Director of Public Prosecutions v Smith-Thompson, Benjamin
[2013] VCC 554
•7 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00014
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SMITH-THOMPSON |
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JUDGE: | Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March, 6 May 2013 | |
DATE OF SENTENCE: | 7 May 2013 | |
CASE MAY BE CITED AS: | DPP v Smith-Thompson, Benjamin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 554 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Aggravated Burglary – Intentionally Cause Injury – Unlawful Assault – Acquired Brain Injury – Verdins – Early Plea – Youthful Offender – Extensive Criminal Record
Legislation Cited:
Cases Cited: Hogarth v The Queen [2012] VSCA 302
Sentence: Total Effective Sentence: 4 years imprisonment
Non-Parole Period: 2 years imprisonment
Pre-Sentence Detention: 162 days
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Vella | Office of Public Prosecutions |
| For the Accused | Ms E Turnbull | Turnbull Lawyers |
HIS HONOUR:
1 Benjamin Smith-Thompson you have pleaded guilty to one charge of Aggravated Burglary (charge 1), one charge of Intentionally Causing Injury (charge 2) and one related summary charge of unlawful assault. The maximum penalties for these offences are 25 years, 10 years and 3 months imprisonment respectively. The offending occurred on 27 May 2012. You admitted 88 prior matters, arising from 20 court appearances from 2003 to 2011. All but 27 of these matters were recorded in the Children’s Court and they can broadly be characterised as robbery, burglary, theft and assault related offences. You have served periods of detention and of imprisonment and were in fact on parole at the time of the commission of the present offences.
2 The facts of the case were opened by Mr Vella and are contained in the Summary of Prosecution Opening, exhibit A in these proceedings. In brief summary, in the late hours of 26 May and early hours of 27 May 2012 you were present at a party in Mornington. During the course of the night a verbal altercation occurred between a friend of yours and some other people at the party. Your friend left the party and returned later with you and 3 others. You got into a scuffle with a male at the party and then left the premises. You returned later and broke into the back door of the property, armed with a knife, the subject of charge 1. As you approached the male who you had encountered before, his girlfriend tried to protect him and you kneed her in the face causing swelling and a cut to her left eye, the subject of the summary charge. You then stood over the male and began punching him with the hand in which you were holding the knife. The complainant tried to protect himself and asked you to stop however you continued to hit him, inflicting multiple cuts to his head, the subject to charge 2. The complainant managed to push you away and you then fled the scene.
3 Victim Impact Statements were tendered from both the complainant and his partner, they are exhibits B and C. These statements recount both the physical and psychological trauma caused by your actions. Both complainants now live in fear and their lives have been irreparably damaged by your offending.
4 You made a no comment record of interview on 3 October 2012. You pleaded guilty at the committal mention, and the prosecution conceded your plea was entered at the first available opportunity. Your parole was cancelled and you have been in custody since 10 July 2012. There are 162 days of pre-sentence detention counting from 26 November 2012, being the day your previous sentence lapsed.
5 In response to my query about the appropriate sentencing range applicable in your case, the prosecutor said that a head sentence somewhere between 3 and 4 years with a non-parole period of between 2 and 3 years was appropriate. Mr Vella said that this range took into account the effect of Mr Cunningham’s psychological report. Whilst submitting that much of your mental health issues arose in the context of a long history of drug abuse and that the offending occurred whilst you were under the influence, he conceded that the principles set out in R v Verdins were engaged.
6 Tendered on your behalf was an outline of submissions – exhibit 1, a Neuropsychological report of Dr Riley dated 14 August 2009 – exhibit 2, a bundle of certificates – exhibit 3 and a Psychological report of Dr Cunningham dated 29 April 2013 – exhibit 4.
7 Your personal circumstances were detailed in Dr Cunningham’s’ report. You are the third of 7 children and were the subject of physical violence at the hands of your father. Much of your childhood was spent without parental supervision and you began running away from home at the age of 11. You have spent periods of time being homeless, and were in such a situation at the time of the offending. You were educated to year 7 prior to being expelled, you began using cannabis at this stage and have had little gainful employment since. Your cannabis use progressed to the use of ecstasy and methylamphetmine on a daily basis. In July 2008 you were in a car accident and as a result suffered an Acquired Brain Injury.
8 You reported to Dr Cunningham that prior to the offending you had consumed a volume of alcohol and methylamphetamine and were feeling paranoid. Dr Cunningham said that your mental state assessment was consistent with the presence of a Major Depressive Disorder and Panic Disorder. Psychometric testing indicated you are in the intellectually impaired range, in that your thinking and reasoning abilities were assessed in the bottom 5% of your age peers, consistent with an Acquired Brain Injury.
9 Dr Cunningham said that your “alcohol and drug abuse combined with [your] Acquired Brain injury would have resulted in significant disinhibition at the time of the offence”. Dr Cunningham also stated that you currently have protective factors which may reduce your risk factors, however he did not elaborate on what these were. Finally, Dr Cunningham stated that imprisonment would weigh more heavily upon you and would have “[a] significant adverse effect on [your] mental health”.
