Director of Public Prosecutions v Soan

[2023] VCC 2078

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 22-02183
CR 22-02184
CR 22-02185

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN SOAN

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2023
DATE OF SENTENCE:	10 November 2023
CASE MAY BE CITED AS:	DPP v Soan
MEDIUM NEUTRAL CITATION:	[2023] VCC 2078

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Causing injury intentionally – Common assault – Reckless conduct endangering persons – Make threat to kill – Theft – Contravene family violence intervention order – Contravene conduct condition of bail – Commit indictable offence whilst on bail – Three indictments – Family violence offending – Multiple incidents – Application of Bugmy – Renzella time

Legislation Cited:      

Cases Cited:R v Renzella [1997] 2 VR 88; Pasinis v The Queen [2014] VSCA 97; R v McKee & Brooks [2003] VSCA 16 R v Verdins [2007] VSCA 62; Bugmy v The Queen [2013 249 CLR 571;

Sentence:                  Total effective sentence of 5 years’ and 1 month imprisonment with a non-parole period of 3 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr C. Wareham	Chester Metcalfe & Co

HIS HONOUR:

1Benjamin Soan, I am told you are a 29-year-old Gunditjmara man. You have pleaded guilty before me on three separate indictments.  On Indictment N10416811 to a charge of causing injury intentionally, two common assault charges, a charge of reckless conduct endangering persons and a charge of make threat to kill.

2The maximum penalty for intentionally cause injury is 10 years. The maximum penalty for common law assault and reckless conduct endangering a person is 5 years each. The maximum penalty for making a threat to kill is 10 years' imprisonment.

3You have also pleaded guilty to a relevant summary offence in respect of the matters the subject of that indictment, summary offence of contravention family violence intervention order which has a maximum penalty of 5 years' imprisonment.

4On Indictment M10111671 you have pleaded guilty to one charge of conduct endangering a person, along with a charge of causing injury intentionally and a charge of theft. You have also admitted in respect of those matters relevant summary charges:

·        Two charges of Contravening Family Violence Intervention Order

·        A charge of Contravening bail conditions; and

·        A charge of committing an indictable offence whilst on bail

5The maximum penalty for reckless conduct is 5 years. As I have mentioned, intentionally cause injury is 10 years, theft is 10 years. Committing an indictable offence whilst on bail and contravening conduct condition of bail are each 3 months maximum.

6On Indictment L12338602 you have pleaded guilty to one charge of causing injury recklessly. The maximum penalty for that offence is 5 years' imprisonment.  You have also admitted the relevant summary charge of committing an indictable offence whilst on bail in relation to those matters.

7You have admitted a relevant criminal record disclosing convictions between 2012 and 2016.

Circumstances of Offending

8The Circumstances of your offending are set out helpfully in two documents, most thoroughly in the Summary of Prosecution Opening for Plea dated 24 August 2023 (Exhibit A on the Plea) and in summary form in the Prosecution Submissions on Sentence dated 24 October 2023 (Exhibit B).Both of these exhibits form part of these Reasons for Sentence. I do not propose to summarise the circumstance of your offending in the same detail as it is set out in those documents.

9All of your offending occurred in the context of a relationship with your victim Ms Rush[1] during which you were subject to a Family Violence Intervention Order, which you breached on numerous occasions, as is borne out by the charges. You engaged in a campaign of family violence that was serious in its nature and was not curbed by curial interventions at several stages or a period of custody.

[1] A pseudonym.

Indictment No. N10416811

10Commencing with Indictment No.N10416811 first. In mid-April 2020 you and Ms Rush were residing together. You had a small imitation handgun apparently. You hit your victim on the head with it, causing her head to split open (Charge 1 - Intentionally causing injury). You then stuck the narrow chamber of the firearm into her mouth and said words like 'shut the fuck up'.

11On an occasion between 1 March 2020 and 31 May 2023 you and your victim were in your Ford Ranger vehicle. You were driving and Ms Rush was in the front passenger seat. You and the victim had a verbal dispute. You swung your left hand to the side of her head; she turned her head away and you struck her with the back side of your left hand to the side of her head causing her ear to split open and bleed (Charge 2 – Common assault).

