Director of Public Prosecutions v Nefzi

[2023] VCC 714

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-01714

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN NEFZI

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2023
DATE OF SENTENCE:	4 May 2023
CASE MAY BE CITED AS:	DPP v Nefzi
MEDIUM NEUTRAL CITATION:	[2023] VCC 714

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Charge of aggravated burglary and possessing a prohibited weapon – attendance at home to threaten victim – significant gravity of offending – no criminal history – significant moral culpability

Legislation Cited:           Sentencing Act 1991
Cases Cited:                   Worboyes v R [2021] VSCA 169
Sentence:  2-year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Stary Norton Halphen

Introduction

1Mr Nefzi, I propose, with your consent, and with conviction, to sentence you to a community correction order of two years' duration with these conditions:

(a)   250 hours of unpaid community work;

(b)   to undertake any mental health assessment and treated as directed;

(c)   to be supervised, monitored and managed as directed.  

2Any hours satisfactorily completed under the mental health condition will count as hours of unpaid community work.

3You pleaded guilty to a charge of aggravated burglary and a charge of possessing a prohibited weapon.

4The circumstances of these charges appear in the document entitled 'Summary of prosecution opening for plea', which is Exhibit A.  You agree with its contents.

5On 13 December 2021, I sentenced Tiffany Ciancio and Andrew Whitham.  Somewhat surprisingly, your pleas have come before me nearly 18 months later.

Circumstances

6Taro Pitts had been in a short relationship with Tiffany Ciancio.  It ended on 22 July 2020.  In the days following Pitts sought to contact Ciancio, becoming increasingly threatening.  Ciancio asked you and Andrew Whitham to stop Pitts from harassing her.  Ultimately, she encouraged you and Whitham to assault Pitts.

7After midnight on 27 July 2020, you, Whitham, Ciancio and a person called 'Pete' drove to a boarding house in Werribee.  Pitts and three others were present in the house.  You and the two males left the car.  In response to a knock at the front door, one of the occupants opened it.  You pushed the door to open it more and entered the house.  The other males followed, also pushing past the occupant who opened the door.  Mr Whitham was holding a handgun.

8The prosecution does not allege you were aware Whitham and Pete would enter the house or Whitham was armed.

9One of your group went to a male occupant and punched him in the face.  He was lying on a couch.  In response to a question, the male pointed out Pitts' bedroom.

10Whitham kicked open the door to Pitts' bedroom.  Pitts was trying to escape through the bedroom window.  Whitham fired the gun, striking Pitts' foot.  Pitts escaped.  You and the others returned to the vehicle and left at speed.

11Pitts attended a hospital.  The bullet was removed from his foot.  On 4 August, he was not working because he could not walk on the foot.  On 18 December 2020, the foot was still sore and 'pussey'.

12Examination of the bullet showed it came from a homemade firearm with a worn barrel, using a .22 longarm calibre bullet.  The firearm has not been recovered by the police.

13You were arrested on 22 December 2020.  On searching your residence, the police found a set of knuckledusters.  This constitutes Summary Charge 4, possessing a prohibited weapon.  At interview, you denied being involved in the incident at Pitts' house.  You were released and later charged.  There is no pre-sentence detention. 

Victim impact statement

14When sentencing your co-offenders, I summarised the victim impact statement of Mr Pitts.  It was not relied upon in your case.  Ms Van Den Brink did not make an impact statement.  However, she attended court.  Through the prosecutor, she said she had forgiven you.  

Criminal history

15You have no criminal history.

Personal 

16You are 52.  You were born in Tunisia.  Your father died 20 years ago in a car accident.  Your mother still lives in Tunisia.  You have an older sister and a younger brother.  Your sister lives in Tunisia while your brother in Italy.  Your early family life was excellent.

17At the age of 14, your family travelled to Italy and lived there for 13 years.  You completed the equivalent of Year 12 in Italy.  After school, you worked in nightclubs in Florence, Paris and Barcelona.  Your positions in the nightclubs are described as public relations manager.  You have a facility with languages and are fluent in four other languages. 

18In 2002, you migrated to Australia.  In Australia, you worked in retail and warehousing.  In 2015, while working as a labourer, you injured your lower back.  You ceased work and are still receiving weekly payments of compensation.  After conservative physical treatments and a year of psychological counselling, for psychological reasons you are incapacitated for work for the foreseeable future insofar as the worker's compensation legislation is concerned.  You presently take medicines for pain relief and your depression. 

19In October 2018, the Medical Panel examined you.  It concluded you suffered a soft tissue injury in the workplace accident in June 2015.  The effects of this injury had resolved by October 2018.  However, it noted the degenerative condition of your lower back, which causes some functional impairment.  Interestingly, your psychological state prevents you from working at all in October 2018 and to be so indefinitely.  In my experience, this is an unusual and powerful finding.  It provides a startling backdrop to your offending. 

