Director of Public Prosecutions v Zimin (a pseudonym) and Beuzeville (a pseudonym)
[2020] VCC 1224
•12 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RORY ZIMIN (a pseudonym) LEVI BEUZEVILLE (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 July 2020 |
| DATE OF SENTENCE: | 12 August 2020 |
| CASE MAY BE CITED AS: | DPP v Zimin (a pseudonym) and Beuzeville (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1224 |
REASONS FOR SENTENCE
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Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For Accused Zimin | Mr G. Davis | Ms R Boreham |
| For Accused Beuzeville | Mr D. Carolan | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Levi Beuzeville[1] and Rory Zimin[2], you have both pleaded guilty:
(a)to the charge of aggravated burglary on 21 September 2018. The ingredients of this offence involved your entry into a building with intent to assault a person. The maximum penalty for this offence is 25 years' imprisonment;
(b)to a charge of intentionally causing injury to Koby Wearne[3] on the same day. The maximum penalty for this offence is 10 years' imprisonment;
(c)to a charge of intentionally causing injury to Timothy Lynas[4] on the same day, and again the maximum penalty for this offence is 10 years' imprisonment.
[1] ‘Levi Beuzeville’ is a pseudonym.
[2] ‘Rory Zimin’ is a pseudonym.
[3] ‘Koby Wearne’ is a pseudonym.
[4] ‘Timothy Lynas’ is a pseudonym.
2Mr Zimin, you have also pleaded guilty to a charge of using a firearm with reckless disregard for the safety of any person. The maximum penalty for this offence is 10 years' imprisonment.
3Mr Beuzeville, you have also pleaded guilty to a charge of committing an indictable offence while on bail. The maximum penalty is 30 penalty units or three months imprisonment.
4Since the detailed prosecution opening has been admitted into evidence, I will summarise the circumstances.
Circumstances
5Prior to 21 September 2018, there were two incidents which led to the events of that day.
6First, on 19 September, Mr Wearne went to your home, Mr Beuzeville. There was a disturbance during which he was bitten by your dog, causing a serious injury to his right leg.
7Second, on 21 September, someone smashed the rear window of a motor vehicle parked in the driveway to your property, Mr Beuzeville. The car was owned by your girlfriend.
8At about 10 am on 21 September, both of you went to a unit in (redacted), Mildura. Inside the unit was Mr Wearne, Mr Lynas and Ms Maya Brient[5]. One of you knocked on the front door. When it was opened, one of you forced your way into the unit. Mr Zimin, you possessed a 12-gauge sawn-off shotgun and you, Mr Beuzeville, possessed a baton, described in the charge as a bundi stick. These circumstances constitute Charge 1, the charge of aggravated burglary.
[5] ‘Maya Brient’ is a pseudonym.
9You, Mr Beuzeville ran at Mr Wearne and began striking his head with the baton. This constitutes Charge 2 for both of you, causing injury intentionally to Mr Wearne.
10Both of you then chased Mr Lynas into the backyard. He tried to climb the back fence but both of you dragged him off the fence. Both of you then struck Mr Lynas to the head with you, Mr Zimin, using the butt of the shotgun. One or other of you kicked him and cut his bottom. This constitutes Charge 3 for both of you, causing injury intentionally to Mr Lynas.
11During the assault on Mr Lynas, you, Mr Zimin fired the shotgun twice, causing damage to the rear fence and the eaves of the house. This constitutes
Charge 4, using a loaded firearm with reckless disregard for the safety of any person. No one was injured by the firing of the shotgun.12After the shotgun was fired, both of you ran from the flat or unit. Mr Lynas was terrified and he left. Mr Wearne walked to a nearby house and was helped. He was taken to the Mildura Base Hospital by ambulance. The next day, he was flown to the Austin Hospital in Melbourne.
13Mr Wearne suffered broken nasal bones, broken teeth, bruising under the right eye and an open wound between the right side of the nose and the right eye. There was an open wound around the nose. It was deep enough to expose the bone. Mr Wearne had a closed reduction of his fractured nose and a splint was applied.
