Director of Public Prosecutions v Sweet

[2017] VCC 1431

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01051

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN SWEET

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2017
DATE OF SENTENCE:	6 October 2017
CASE MAY BE CITED AS:	DPP v Sweet
MEDIUM NEUTRAL CITATION:	[2017] VCC 1431

REASONS FOR SENTENCE
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Subject:
Catchwords:  Theft, Armed Robbery
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Mr N. Brown	Paul Vale Criminal Lawyers

HER HONOUR:

1Benjamin James Sweet, you have pleaded guilty to one charge of theft and three charges of armed robbery.  The maximum penalty for armed robbery is 25 years, and theft is ten years. 

2The circumstances of your offending are set out in the summary of prosecution opening for plea (Exhibit A), and can be summarised as follows.

3On the night 10 July 2016, Rebecca Carr collected you and two friends from Southern Cross Station.  Ms Carr took you to Elizabeth Street, where you told her your car was parked.  You all then got in that car, which had been stolen in the early hours of that morning from the Melton area, and dropped your two friends at the Sunshine Train Station.  That conduct constitutes the theft of motor car.

4Ms Carr drove you in the stolen car, now bearing altered registration plates, to BP in Brooklyn, where Hassab Anjam, age 21, was working.  You both bought some food, though Ms Carr complained her pie was cold.  You then went back in the shop carrying a black bag, and demanded to be given another pie.

5Initially, Mr Anjam refused, given that it was partially eaten.  However, you became increasingly agitated and abused and threatened him.  Mr Anjam repeatedly told you to get another pie, but you became even more angry, aggressive and abusive, and demanded money.

6You reached into your bag and removed a black homemade firearm designed to look like a machine gun.  You pointed it at Mr Anjam, continuing to make demands and threatening him.  Mr Anjam moved to the rear of the counter area where you could not see him, and you then took some items from the shop and left.  That is the conduct constituting the first armed robbery count.

7I was provided with the CCTV footage from BP depicting you carrying out this armed robbery (Exhibit B).  It is apparent to me that you became more agitated and aggressive as time progressed, and that Mr Anjam was clearly threatened and scared by your actions.

8You then got in the car and Ms Carr drove away.  A short time later, you wound down the window and fired the firearm.  You then removed the spent cartridge and fired it again.

9You then travelled to McDonald's at Williams Landing, where three young workers aged between 19 and 21 and the manager were working, but had closed the store.  Ms Carr parked the car and tried to get away from you, though you told her to get back in the car, otherwise you would shoot a McDonald's employee.

10You approached the front door of McDonald's, carrying the bag with the firearm.  After getting the attention of staff, you told them you needed to use the facilities.  Jessica Wilson, the manager, and Andrew Saker, unlocked the door and directed you to a nearby service station.  You reached into the bag and removed the firearm.  You dropped the bag and turned around towards them while cocking the firearm bolt.  This made a loud pop noise, which was heard by staff and Ms Carr.  She became scared and drove off in the stolen car.

11You went inside McDonald's, and were yelling and abusive.  You then realised that your car that you travelled in was no longer there.  You grabbed
Ms Wilson's car keys and ran out the front, driving away in her car.  That is the conduct constituting the second count of armed robbery.

12You then went to BP Tarneit in Ms Wilson's car and approached Mr Amit Sehajpal, who was cleaning his taxi.  You pointed the firearm at him and demanded he give you his car keys.  He refused, you then approached his cab and took $50 in cash, which was in the coin dispenser, and drove away in
Ms Wilson's stolen car.  That is the conduct constituting the third armed robbery.

13Police later located Ms Wilson's stolen car in Hopper's Crossing.  A few days later, you were arrested at a hotel in Laverton.  Police located five .22 long-rifle cartridges in your pockets, and in your room located the coin dispenser stolen from Mr Sehajpal taxi, and a pair of black tracksuit pants worn by you as seen on the CCTV footage during this offending.

14On 26 July 2016, police found a stolen Ford in Hillside.  They located the .22 long-rifle used by you during this offending in the front passenger side foot well under the floor mat (see photographs in Exhibit C).

15You made a no-comment record of interview.  I was provided with victim impact statements from Ms Wilson and Mr Anjam (Exhibits D and E), which were read in court.  Mr Anjam's studies and employment have been affected, and he has lost confidence socially. 

16Ms Wilson states:

"I've truly lost the person I used to be.  My determination, independence, drive and judgment have completely diminished with the absolute low point when I was diagnosed with PTSD.  It affected my entire life.  I hope you can understand, before this happened to me, I was a young, bubbly woman full of determination, laughter, and had a massive future ahead of me.  I've lost all that, I just want my life back". 

17As to your personal circumstances, I received a report from Dr Fiona Best, consultant forensic psychiatrist, dated 18 August 2017.  Additionally, I received reports from Carla Lechner dated 26 June, November 2014, and 28 September 2011 respectively, and a Department of Human Services report dated 6 January 2015.

18These latter reports were prepared for the purposes of previous court appearances, and I take all that material into account. 

19You are currently 29 years old, having been 28 at the time of this offending.  Your mother lives in Melbourne and is unemployed, and your father lives in Bacchus Marsh and is a forklift driver.  They both remain supportive of you.  Your father was in court with you during these proceedings.

20You have a brother and four other half or step siblings.  Your parents separated when you were very young.  Initially you lived with your brother and mother.  In 1991, Child Protection became involved, and then after this intervention, you resided with your father.

21You have however had a troubled relationship with your father's partner Anna, often resulting in you leaving their home after periods of living with them.

22You struggled with your school, given your disruptive home life, but also as a consequence of your mild or borderline intellectual disability, diagnosed when you were 16.  After attending special schools and then completing a TAFE course, you moved out of home and commenced working as a plasterer when you were age 16.  You have been entitled to, and received, a disability pension in your adult years.

