.
| Charge No. | Offence | Penalty |
| Indictment K12995216 | ||
| Charge 1 | Attempted armed robbery | 2 years (Base) |
| Charge 2 | Threat to inflict serious injury | 6 months (+ 2) |
| Charge 3 | Possess a drug of dependence (methylamphetamine) | Proved and discharged |
| Related Summary Offences | ||
| Summary charge 4 | Assault with weapon | 3 months (+1) |
| Summary charge 7 | Commit indictable offence whilst on bail | 1 month |
| TES | 2 years 3 months | |
| NPP | 14 months |
That makes a total effective sentence of two years and three months. I set a non-parole period of 14 months.
Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded not guilty, you would have been sentenced to a total effective sentence of our years, with a non-parole period of three years.
Pursuant to s.18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 304 days, not including today, of pre-sentence detention, and I direct that this be entered into the records of the court.
And I will make the disposal order as sought by the prosecution.
Mr Thomas, Ms Gleisner, is there anything else that needs to be addressed?
MS GLEISNER: No, Your Honour.
MR THOMAS: No, Your Honour.
HER HONOUR: Thank you, we will adjourn the court.
MR THOMAS: If Your Honour pleases.
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