Director of Public Prosecutions v Madex

[2017] VCC 62

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-02080

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN PETER MADEX

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	1 February 2017
CASE MAY BE CITED AS:	DPP v Madex
MEDIUM NEUTRAL CITATION:	[2017] VCC 62

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr N. Goodfellow

HIS HONOUR:

1Benjamin Peter Madex, you have pleaded guilty on indictment to two charges of theft, and one charge of armed robbery.  In regard to that matter, you have also pleaded guilty to one charge of committing an indictable offence whilst on bail, and one charge of assault with a weapon.  Theft carries a maximum penalty of ten years, armed robbery 25 years, and three months for committing an indictable offence, two years for assault with a weapon.

2You are also - be able to regarded as related summary offences, there are also a number of unrelated summary offences, being two possess a prohibited weapon, one breach of a CCO, and one charge of trespass.  Again, those are summary matters and carry in each case gaol terms, which I am going to impose, but for the reasons I have already outlined.

3You are 27 years of age.  I accept that you pleaded guilty at the earliest reasonable opportunity.  I accept that, within your relatively limited capacities, I think, you express appropriate remorse.  You must also get the utilitarian benefit of those pleas of guilty.

4You are still a young man, though you do have a significant criminal history, and one charge in the background of armed robbery, which is of significance, and I will summarise that in a moment.

5The circumstances surrounding the armed robbery for which I have to sentence you are that on 31 July 2016 you came down to Morwell from New South Wales to purchase drugs.  Amphetamine was used, and there was some disturbance.  In any event, you were left in Morwell.

6At 11.40 am on 1 August 2016, you were arrested by police in Moe for stealing two bottles of Powerade.  You were bailed.  At approximately 3.50 pm on that same day, you having no money and no means of transport, entered Latrobe Community Health Services in Morwell for a doctor's appointment.

7You were in an agitated state when you arrived, and asked the doctor for medication to help calm you down, and to help you, as you were coming down after using ice.  The doctor advised you that he would not give you any medication.  You then said "I'm going to hurt someone, I'm going to kill someone, and you'll be responsible.  No one wants to help me".

8In this particular situation, I am prepared to give you the benefit of the doubt, and work on the basis that in reality, you were talking about yourself.  There is no threat to kill charge, or anything along those lines.

9In any event, you and the doctor discussed mental health options, as well as seeking treatment from the mental health ward at the Latrobe Regional Hospital.  You then asked him for an ambulance, as you had no money to get to the hospital.  He said it was not a legitimate reason to call an ambulance.  You jumped out of your seat and stood over him in a threatening manner until he called an ambulance.

10While he was on the phone, you leant over and grabbed a pair of black-handled scissors off the doctor's desk.  You put the scissors inside your jumper pocket, and, while holding the scissors, began pacing up and down the doctor's office, saying "Someone's going to get hurt today".

11You overheard the ambulance call-taker advising that the police had been notified, and you have, immediately hearing that, said to the doctor "You've done it again, you've called police again", and then you left his office.  It is in that scenario, as I understand it, the assault with a weapon charge is said to arise.

12At approximately 4.19, you entered the Coles supermarket in Morwell and stole a box cutter off the shelf, that is theft.  It is also theft of the scissors, obviously, from the earlier incident.

13Two minutes later, you walked around the corner to the Priceline pharmacy in Tarwin Street, Morwell.  You entered the pharmacy and walked to the rear of the store.  You were told to take a seat, and then an altercation took place, where you were agitated, shaking and swearing excessively.  I accept that you were clearly under the influence of various drugs at this point in time.

14You were told to leave, and then said when they were going to call the police, "Don't call the police, I came in to get a bunch of pills".  You then left.

15A short time later, you re-entered, went straight to the rear, and went into the dispensary area.  You were seen there.  You demanded that the pharmacist give you all the strong drugs and to get everyone out, holding a pair of black-handled scissors in your right hand down by your side.  You continued to demand, stating "I don't want to hurt anybody, just get them out, and give me the strong drugs".  You were very agitated and shouting.

16You said you wanted all the strong stuff in the safe.  Delaying tactics were employed, where other staff members were helping people get out of the pharmacy.  The pharmacist then walked to the staff office.  You followed him, still with the scissors and the box cutter, and said "Don't try anything, keep your hands where I can see them". 

17As he entered the staff office, he quickly tried to close the door behind him, however you pushed it open, causing him to stumble.  He saw the box cutter, and the blade was pointing at his face.  There is no assault charge in relation to that.

18You again said "I don't want to hurt anyone, but if I have to, I will.  I just want my drugs and to leave".  You continued shouting.  The pharmacist opened the safe.  You grabbed seven boxes of various milligram OxyContin medication.  You asked for more, and were told that there was no more.  You asked for anti-epileptic pills, and were told there were not any. 