12At Wallan, between 28 August and 30 August you assaulted your victim, your then‑partner, when she was 23 weeks pregnant by pushing your clenched fists into her stomach, causing vaginal bleeding and an admission to hospital (Charge 3 – Common assault).

13On an occasion between 26 December 2020 and 31 December  2020 whilst you were on bail, you again engaged in family violence. You told your victim to put your son on the couch. You grabbed your victim by the hair and pulled her down onto the floor. Your victim was laying on her back and you straddled on top of her and had your hands on her throat (Charge 4 – Reckless conduct endangering person)

14She could not breath and tried to push you away. You were compressing her throat with your hands. Your victim was squirming and at times screaming and was unable to get a breath. You were angry and said 'I'm going to fucking kill you' .You then went into the kitchen and picked up a big kitchen knife, you started to pace around the victim and pointing the knife at her saying 'don’t fucking scream' and 'if you keep going, I'm going to strip you naked in the bath and cut you up into pieces so you don't bleed on my rug' (Charge 5 – Threat to kill).

15In October 2020 you contravened a condition of the Intervention Order by writing and sending a letter to your victim whilst in custody (Summary offence 11 – Contravene family violence intervention order).

Indictment No. L12338602

16On Indictment L12338602 on 30 September 2020 you and your victim were at a premises in Wallan, also present was your partner's son, that is a son not from your union as I understand it; your two sons from your previous relationship; and your sister was there with her daughter. Your victim, again your partner as I have said, was 28 weeks pregnant at the time.

17In the morning around 11 am you and her were arguing about you having messaged another woman. Ms Rush had begun to pack her things and leave, and then you struck her multiple times to the head whilst she was in the bathroom As I have noted, she was 28 weeks pregnant at the time of that assault (Charge 1 – Recklessly cause injury; Summary offence 5 – Commit an indictable offence whilst on bail).

Indictment No. M19111671

18On Indictment No.M19111671 on Saturday 16 January 2021, you and your victim and your son, who was only an infant at the time, were at Southbank so you could spend more time with your son. You went to a family dinner at an Asian restaurant. You had been drinking Jack Daniels pre-mixed alcohol and were affected by alcohol. At some point you and your victim were separated. At 10 pm Ms Rush had managed to find the room and you were already there. She went to the bathroom, and you followed her there. You struck her to the face and hit the left side of her cheek and punched her several times as she tried to shield your son from the assault. Your son began screaming. Ms Rush saw that your infant son had a graze to the side of his head. She yelled at you 'you hurt the baby' (Charge 1 Reckless conduct endangering person).

19She ran back to the bedroom and laid your infant son on the bed to check on him. You told her to pick up and settle the baby. Ms Rush picked up her son and walked towards the couch and laid him down because he was still crying. You pushed her causing her to fall or end up on her knees on the ground and you struck her again (Charge 2 – Intentionally cause injury).

20Hotel security knocked on the door, due to the commotion no doubt, you opened it and your victim stood behind you holding your infant son hoping they would see her and help. You told them 'There are no issues. The baby is crying, we'll have him calm in about 5 minutes'. The security left. Ms Rush told you to leave. As you did, you took her phone that was on the bed (Charge 3 – Theft).

21You contravened the family violence order by your actions and you contravened those conditions in two ways and that represents the two summary charges.  (Summary offence 7 – Contravene family violence intervention order; Summary offence 8 – Contravene family violence intervention order).

22You were also on bail and you contravened your condition of bail by failing to comply with the intervention order and also committed the indictable offence of intentionally causing injury whilst on bail. (Summary offence 9 – Contravene conduct condition of bail; Summary offence 10 – Commit indictable offence whilst on bail).

23You were remanded thereafter and I will just touch on the history, as I understand it.  You were initially remanded on 1 October 2020, and then were released on bail some two weeks later on 15 October 2020.  Of course as I have just said, you were then remanded again on 16 January, being on bail throughout that time.  16 January 2021, as I understand it, and released again on bail in December 2021. Then I was told you were remanded on unrelated matters in March 2022, which ultimately either did not proceed or were dismissed, and that has created what is referred to as some R v Renzella[2] time and you were remanded on the matters before me again, as I understand it in October last year.

