Director of Public Prosecutions v Stephenson
[2020] VCC 1343
•27 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN STEPHENSON |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2020 | |
DATE OF SENTENCE: | 27 August 2020 | |
CASE MAY BE CITED AS: | DPP v Stephenson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1343 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence – Plea of guilty – Attempted armed robbery
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Office of Public Prosecutions |
| For the Accused | Mr M. Reardon | Victoria Legal Aid |
HIS HONOUR:
1 Benjamin Stephenson, you have pleaded guilty to one charge of attempted armed robbery, which carries a maximum penalty of 20 years imprisonment.
Circumstances of Offending
2 The circumstances of your offending are set out in the Summary of Prosecution Opening dated 5 August 2020, which was tendered as Exhibit A on your plea and forms part of these reasons for sentence.
3 At about 10:00pm on Sunday 18 November 2018 you and Jonathon Treloar entered Mario’s Pizza at 16 Church Street, Richmond. You were wearing a black zip-up hoodie, a blue t-shirt, black shorts and runners.
4 Upon entering the shop, you asked the owner, Marios Anastasiou, if he had $20. Mr Anastasiou replied that he did not, and you left the premises, however some 10 minutes later you returned to the shop, with Treloar remaining outside the store.
5 When entering the store you yelled, ‘Give us your money, this is a robbery’. You were wielding a brick and told Mr Anastasiou to 'hurry up' or you would 'crack his skull open'. Mr Anastasiou’s wife and young child were present in the store at the time.
6 You then tried to grab the cash register. Mr Anastasiou resisted by grabbing the other side of the register to stop you taking it. In response you kicked the register, which left a footprint, before fleeing the store empty handed.
Arrest and Interview
7 After you fled, police attended the pizza shop, later finding a red brick broken into parts in the middle of the road on nearby Cooke Court.
8 At about 10:35pm you were observed by a police member walking with Treloar along Victoria Street, approaching Hoddle Street in Richmond, and he noted that you both matched the description of the alleged offenders of the attempted armed robbery at the pizza store.
9 Four police officers approached you and Treloar and you both ran. Treloar was caught and arrested while you were able to cross onto the west side of Hoddle Street and into a Caltex Service Station, out of sight.
10 Police then undertook a search of the surrounding area and eventually found you hiding under some branches of an overhanging tree. Upon being spotted and told you were under arrest you began advancing on the police officer with clenched fists asking why you were being chased.
11 The police officer repeatedly told you to lay on the ground, to no avail, as you continued to approach. Fearing imminent physical harm, the police officer deployed OC foam to your face, which subdued you and secured your arrest.
12 The record of interview shows you denied allegations of attempted armed robbery, outlining an alternative series of events that an argument had ensued after you tried to sell Mr Anastasiou some fresh prawns for $60 and he refused. You told police that Mr Anastasiou tried to attack you with a tomahawk and you retrieved a brick to defend yourself.
13 There is no evidence to support your version of events at interview and of course you have now admitted the essential elements by your plea of guilty.
Victim Impact Statement
14
At your plea the Victim Impact Statement of Mr Anastasiou’s wife,
Ms Duong Anastasiou, was read out by counsel for the prosecution.
15 Ms Anastasiou’s statement eloquently details the indelible psychological mark left on her and her young child.
16 It is apparent that your offending inflicted a high level of trauma on the Anastasiou family. Ms Anastasiou lives in constant fear of your return, or a similar incident occurring again in the future. For this reason, Ms Anastasiou felt compelled to close the shop. Ms Anastasiou must also take medication to calm her, due to the resulting anxiety and fear from your offending, and experiences unceasing feelings of being unsafe.
17 This heavy burden is only exacerbated by the fact that Ms Anastasiou’s young son remembers the incident and has expressed similar concerns that you are still a threat to him and his mother.
18 You are to be sentenced on the basis that you did not directly threaten the child and I am prepared to accept, on balance, that his presence was not prominent in your field of consciousness at the time.
19 The impacts upon all victims of your crime is nonetheless relevant. I take the impacts as expressed by Ms Anastasiou into account.
20 These reasons should make clear that due to the fact that I am informed with a lot of material about you - including your background, progress in custody, remorse and prospects of rehabilitation – I am satisfied you no longer pose a threat to the safety of the community. I am satisfied that with the court support and supervision I will put in place that you have reasonable prospects of rehabilitation.