19You then began opening the blister packets containing the OxyContin and ingesting the pills.  You at that stage took something in the order of 45 OxyContin tablets.  While you were doing that, you also used the box cutter to cut your wrists.  I accept that your intention was not for personal gain in that scenario, but basically self-destruction.

20You were ultimately arrested and taken without incident.  You were taken to hospital, where you remained for three days before you were ultimately interviewed.  That gives rise, as I say, to the charges on the indictment and the related summary matters.

21In regard to the unrelated summary matters, they are of a very minor nature.  On 10 April 2016, you were in the Energy Australia property on foot at Morwell Bridge Road, Morwell.  You went into the open-cut area.  You were then found sitting on a water pipe on the edge of the old coal mine.  Various people were contacted and came to get you.  The police ultimately arrested you and found you with a pocket knife.  What your intentions were, I have no idea.  Perhaps you were going to jump, but there seems to be no indication what you were going to do.  In any event, that gives rise to a trespass and a possession of a weapon.

22On 18 July 2016, you entered the Morwell Police Station.  You were carrying two kitchen knives, one in each hand.  You were directed by police to put the knives down, which you simply did, and you made no threats.  You were taken to Latrobe Regional Hospital Emergency Department for assessment, having been detained under s.351 of the Mental Health Act.  That gives rise to a possess weapon charge.

23There is also a breach of a community-based order, a community corrections order.  And on that charge, you are simply convicted and discharged.

24As to the nature of the offending, in my view, most of it is very minor, but the armed robbery, where you have done it before, clearly is not.  I have the advantage of having read the sentencing remarks of His Honour Judge Pilgrim, who sentenced you for the same crime back in March of 2011. 

25The armed robbery in that situation was on the Mirboo North Pharmacy.  On that occasion, you were wearing a balaclava, a hooded windcheater and tracksuit pants, and you were holding a knife in front of your body in a threatening motion.  This happened 15 November 2010.  You instructed staff members to get on the floor.  At that time, there were seven staff members.  You approached the pharmacist at the rear dispensary and pointed the knife in his direction.

26You then walked behind the counter to within one metre of him and produced a green shopping bag, stating "Empty what you can into this bag".  He then opened the safe, placed a number of medication, incorporating morphine and sulphite (indistinct) pills and OxyContin tablets into the bag.  You then stated "Where's the back door?", he moved to the rear door and unlocked it, and you exited the premises and began running from the shop.

27That, I accept, is a different type of armed robbery to this.  That armed robbery was carried out while you were wearing a disguise, obviously trying to avoid apprehension, and it was done for personal gain, simply to get the drugs.  There were - I do not know how many people were in the pharmacy on the occasion that I am to sentence you for, but in my view it is a more serious example. 

28But the difficulty is, Mr Madex, that for the example that I have before me, you have already done it once.  In my view, those two matters pretty much cancel each other out.

29I have looked at Judge Pilgrim's sentencing remarks.  Clearly what you fall to be sentenced in front of me, that is, the armed robbery, is serious, and calls for the application of general, and in your situation, specific, deterrence, as well as denunciation and an appropriate punishment.  Gaol is inevitable, and it is gaol of significant proportions.

30I then look at matters personal to you in terms of determining what would be the appropriate sentence.  I have before me the very helpful submissions of your counsel, and I also have the report of Dr Carla Lechner, a psychologist, who saw you some time ago.

31In simple terms she said, when describing your history, you had circumstances where your father died when you were little.  You grew up in Churchill and Mirboo North, attended local primary schools, and I am aware that you went to a significant number of primary schools.  You told her that your grades were "not too bad", but that your behaviour was "ridiculous". 

32You told her that your temper - you have always been - psychological issues, always been out of control.  You stated you were diagnosed with ADHD and on stimulant medication, but only for a short time.  With your use of methamphetamine, I am assuming that was probably Ritalin.

33In any event, you commenced Year 7 at Mirboo North Secondary College, you were kicked out within six months, and sent to Blackwood Teaching Unit in Drouin for a further six months, before returning to Mirboo North.  You were again expelled halfway through Year 9, went to Trafalgar Secondary for Year 10, it only lasted two weeks. 

34You were removed from your mother's care in your teenage years, and placed in foster care, and then a residential unit under DHS care.  You spent time in secure welfare on account of your acting-out behaviour.

35You told Ms Lechner that "Mum couldn't control me, so I went to DHHS.  I'd smash the house, bash my brother.  It's because I had a chip on my shoulder.  I blame myself for my dad's death, because he belted". 

36You then said that your mum left, and your father was dead within a week.

