Director of Public Prosecutions v Lake

[2017] VCC 341

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00942

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN LAKE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2017
DATE OF SENTENCE:	27 March 2017
CASE MAY BE CITED AS:	DPP v Lake
MEDIUM NEUTRAL CITATION:	[2017] VCC 341

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou
For the Offender	Ms L. Torres

HER HONOUR: 

1Benjamin Lake, you have pleaded guilty before me to one charge of extortion with a threat to kill and one charge of being a prohibited person who possessed a firearm.  The maximum penalty for Charge 1 on the indictment is 15 years' imprisonment and the maximum penalty for Charge 2 on the indictment is 10 years' imprisonment.  The facts underlying your offending are as follows: 

2At about 4 am on 9 January 2016 you with an unknown male went to the home of the victim, Darren Phipps, at the house where he lived in Melton with his 16‑year‑old son, Matthew, and his housemate, Peter Ryan.  Peter Ryan heard some noise out the front and went to investigate, and on opening the door saw two men, one of them being you, who told him that they were looking for Darren.  Mr Ryan called out to Phipps that there were two men to see him and Mr Phipps walked to the front door and closed the fly‑wire screen behind him so his son would not come out.  He immediately recognised one of the two men as you, Mr Lake, as he had met you some years ago, he had spent time with you around other people on many occasions, and you in your capacity as a tattooist had once done a tattoo for Mr Phipps.  In fact at committal Mr Phipps said he had seen you on more than 100 occasions. 

3When Mr Phipps stepped outside you asked him if he remembered you, he saying that he did, and then the two of you told Mr Phipps that he had "A debt."  He said he had no idea what they were talking about, and you said that he owed money, about $1,100 to a man called Ben.  Mr Phipps then recalled that his sister had in the past owed $100 to a man named Ben Schembri who had provided her with drugs, and she had stayed with Mr Phipps on occasion when he was trying to help her overcome her addiction.  Schembri had come to the property in about November 2015 saying that she owed him money, although the sister, Ms Amadovski, was not staying with Mr Phipps at the time of this incident.  Ms Amadovski had paid Schembri the $100 she owed him in late November 2015 while staying at Mr Phipps's house, and no one had asked her for money since.  Ms Amadovski knew Schembri's girlfriend, Kelly, and on one occasion while visiting her, she saw Schembri with another man who she said was "Lakey", presumably referring to you. 

4Mr Phipps, on the occasion which brings you here before the court, told the two of you that the debt was for $100, not $1,100, saying that it had been repaid.  However, he was told to hand over the money or the keys to his car, a Holden ute parked in the driveway.  Mr Phipps said that the two of you were not getting either the money or the keys and to get off his property. 

5As he went to head back towards the front door the both you and the unknown male produced sawn‑off shotguns which you pointed at him, telling him that you were going to "Blow his head off."  You told him that you were taking the ute or you were not leaving. 

6Mr Phipps moved towards the unknown man, who seemed to be the younger of the two, and told him to quote "Pull the trigger."  He was told not to come any closer, and the unknown man then moved the gun from Mr Phipps's head down to his legs, telling him he was going to "Blow his foot off."  He repeated, "I'll blow your foot off, give me the keys to the ute." 

7At committal Mr Phipps said at one stage this unknown man was holding a gun to his head about 20 centimetres away from him.  By this stage, and it is acknowledged that this is so by the prosecution, you had started to move away.  Mr Phipps refused to give in to the demand and the unknown man then started to move away as well. 

8You then went to the car and got in the driver's side.  The unknown man went to the passenger side, then fired his gun as he got into the car into the yard, into Mr Phipps's yard, which hit the passenger door and window of Mr Phipps's utility. 

9The two of you left in a Holden Commodore station wagon, and Mr Phipps looked for the registration of the car but noted there was no rear registration plate. 

10Both Ryan and Matthew Phipps were inside the house at the time of this incident and each made observations of it.  Mr Matthew Phipps in fact identified you from a photo board of 12 images as one of the men who had been involved in this incident.  He said he knew you as "Lakey or Ben Lake." 

11You were arrested on 11 January 2016, but in a record of interview denied being involved in this incident, saying you had been in home in bed with your girlfriend, you had not seen Mr Phipps for six months, said you were not at his house, and said of Mr Phipps, "He's got a fuckin' problem, he's got some problem with me, hasn't he, he's stitching me up." 

12You were arrested and have been remanded in custody since that date.  The matter proceeded by way of a contested committal, which lasted for two days, on 30 May 2016, and the matter was finally resolved on 18 November 2016 following a final directions hearing, and you were arraigned on 1 December 2016. 

13You have a number of prior convictions, which I will refer to as I outline your personal circumstances. 

14You are now 40 years of age, the youngest of three children born to your parents, and the only member of your family ever to have been in trouble with police.  You in fact did not begin offending until you were in your late 20s.  You were supported in court by your mother and father and by your sister and her husband, and I was informed that your brother would have come to court had he been able to get the day off from work. 

