Director of Public Prosecutions v Maslen

[2017] VCC 604

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-16-02261

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENN MASLEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2017
DATE OF SENTENCE:	16 May 2017
CASE MAY BE CITED AS:	DPP v Maslen
MEDIUM NEUTRAL CITATION:	[2017] VCC 604

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – aggravated burglary – theft – prohibited person possess imitation firearm – possess drug of addiction (cannabis L) – possess drug of addiction (methylamphetamine) – handle stolen goods – possess cartridge ammunition without licence - guilty plea

Legislation Cited:     Criminal Procedure Act 2009 (Vic), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:            Hogarth v R [2012] VSCA 302, Hasan v R [2010] VSCA 352

Sentence:Convicted and sentenced to 6 years and 10 months imprisonment with a non-parole period of 4 years and 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Solicitor for the Office of Public Prosecutions
For the Offender	Mr M. McGrath	James Dowsley & Associates

HIS HONOUR: 

1Mr Benn Maslen is aged 31. He was born on the 27th day of September 1985. At the time of these criminal offences, he was aged 30. In the plea heard before me on 7 April 2017, Mr Maslen pleaded guilty to the six charges in the Indictment, together with a summary matter that I was asked to take into account under s.145 of the Criminal Procedure Act 2009 (Vic).

2The Indictment is numbered G11359168. The first and most serious charge, is one of aggravated burglary, an offence against s.77(1) of the Crimes Act 1958 (Vic) for which the maximum penalty imposed by the Parliament is 25 years. That in itself indicates the seriousness of this crime.

3The victims of this crime were Joanne Lugton and Richard Hasler.  The background was that Mr Maslen had both been to the premises on a number of occasions, and knew each of the victims.  The address, which was the subject of the aggravated burglary, was a unit in West Heidelberg.

4The circumstances of the criminality on 22 May 2016, are outlined in the prosecution opening, Exhibit A. Mr McGrath, who appeared on behalf of Mr Maslen, accepted that the facts set out in such exhibit are the facts upon which I am to sentence you, Mr Maslen. 

5The attack on the unit took place between 2.30 am and 2.45 am in the morning. The door was kicked in by you and a number of others; there is no certainty as to how many, but at least three. Each of you were wearing, scarves, gloves or stockings. The intent of this aggravated burglary, and the basis of the plea, was that you were after money and drugs, hence the intent was to steal; the aggravation, making it an offence under s.77(1) of the Crimes Act 1958 (Vic), according to the provisions in the Act, being that you entered the premises knowing that these people were present or being reckless to them being present.

6Despite the circumstances of this particular crime, or perhaps because of it, there is, unfortunately, no victim impact statement before the Court.  However, one can imagine the reaction of people woken at that time of night by three disguised people, who were then put upon and items stolen from their home.

7Those items stolen make up the matters set out in the second charge, which is the theft charge.  The total value of the items stolen was some $7,000.  While not as serious, as Charge 1, the maximum penalty prescribed by Parliament is ten years. 

8The Court is often in wonderment that persons commit such grave crime, placing their liberty in jeopardy, with aggravated burglary having a maximum sentence of 25 years, when the totality of the items stolen turns out to be to the value of $7,000.  It does not seem to balance.  However, day in, day out, these types of crimes come before this Court.

9The same day, a warrant was issued, and four of the laptops stolen and the TV were recovered from Mr Maslen's premises.  In addition, an imitation firearm, homemade, was found, together with two .22 ammunition rounds which make up the basis of the summary charge.  The offence of a prohibited person being in possession of an imitation firearm brings with it a maximum penalty of ten years. 

10Charges 4 and 5 were possession of drugs. Charge 4 is limited by the provisions of s.73, to a maximum penalty of five penalty unites. Charge 5 involved methamphetamine, and the final matter is Charge 6, which was a handling offence under s.88(1) of the Crimes Act 1958 (Vic), for which the maximum penalty is 15 years, a stolen bike was found at the premises.

11Apart from my comment about the disparity between the items stolen in these crimes as against the potential penalties, one also must look at the circumstances. You wonder how smart the people committing this offence were, given that one of the victims well knew Mr Maslen and immediately identified his voice, also one of the offenders call out “Benn.”  Mr Maslen left his hat there, which, again, enabled identification.