37In any event, after leaving school, you had a series of jobs that lasted for a year or less.  Jobs such as McDonald's, the abattoirs, a potato farm, as a plasterer, and as a builder's labourer.  During the period of time - and of course you are now 27, you have had psychiatric admissions on a number of occasions for what appeared to have been drug-induced psychoses.  You have clearly had a very significant drug problem and alcohol problem, it would seem from all this, since a very young age.

38I am told from that report that you had been smoking marijuana around about the age of 12 years, that once you were working, you had been using ecstasy, but you said that was not a problem.  You ended up getting sentenced for the armed robbery to some three and a half years in 2011, and at that point in time you were clearly well and truly addicted to various forms of drugs.

39You are diagnosed by her as having a major depression issue, and features of a borderline personality disorder.  Insofar as Verdins is concerned, I accept that major depression will make a custodial sentence harder on you than it might have on a prisoner without such depression.  In your particular situation, your mother has in recent times become quite ill.  That has occurred whilst you were in custody, and I take into account that you do care for your mother, and that you being custody while she is in that condition will be an added burden upon you as you undergo this sentence.  I do not regard that situation as arising exceptional circumstances giving rise to any need for mercy, but I do take it into account.

40Your counsel's submissions, as I have said, were very helpful.  As he pointed out, these offences were committed following a failed attempt to seek assistance from your GP, and were motivated by a desire to commit suicide.  He points out that you had undergone psychiatric admissions on a number of occasions, but it is of little assistance for moral culpability, because of course when that psychiatric condition is brought about by drug use, it is of no real benefit.  So I take all those matters into account.

41The prospects for your rehabilitation have to be problematic.  The risk of your reoffending, I would think, in this situation, if you use again, is going to be high.  There is very little that I can do about all this.  I have taken into account the matters on your behalf, I have taken into account an extremely disrupted childhood, and difficulties that you have had since you were very young.  They will need to be addressed.

42I am told that the last sentence you got you were on parole successfully for about nine months or so, and then again went on a downhill spiral, and went back in and served the balance of the sentence. 

43I am in a difficult situation.  The sentence that I have to impose is clearly greater than could be done on what is called a "combination sentence", and I can only impose a non-parole period.  It will be a relatively generous one, bearing in mind that you do have a prior conviction for armed robbery.  But that is not a matter for me, that is a matter for others.

44As I have said, I think the differences in the armed robbery are insignificant, because this is your second outing, and you know what the consequences are, I can see no real reason to differentiate.

45As I have already said, on the charge of breaching that CCO, you are convicted and discharged.  On every other charge, one month.  That is not aggregate, that is one month on each.  They are all to be concurrent.

46On the charge of armed robbery, you are sentenced to be imprisoned for a period of three and a half years, with a minimum term of two years and four months.  I direct that 184 days be reckoned as having been served under this sentence.

47So that you are aware of the benefit of having pleaded guilty, pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of five years and three months, with a minimum term of three years and six months.  Are there any other orders that I have to make, gentlemen?  No?  Any other orders?

48MR MOORE:  Sorry, I did not catch the last bit, Your Honour.  You just said something then.

49HIS HONOUR: Section 6AAA?

50MR MOORE:  Yes, no I got that.  But what about the thefts?

51HIS HONOUR:  Sorry.  Yes, every other charge a month.  Sorry, the thefts are a month each, yes.

52MR MOORE:  On the indictment?

53HIS HONOUR:  That is the scissors.  Yes, sorry, sorry, yes, yes.  Every other charge - I probably should have gone through them individually.

54MR MOORE:  Yes.

55HIS HONOUR:  The two thefts are a month each, I mean, a pair of scissors?

56MR MOORE:  Okay.

57HIS HONOUR:  So they are a month each, and the three and a half is for the armed robbery.  And all the summary matters, except - sorry, thank you for pointing that out, except for the CCO breach are a month as well, as I indicated.

58MR MOORE:  Thank you Your Honour.

59HIS HONOUR:  It is not as if I would not have gaoled him at all, but ‑ ‑ ‑

60MR MOORE:  No, that is fine.

61HIS HONOUR:  All right, it all makes sense?

62MR GOODFELLOW:  Did Your Honour make the declaration of PSD - (indistinct).

63HIS HONOUR:  Did I what?

64MR GOODFELLOW:  Make the PSD declaration, the 184 (indistinct) ‑ ‑ ‑

65HIS HONOUR:  Yes, 184 days, yes, yes. 

66MR GOODFELLOW:  Thank you, Your Honour.

67HIS HONOUR:  There is nothing else?

68MR GOODFELLOW:  No other orders, Your Honour.  No, Your Honour.

69HIS HONOUR:  No?  All right.  Thanks for that, yes, you can go now, thank you.

70OFFENDER:  How long did I get?

71HIS HONOUR:  He will come and see you.  Yes, thanks gentlemen.

72COUNSEL:  Thank you, Your Honour.

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