14Mr Lynas suffered a cut to his forehead and a gash to the back of his head. Those injuries bled. He had bruises from the kicking and cuts to his bottom.
15On 23 September, members of the police force arrested you, Mr Beuzeville. When interviewed, you said nothing.
16The next day, you, Mr Zimin, were arrested. You also said nothing when interviewed.
17On 21 September, you, Mr Beuzeville, were on bail for other charges.
Previous Convictions or Findings of Guilt
18Mr Zimin, you have appeared in a Victorian court five times facing criminal charges and twice in New South Wales. In Victoria, between March 2008 and November 2016, there have been thirteen offences including affray and intentionally causing injury. You have never been sentenced to imprisonment. The most significant penalty has been a community correction order. The charges in New South Wales resulted in good behaviour bonds.
19Between December 2013 and May 2018, you, Mr Beuzeville, have appeared in a court on six occasions and convicted of twelve charges. You have been sentenced to imprisonment twice. First, on 15 April 2016, in the Port Adelaide Magistrates' Court, you were convicted of committing an assault that causes harm and sentenced to 18 months imprisonment with a non-parole period of 12 months with the sentence suspended for 12 months. Second, on 23 May 2018, you were sentenced to an unsuspended imprisonment in a total of one month on four charges. There were 41 days of pre-sentence detention.
Victim impact statement
20On 12 December 2019, Ms Brient made a victim impact statement. After witnessing the events of 21 September, she no longer feels safe in her home or in Mildura where she has lived for 27 years. She suffers from nightmares, flashbacks and has a constant need to look over her shoulder. She felt so vulnerable she could not leave her parents' home. She could not attend job seeker and Centrelink appointments and lost her payments. She was unable to provide for her six year old son.
21She finds it hard to attend family and other social events because she fears something might happen to her or those around her. Sounds or objects remind her of the incident. She is angry that her mental state is such despite not committing any crime herself. The constant theme is fear, for herself and her children.
22Neither Mr Wearne nor Mr Lynas made victim impact statements.
Guilty pleas
23The charges against both of you proceeded through a committal mention hearing and a committal hearing in the Magistrates' Court and two directions hearings in this court. Your trials were set for the circuit at Mildura starting on 21 October 2019. A few weeks before the start of that circuit, each of you indicated an intention to plead guilty to these charges.
24In terms of the stage of the proceedings in which you indicated an intention to plead guilty, the indications of your intentions occurred late in the proceedings. For this purpose, the proceeding starts with the filing hearing and ends with my sentences. In terms of court events, that is why I say your indications came late.
25Your pleas of guilty have what is called a 'utilitarian' benefit. That is, by pleading guilty you have saved the victims and other witnesses from giving evidence at your trials and the cost and delay involved in running a trial.
26Your respective pleas of guilty are some evidence of remorse for what you have done.
Pre-sentence detention
27Excluding today you, Mr Beuzeville, have been in custody for 667 days, representing the time in custody since you arrest on 23 September 2018. For the purposes of pre-sentence detention, 21 days for the sentence imposed in the Magistrates' Court at Mildura on 17 July 2019 must be deducted
28Mr Zimin, you have accrued 688 days of pre-sentence detention since your arrest on 24 September 2019.
Section 16(3C)
29Mr Beuzeville, since you were on bail at the time of these offences, as the prosecutor reminded me, s.16(3C) of the Sentencing Act applies.
Personal circumstances
30Mr Zimin, you are now 33. You were born in Mildura, where your parents still live. Your father runs a successful retail business. Your mother retired from the practice of myotherapy. You have an older sister, who has a partner and three children.
31You attended a primary school in Mildura. You struggled and repeated either Grade 3 or Grade 4. In Grade 5, you were diagnosed as suffering from dyslexia.
32At 11, you were sexually assaulted on three occasions by a friend's older brother, who was aged 18. These were critical events in your life.
