Director of Public Prosecutions v Nagy

[2017] VCC 2049

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02269

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN NAGY

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2017
DATE OF SENTENCE:	26 October 2017
CASE MAY BE CITED AS:	DPP v Nagy
MEDIUM NEUTRAL CITATION:	[2017] VCC 2049

REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – aggravated burglary, theft, recklessly causing injury – youthful offender – combination of time served and a community correction order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	Office of Public Prosecutions
For the Accused	Mr J. Lavery	James Dowsley & Associates

HER HONOUR:

1Benjamin Nagy, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing injury and one charge of theft.  In addition, you have entered a plea of guilty to summary Charge 9 being one charge of commit an indictable offence namely aggravated burglary whilst on bail. 

2Those charges are serious and that is reflected in the maximum penalty prescribed by Parliament namely; aggravated burglary it is 25 years' imprisonment; recklessly cause injury, five years' imprisonment and theft, ten years' imprisonment.  For the summary charge it is three months' imprisonment or 30 penalty units.

3I shall proceed to sentence you on the basis of the Crown opening that was read at the plea hearing, there being no dispute as to the factual basis upon which the Crown opened this matter.

4In brief compass, on 27 September 2015, at about 5.45 am, you attended a premise in Mount View Road, Upper Ferntree Gully with another fellow, Matthew Hull, your co-offender.  You were both wearing dark balaclavas and gloves.  At that time you endeavoured to enter into a bungalow. You were looking for another man whom you said was there called Aaron. 

5Corey Newman, the occupant was woken by his housemate, Sean Dekyzer, who told him about loud sounds and smashing coming from the vicinity of the bungalow located in Mr Newman's backyard. 

6He went out to the backyard to investigate and that is when he was confronted by you both.  He told you that he did not know who the person known as "Aaron" was and at that stage he noted that you were carrying a silver double barrelled handgun as well as a tomahawk and the other man was carrying a steel bar.  He would not let you into the bungalow. Ultimately you smashed your way into the bungalow by smashing a window and gaining entry to the bungalow. (Charge 1, the aggravated burglary).

7Thereafter you struck Mr Newman twice to the side of his head with a solid pillowcase causing pain, bleeding, bruising and swelling. (Charge 2, recklessly cause injury).  Apparently the solid pillow case and other items were found in the bungalow. Thereafter there was interaction between you and
Mr Newman.  You stole two money tins containing about $1500 in notes and cash. You left the premises. There was a pursuit between you and Mr Dekyzer and Charles. 

8Ultimately the matter was reported to the police and you were arrested.  At the time of the offending you were on bail and I will refer to that later on. 

9The offending is serious. There are a number of aggravating features.  You committed the offence in company with another.  You were both disguised. It was in the early hours on private property. You were armed with a handgun and the tomahawk and your co-accused was armed with a steel bar.  You threatened violence and you inflicted violence on the victim and stole property. The offending occurred whilst you were on bail.

10You were on bail in respect to one set of offending that occurred on 9 May 2015.  That was offending that related to an occasion when police intercepted a vehicle being driven by you for a routine check.  During that check and a subsequent search of your vehicle some weapons were found, namely; a hatchet, a baseball bat and a five centimetre blade.  Also some methamphetamine was discovered and a stolen white silver Apple iPad.  You were arrested and placed on bail in respect of that offending. 

11Subsequently, on 31 May 2015, you were charged with armed robbery and commit indicatable offence whilst on bail.  That matter was dealt with by Her Honour Judge Douglas at the Melbourne County Court on 18 March 2016. 

12You do not have a criminal history as such but certainly you had committed that other offending prior to the offending that is the subject of the current charges today. 

13In respect to those matters you were dealt with at the Melbourne County Court on 18 March 2016 for the armed robbery and commit indictable offence whilst on bail.  You were convicted and placed on a two year Community Correction Order.  That was supervisory in nature and used to address your drug problems.  You were ordered to undergo assessment and treatment in respect to drugs. 

14In respect to the other matter, at Frankston Magistrates' Court on 11 April 2016, without conviction you were fined, an aggregate fine, of $1200 in respect to those charges. 

15Having regard to the circumstances of this offending there is a real need to denounce your behaviour on behalf of the community. 

16The victim impact statement sets out in graphic detail the impact upon Mr Newman.  Sadly he has felt very unsafe in his home which was his childhood home of some 22 years.  He has had to relocate to a different place to live in the country.  His general well-being has been impacted upon and he has experienced major loss of enjoyment of life, happiness, distress, paranoia and grief.  He has real issues in terms of safety and that underscores the need for you to be punished for this offending because people are entitled to feel safe in their homes.  Courts often have said that home invasions of this nature do warrant stern punishment and general deterrence is a significant factor in these sorts of cases.

