Director of Public Prosecutions v Rout

[2014] VCC 1499

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-11-00911

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN ROUT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2014 1-4 April and 14-16 April 2014
DATE OF SENTENCE:	27 August 2014
CASE MAY BE CITED AS:	DPP v ROUT
MEDIUM NEUTRAL CITATION:	[2014] VCC 1499

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F Holmes
For the Accused	Mr P Kilduff

HIS HONOUR:

1Benjamin Rout, you have been convicted by a jury of an offence of aggravated burglary, an offence of recklessly causing serious injury, two offences of intentionally causing injury, three offences of false imprisonment, one offence of theft, and one offence of obtaining property by deception.

2You have also admitted a number of prior convictions and court appearances which include an offence, albeit in the Children's Court of intentionally causing serious injury and affray.  That was in August of 2002, a long time ago but nevertheless there is in your record some history of violence.

3The prosecution case at trial was that you, with at least two other men entered the premises at 57 Bealiba Road in Caulfield South with your faces concealed, armed with a machete and a kitchen knife, knowing that persons would be present or likely to be present and with intent to assault persons therein.

4As an aggravated burglary, it was a serious offence of its kind.  Your manner of entry, your manner of disguise, and the way in which you armed yourselves were calculated to put the occupants of the premises in fear, possibly of their lives and to cause them enormous trauma.   It was no doubt your intent to appear to be aggressive, in order to steal from the premises.  It is clear that you were after money and drugs.   Indeed between you, you did steal  relatively modest items in the form of a mobile phone, a wallet and a set of keys belonging to one of the occupants.

5The offence was in my view significantly aggravated by the gratuitous violence that was inflicted upon the three victims Julius Oberberg who suffered serious injuries.  I accept that many cases involve much more serious injuries, but they are serious injuries and it seems that Mr Oberberg still suffers the effects of the injuries.

6There is no victim impact statement, but nevertheless I take into account, not just that the whole experience would have been a serious emotional trauma for Mr Oberberg and for your other victims James Ceszenyi and Chris Ceszenyi.   Each of them suffered physical injuries as a result of the gratuitous violence that was offered to them.  You could have achieved  your objectives equally well I am sure without inflicting any injury upon any of the victims.  The victims were injured with the weapons, the fearsome weapons that were taken with you.  That makes it all the more serious as offending conduct.

7Turning to matters personal to you, your counsel provided me with a short but succinct and helpful summary of his plea submissions.   That is Exhibit 1.  Also a letter from your mother dated 20 August of this year.  A letter from your father dated August of this year.  I have also been provided with a letter from Corrections Victoria Metropolitan Remand Centre concerning the efforts that you have made to deal with the effects upon you of the incident which occurred on the last day of the trial, and led to you being shot.

8You of course are not to be punished in any way for failing to appear on the last day of the trial.  It is I think necessary though to observe that you were apparently shot sometime during the afternoon on that day, after the jury had returned their verdicts.   You had a period in hospital as a result and no doubt you suffered both the physical and the emotional effects of that incident.

9I have no evidence as to what effect that might have on you now, other than what is in the letter from the Melbourne Remand Centre, and what effect it might have on your future and your determination to rehabilitate yourself.  One can only hope that it will have had a very sobering effect I suspect, and I may be wrong that you were involved with persons in the drug trade in one way or another, and I suspect that it may have been as a result of that involvement that that incident occurred.  I could be wholly wrong about that.

10However, it is clear that you have significant issues with substance abuse, and I am heartened to hear that you have an intention to seek treatment through Marngoneet Prison whilst you are doing your time. 

11I cannot but be impressed by the letters that your parents have written on your behalf.   They have suffered a good deal of anguish because of the pain that you have put them through by your conduct over the years. 

12Nevertheless, they still support you and I have no doubt that they will continue to offer their support, pretty much whatever you do in the future.   You are at the age of 31, not far off 32.   You are in a position to respond to the support that they have given you up to now, and to show a bit of ticker and try and deal with these issues which I have no doubt have played a significant role in getting you into trouble and in your repeat offending over the years.

13I note that you had difficulty with schooling with ADHD.   I note that you suffered bullying at school and that your teenage years and your youth have been blighted by your offending conduct.  You have it seems suffered a number of tragedies in your life and no doubt some, if not all of those, and perhaps the accumulation of all of them would have played their part also.  There does not seem to me to be anything in that history which could come close to excusing the kind of conduct that you got yourself involved in, in relation to the matters for which I have to sentence you.

14As your counsel pointed out, the offence of aggravated burglary, indeed all of the offending conduct, is to be regarded as serious and the courts have to mark the seriousness of that conduct with appropriate sentences.  Your counsel concedes quite properly that in addition to deterring you, I need to ensure that the sentence is capable of deterring others from engaging in that kind of conduct.

15I am disheartened to some extent to see the more recent offending conduct which shows that for one reason or another, and perhaps with good intentions for seeking to rehabilitate yourself, you have fallen short up to now and that efforts that have been made to help and support you through the courts have not it seems been particularly successful with breaches of community based orders and so on and so forth.  However, a good deal of time has passed since the offences that are the subject of this indictment. 