20You are married.  Your wife, Yvonne, suffers from multiple sclerosis.  You have a 17-year-old daughter.  At the time of your offending, you and your wife had separated and you were living on your own.  You and your wife have since reconciled and resumed cohabitation. 

21In her letter dated 27 February 2023, your wife wrote:

'In 2021, myself and our daughter moved back into the family home with Ben.  He was not doing too well and now he needed me and it was time for me to be there for him like he did to me for all those years.

'Having his family back together has made a big change in Ben's demeanour, although this ongoing court proceeding is like a black cloud over our family'.

Psychologist

22Gina Cidoni is a psychologist.  At the request of your solicitors, she interviewed you on 21 March 2023 and reported.[1]

[1] Report dated 21 March 2023.

23Ms Cidoni diagnoses you as suffering from a form of pain disorder, an adjustment disorder and a major depressive disorder.  The origins of these disorders is the injury to your lower back.  The pain disorder describes your experience of pain, the level of which is not explained by the physical injury.

24She considered the symptoms of these disorders existed at the time of your offending.  They impaired your judgment.

25Ms Cidoni considered your risk of reoffending as low because of your remorse, anxiety about what a court might do, the support of your immediate family and treatment.

26She recommends psychological counselling and psychiatric treatment.

27Imprisonment would worsen the symptoms of your depression and anxiety, which are encompassed in the diagnoses of an adjustment disorder and major depressive disorder.

Discussion

28Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

29Each of these purposes is relevant in your case.

Gravity

30You entered the house with the intention of assaulting Mr Pitts.  You expected assaulting him would persuade him to leave Ms Ciancio alone.  Of the usual intents, this is commonly more serious than an intent to steal or damage property.  You pushed your way into the house after the front door was opened after you knocked.  You were unarmed and you did not know Mr Whitham was armed with a firearm.  Your intent was quickly overtaken by the actions of Mr Whitham.  You were not involved in any of those actions.  The entry occurred after midnight.  Mr Pitts had not met you before and had no special reason to fear you except for your size.  Although you went to the front door with two others, you expected to enter alone.  The gravity of this offence is significant. 

31So also is your moral culpability significant.  The fact Ms Ciancio organised the visit does not detract from your culpability.  You were a 50-year-old male in the company of much younger persons. 

Prospects of rehabilitation

32Until I read the community correction order report, I would have considered your prospects of rehabilitation as very good.  Your guilty pleas were indicative of remorse.  You have regained the support of your wife and daughter and resumed living with them.  Judging from your wife's letter, despite her illness, she would be an important factor in your life.  The author of the report noted your lack of remorse to the victim and the need to challenge that position during supervision.  At this stage, your prospects are good, that is prospects of rehabilitation are good, but no more than that

Maximum penalties

33The maximum penalty for aggravated burglary is 25 years' imprisonment and for possessing a prohibited weapon a fine of 240 penalty units or two years' imprisonment.

Guilty pleas

34In March 2021, you were charged.  You were committed for trial in August 2021 with pleas of not guilty.  In June 2022, you indicated an intention to plead guilty.  Although the charges were listed for a plea hearing in November 2022, they were adjourned.  In terms of timing, the pleas occurred mid-way in the course of the proceeding, which started when you were charged and would end, theoretically, with the verdict of a jury. 

35The plea benefits the criminal justice system by avoiding a trial.  A trial takes time and is generally costly.  It saves witnesses giving evidence, which would be difficult for the victims. You have the additional benefit identified by the Court of Appeal in the case of Worboyes v R[2] where the Court said:

'For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'. 

[2] [2021] VSCA 169 at [39]

36Those observations still apply today.

Assessments

37You have been assessed as suitable for a community correction order and said to be a medium risk of reoffending.  The assessor recommends three conditions to a proposed order.  

38You were also assessed by a registered nurse in respect of a mental health condition. 

Sentence 

39On the charges of aggravated burglary and possessing a prohibited weapon, with your consent, and with convictions for those charges, I propose to sentence you to a community correction order of two years' duration with these conditions:

(a)   250 hours of unpaid community work;

(b)   to undertake any mental health assessment and treatment as directed;

(c)   to be supervised, monitored and managed as directed.

40Any hours satisfactorily completed under the mental health condition will count as hours of unpaid community work.

Section 6AAA

41If you had not pleaded guilty to these offences but had been found guilty, I would have sentenced to 18 months' imprisonment.  

Disposal order

42And I will make the disposal order in the terms sought.

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