[2] R v Renzella (“Renzella”) [1997] 2 VR 88

24Up until the time of the plea which was 25 October, there were some 801 days you had been in custody all up, of which 696 days were PSD, the rest being what we understand in the courts as Renzella time which are taken into account.  So that would now be up to about 712 days or something of that nature, 712 days PSD.

Victim Impact Statement

25A Victim Impact Statement was filed by Ms Rush, and it makes difficult reading. It was a terrible ordeal for your former partner, your victim.  The victim of your aggression and inability to control your impulses.  Of course, your infant son was a victim as well. There are lasting and significant impacts and consequences. As I have said, it was a terrible ordeal over several years for Ms Rush.

26I am satisfied that you have some empathy for the impacts of your crimes made upon by Ms Rush and you have shown some insight. But your continued assaults and threats upon her have caused deep trauma and I must take these impacts into account.  I do so.

27I do not have any difficult finding that there has been a significant impact upon Ms Rush as a result of your actions.

Objective Gravity of Offending.

28The objective gravity of your offending is reflected in the maximum penalties, and given the serious way family violence is viewed by the community, it must be condemned.  I was referred to the relevant authorities including the authority of Pasinis v The Queen[3] in relation to the gravity of this type of offending.  It is a pattern of behaviour, of dangerous behaviour but also controlling and aggressive behaviour.  Behaviours where even where you have insight into your vulnerabilities and dysregulation of emotions, you have continued to perpetrate very disturbing levels of violence against your vulnerable partner, and on one occasion your infant son.

[3] Pasinis v The Queen [2014] VSCA 97

Gravity of family violence

29It is a concerning level of violence and pattern of violence that sits within a category as I have described where the community has genuine concerns as to the threat you pose to your ex-partner when released, but also to others. 

30And as I have said, your inability to control your impulses, particularly when under the influence, is known to you and understood by you, it makes it more troubling that you are unable to manage your emotions and show any restraint.

31I must impose sentences that reflect the gravity of the offending and reflect the community's denunciation of this type of offending and reflect the seriousness with which the courts view offending in these circumstances.

Personal Circumstances

32As I have mentioned, I am told you are a Gunditjmara man who is desirous of making connections and understanding more about your background than you have been able to up to this point in your life.  Your background and early development and childhood experience is one which easily attracts the description of profound disadvantage. You came into the world affected by trauma and your infancy and formative years were subject to deprivation and trauma.

33You are one of four children, two of which, I was told, you are unsure of their surnames due to being placed in foster care at a young age. When you were born your mother was a heroin user, addicted to heroin it would seem, and you were born unfortunately going through opiate withdrawal and requiring detoxification.  The impacts and consequences of that sort of early experience are well documented and well known.  Your biological mother was incarcerated and you spent your first 6 months in custody with her.

34You had limited knowledge of your biological father. You ended up being placed in foster care with a foster mother who was also caring for at least a couple of your siblings.

35You suffered abuse in that household which is set out in the materials and which I accept. The abuse was of a high order and this trauma has no doubt affected you throughout your life, shaped your responses and behaviours through life, and it is also likely linked to your Post Traumatic Stress Disorder, which is a diagnosis I also accept.

36That foster mother passed away in 2020 I was told, coinciding with much of this offending, and her passing had an effect on you and I was told that effectively - perhaps this is my paraphrasing of it - but she was the closest thing to a mother you knew and notwithstanding the traumas you were exposed to in that household, that was something that affected you deeply.  

37I have relied upon Exhibit 1, Defence Outline of Submissions on Sentence and Exhibit 2, Psychological Report from Ms Fleming as to your personal history. I accept the History contained in those exhibits.  I do not propose to go through your history in as much detail.

38Your childhood, as I have noted, was attended by instability and transience and you passed between approximately 20 different residential units or foster families whilst under Child Protection. You were introduced to drugs in residential care and started using cannabis at the tender age of nine.