Personal Circumstances
21 You were 32 years of age at the time of the offending and are now 34 years old. You were born in Preston, Victoria.
22 Your parents separated when you were 10 years old and you are the oldest of three siblings. Your upbringing and family home were described as dysfunctional due to animosity between your parents. After the separation you had a strained relationship with your father, which I am told is now improving, with you receiving visits once a fortnight before the COVID-19 restrictions commenced.
23 Prior to moving to Melbourne in 2018, you lived in Queensland for 11 years and had a significant relationship, which was for an approximate duration of eight years. Upon your return to Melbourne in 2018 you were effectively homeless and either slept rough or on other people’s couches to survive. Upon your release you intend to live with your father and his partner in Wallan, Victoria.
Education and Employment
24 You have not obtained a high level of education, leaving high school partway through Year 10 at Marcellin College in Bulleen. You subsequently completed a Certificate 1 in Carpentry at the Heidelberg TAFE.
25 As previously mentioned, you moved to Queensland, where you undertook a variety of labouring jobs, including as a tree lopper. You never stayed in a job for long due to, by your own admission, an abuse of alcohol. At the time of your arrest you had been unemployed for approximately three years.
26 I was told by your counsel that you have secured an offer for employment as a labourer from a friend, which will be available once you are released.
Substance Abuse and Mental Health
27 As mentioned above you have abused alcohol, which began with daily drinking from the age of 16. For approximately 11 years you would commence drinking upon waking up and continue until unconsciousness in the evening. You intermittently stopped drinking excessively at age 27 upon the realisation you were following the same path walked by your father years before.
28 Unfortunately, what sobriety you gained from a reduction in alcohol intake was replaced by the use of methamphetamines. You used for six years on the weekends which steadily progressed to a daily habit in January 2018 within the context of a relationship breakdown.
29 You also developed a co-morbid use of heroin to mitigate the prolonged effects of your methylamphetamine abuse. In your counsel's Outline of Submissions for Plea Hearing dated 12 June 2020, it was indicated that you have abused cannabis and benzodiazepines in the past but were not regularly taking either substance at the time of your offending.
30 You have reported to your counsel that you have previously been diagnosed with bipolar disorder, however there is little recent engagement with any mental health service.
Prior Criminal History
31 Turning to your previous criminal history, I have taken into account your offending - both in Victoria and while in Queensland. Your history is of a disturbing length and contains relevant prior convictions for violence, including offences of robbery and assault, as well as dishonesty and drug related offences. This history restricts the degree of leniency that can be afforded to you at this time.
Remorse
32
It was clear that during your plea, and specifically during the reading of
Ms Anastasiou’s statement, that you are remorseful for the pain your offending has caused, particularly as it relates to her young child.
33 I accept that the sentiments you have expressed are genuine.
34 You have pleaded guilty in circumstances which reflected your willingness to abandon a trial and contested facts, which I accept is reflective of some contrition, remorse and bodes well for your prospects.
35 You have pleaded guilty during the COVID-19 pandemic. There is a very significant utilitarian value to your plea in this context. Every pending trial that resolves during this period frees a spot for one of the many hundreds of criminal trials that have not been reached and will not be reached during this period.
36 You have experienced a significant portion of your period on remand in a restricted prison environment, with no visits since March 2020. This has also removed the possibility of you engaging in rehabilitative programs during this period. I take this matter into account.
Prospects of Rehabilitation
37 Since being in custody you have re-engaged with methadone treatment and have indicated a desire to continue with that upon release. I was provided with urine screens from your period in custody which are negative for illicit substances.
38 Given the supports you have put in place in relation to accommodation with your father and prospective employment, I am satisfied that your prospects of rehabilitation with the support of a community corrections order are reasonable. I have had regard to the important need for general deterrence and denunciation of a crime such as yours - as well as punishment and in your case, specific deterrence, given your history and problems with addiction.
39 I have also had regard to current sentencing practices, and I was particularly assisted by the Prosecution’s sentencing submissions in relation to assessing your overall criminality, and also as to current sentencing practices.
Sentence
40 On the charge of attempted armed robbery, you are sentenced to a period of 22 months imprisonment in combination with a Community Corrections Order.
41 The Community Corrections Order will be of two years duration.
42 You will perform 150 hours of unpaid community work during that order. Up to 50 hours of treatment hours can be credited towards those 150 hours of unpaid community work.
43 You will engage in drug and alcohol assessment and treatment as directed, mental health assessment and treated as directed and supervision.
44 In relation to the prison component of that I declare, pursuant to s.18 of the Sentencing Act, that you have served 642 days pre-sentence detention. Is that correct? No.