33At Merbein Secondary College, you were picked on because you preferred to be alone. You avoided classes and misbehaved when you were in the classroom. You left the school at 15 when asked to do so. You were in Year 8.
34After leaving school, you worked in a fish and chip shop for 18 months before working at the Mildura RSL club. You worked there for eight years. While there, you started an apprenticeship as a chef. You completed the practical components of the apprenticeship but not the written components. You are uncertain whether you completed your apprenticeship. Nevertheless, after the club you worked as a chef at other restaurants in Mildura.
35You lived at your parents' home until 18 when you moved into accommodation with a female housemate. You then started using drugs. You stayed away from your parents' home for two years and then returned, staying several more years. Then you moved to Melbourne, living with a friend and doing concreting work. Unfortunately, living in Melbourne reinforced your use of drugs.
36You lived in Melbourne for a while before returning to live with your parents. However, you were often away from their home, staying with friends.
37When you were 18, you had a relationship which lasted 18 months. You and your partner drank excessively. At 27, you had another relationship, which also lasted 18 months. You were abusive to your partner. One incident resulted in a court appearance in April 2016 where you were placed on the community correction order, which I mentioned earlier.
38Your current relationship is unusual. You and your girlfriend have known each other for 14 years. Once, you and she lived together. After you went into custody, she went to Queensland. She became pregnant there. You consider you are still in a relationship with her and speak daily with her while you have been in custody.
39You started drinking alcohol at 15 and smoking cannabis at 18. At 19, you started using amphetamines and ecstasy. Amphetamines became your drug of choice. By 20, you were using it daily. By your mid-20s, you started using methamphetamine on a daily basis. This continued until you went into custody. As often happens, you have used other drugs, oxycontin, hydro morphine, cocaine and magic mushrooms.
40You yourself trace your drug usage to masking the distress you felt about the sexual abuse and to avoid thinking about it.
41Also from your mid-20s, you have gambled, often daily. You hid this problem from others. But it left you without money and feeling angry and guilty. In part, you used methamphetamine to rid yourself of the guilt associated with your gambling.
42For about five years before being placed into custody over these charges, you had largely stopped working, living a disorganised life and using drugs.
43Three times you have attempted suicide. First, you overdosed when you were young. Second, about five years ago, you tried to shoot yourself. Third, when you were first remanded you tried to hang yourself.
44In custody, you are a billet in a kitchen, or in the kitchen, and have worked diligently. You have completed six TAFE courses including window cleaning, carpet cleaning, Occupational Health and Safety, a Barista course and food handling.
45You have completed several drug courses including 'managing cravings', 'relationships and drugs' and 'ice effects'. Starting on 10 June 2020, you completed six individual counselling sessions with Caraniche relating to drugs and alcohol. A psychologist, Sara Salesi, said of you[6]:
'He has attended scheduled sessions punctually and engaged appropriately; demonstrating motivation for change relating to his substance use and offending behaviour'.
[6] Letter dated 15 July 2020.
46Your family has visited you in custody.
Psychologist
47On 16 October 2019, Alison Mynard, a clinical psychologist, interviewed you at the request of your solicitor. She has extensive experience as a psychologist as well as a drug and alcohol counsellor.
48Ms Mynard administered a test called the Depression, Anxiety and Stress Scale 21, which showed you suffer from high levels of stress and depressive symptoms including low mood, lack of positive emotion, hopelessness, feeling withdrawn, lack of enthusiasm, worthlessness and a sense of meaninglessness.
49Based very much on your reactions over the years to the sexual abuse, she diagnosed post-traumatic stress disorder. She says your most prominent symptoms of the disorder were in what she calls the 'avoidant cluster'. You used substance to avoid thinking and dreaming about what happened to you. You have become emotionally numb, using substances to avoid feeling emotions. She noted other symptoms of the disorder.