39You started using methamphetamine between the ages of 13 and 16, and I was told you had a relapse at around the age of 20.

40On your report, you use alcohol, more so than drugs, and  it is accepted by both sides of the Bar table it would seem, and by myself, that alcohol was a major problem at the time of the offending, and particularly in relation to some of the offences.  In relation to exposure to drugs at such a young age, particularly when you are in a vulnerable setting of residential care, I accept that your moral culpability for using substances and for them being a resort in terms of self‑medication for dealing with trauma and distress, your moral culpability is not as high as it would be for someone who uses those substances at a more mature age.[4]

[4] R v McKee & Brooks [2003] VSCA 16

41I was told you have four children, two from a former relationship who are aged 10 and 8. Your son, who is referred to in these materials being the victim of one of the reckless conduct charges before me, is around 2 and a half. 

42You have a partner in the community and a 4-year-old child together, I was told. Your goal upon release is to have more contact with the children.

Intellectual Functioning and Mental Health

43I accept the matters that Ms Fleming sets out in relation to your intellectual functioning and mental health.  You were diagnosed with ADHD at the age of 10.

44Ms Fleming opines that you meet the diagnostic criteria for Post-Traumatic Stress Disorder and states at paragraphs 86-89 the following.

“His Emotional development was further compromised by the traumatic experience of sexual abuse. Research as repeatedly identified PTSD as a core manifestation of sexual abuse trauma and undoubtedly the victimisation Mr Soan suffered in the context of repeated child sexual abuse from age five further contributed to the ensuring pattern of instability, isolation maladjustment and emotional disturbance.

His PTSD symptoms are relevant to the offending; they can fluctuate in intensity and frequency, however are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental issues or substance use. Emotional dysregulation, involving repetitive negative thinking such as worry and rumination, implication in PTSD, impairs problem-solving and healthy information processing, and can lead to an increase in negative emotions and deter prosocial responses, as has been with the case with Mr Soan.

Mr Soan's complex profile is further complicated by his history of alcohol and polysubstance use, inferred to have developed as a form of self‑medication for his untreated PTSD. His self-medication with methamphetamine, cannabis and alcohol during this period heightened his risk of engaging in compulsive and reckless behaviour further impairing insight, decision-making and judgement as well as worsening underlying mental health issues. Substance abuse can impair cognitive ability and can result in emotional dysregulation.

It appears that there are a number of factors outlined above which are linked to Mr Soan’s case. Impaired functioning at the time of the offending. These diagnoses do not wholly excuse or justify his actions however, and Mr Soan accepted that his behaviour was unacceptable and is motivated to address his underlying mental health and substance abuse. There does not appear to be evidence of a criminal belief system; his actions relate to undertreated physiological symptoms, distress, and likely intoxication.”

45I accept the opinion of Ms Fleming in relation to these matters.

Factors in mitigation

46There was some discussion on the plea as to how those findings contribute or form part of the sentencing exercise, with reference to R v Verdins.[5]  I do find that there is an explanatory nexus rather than a causal one in relation to PTSD.  And it is difficult when looking at an explanatory nexus based on something like PTSD, when it sits within the context of wider Bugmy v The Queen (“Bugmy”) type factors and impacts, which in this particular case includes early exposure to drugs and alcohol. [6]

[5] R v Verdins [2007] VSCA 62

[6] Bugmy v The Queen (“Bugmy”) [2013 249 CLR 571

47Your PTSD is part of a constellation of factors, including alcohol misuse and many other factors which come under the Bugmy umbrella.  Those sorts of forces in your life, particularly given trauma experience and a deprived upbringing given the residential care settings, have shaped your responses and behaviours through your life and no doubt there is a connection between PTSD and your behaviours that might attract some slight mitigation, but overall when I view it in combination with Bugmy mitigation, the effect of the whole has great force in understanding your offending, and understanding you as an offender.

48Indeed, the PTSD is perhaps on one view even a diagnosis as to how those Bugmy type factors can shape an individual and the impacts they have, leading to PTSD.   I do consider that the application of the Bugmy principle in a general sense and the role of PTSD and alcohol as described by Ms Fleming, provides a lens through which your moral culpability should be assessed.

