Director of Public Prosecutions v Luchian

[2014] VCC 1342

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01832

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN LUCHIAN

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 August 2014
CASE MAY BE CITED AS:	DPP v Luchian
MEDIUM NEUTRAL CITATION:	[2014] VCC1342

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	OPP
For the Accused	Mr M. Page	Leanne Warren & Associates

HIS HONOUR: 

1You, Benjamin Luchian, were convicted after trial of one count of attempted armed robbery.  You were found guilty of one count of attempted theft and you pleaded guilty to one count of common assault prior to the empanelment of the jury.

2The circumstances surrounding the crime to which you have pleaded guilty and the one that you were found guilty of were thoroughly explored at your trial.  In broad compass the matters with which I am concerned occurred on 15 May 2013 when you and the victim in this matter communicated by way of an online dating website.

3You exchanged mobile phone numbers and sent various messages to each other before you drove to the victim's address.  You had a small amount of ice with you and some alcohol and you shared that with your victim before engaging in consensual sex.  You then left his premises after he gave you money for a taxi.

4The following day on 16 May you and the victim again communicated by way of text messages and again arranged to meet and spend the night at the victim's house.  Again you and he took drugs and engaged in consensual sex, but after some time the victim felt you were disinterested in him and asked you to leave and he said that he would drive you home.

5In due course you both left in the victim's car before you produced a large kitchen knife and held it at his throat demanding his mobile phone and wallet and you were of course convicted of this by the jury, that is the offence of attempted armed robbery.

6After the attempted armed robbery there was a fight on a nearby lawn which was witnessed and in which you assaulted the victim and those matters gave rise to Charge 2 of common assault to which you pleaded guilty.  In due course the police attended and you were arrested.

7There is no victim impact statement in this matter, although the victim was offered the opportunity of making one. It is clear of course from the evidence given by him that he did suffer in the way he described on that evening, and I have got no doubt he was very apprehensive when you produced the knife in the moving car, as you did, and then of course assaulted him.

8As was pointed out by your counsel there are a number of mitigating factors. I have Exhibit A, which is an outline of submissions prepared by your counsel, Mr Page, which was most helpful in the circumstances.  You pleaded guilty to the charge of common assault and of course you are entitled to have that fact taken into account in your favour, and I will do so.

9With respect to the other matter the trial was probably shortened a little and it is a matter that I can take into account with respect to your sentence in your favour.  At least with respect to your plea of guilty there is an expression of remorse in the utilitarian sense.

10I have been told something of your personal history and your circumstances, and indeed in that regard I was fortunate to have the sentencing remarks of Judge Stewart of 30 March 2012.  His Honour had on that occasion had to sentence you on a charge of robbery and two charges of armed robbery.

11Those matters occurred in early to mid-2011 and you were sentenced to a total effective sentence of 32 months with a minimum non-parole period of 16 months to be served.  At that time when you were sentenced you had served pre-sentence detention of 282 days.  His Honour analysed your criminal history record which revealed at that time that you had appeared in court on some ten occasions when you were dealt with for offending as opposed to breaches of various orders.

12His Honour noted that in nine hearings in the Children's Court you have been dealt with for a wide range of offences, including dishonesty offences, criminal damage, street offences, armed robbery, assault, motor offences, threat to kill, assault with a weapon, affray, intentionally and recklessly causing serious injury.

13His Honour also noted that on 3 March 2011 you appeared in the Seymour Magistrates' Court on charges of robbery and theft and you were as a consequence convicted and placed on a nine month community based order.  His Honour noted that Charges 1, 2 and 3 had occurred within approximately two months of you receiving that community based order.  His Honour said that you were given various dispositions and based probation orders, a good behaviour bond and a youth supervision order between 2008 and 2010.

14His Honour had the advantage of your sister-in-law, Ms Motsa, giving evidence and he noted she was a very impressive witness.  Her evidence was that she had known you since you were two years of age and noted that at the age of 13 when the Department of Human Services took you into protective custody by removing you from your mother and your family. She said that between the ages of 13 and 18 when you committed various offences you had been moved on numbers of occasions to different residential units in various suburbs around Melbourne.

15She said that after you had been taken into the care of the Department of Human Services you had never returned to school and as a consequence you never passed sixth grade.  Judge Stewart also had a report of Dr Aaron Cunningham dated 8 December 2011 which is also before me, and in addition to that report I have a follow up psychological report from Dr Cunningham dated 12 August 2014.

16His Honour referred to the fact that you were finding life in adult prison very difficult and in the circumstances noted that Ms Motsa had told him upon your release you would be welcome back into her home.  Those matters weighed heavily with His Honour and ultimately he took the view in sentencing you that your rehabilitation was far more important than general deterrence for the reasons he sets out.

17The report of Dr Aaron Cunningham, Exhibit B1, revealed that you are in the average range of intelligence and there was no indication of intellectual impairment, and with respect to the risk of re-offending you were placed in the moderate risk needs range of re-offending and your use of drugs and the fact that you suffered from depression were matters of concern.