15You completed Year 9 at school.  You were apparently an average student, but on leaving school immediately undertook a welding apprenticeship which you continued for two years.  You did not actually finish your apprenticeship, but in the subsequent years worked on a continuous basis for about 10 years on and off as a welder.  You also have an artistic side, you were very good at drawing apparently, and you began training part‑time as a tattooist in those years, which is now your profession.  In fact in 2013 you opened your own shop in St Albans. 

16In 2003 you married your first wife when you were aged 26, and you have one son of that relationship, Zac, who is now aged 12.  You bought a house, but then in your late 20s somehow or other got involved with what counsel described as the wrong crowd, during which you began using predominantly amphetamines and then methamphetamines, and these drugs have bedevilled you ever since. 

17In 2010 your marriage broke down because of your drug use, and Zac went to live with his mother and the house was sold.  It was at this time that your prior criminal history began. 

18In 2010 you were placed on a suspended sentence and a six‑month community‑based order on charges of burglary, theft, trafficking amphetamines, which your counsel informed me was a charge based on the weight of the amphetamines police found in your possession, possessing amphetamines, and you apparently completed both the suspended sentence and the community‑based order successfully.  There was a driving charge in 2001 which I do not regard as relevant to the sentencing exercise before me. 

19You then in 2010 were given a second suspended sentence and community‑based order for charges of recklessly causing injury and contravening a family violence order, another charge of burglary, further charges of burglary and theft, and then in 2013 on charges of making a threat to kill, unlawful assault, recklessly causing injury, possessing amphetamines, possessing property suspected of being the proceeds of crime, possessing a weapon without exemption, which was apparently a crossbow, possessing a controlled weapon without excuse, possessing cartridge ammunition, handling stolen goods, failing to answer bail and resisting police as well as possessing methamphetamine and an unnamed drug of dependence and making counterfeit money. 

20Again, at this point in time you were very much in the grip of drug use.  You had also, once your marriage dissolved, become involved with a woman named Renee, who was also a heavy drug user and was the subject of the contravention family violence order.  The two of you married in 2012, but the marriage lasted only one year. 

21In 2015 you were fined for theft of a motor vehicle and handling stolen goods, and at the same time were breached in relation to the community corrections order that you had been placed on in 2013. 

22Really all that can be said about your offending was that it appears to have been directly related to your methamphetamine, or ice use, which had gone on unabated, the problem being ‑ and your involvement in this offending being at the behest of someone, probably a drug dealer further up the scale, if you like, than you.  The difficulty is it is quite clear that the fact that you and the unknown man were in possession of sawn‑off shotguns at the time of this offending, albeit that I understand, according to your counsel, those weapons were given to you, are a strong indication to this court that the level of your criminal involvement had deepened.  The fact that you are in contact with persons who can supply more than one sawn‑off shotgun is a strong indication that you were very much, if I can put it this way, knocking around with criminals, and hence became involved in this potentially very serious incident. 

23It is conceded by the prosecution that the more active role, once the demand was made, was taken by the unknown man, but it is undisputed that you also produced a shotgun, a sawn‑off shotgun and made a demand of Mr Phipps, so that your involvement is one where you are guilty both on the basis of your own actions and on a joint criminal enterprise exercise insofar as the actions of the unknown man are concerned. 

24You have remained in gaol ever since.  Your parents have continued to support you and to visit you, as I presume have your brother and sister.  You have not seen your son Zac for some time.  Whilst in gaol you have been moved around quite a bit.  This is partly because you also came to court on several occasions in the Magistrates' Court in relation to offending that had taken place prior to this incident.  That offending involved an appearance on 15 February 2016 for possession of a home‑made pencil, for which you apparently found on the street and managed to shoot yourself in the leg when you were trying to use it.  You received 42 days' imprisonment for that offending, which occurred in late 2015. 

25In May 2016 you were dealt with for offending on 28 October 2015 for possessing ammunition without a licence.  You apparently at the time were living in a garage where the shells, or the cartridge ammunition was already in place, but you were aware of it being there, and you were fined for that offending, and then on 21 June 2016 you were found in possession of a butterfly knife and were sentenced to one month's imprisonment.  That offending occurred in August 2015. 

26As a result, as I have said, of being brought to court on those three occasions you have been moved around from gaol to gaol, from the MRC to Loddon, to Port Phillip, I think at one stage, you have been to Fulham, is that right?  It appears on each of those occasions you have taken up the position of billet, which is a position of trust and is to your credit.  Because of being moved around, you have been unable to undertake any particular courses.  You are now at Port Phillip Prison.  You were a cleaning billet at the Swallow unit, but there was apparently a fight in the gym and everyone involved has been placed in the Charlotte, which is a management unit. 

27I received a letter from the correctional officer at Port Phillip, Julian Marlow, attesting to the fact that one of the positions of responsibility you have held whilst in custody was to be a carer for an older prisoner, and your counsel informed me of those duties involved taking him to get his medication, helping him walk around, as he had trouble in fact walking, taking his meals to him when he was unable to make it to the communal dining area, and again that is very much to your credit. 

28I had some conversation with you about your position now, and you informed me that you have been, in the 14 months you have been in gaol, clean of drugs, if I could put it that way, you feel healthier than you have for many years, and you are determined to make a fresh start once you leave prison.  Once you do leave prison, it is your intention to reside with your parents, who as I have said are still supportive of you, and they now live in Ballarat. 