49What that leads me to is necessarily assessing your moral culpability based on all of those factors as different from the moral culpability I would assess for a person who has not had your life experiences and suffering the consequences of those experiences.

50You have pleaded guilty not at the earliest stage, or even at an early stage, but I am satisfied that there were reasons for negotiating a pathway through what was quite a few charges, and Mr Wareham during his plea set out some of the background to that and the progression through the committal system and the case conferences and mentions before the Judicial Registrars in this court and how it ultimately led to a resolution.  So you are entitled to a significant discount nonetheless for your pleas of guilty. 

51That has avoided a complicated trial or trials and it has come at a time where we are just starting to come out of the backlog, and I am satisfied that your matter was indicated as a resolution at a time when the court list was still very much in crisis in this Court.  So there is a significant discount available to you there for the utilitarian value of the plea.

52I also take into account that you have experienced significant periods of custody subject to the restricted and stressful environment created by the pandemic restrictions in custody.  I take those matters into account.

Prospects of rehabilitation

53I also take into account what Mr Wareham advanced as delay, but he also relied on totality.  I think that delay is relevant when I am considering totality also in your case.  Your case is not one where there is a delay where great steps towards rehabilitation have been demonstrated, although I do find that you have developed insight over that time, and you have made some attempts to reform yourself and rehabilitate yourself.  But in relation to totality I must have regard to the fact that for a substantial period of time, including that period of Renzella time which is dead time effectively, you have been in custody and despite the fact that these offences span over a couple of years, when I am applying the principle of totality that will necessitate substantial concurrency between the sentences that I impose.

54You do have family support and I have also taken into account the insightful and thoughtful references that have been provided, testimonials that have been provided to the court on your behalf.  Mr Mathew Elliot, Jasmine Ali your current partner, and from Catherine Soan your younger sister, and also from Lauren Campbell on behalf of the Voice of a Survivor, and Jasmine DeAngelo your former partner.

55I take into account what is expressed in those materials.  I do have some confidence - not a great deal of confidence - but some confidence as to your prospects of rehabilitation.  You are certainly not without prospects.  As I have said a large part of that hinges on your insight.  Your insight into your dysregulation but also the effects of alcohol and any other substances upon you and upon your abilities to control your temper or your emotions.

56You have got motivation to remain in the community, particularly in relation to contact with your children.  You have also got those supports there that I have mentioned.  You have demonstrated in the past that despite a very difficult early life and childhood, that you can work and be a very productive member of society who can work to a high level, and can be a positive partner and role model.  So that is something that in my view is significant given what I accept and what I found in relation to the disadvantages and deprivations of your early childhood.  So for those reasons there is reason to view your prospects as reasonable if you can address the problems of the past and deal with trauma and deal with substance abuse and seek whatever assistance you can in order to deal with what is a real problem for you.  And it is behaviours in relation to your partner that are controlling, abusive and flow over into extreme violence and threats.

Other Sentencing Considerations

57I have also taken into account the material I was provided in relation to your period in custody and the certificate of achievement which was relied upon and the urinalysis.

58So they are all the matters on the positive side that I accept in relation to your rehabilitation moving forward, but of course general deterrence and denunciation are factors which also attract prominence in the sentencing exercise, for the reasons I have already stated,  as well as specific deterrence in your case.

Sentence

59I sentence you as follows, Mr Soan.

60On Indictment being the first in time, Indictment N10416811.  On the charge of intentionally causing injury you are sentenced to 18 months' imprisonment.

61On Charge 2, common assault, 9 months' imprisonment.

62On Charge 3, common assault, 9 months' imprisonment.

63On Charge 4, being conduct endangering persons, 12 months' imprisonment.

64On Charge 5, make threat to kill, 12 months' imprisonment.

65In relation to the summary offence that relates to those matters, contravene family violence order, you are sentenced to 9 months' imprisonment.