12In fact, the victims knew exactly where he lived, hence the execution of the warrant that very day, to find him in possession of the stolen goods.  Of course, what might appear dumb in such circumstances is not; it indicates the people acting under the effect of drugs.  They are not thinking sensibly.  They go about the commission of these serious crimes in circumstances, as here, where they are almost certain to be apprehended.

13It is noted that the names of the co-accused, whoever they were, have not been disclosed to the police.  There is obviously no issues of parity in this matter. I make the point that Mr Maslen, having not disclosed those names, does not in any way suffer for that.  There is, of course, no benefit to him from further cooperation, which has not been effected.  One of course understands the circumstances and background of why people may not want to so disclose, especially given his current location on remand. 

14Insofar as his priors are concerned, they were detailed by the prosecution, and indeed in Mr McGrath's submission.  The penalty imposed in March of 2011 appears to be the most serious matter, in which Mr Maslen received, at the Melbourne Magistrates' Court, a sentence of two years and six months, with a non-parole period of 16 months. 

15The sentence breached earlier parole, for which he served additional time.  Unfortunately, as he said in his letter to the Court, this litany of crimes is consistent.  The first time that he was subject to a period of detention was in 2004 at the age of 18 and 19, when he was given a period of detention and youth training, albeit at a Magistrates' Court hearing. Subsequently he was given detention in 2004, and in 2005.

16Unfortunately what is also obvious is a failure to take the opportunities offered by way of various suspended sentences or community corrections orders which he, unfortunately, has breached on a number of occasions.  

17The summary, essentially, of his background is that he has committed, over a long period, serious offences.  It is clear that he has failed to grasp the opportunity where community corrections orders or suspended sentences had been given to him. Obviously he has also failed to grasp the opportunity of the ongoing support he has had from his family.

18The offences have progressed in seriousness.  The police summary that I have been provided, Exhibit B for Identification, giving details of what occurred at the Warrandyte pub, is obviously concerning, and as no doubt the reason why Mr Maslen was given a significant sentence in the Magistrates' Court, March 2011.  Such background, as set out in his own letter, describes the life of a person who is beset by drug addiction. 

19However, there is an unfortunate aspect about his priors, and that is a tendency to violence.  The end result of all of this, unfortunately, is the progression has not halted, which leads to Mr Maslen being before this Court for his most serious offence; indeed, one of the most serious offences that is in the Crimes Act 1958 (Vic) now, with the highest penalty that is prescribed in the Crimes Act 1958 (Vic), except that for murder.

20I want to make it clear, Mr Maslen, in going over your background, that the purpose of that is not to re-sentence you.  You have been sentenced, and I am not in the process of re-sentencing you for any of those matters.  The problem is that where persons have been given opportunities, where persons continue to commit offences, it limits the options available to the Court. 

21Insofar as the plea was concerned, Mr McGrath tendered his submissions, Exhibit 1.  He spoke of your family background, and I note your family is here to support you again.  He spoke of your education, and indeed your employment, and the courses that you have undertaken while in either detention or custody.

22Unfortunately, as you have indicated, none of those have led to a situation where you have been able to rid yourself of drugs, but for a particular period in the community, from when you were released in approximately mid-2013 until you arrest for these offences.

23Such does show, as was submitted, that you are capable, as you indicated in your letter to the Court, of living a life without drugs and crime.  It may well be that such stability had a lot to do with the relationship that you were in at the time.  It seemed to stabilise your life.  You were able to find consistent employment during that period.  You were working hard, earning good money; had significantly, reduced, although not completely eliminated your drug use. 

24Perhaps the most unfortunate thing for you was that that relationship ended in November 2015, and almost at the same time, following a dispute with your employer, or subsequently, you lost your employment.  The end result of that was a return to drug use, and, of course, the inevitable result of returning to drug use, and the milieu of the drug-afflicted, are the circumstances that have led to this serious crime.  You were, of course, not working at the time of the offence.

25I have reread a number of times your letter to the Court.  I thank you for that.  It is, of course, another example, which this Court gets regularly, of the sad impact of drugs in this community, and in this case, the sad impact upon you.  I note again your family, present again today, who are, like all good families, I suppose, whatever happens, they are here to support you.  

26I note your comments that you are prepared to continue to seek the help that you have sought in gaol.  I hope that when you do get out, that your hope, as expressed, for a new life, for the realisation that you suggest that you have reached in gaol, as a result of finding yourself in such position, can be effected, and that when you are released, you do not go back to the life you have led.