50For the last five or six years, you have been suspicious of others, including your parents. Ms Mynard calls it 'paranoid'. Ironically, you have improved while in custody even though a sense of paranoia persists. She also details psychotic symptoms which she attributes to your drug taking.
51Without drugs while in custody, your nightmares have started again. You now think about the sexual abuse. Your anxieties have increased. Doing so makes you very anxious with your heart and mind racing, feeling flustered and an emotion you describe as a 'sink in the guts'. You undertake meditation, which does help you to slow down.
52Ms Mynard diagnoses five conditions, the most significant is the post-traumatic stress disorder. She sees your drug use as your means of surviving psychologically and emotionally. You medicated yourself with drugs. She believes you offended while being driven by impulsive behaviour, impaired reasoning and judgement. She says you perceived your co-offender was being targeted unfairly by the victims and believes you reacted out of your own insecurities and impulse to fight and not be victimised anymore.
53Although Ms Mynard does not give a formal prognosis, she recommends certain psychological treatment. Since the fact of the abuse is now known, you may be able to process these memories and progress. To do so requires a safe and stable environment, which she says is unavailable in prison.
54Nowhere does Ms Mynard address the fact you were armed with a shotgun and fired it twice.
Beuzeville
55Mr Beuzeville, you grew up in and around Mildura. You are the eldest of two children. Your sister, Amelie[7], is 28 or 29. You also have a half-brother, Jaxon[8], who is 15 or 16.
[7] ‘Amelie’ is a pseudonym.
[8] ‘Jaxon’ is a pseudonym.
56You have never married and have no dependants. You were in a relationship with Bella[9] and had been for four years.
[9] ‘Bella’ is a pseudonym.
57Your parents separated when you were five or six. Both have re-married. Their separation came as a great shock and you still do not know why they separated. The fact of separation and its aftermath affected you badly. Even now, you struggle with issues relating to your abandonment by your mother, which still causes you considerable distress. Although you have regular contact with your father, you have had none with your mother for the last three or four years.
58Initially, after your parents separated, you and Amelie went with your mother. However, after six months, your mother gave you to your father as you were more challenging than your sister. You lived with your father. Owing to your father running a business, you were often looked after by his parents.
59You attended Irymple South primary school and Irymple Secondary College, completing Year 10. Your father explains you left school at the end of Year 12 but you were educated to Year 10 level. He told Ms McLaren, the neuropsychologist, you completed Year 12 by turning up and having your name signed off but not attending classes.
60You had problems with reading and writing at primary school. Your mother arranged for you to receive tutoring, however, you only attended a few sessions. You were bullied at school because of your ethnic background and reacted by bashing the bullies. You struggled with learning. Your schooling has left you with rudimentary literacy skills. You were suspended a few times for fighting.
61While a student and aged 17, you witnessed a dreadful car accident, which killed six of your teenage friends, including your best friend. Their deaths affected you profoundly. You attended six funerals in a week. You became depressed and started using cannabis heavily. You did not receive any post-trauma counselling.
62For about two years after leaving school, you were employed as a labourer on your father's farm and then on a neighbour's farm. Your father says you have a 'green thumb' and were good at manual labouring. You then went to Adelaide to live with an uncle and worked as a concreter.
63You started using cannabis at 13, amphetamines and ecstasy at 15, cocaine at 21 and Xanax at 22. When you were about 20 you started using ICE heavily. While in Adelaide, you took too much ICE and were admitted to the drug unit at the Queen Elizabeth Hospital, where you stayed a week.
64Leading up to 21 September 2018, you were using about 7 grams of cannabis and about 3.5 grams of methamphetamine daily. These are large amounts.
65Apparently, you have not worked for five or more years. You stopped working because of your drug use. Even now, you fear your reaction to being given orders at work for you might get annoyed and hit the person. Despite this, your father has arranged work for you on your release with friends in Mildura provided you are not using drugs and are respectful.
66You have never received drug treatment or counselling except when you were admitted into the drug unit of the Queen Elizabeth Hospital in South Australia.