66I propose to make orders for cumulation in relation to the sentence on that indictment and associated summary offence as follows:

67In respect of Charges 2, 3, 4 and 5 on that indictment, in respect of the sentences on each of those charges, 3 months of each of the sentences on those Charges 2, 3, 4 and 5 are to be served cumulatively on the sentence imposed on Charge 1, and 2 months of the summary offence is to be served cumulatively on the sentence imposed on Charge 1.

68In respect of that indictment and those matters that makes a total effective sentence of 2 years 8 months' imprisonment and this will be the base sentence.

69In respect of Indictment No.L12338602.  On Charge 1, causing injury recklessly, you are sentenced to 12 months' imprisonment.

70And on the summary offence of commit indictable offence whilst on bail, you are sentenced to 1 month imprisonment.

71In relation to Indictment M10111671.  On the charge of conduct endangering persons you are sentenced to 18 months' imprisonment. 

72On the charge of causing injury intentionally you are sentenced to 2 years' imprisonment.

73On the charge of theft, 1 month imprisonment.

74On the summary offences, contravene a family violence order, 9 months' imprisonment.

75Charge 8, contravene a family violence order, 9 months' imprisonment.

76Charge 9, contravene bail conditions, 1 month.

77Charge 10, commit an indictable offence whilst on bail, 1 month.

78And in respect of that indictment and the summary offences dealt with in respect of those matters, I make the orders of cumulation as follows.

79Seven months of the sentence imposed on Charge 1, being reckless conduct, is to be served cumulatively on the sentence imposed on Charge 2, and 1 month on each of the sentences imposed for contravening a family violence order, being Charges 8 and 9. 

80It is also to be served cumulatively on the sentence imposed on Charge 2, which in respect of that indictment and the summary offences makes a total effective sentence of 2 years 9 months' imprisonment.

81As I have stated the sentence imposed on Indictment M10416811 and summary offence is the base sentence.  I cumulate 5 months of the total sentence imposed in relation to Indictment L12338602 be served cumulatively on that base sentence, and 2 years of the sentence imposed on Indictment M10111671 also be served cumulatively on that base sentence. 

82That makes a total effective sentence of 5 years 1 month.

83I set a non-parole period of 3 years 4 months in respect of that sentence.

84The pre-sentence detention in relation is 712 days in relation to that matter and to that sentence.  Is that right, 712, did I say?

85MS ZAMMIT:  Yes, Your Honour.

86HIS HONOUR:  Yes, 712 days pre-sentence detention. 

87Were it not for your pleas I would have sentenced you to a total effective sentence of 7 years' imprisonment with a non-parole period of 5 years.

88Now I cannot recall if there are any orders?

89MS ZAMMIT:  No, Your Honour.

90HIS HONOUR:  Special orders sought?  All right, anything, any clarification that is sought out of that, Mr Wareham?

91MR WAREHAM:  I'm just wondering whether Your Honour has to - how Your Honour deals with the Renzella time by explanation?

92HIS HONOUR:  Yes, look I take it into account.  If I did not make that clear in my reasons I should, I did refer to it in my reasons but I have taken it into account as dead time that's effectively, it's not PSD, but it's been taken into account in that sense.  Not as a totality point as in other sentences would, but due to the fact that he served that time for which no offence was found proven, so to him that is complete dead time.

93MR WAREHAM:  I take it that, I think it's paragraph 11 of Renzella which deals with the way it's taken in totality with the other factors that moderates a sentence.  I think that's what Your Honour means.

94HIS HONOUR:  Yes, yes.

95MR WAREHAM:  Thank you.

96HIS HONOUR:  Yes, so I've taken it in totality to moderate the sentence and were it not for that Renzella time there'd be a different sentence imposed.

97MR WAREHAM:  Yes.  Thank you, Your Honour.

98HIS HONOUR:  Thanks, Mr Wareham.  Look a little bit unusual the way I have done it with each indictment there, rather than just going through all the charges and then cumulating but it just - I don't think there's anything irregular in that and it is a more sensible way of, certainly for me, of dealing with it.

99All right, if there's nothing else we'll adjourn the court.

100MR WAREHAM:  No, Your Honour.

101HIS HONOUR:  All right, Mr Soan.  No doubt Mr Wareham or his instructor will discuss that sentence further with you.  Adjourn the court.

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