27The problem is, with your history, and now with these serious offences, the sentence to be pronounced today, as was accepted by your counsel, must be a significant sentence.  Any future criminality would just mean you are going to have a life in gaol.  Since your time on remand, as agreed, as of today, we are now at 359 days by way of presentence detention. 

28You have had difficulties on remand, in the sense of having restrictions.  You have been in protective custody, apparently under threat.  You have had to share a cell, because there are limitations in regard to the area where protection can be effected.  You have completed a drug and alcohol course.  However, in protective custody you are unable to participate in further education. 

29You are seeking to expand your education, but again there are limitations, even in being able to recreate during the day, where you are located.  Again I note, fortunately your parents continue to visit you, as do others in your family. 

30I accept that it is appropriate to take into account your early plea, that such is in the interests of justice, and is utilitarian, in the sense that the victims in this matter have not been required to attend.  I accept, given the circumstances and the negotiations, that the plea was made at its earliest opportunity.  I note that when you are released, there would be continued support from your family. 

31There was a point made by your counsel that your appearances have been limited essentially to the Magistrates' Court.  I suppose that is technically right, although there were two breach hearings in 2007 and 2008, but as I have explained, that does not mean your criminal history has not involved serious crime.

32I note the presentence detention, which is to be taken into account.  I note, as I have said, the matter that was put by Mr McGrath, being the hope for your rehabilitation.  Those hopes rest very much with you, and I accept the comments made in your letter. 

33Mr McGrath was quite pragmatic, in the sense that he accepted that there must be a significant gaol term imposed.  That comes about from, firstly, the maximum penalty for aggravated burglary, and in particular, the need for general deterrence, specific deterrence, and punishment to be effected.  

34There was discussion between myself and your counsel as to classifing your criminality, such related to, perhaps from your point of view, a theoretical analysis of the Court of Appeal's decision in Hogarth v R [2012] VSCA 302 and how such fits into the assessment of your offence.

35As I said, s.5(2) of the Sentencing Act 1991 (Vic) prescribes the matters which the Court must have regard to, and first among those is the maximum penalty prescribed, see Hasan v R [2010] VSCA 352 [54].

36As the Court of Appeal stated, the whole purpose of this legislation being effected was the reaction of Parliament to offences of this type. The Court in Hogarth at [36] indeed quoted from the Parliament when this charge was amended. The Court directed attention, as this Court has done, to what was said by the then Attorney-General at the time;

"The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community.  These crimes undermine the sense of security that people feel in their homes and workplaces.  The Government wishes to send a message to offenders that these crimes will not be tolerated.  Under the Bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary.  Aggravated burglary will carry a new maximum term of 25 years’ imprisonment.  The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.”

I consider that such is the key to understanding your criminality. 

37Albeit the discussion of the Sentencing Advisory's views, as expressed in their paper in June 2011[1] on what is a confrontational aggravated burglary, in Hogarth at [56], the fundamental determination made by the Court was that:

“Confrontational aggravated burglary is not necessarily any more serious than (say) the same offence when committed in relation to an intimate partner or with intent to commit a sexual offence. Offences of the latter kind are likely to be particularly terrifying for victims. But it seems improbable that sentences in the ‘confrontational’ category should be ‘skewed towards lower-end sentences compared with all other categories’.”

[1]Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (June 2011)

38And this is the sentence that applies to you, Hogarth also at [56]:

"It must be recalled that the stated intention of the increase in the maximum penalty was to 'send a message' that 'home invasion-style offences … will not be tolerated'.  Sentencing practice as described by the Council would seem not to have met that objective."  

39I find that your crime was confrontational, in the sense as I define it; that is, it was an aggravated burglary which meets the definitions as set out in the Act, committed late at night, committed with an intent to steal drugs and money from persons whom you were well aware, in circumstances where you, with three others, smashed in the doors.

40That, to me, is a confrontational aggravated burglary, irrespective of how the Sentencing Advisory Council might have defined it in June 2011.  I accept that you are not to be sentenced on the basis of an aggravation of this crime being brought about by the use of any weapons.  That did not happen.  However, to be confronted by three masked and disguised men at that time in the morning, with the door broken in, demonstrates to me, a confrontational offence.