29You are certainly a person with the sort of employment skills that mean getting a job should not be particularly hard, and I certainly am impressed by the positions of responsibility that you have held in gaol notwithstanding that no courses have been able to be offered to you. 

30It was conceded by your counsel that the only appropriate disposition in this case is one of immediate imprisonment.  Certainly your prior convictions show that you have been given many chances by the courts, and particularly in 2013 when it appears matters may have worsened, possibly as a result of your relationship with Renee, you were given an opportunity that you simply did not take advantage of. 

31As I said to you during the course of the plea, you are now 40, you are a mature man.  You have got to make some decisions about your life, in particular about attending to the drug addiction that has been so ruinous for you, otherwise you are going to spend the rest of your life going in and out of gaol. 

32Unlike so many people who come before this court, you are in a position of having an intact, law‑abiding and supportive family, and you are extremely fortunate in that regard.  I do regard you, because of the support you enjoy in the community, of having reasonable prospects of rehabilitation, but you must, I know I am repeating myself, you absolutely must attend to your drug addiction, because it underlies all the offending, it underlies all the personal disasters, including the long period of time during which you have not seen your son Zac, since you were in your late 20s.  As a result of your drug addiction, as far as I can see, you lost your marriage, you have lost contact with your son, you lost your house, you lost your profession, you entered into a disastrous second relationship, and indeed you are very fortunate that your family do continue to support you. 

33Can I tell you, many families eventually are burnt out by the activities of people such as yourself who cannot kick a long‑standing drug habit that inevitably leads to criminal activity. It is well known to these courts also that people who use ice on a regular basis are very difficult personalities to deal with.  They are short‑tempered and snappy and secretive and surly.  So that, you know, given that your family have now supported you for a period of about 11 years says very much indeed in terms of their love for you, the strength of the personalities that they themselves are, but do not think you can rely upon it forever.  The court sees many cases of parents who reluctantly come to court one last time, not necessarily to say they will have their child home again, because they simply cannot anymore, and many persons like yourself who are drug addicts end up with nothing and no one.  Whether that is you in the end, Mr Lake, is entirely a matter for you. 

34I agree that the offending is sufficiently serious, showing, as it does, connections to very entrenched criminal activity, and your association with persons who are serious criminals, plus the criminality of your actions themselves, that is bailing up someone in their home, threatening them with a gun, are of sufficient seriousness that gaol is the appropriate response, and as I have said, and your prior criminal history also adds to that decision. 

35I therefore sentence you as follows:  could you stand up, please, sir. 

36On the charge of extortion with a threat to kill, you are sentenced to two and a half years' imprisonment.  On the charge of being a prohibited person in possession of a firearm you are sentenced to 18 months' imprisonment. 

37I order that six months of the sentence imposed on Charge 2 be served cumulative to the charge imposed on Charge 1, giving a total effective sentence of three years. 

38I order that two years of that sentence be served before you become eligible for parole, and I declare that 368 days of that sentence have already been served by way of presentence detention. 

39I should also add that your counsel said to me that this is really the first serious gaol sentence you have ever undertaken.  You have been in gaol now for 14 months.  She described it as a wake‑up call.  My comment was, "Really, why do you need a wakeup call at your age," but I do accept that you have not found the experience of imprisonment anything other than an unpleasant one, and do accept that it has had an effect upon you such that it adds to my determination that you are a person with reasonable prospects of rehabilitation. 

40Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four years and ordered that you serve a minimum period of two years and nine months. 

41Thank you. 

42OFFENDER:  Yes, Your Honour, thank you. 

43HER HONOUR:  Have a seat, thanks, Mr Lake. 

44MS TORRES:  Your Honour, there is the 464ZF order.

45HER HONOUR:  Yes, look, it seems in the circumstances that it's appropriate. 

46MS STYLIANOU:  It's not opposed, Your Honour. 

47HER HONOUR:  I'm going to order that police take an intimate sample from you, Mr Lake.  It will be a swab from your mouth.  I need to tell you that if you resist their taking this swab police are entitled to use reasonable force in order to obtain it, okay?  Thank you.  Have a seat, sir. 

48I also thank counsel very much for their assistance.  I'm not in the least surprised that the plea was conducted as expeditiously and expertly as it was given both counsel.  So I thank you very much for the very succinct opening, Ms Stylianou, and I thank you, Ms Torres, for a plea where you clearly knew everything you needed to know about your client, it was of great assistance to the court and I didn't have to ask any questions that you didn't know.  I'm grateful for that. 

49COUNSEL:  If Your Honour pleases. 

50HER HONOUR:  Thank you.  I will hand you these, and I'll also give back this reference.  Good luck, Mr Lake.

51OFFENDER:  Thank you, Your Honour.

52HER HONOUR:  You can have your life back again, it's just a matter for you, all right? 

53OFFENDER:  Yes, Your Honour, thank you. 

54HER HONOUR:  I thank family who have attended too. 

55VOICE (from body of court):  Thanks very much. 

56HER HONOUR:  Pleasure. 

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