18Dr Cunningham noted that your risk factors were your depression, substance use disorder, negative peer associations, as well as a lack of pro-social community supports, stable accommodation and employment.  With respect to his follow up assessment which is Exhibit B2 the author commented on the fact that you are finding life on gaol very difficult and you are being stood over by other prisoners for sexual favours and other reasons.

19The author noted you met the diagnostic criteria for depression and also for substance use disorder.  It was the author's view that you continued to present with depression.  The author also considers your sexual orientation in light of facts that have been recently disclosed to him, and it is his opinion that your offending behaviour occurred in the context of alcohol abuse, and that your actions appeared to him to be motivated by a need to further explore the unresolved conflict with regard to your sexual experience which he describes when you were aged 14.

20It was his view which I share that you are obviously vulnerable in the prison environment and that it is well documented as I understand it and well understood by the prison authorities.  As a consequence you have been in a protection unit for some time and that is a matter to which I shall return in a moment.

21I also note the author's view that you would benefit from psychological intervention in the community in order to address your conflict with regard to your sexual orientation.  It was the author's view that your sexual identity presents as contributing to your depression and clearly matters of concern include your drug and alcohol habits.

22You were 21 at the time of your plea and 20 at the time of your offending, and I do accept the principles applicable to sentencing youthful offenders are appropriate with respect to you, and that matter was also fully explored by Judge Stewart and I have noted his comments in that regard.

23Your rehabilitation remains a matter of significance given your youth.

24With respect to the application of the principles in the case of Verdins I do accept that your diagnosis of depression enlivens both principles five and six as submitted by your counsel, and your status as a protection prisoner which is also a matter I will take into account on your behalf for the reasons submitted by your counsel.

25I also note with respect to the factual submissions, as I have noted that your victim does not appear to have been physically injured in any significant degree and there does appear to be an element of opportunism with respect to your offending.

26

With respect to your pre-sentence detention and the amount of time you have spent in custody I was assisted by Exhibit 1 which sets out the various calculations and I have set these out in chart form. On

12 May 2011 you were remanded in custody.  On 30 March 2012 you were sentenced by Judge Stewart on two charges of armed robbery and one charge of robbery to a total effective sentence of two years and eight months with a non-parole period of 16 months. On 22 February 2013 you were released on parole.  On 16 May 2013 you were remanded in custody until 21 May 2013, which was a period of six days.  On 22 May 2013 parole was reclaimed by the Parole Board, being a total of eleven months and 29 days. On 19 May 2014 the reclaimed parole period lapsed and from 19 May up to today is a period of 99 days. 

27The submission was that up to but excluding the plea date hearing you have been in custody for 455 days of which it has been agreed that 99 days, not including today, were pre-sentence detention for the purposes of s.18.

28I am on balance satisfied that the chances of your rehabilitation remain relatively problematic given your disastrous personal circumstances which have been set out in the various reports.  One can only hope that in due course you come to terms with your sexual orientation and understand it better with some professional assistance, and also and most importantly, you understand what whilst ever you persist in taking drugs and alcohol to excess you remain vulnerable to the commission of further criminal offences.

29In addition to those matters personal to you to which I have referred, including the question of rehabilitation, I also must take into account such matters as deterrence and of course general deterrence, which is of importance in a matter such as this, but remembering of course that that must be tempered bearing in mind the applicable principles given your youthful status.

30Specific deterrence will also remain of significance given the range and number of your prior convictions, all in a relatively recent time and of some significance given your relative youth.  I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending, which I find unhappily to be relatively significant given the events of the last five or so years.

31One can only hope that when you are released from prison you have appropriate professional help made available to you through the parole system and in that regard I have nominated a longer than normal parole period and trust that you take advantage of it.  I am sure you now fully realise that if you breach parole then you will simply be taken back into custody forthwith.

32Finally I take into account in your favour bearing in mind the amount of time you have spent in custody in recent times and apply the principles with respect to totality in your favour.  You have spent a very significant proportion of the last three or four years in prison and I have no doubt that that time has been very difficult for you, particularly given the amount of time you have spent in protection, and no doubt that will remain the case given the matters set out in the various reports which are in evidence before me.

33If you would stand please, Mr Luchian?  This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence.  You are convicted and sentenced as follows.

34On Count 1, 24 months' imprisonment.  On Count 2, four months imprisonment.  I order that two months of Count 2 be served cumulatively on Count 1, making a total effective sentence of 26 months imprisonment, and I order that you serve a minimum term of 14 months before becoming eligible for parole.

35As prescribed by the Sentencing Act I declare that the period of time you have already spent in custody is 99 days, and I direct that such be noted in the records of the court. Had you not pleaded guilty to the charge of common assault I would have ordered a total effective sentence in respect of that matter of seven months imprisonment.

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