10 On your behalf, Ms Turnbull submitted that I take into account the following matters by way of mitigation:
(1) You are only 21 years of age and were 20 at the time of offending and as such stand to be sentenced as a youthful offender;
(2) You suffer from an Acquired Brain Injury which contributed to the impulsivity and poor self-control evidenced in the offending and as such Ms Turnbull submitted all the principles in Verdins are enlivened;
(3) That you pleaded guilty at the earliest opportunity and should be afforded the maximum discount applicable, as well as the fact that it is indicative of remorse;
(4) That whilst you were on parole at the time of offending, the principle of totality is enlivened in relation to the significant period of time you, as a youth have spent in custody; and
(5) Whilst in the past you had not had the support of your family, they were present in court on your plea and are available to support you upon your release.
11 In relation to the appropriate sentencing range, Ms Turnbull submitted that a sentence at the lower end of the prosecution range would be appropriate, and that a longer than usual non-parole period should be imposed.
12 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
13 Aggravated burglary is a very serious offence. The gravity the community, through Parliament ascribes to this crime is reflected in the maximum penalty of 25 years’ imprisonment. Crimes such as aggravated burglary strike directly at the heart of people's domestic security and their capacity to feel safe in their own homes. It is a fundamental right of living in a civilised society that people should feel safe and secure in their own home. The burglary you committed here, can properly be described as a confrontational aggravated burglary.[1] In that you broke into the premises in order to exact revenge for a perceived wrong done to your friend.
[1] See Hogarth v The Queen [2012] VSCA 302, p 19.
14 You viciously and callously attacked the male complainant, despite his protests to stop and attempts to defend himself. When his partner sought to intervene you assaulted her. In sentencing you I must place specific weight on community protection and deterrence. The community has the right to be protected from people like you and to expect that you will be dealt with sternly despite your youth.
15 Special considerations however do apply to the sentencing of young offenders. Rehabilitation is considered to be far more important than punishment and, where possible, the sentencing of youthful offenders should not be used as appropriate occasions for the giving of general deterrence messages. Where a sentence is unavoidable, as it is in this case, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. You however, have been imprisoned once before and have been sentenced to terms of youth detention on at least four occasions. In fact you criminal record is appalling for someone of your age. You have been given every opportunity by the courts to stay out of prison. This offending was only six months or so after you were released from prison and during a period of parole.
16 Your substance abuse it would seem continues to be a problem and significant contributing factor to your offending. Your drug use on the night of the offending played a large part in diminishing your capacity to reason. Despite this I have before me no material which demonstrates how you hope to deal with your addiction in the community or how you have done so in custody. Nowhere in the bundle of prison certificates I received were drug and alcohol counselling certificates or other such courses. No evidence was put before me on the plea as to how you will deal with your addiction and not re-offend as soon as you are released. This is particularly surprising when your criminal record reveals that the court has ordered that you participate in drug and alcohol counselling on at least 3 prior occasions.
17 Ms Turnbull relied on the application of the principles to be found in R v Verdins in the mitigation of your penalty. She submitted that your mental state mitigated your moral culpability and that having regard to your mental state, I should moderate the denunciatory and deterrent aspects of sentencing.
18 Serious psychiatric illness, mental disorder or abnormality or impairment of mental functioning, not amounting to mental impairment such as would give rise to a defence, may reduce the moral culpability of the offence as distinct from the offender's legal responsibility. Where the relevant mental state is brought about or contributed to by illegal conduct, on the part of the offender, such as a psychosis brought about by the unlawful ingestion of drugs it is often the case that moral culpability is not lowered or diminished. In your case, I accept you were suffering from a Major Depressive Disorder and Acquired Brain Injury and that as a consequence at the time of your offending your thinking and reasoning abilities were impaired. I also accept that your detention in custody will be more onerous and has a potential to aggravate your mental health issues. For these reasons also it is inappropriate that you be used as a vehicle for transmitting a general deterrence message even though it is the case that many offences of this kind are committed by young people in your circumstances. Mr Vella conceded that your Acquired Brain Injury required that there be some moderation of your sentence.
19 I propose to take the mental health issues outlined in Dr Cunningham’s report into account in determining your sentence and will moderate it accordingly. I also take into account, your very early plea of guilty, the fact that you have spent nearly a year in custody for breach of parole and awaiting this matter, as well as the fact that you fall to be sentenced as a youthfull offender. I also must take into account the fact that you committed this offending whilst on parole. Finally I have regard to the Court of Appeal’s pronouncement in Hogarth that I should not feel constrained by current sentencing practice. I was urged by Ms Turnbull to give you a longer than usual period on parole to enhance your prospects of rehabilitation. I must confess that I am not entirely convinced that your prospects are all that positive. Dr Cunningham has indicated that a lengthy period of psychological and drug and alcohol intervention is required together with stable community support services. I am not sure that any of these measures will be put in place for you. Without them, you prospects are poor. I was pleased to see that you family came to court in a show of support for you. They will have to work hard with you upon your release if you are to succeed. I will fix a longer than usual parole period. No matter how unconvincing the prospects of rehabilitation may appear, it is the duty of the courts to wherever possible encourage that course in the case of youthful offenders.
20 Would you please stand Mr Smith-Thompson
21 You are convicted and sentenced as follows:
On charge 1 of Aggravated Burglary to 3 years and 6 months imprisonment
On charge 2 of Intentionally Cause injury to 12 months imprisonment
On the related summary charge of unlawful assault to 1 month imprisonment.
22 I direct that 6 months of the sentence imposed on charge 2 be served cumulatively on charge 1, making a total effective sentence of 4 years imprisonment.
23 I direct that you serve a minimum of 2 years before being eligible for parole.
24 I declare that 162 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
25 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 5 years and 6 months imprisonment with a non parole period of 3 years imprisonment.
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