67Before the events of September 2018, you were living with Bella in a rented property in Mildura. She had been your girlfriend for four years. The relationship ceased in about June 2019 because you were in custody.
68In custody, you have completed six programmes about drugs including a course called 'Release Related Harm Reduction Program' and another called 'ICE Effects Program'. You have also completed Certificates I, II and III in Kitchen Operations and a programme relating to occupational health and safety.
69In July 2019, January 2020, March 2020 and two dates in June 2020, you have returned negative analyses of your urine for a host of well-known drugs. However, in December 2019, you used synthetic heroin once.
70Once released from custody, it appears your father will not have you live or work with him because of the issues between you and his wife. Justin and Ethan Glassop[10] speak well of you, especially before your descent into drug taking. Ethan Glassop still remains your good friend.
[10] ‘Justin’ and ‘Ethan Glassop’ are pseudonyms.
Psychologist
71Carla Lechner is a clinical psychologist. At the request of your solicitors, she interviewed you on 30 October 2019. This was done by an audiovisual link.
72Ms Lechner gave you a test to determine your understanding of the spoken word. She recommended a neuropsychological examination. She also tested your depression. Your symptoms were mild.
73She recorded your version of the events leading up to the incident[11]:
'He stated it was really stupid…these people came to my house the night before, friends of all of us…had a disagreement over drugs and one went to stab me and my dog attacked him…the next morning they smashed up my girlfriend's car…next day went to speak to them…the door was opened and because the girl knew [Rory] she let us in…I asked why they smashed my girl's car and then a brawl happened in the house'.
[11] Report dated 4 November 2019 at p 5.
74You had been using ICE at the time of the offences.
75Ms Lechner considered you suffered from depression and post-traumatic stress disorder in your mid to late teens. To deal with the symptoms you medicated yourself with drugs. While the post-trauma symptoms have gone, you remain addicted to cannabis and methylamphetamine. Your addiction is long-term and entrenched so much so that she says the condition has reached the level of a recognised psychological disorder called 'Stimulant and Cannabis Use Disorder'. It is in remission now because you are in prison. Given your use of synthetic heroin, it is more accurate to say the condition is in partial remission.
76She also identified cognitive deficits which rendered you liable to the influence of others, undermined your judgement and ability to make proper decisions. She acknowledged your regret over your actions and the hurt caused to others.
77Although you want to stop using drugs, Ms Lechner believes you lack the range of skills to do so. To her, your most pressing need after your release from custody is attending a residential drug rehabilitation programme. This would help continue your freedom from drugs while in custody but also enable you to develop better stress and mood management skills.
Neuropsychologist
78Acting on Ms Lechner's recommendation, your solicitors arranged for you to be assessed by a neuropsychologist, Anna McLaren. She assessed you on
6 December 2019.79Over three and a half hours, Ms McLaren gave you a large number of tests. Your results were variable for the tests, covering the extremely low to the low average range. For the extremely low, you are in the bottom two per cent of persons. For the low average range, the lowest 10-20 per cent of persons are in that range.
80Overall, she found you have a mild intellectual disability due to a Full Scale IQ of 66. She determined you function from the borderline to extremely low in nearly all areas of cognitive functioning. This translates into:
(a)difficulty in understanding information presented to you, particularly the more complex or less literal information. You may become confused and may misunderstand instructions or information;
(b)difficulty expressing your emotions or getting your message across. This may lead to frustration and, in turn, may lead to physical action;
(c)your limited ability to plan and organise and poor abstract and logical thinking means you will struggle to weigh up information well enough to make calm, rational and appropriate judgments;
(d)your poor attention and ability to learn may lead you to being overwhelmed and reacting abruptly;
(e)your limited intellectual and logical reasoning skills mean you may have difficulty fully comprehending the wrongfulness of your actions; and
(f)using ICE at the time of the offences may mean your cognitive functioning was further reduced from its normal impaired level.
81Although noting you told her of the deterioration of your mental state while in custody, Ms McLaren was non-committal on the effect of being in custody upon you: she recommended another, more specialised, opinion in that regard.