17I understand the context to your offending was that, at that time, you had a raging ice habit.  You were only 19 at the time.  You had been using drugs for some time but the drug ice in particular, since age 16, escalating to daily use from age 17. 

18It is evident from just the short description of this offending, as well as the other offending I have already referred to, that your life had very much spiralled out of control.  

19You were not working. You were unemployed. You had been asked to leave your family home, you were mixing with drug using peers and offending such that your trajectory at that stage was looking like somebody who was on a very destructive path.

20I have had regard to your personal history and circumstances.  I note you are now 20.  You are now living back at home and employed in your father's concrete business fulltime. It is said that you now play an integral role in that business and ultimately there is a real prospect of you taking over the conduct of that business.

21It is obvious to me that you do come from a very loving family.  Both your parents and maternal grandparents were present in court and are very supportive of you.  I was very moved by the evidence given by your mother, Michelle, who is a remarkable person.  You are the youngest of her three children.  You have two sisters, one of whom is at home.  The other one is married and lives with her family.

22I have had regard to the contents of the report written by Dr Timothy Doyle, your clinical psychologist, who has been treating you for stimulant use disorder, amphetamine type in remission and conduct disorder, adolescent onset severe, in remission.  He has been treating you for the past 18 months and he has not observed any evidence of symptoms of either disorder. His treatment and support is ongoing.  What he says is supportive of the evidence given by your mother, Michelle. 

23After your arrest on these charges you were initially remanded in custody for a period of 72 days.  You were then released on 8 December 2015 following which you were admitted to a 28 day inpatient detoxification program at Wyndham Private Hospital that you successfully completed. 

24I am satisfied on the evidence available you have maintained your abstinence from the drug, ice, since and this is significant given that you had a raging habit and you had been using since age 16. 

25There was also a report from Mr Matthew Stayos, neuro-psychologist, that was tendered on the plea.  He made a finding that there was no acquired brain injury.  He referred to your diagnosis of ADHD and stimulant use disorder in early remission.  I have read his report and have had regard to the contents.

26The ravaging effect of the drug ice was evidenced in a very real manner through the production of the photographs that were tendered in the plea hearing, namely, Exhibit 7.  Currently I am satisfied that you do show no signs of drug use.  You present as a stable, fit, well looking and healthy young man. 

27Your mother's evidence confirmed for me that you are now usefully employed in a fulltime, and integral role in your father's business.  You are living at home and behaving appropriately.  She has observed your behaviour daily.  She confirms there is no drug use.  You have been compliant with the curfew and reporting conditions of your bail.  Your mother says your behaviour has changed over the time following your release on bail. 

28Prior to your arrest she said you could be described as an aggressive, argumentative and paranoid man with noticeable mood swings.  She said none of that now exists.  You are now eating appropriately and healthy food.  You are caring for your own well-being.  You are a regular gym attendee.

29I am satisfied the regime at home is one of zero tolerance for drugs and that your parents support you and your current situation.  You are now engaging appropriately with former school friends who have not been involved in the drug scene.  Your mother confirmed the time spent on remand was a salutary experience for you.  She described it as being "horrific".  Fortunately during that time you did detox and you were able to continue on with that process when you went to the private hospital upon your release.

30In gaol on remand you were subjected to the restrictive and onerous conditions that applied to all prisoners in the State of Victoria as a result of the impact of the July 2015 prison riots.  Those three months in remand set you up to being drug free and in a state of mind to engage appropriately with a drug detoxification program and ongoing counselling with Dr Doyle.  You are now a person who is clearer in his thoughts and your behaviour has settled. 

31Overall, given your post release conduct whilst on strict bail conditions I consider that you do have prospects for rehabilitation. 

32Mr Lavery, on your behalf, emphasised mitigating factors, which I accept.  Firstly, your plea of guilty.  It was not entered at an early stage. It was entered just prior to trial however as discussed in the plea hearing I consider there is still real utility in this plea.  You spared the victim, importantly, the trauma of having to come to court and give evidence on your trial.  You spared the State the expense and inconvenience of a trial.  You facilitated justice and your sentence will be discounted accordingly.  I also consider that the plea of guilty is evidence of real remorse.

33Secondly, you did not have any prior convictions or findings of guilt, albeit you did have the other matters pending that I have already referred to.  Thirdly, he emphasised your youth.  That is that you were 18 at the time of the incident.  Fourthly, you have made good progress whilst on your CCO imposed on
18 March 2016 and, fifthly, you have utilised the time following your release on remand.  That is, the delay between being charged and being sentenced, by appropriately engaging in rehabilitation programs in the community.