45 MR TEO: No, Your Honour. The current up to date pre-sentence detention is 709 days.
46 HIS HONOUR: Right.
47 MR TEO: So in terms of the sentence Your Honour's imposed that's already been served, so that's in excess of the 22 months' imprisonment.
48 HIS HONOUR: Yes, for some reason – I'm not sure if we got – we must have had some incorrect information on the previous occasion, because throughout all – each stage – I'd been minded that 22 months would just about get there. Now, I just want to make sure this is right, because - - -
49 MR TEO: Yes, Your Honour.
50 HIS HONOUR: - - - I've had my associate try and identify that figure and that's based on what we've been previously advised. Mr Reardon, do you have a – you agree with Mr Teo, I take it?
51 MR REARDON: Your Honour, by my reckoning I have come to a lower figure than my learned friend.
52 HIS HONOUR: Yes.
53 MR REARDON: I've come to the figure of 648 days.
54 HIS HONOUR: Yes.
55 MR REARDON: I mean, obviously if I've made an – I would like to be wrong on that but I - - -
56 HIS HONOUR: See, 709's almost two years and he hasn't been in custody for almost two years, has he?
57 MR REARDON: It's been one year nine months and nine days according to my calculations.
58 HIS HONOUR: Yes. Which is just short of 22 months.
59 MR TEO: Yes, Your Honour, I've just double checked that. He was remanded on this offending on 19 November 2018 and that's a period of 647 days not including today, so my error in terms of the 709.
60
HIS HONOUR: Yes, all right. So 647 not including today sounds right,
Mr Reardon?
61 MR REARDON: May it please the court.
62 HIS HONOUR: Today would be 648. All right. I declare that you have served 647 days not including today, Mr Stephenson, of that sentence.
63 Pursuant to s.6AAA were it not for your plea of guilty I would have sentenced you to four and a half years imprisonment with a three year non-parole period.
64 Now, do you consent to entering a community corrections order when you're released from custody?
65 OFFENDER: Yes, Your Honour.
66 HIS HONOUR: And the effect of that is – the effect of my sentence is I expect within the next few weeks, or it might even be sooner if you're getting – I know that there's administrative deductions going on these days because of the pandemic. That's nothing to do with me, I don't enter into that and try and calculate those things. It might be you get told that given the pre-sentence detention your sentence is already expired, I don't know. I've sentenced you on the basis of the appropriate sentence for your crime, given the matters in mitigation that have to be taken into account and giving everything its appropriate weight, and that's a sentence of 22 months which you'll be released from in the coming days, and you'll enter a two year community corrections order, and if you breach that community corrections order by either further offending or non-compliance you'll be back before me and I'll have to sentence you again for the breach, and for this offence again, so don't breach it. It's an opportunity, it's there to support you.
67 I haven't put a condition in of judicial monitoring – that is, bringing you back before me every six months or so – because I've formed the view that you seem to have the right attitude now, but of course that goes out the window as soon as you put alcohol to your lips or some other substance. That's your problem, that's your lot in life. Some people simply can't go down that path in moderation; you're one of those people. So use the support and take the opportunity. Don't come back.
68 Now, I'll sign that order and then that'll be – that is, the community corrections order - I'll also sign the order of my sentence – and that community corrections order will then be sent out to the prison, Mr Stephenson, and you'll be asked to sign it, and when you're ready for release you report to Corrections and follow their directions, okay?
69 OFFENDER: Thank you, Your Honour.
70 HIS HONOUR: Right. Now, there's a disposal order too, I think, Mr Teo? I make that disposal order.
71 MR TEO: Thank you, Your Honour.
72 HIS HONOUR: Is there anything else?
73 MR TEO: Your Honour, prior to the matter being allocated to Your Honour the matter was listed for a mention, as it was obviously a trial at that time. I just seek an order vacating the mention date of 19 April 2021.
74 HIS HONOUR: Yes. Date of 19 April 2021 is vacated. All right, there's no other orders I needed to make in this matter?
75 MR TEO: No, Your Honour.
76 HIS HONOUR: Thank you everyone - Mr Teo. Thank you, Mr Reardon – both of you, the way you approached this - and Mr Stephenson for your part, but particularly counsel. It's particularly important to the court at this time that each party – they've got their own roles and responsibilities and interests that they have to litigate, but to come to this matter and look at it sensibly and speak to Mr Stephenson, and I think it's an outcome that everyone can be happy with. So thank you again and I'll now adjourn the court.
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