82Answering a question posed by your solicitor, Ms McLaren saw you as a risk of re-offending because of the level of your intellectual functioning, your history of limited emotional regulation and reactive behaviour and, importantly, your use of drugs, especially ICE. To avoid re-offending you need appropriate support including drug support.
Discussion
83The offence of aggravated burglary was created to prevent the kind of behaviour which both of you did by setting a very high maximum penalty of
25 years' imprisonment. In her second reading speech, the then Attorney-General explained why Parliament was being asked to set the maximum penalty for aggravated burglary at 25 years' imprisonment. In part, she said[12]:'The prevalence of burglary and home invasion style offences has caused great disquiet in the community. These offences undermine the sense of security that people feel in their homes and workplaces…The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened'.
[12] Parliamentary Debates, Legislative Assembly, 24 April 1997 at 873 cited in R v Hogarth (2012) 37 VR 658 at [36].
84That was in 1997. More than 10 years later, our Court of Appeal re-assessed the level of sentences imposed for the charge of aggravated burglary in the cases of Hogarth v R[13] and DPP v Meyers[14]. The result of the re-assessment is shown when in a recent case of Maslen v R[15], the court said of the complaint of manifest excess, of a sentence of six years' imprisonment for the offence[16]:
'To the contrary, and bearing in mind that the maximum penalty is 25 years' imprisonment, Hogarth v Meyers makes it plain that a sentence of six years' imprisonment, on a plea of guilty, may well be apposite for a serious case of aggravated burglary'.
[13] (2012) 37 VR 658.
[14] (2014) 44 VR 486.
[15] [2018] VSCA 90.
[16] [At [40].
85I quote that passage to show how seriously courts are expected to view the offence of aggravated burglary.
86In Meyers[17], the Court set out the considerations ordinarily relevant to assessing the relative seriousness of the offence of aggravated burglary. I will address those considerations.
[17] (2014) 44 VR 486 at [47] to [49].
87At the point of entry into the flat, both of you intended to assault someone. You have admitted the intention to assault through your pleas of guilty to the charge of aggravated burglary. Both of you were armed with weapons. One of the weapons was particularly dangerous, being a loaded shotgun. The other is described as a 'bundi stick' and is described in the charge as an offensive weapon.
88You entered the flat forcefully. Your entry was not late at night or in the early hours of the morning as so often happens in these cases. It was mid-morning.
89There were two of you and both of you expected the two men you assaulted to be present. The circumstances must have been terrifying for the two men assaulted and certainly were for Ms Brient as she made clear in her victim impact statement.
90Overall, this was a serious kind of aggravated burglary.
91Neither of you have lengthy criminal histories. Mr Zimin, you have never been sentenced to imprisonment but you have been convicted of violent offences and possession of firearms. While Mr Beuzeville, you were sentenced to a month’s imprisonment. You were sentenced to a lengthy period in
South Australia but that sentence was suspended and was not activated or restored. You too have been convicted of offences of violence and possession of firearms.92Turning to you, Mr Zimin.
93It is clear you suffer from a previously undiagnosed post-traumatic stress disorder. This occurred when you were sexually abused when young. The disorder is longstanding, having lasted since you were 11. Until recently, it was not diagnosed. Consequently, it has never been treated. In the absence of formal treatment, unfortunately, you have tried to avoid the effect of some of its symptoms by using drugs. You have self-medicated. You have done so for many years. You have attempted suicide on three occasions. Plainly, suicide is the worst outcome of a mental disorder. An attempt is not far behind. Your involvement in the offences was a product of the serious impairment to your judgement due to some of the symptoms of the disorder and the effects of your drug addiction.
94Your disorder requires treatment now that it is diagnosed. While some treatment may be available in prison, the best treatment is available outside the prison system. Whether you are rehabilitated depends on you receiving appropriate treatment, which depends on your willingness to receive it. There are promising signs. You have shown remorse. You have the strong support of your family. You have busied yourself in custody through work and courses. Unlike so many who come before the courts, you have a serious occupation to return to after release. Your prospects of rehabilitation are reasonable.