34I consider that a return to prison would be counter-productive and disruptive of your very real progress.  A disposition of other Youth Justice Centre order or a CCO or gaol term combined with a CCO was suggested. 

35Mr Barry, on behalf of the Crown, emphasised the objective seriousness of the offending.  Initially it was submitted that a sentence of imprisonment would be the most appropriate sentence.  However because of the rather unusual course of your rehabilitation that you have achieved in the community, combined with the time served, the Crown have now formed their final position, that is, that time served to be followed by a CCO would be an appropriate disposition.

36In formulating the appropriate sentence I have had regard to the objective features of your offending, which I do consider to be very serious.  I have also had regard to your very real progress whilst on restrictive bail conditions and in particular, I have been very impressed by what Dr Doyle had to say in terms of your prognosis.  He considers it to be excellent.  He says that is based on the available evidence suggesting when you are supported to restrict your exposure to a risky social group, you are able to obey rules and laws, make good judgment, demonstrate proper impulse control and perform as an otherwise law-abiding, functional member of modern Australian society.  He is prepared to continue working with you to continue to support you so as to ensure that you continue to abstain from drug use and avoid social or peer groups that indulge in substance use.

37I am particularly impressed by your strong family support and the very realistic outlook that your mother has in respect to the necessity to support you but to be very firm with you in terms of non-tolerance of drug use.  Your mother has obviously had to deal with a lot of issues associated with your behaviour spiralling out of control but she has been instrumental, I believe, in ensuring that you have now been put on to the correct path.  She, together with your father, have been supportive throughout and continue to be supportive.  So that is a real factor in your favour.

38Yours is an exceptional case where you have shown, through your post offence conduct, that you can rehabilitate yourself. The order that I am proposing is one that will continue to support your transformation.  From observations that I have made over many years as a judicial officer, such transformations occur only as a direct result of the individual taking responsibility for their addiction coupled with ongoing supportive relationships from family and good social supports.  All of which you have currently.  That is supported as well by the strong therapeutic relationship you have with Dr Doyle.

39You have also demonstrated individually that you can be a person who shows a positive attitude to court orders and that is reflected in the current progress whilst you are on a Community Correction Order.  The other reference material confirms that you are held in high regard and you now express appropriate remorse and an acceptance of responsibility for your otherwise appalling behaviour.

40Mention was made during the course of the plea hearing of Joel Bradshaw v R.  I have had regard to the principles enunciated there including the principles set out in the guideline judgment of Boulton v R and Hogarth v R and I am mindful of what has been said in Boulton.  That there are negative impacts upon imprisonment and youth.  Further in Boulton it was accepted that a Community Correction Order is intrinsically punitive and capable of deterring others and providing for specific deterrence.

41I am satisfied in your case, notwithstanding the serious offending and notwithstanding it ordinarily would have attracted a medium term of imprisonment, that this is a case where all the sentencing principles can be satisfied by the imposition of a Community Correction Order whilst offering you the best prospects for rehabilitation.

42In a case of R v Tiburcy it is said by the Court of Appeal:

"A sentencing court must look to the future as well to the past.  There is a real benefit to the community at large as well to individuals themselves and their immediate families if future criminal activity can be avoided".

43This is a case where you have demonstrated through your own work on addressing your underlying offending behaviours that you can transform. The purpose of the order is to punish you, to provide for just punishment for the very serious offending that you have engaged in, but also to set you up for the future to ensure that your rehabilitation continues whilst remaining in the community.

44I have already explained to you how the order works and you understand the effect and conditions of the Community Correction Order that I propose.  You have consented to it being made and you have also been explained the consequences of a breach of such order. 

45In respect to the charges on the indictment, aggravated burglary, reckless cause injury, theft and the summary charge of commit an indictable offence whilst on bail, you will be convicted and ordered to serve 72 days imprisonment to follow three years' Community Correction Order subject to supervision, 250 hours unpaid community work and treatment and rehabilitation programs in respect to drugs and offending behaviour.

46That is the order.  Do I still have to make a s.6AAA?  I guess I do.

47MR BARRY:  Yes, Your Honour.

48HER HONOUR:  Yes.  I make the declaration pursuant to s.6AAA.  But for your plea of guilty I would have imposed a term of imprisonment of three years to serve two years. 

49I make an order as to pre-sentence detention.  I direct that 72 days detention has already been served under this order and direct that that be entered into the record of the court. 

50Just to make it absolutely clear, you have already served those 72 days so it is not proposed that you be taken back into custody but that you be released today having entered the Community Correction Order for three years in the terms that I have already described.  There are no other ancillary orders, are there?

51MR BARRY:  No, Your Honour.

52HER HONOUR:  No.  All right, I thank you all but I do thank Mr and Mrs Nagy.  Your attendance today is appreciated.  We can adjourn.

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