16I note the remarks of His Honour Judge Hart in October 2007, where he was referred to a letter from both of your parents who were expressing not too different sentiments from those that are expressed in the letters that they have provided me.   His Honour Judge Hart had taken the view that there were signs, he said many signs, that you are progressing well along the rocky path to ultimate rehabilitation.  That was in 2007.  I think everybody that has supported you must be a little disappointed with the fact that you have not gone a bit further down that path. 

17However, it seems that you are not without talent and I suspect that you have got many good qualities about you.   I also suspect that those qualities are not likely to shine through unless and until you do get a firm grip on your substance abuse problems.

18It is not clear, the extent to which those problems played a part in the offending conduct in 2006 for which I have to sentence you, but I suspect that they were a contributor.  I do not say that in any way to indicate that I regard that as mitigation of your conduct, but it seems to be a factor which was likely to have been present in both the offending at Bealiba Street in Caulfield Street and the offending for which His Honour Judge Hart had to sentence you which occurred on 4 March 2006.  I note that you were in company with two others on that occasion.

19I cannot ignore the fact that you were sentenced in 2006 for offences that occurred very close in time to this series of offences.  I cannot ignore the fact that you were sentenced to a term of three and a half years imprisonment by His Honour Judge Hart for the offences that occurred on 4 March 2006, with a non-parole period of 15 months.  That is a factor which causes me to pause in terms of determining what an appropriate sentence for you is now some eight and a half years after the offending conduct.

20As I say, unfortunately you have not gone as far down the path of rehabilitation as one would have hoped or His Honour Judge Hart had hoped.  But I think that there are, guarded though they may be, prospects of your rehabilitation and I am bound to take that into account in assessing an appropriate sentence.

21I would hope that you have learnt a stern lesson from the fact that you were caught.  I appreciate that you have denied your involvement in relation to these matters.  I suspect and I hope that the jury verdict would have had a sobering effect upon you and the reality of having to serve a term of imprisonment for these offences will have had a significant deterrent effect upon you already.

22I cannot ignore the principle of individual deterrence, that is deterring you having regard to your record, and having regard to the failures of your rehabilitation up to the present time.  But it seems to me that general deterrence is a much more significant sentencing consideration than the individual deterrent aspect of my sentencing obligations.

23I am bound to impose a sentence that appropriately denounces your offending conduct, that punishes you adequately for your offending conduct.   It seems to me that the type of aggravated burglary in this case is a serious example of offending of its kind, and in those circumstances I am bound to impose a sentence that takes account of that conclusion.

24It is necessary I think for me to impose some degree of cumulation of sentence, having regard to what I have described as gratuitous nature of the violence that was offered to the three victims of the aggravated burglary and the causing injury offences.  But I have approached sentencing with a view to moderating very significantly the sentence that might otherwise have been appropriate having regard to the substantial delay in the case.

25It matters not what the reasons for the delay are.  The fact is that it was not until 2010 that you were alerted to the fact that these charges may be brought against you.   But from about October 2010, these matters have been hanging over your head for almost four years and that is a significant factor in that that will have placed a good deal of stress upon you and will no doubt have impacted upon your capacity to focus upon your rehabilitation, knowing that you face at the end of the day a fair prospect at least of doing a substantial term of imprisonment.  I think that that is a significant factor, and the fact that I am now sentencing a 31 year old for offences that were committed by a 24 year old. 

26In all those circumstances, I am ready to proceed to pass sentence upon you, would you please stand.

27On Charge 1 of aggravated burglary, I convict you and sentence you to imprisonment for a period of four years and six months.  On Charge 3 of recklessly causing serious injury, I convict you and sentence you to imprisonment for a period of two years and nine months.

28On Charge 4 of intentionally causing injury, I sentence you to 15 months imprisonment and convict you.  On Charge 6 of intentionally causing injury, I convict you and sentence you to imprisonment for a period of 15 months.  On Charge 8 of false imprisonment, I sentence you to imprisonment for nine months, and convict you on Charge 9 of unlawful imprisonment, I sentence you to imprisonment for nine months and convict you.

29On Charge 10 of false imprisonment, I sentence you to imprisonment for nine months and convict you.  On Charge 11 of theft, I convict you and sentence you to imprisonment for a period of three months.  On Charge 12 of obtaining property by deception, I convict you and sentence you to imprisonment for one month.

30The sentence on Charge 1 is the base sentence, and I order that 12 months on the sentence on Charge 3, three months of the sentence on Charge 4, and three months on the sentence on Charge 6 be served cumulatively upon one another and the sentence on Charge 1, making a total effective sentence of six years imprisonment and I order that you serve a period of three years and eight months before being eligible for parole.  I declare pre-sentence detention of 134 days to be reckoned as time served on the sentence that I have imposed and to be deducted administratively from that sentence.   I order that that fact be noted in the records of the court.

31I make the disposal order that is sought by the prosecution, noting that that will not be implemented until you have exhausted your rights of appeal and or further trial if there have to be one in relation to this matter.  Are there any other orders that I need to make>

32MS HOLMES:  No Your Honour.

33MR KILDUFF:  No Your Honour.

34HIS HONOUR:  All right, you can take him down thank you. 

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