23You have had longstanding issues with substance abuse.  You started using cannabis at a very young age, when you were in primary school, and progressed to methylamphetamine, GHB and MDMA in your teenage years.  This substance abuse has continued throughout your life, and has marred your development.  Your drug use, combined with your intellectual disability, clearly contributed to your presentation and irrational actions in the course of this offending.  Though the ingestion of drugs is no excuse, it does provide some explanation for your conduct.

24Additionally, you have a significant health issue, with psoriasis.  Suffering from this condition causes your skin severe irritation, itchiness, sleeplessness and pain.  The severity of this condition fluctuates depending on your medication, and most recently its availability to you whilst in custody to ensure optimum treatment has been effected.

25You have a significant number of previous court appearances dating back to 2005.  Many of your prior matters involve offences related to driving, dishonesty and drugs.  You have been sentenced to periods in custody since 2009.  Most significantly, you have a prior conviction for armed robbery and other related offences from an appearance at this court in December 2011.

26It was at this time that Judge Smallwood expressed concerns in his sentencing remarks that you were at risk of becoming institutionalised.  Unfortunately, that prediction appears to have come to fruition.  Since that sentence was imposed, you have only had very limited time out of custody, breaching parole by reoffending a short period after your respective release times.

27You have not managed to stay out of trouble at times when you were in the community.  This was so relatively recently, when you were placed on a community correction order and justice plan in February 2015.  That order was designed to assist you in addressing your drug use and interpersonal conflicts.  At that time, it was reported you were motivated to make sustained changes in your life, and to secure employment. 

28However, your drug use continued, your placement living with your father broke down, and you committed offences and were placed on remand only months after those orders took effect.

29You have been on remand for these matters, or in custody for other matters, since July 2016.  I was informed that there is presentence detention referrable for these matters of 376 days.  Some of the time you spent on remand has been under management conditions, involving you in 23-hour lockdown.  This was for approximately five weeks at MRC and six weeks at Port Phillip during this year.  I take that into account.

30You have engaged in several courses, and I was provided with relevant certificates of completion whilst you have been on remand, and you have also worked as a billet.

31I was informed that this role recently has ceased, given your level of anxiety and associated deterioration of your skin condition and health.  I was also provided with some clean urine screens, however the most recent was from December 2016.

32I take into account your plea of guilty.  Although your plea was not at the earliest opportunity, I was informed that there were a series of negotiations before settlement was reached, and that you have pleaded to matters less serious than those originally charged.

33You have spared the witnesses the ordeal of giving evidence, and saved the community the time and expense of running a trial.  I also accept to a certain extent your plea of guilty is indicative of remorse.

34Given your history and drugs issues, your rehabilitation prospects are limited and depend on you successfully engaging in drug treatment and/or counselling over the long term.  I note in Dr Best's report you are described as being ambivalent about abstinence from substances.  Any attempts or assistance in you addressing your drug issues must be in the context of your intellectual disability, and suitably tailored, considering that limitation.

35You have expressed a willingness to attend a drug rehabilitation program, though with some reservations.  Your rehabilitation prospects are poor without addressing the substance abuse issues.  It appears from material provided to me today that you have commenced a drug and alcohol program available within the prison, and I encourage you to persist.

36I also received a letter today from a friend willing to support you when you are ultimately released from prison, with possible employment. 

37There were some aggravating features of your offending.  It involved a firearm, and some of the victims heard it make a loud pop noise, reinforcing their fears of a dangerous weapon under your control.  Each of your targets were soft and vulnerable.  The impact on each of your victims was significant.  It was a continued, frenzied episode of offending.  I accept that it was not particularly sophisticated or premeditated.

38Your counsel properly conceded this was serious offending, and the only disposition open to me was a term of imprisonment.  Your conduct on this night warrants significant punishment.  Young adults are entitled to feel safe in their workplace, both late night and early morning shifts. 

39You no doubt, with a firearm in your possession, and conducting yourself in an aggressive and abusive manner, struck real fear into each of your victims.  General deterrence, protection of the community, and denunciation are all important sentencing considerations. 

40Additionally, given your prior history, specific deterrence is also a relevant sentencing consideration.  I take into account all matters in mitigation referred to above, including your plea of guilty, intellectual disability, and conditions during some of your period on remand.

41Additionally, I take into account totality, given that you are current serving a sentence, and the number of offences before me.  Most recently, you were sentenced on 25 July 2017 to two years' imprisonment with a 15-month
non-parole period.

42Pursuant to s.14 of the Sentencing Act, I am required to set a new non-parole period.  If you could please stand, Mr Sweet?

43In respect of Charge 1, theft, you are convicted and sentenced to a term of imprisonment of one year;

44In respect of armed robbery in relation to the BP at Brooklyn, you are convicted and sentenced to a term of imprisonment of three years;

45In respect of the armed robbery in relation to the McDonald's restaurant, you are convicted and sentenced to a term of imprisonment of four years.

46In respect of the armed robbery on the taxi driver, you are convicted and sentenced to a term of imprisonment of two years.

47I order that one and a half years of the sentence imposed on Count 2, and six months of the sentence imposed on Count 4, be cumulative on the sentence imposed on Count 3, giving a total effective sentence of six years.

48I declare pursuant to s.14 a new non-parole period of four years. I declare presentence detention of 376 days. Pursuant to s.6AAA of the Sentencing Act, if you had not have pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of eight years, with a non-parole period of six years.

49Are there any other orders I need to make?

50MR BROWN:  The other orders were made, I believe, the other day, Your Honour.

51HER HONOUR:  I made them the other day.  All right, thank you.  You can remove the prisoner, thank you.  You can remove the prisoner, please.  Thank you, I will just stand down.

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