41Insofar as that offence is concerned, you are subject to the determination by the Court of Appeal, where the following was said in Hogarth at [63],

"As stated earlier, the Director's submission to the sentencing Judge was that, if the constraints of current sentencing practice were removed, the applicable range for the sentencing of … would be a total effective sentence of six to eight years, with a non-parole period of four to six years."

42The Court considered that was the indicative range as to the offence.  Again, I point out that although weapons were used in Hogarth, the sentence in regard to Hogarth himself did not relate to such, because Hogarth was unaware of the use of a weapon, nor any intent to assault [16], albeit being primarily responsible for the crime [21].

43Taking into account all of those matters, which simply tend to confirm the seriousness of the crimes as demonstrated by the maximum penalty, I have determined, therefore, to sentence you as follows. 

44If you would be good enough to stand up, please. 

45Mr Maslen, on Charge 1, of aggravated burglary, you will be sentenced to a period of imprisonment of six years. 

46In regard to Charge 2, of theft, a period of imprisonment of two years. 

47In regard to Charge 3, of possess imitation firearm, a period of imprisonment of nine months. 

48In regard to Charge 4, of possess cannabis, a fine of two penalty units. 

49In regard to Charge 5, of possess methylamphetamine, for which I did not pronounce earlier the maximum penalty of one year and/or 30 penalty units, you will be sentenced to a period of imprisonment of two months' gaol. 

50Insofar as   Charge 6, of handling stolen goods, a period of imprisonment of 12 months' gaol.

51Taking the six years imposed on you for Charge 1 as the base sentence, I order that the following periods of cumulation be effected.  Firstly, in regard to Charge 3 - that is, the firearms offence - four months of that sentence, and secondly, in regard to Charge 6 - that is, the handling offence - six months of that sentence, making a total of ten months, will be cumulative upon each other and upon the base sentence, making a total effective sentence imposed on you of six years and ten months.

52The period that you must serve before you are eligible for parole is four years and nine months. In fixing that period, I take into account your counsel's specific submissions, and I have been as merciful as I can be in that regard.  The period that you have served on remand, the 359 days, I declare to be service of this sentence, and a copy of that declaration will be recorded in the records of this Court. 

53For the summary offence, I impose a sentence of five penalty units.  I will give a stay on all the fines for a period of six years. 

54Insofar as your sentence is concerned, it is important for me to detail for you what your sentence would have been had you not pleaded guilty.The Parliament requires the Court to indicate to you, Mr Maslen, that had you not pleaded guilty, what sentence the Court would otherwise pronounced.  

55Such is a particularly difficult matter, because the Parliament prescribed that I must tell you what I would have sentenced you had you not pleaded guilty.  There are numerous factors that are taken into account in this plea. 

56However, doing as best I can, had you not pleaded guilty, the total effective sentence that would have been imposed is nine years’ and two months’ imprisonment, with six years’ and eight months’ imprisonment as the non-parole period.  You will appreciate the significant discount that you have received from pleading guilty.

57I have signed the disposal order, and a forfeiture order. 

58Any matters I need to attend to from either counsel?

59MS HOLMES:  No, Your Honour. 

60MR McGRATH:  Your Honour, the only point was, Your Honour mentioned in your sentencing reasons at the start it was an imitation firearm, and then you referred to the offence as being prohibited person being in possession of a firearm.  But I take the earlier reference to the imitation firearm being your intention ‑ ‑ ‑

61HIS HONOUR:  Whether it is imitation or not, he is still in possession of a firearm.  

62MR McGRATH:  No, it is, Your Honour, yes. 

63HIS HONOUR:  As you will see from the sentence, I have accepted the proposition that you have put ‑ ‑ ‑

64MR McGRATH:  Yes.

65HIS HONOUR:  ‑ ‑ ‑ that it was non-operational.

66MR McGRATH:  Yes.

67HIS HONOUR:  Not that that makes much difference when it is stuck in your face, but this is a possession only. 

68MR McGRATH:  Yes, Your Honour.

69HIS HONOUR:  I accept the point you made from the JCV sentencing manual.

70MR McGRATH:  Yes, Your Honour. 

71HIS HONOUR:  Yes, well, Mr Maslen, it gives the Court no pleasure to hand out a sentence of this type to someone, but I can only wish you well.  Your letter clearly sets out the background to these crimes, that cannot be any better set out when you know yourself. I can only wish you well.  Yes, take the prisoner away.  

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