Beuzeville
95Turning to you, Mr Beuzeville. Your counsel relied on propositions or limbs 1, 3, 4 and 6 stated in the case of R v Verdins[18] and submitted your intellectual disability:
(a)makes it difficult for you to make calm, rational judgements;
(b)a tendency to get overwhelmed and react abruptly;
(c)your difficulty in thinking through the appropriateness of your actions;
(d)difficulty in fully comprehending the wrongfulness of your actions.
[18] (2007) 16 VR 269.
96I accept your disability has those effects. Each of the propositions or limbs of Verdins are engaged to an extent. They operate to mitigate the sentences I would otherwise have imposed.
97Your counsel drew my attention to paragraphs 50 to 55 in the case of
Muldrock v R[19]. In a sense, the effects of your intellectual disability are fully described by the psychologist and amply summarised by your counsel. However, their Honours stressed the issue of general deterrence for a person with an intellectual disability, citing from the judgments of Young CJ andLush J in R v Mooney[20].[19] [2011] HCA 39.
[20] Unreported, Victorian Court of Criminal Appeal, 21 June 1978 at p 5.
98I accept you are remorseful for your actions. Your counsel conceded your ability to abstain from using drugs will determine your prospects of rehabilitation. You have the support of an important part of your family. Although lacking the skill of a chef, you are a good labourer with a 'green thumb'. You need counselling to overcome the grief you have suffered from your deep-rooted sense of abandonment. Now that that has been identified, the issue can be addressed. While in custody, you too have busied yourself in courses and occupations. You have completed Certificates I, II and III in kitchen operations and in occupational health and safety. You have worked in the kitchens and in horticulture in prison. Your drug addiction remains a real problem for you. Your prospects of rehabilitation are also reasonable.
99During the pandemic, both of you have experienced lockdown regularly at the Metropolitan Remand Centre and your access to supports and services have been limited.
100I have spoken about the offences. I have spoken about your personal circumstances. I do not propose to sentence you differently. Mr Zimin, you possessed the firearm and used it. Mr Beuzeville knew you possessed the firearm. He used the bundi stick on Mr Wearne, inflicting considerable injury. Your personal circumstances are different but, generally, point in the same direction. General deterrence points to a lesser sentence for you,
Mr Beuzeville but the impact of your mental disorder, Mr Zimin, shown through attempts at suicide indicate the level of the disorder. It also impacts on general deterrence.101In fixing the non-parole periods, I am grateful to counsel referring me to the case of R v Tran[21], especially at paragraphs 27 and 28.
Sentence
[21] [2006] VSCA 222.
Mr Zimin
102On Charge 1, aggravated burglary, I sentence you to three years' imprisonment. This is the base sentence.
103On Charge 2, causing injury intentionally to Mr Wearne, two years' imprisonment.
104On Charge 3, causing injury intentionally to Mr Lynas, 18 months' imprisonment.
105On Charge 4, using a firearm, two years' imprisonment.
106Six months of the sentences on each of Charges 2 and 3 and two months of the Charge 4 will be served cumulatively upon themselves and upon Charge 1.
107The total effective sentence is four years and two months' imprisonment.
108I will set a non-parole period of two years and eight months and declare 688 days of pre-sentence detention.
Mr Beuzeville
109On Charge 1, aggravated burglary, I sentence you to three years' imprisonment. This also is the base sentence.
110On Charge 2, causing injury intentionally to Mr Wearne, two years' imprisonment.
111On Charge 3, causing injury intentionally to Mr Lynas, 18 months' imprisonment.
112On the Charge 4, on the charge of committing an indictable offence while on bail, two months' imprisonment.
113Six months of the sentences on Charges 2 and 3 and all of the last charge will be served cumulatively upon each other and upon Charge 1. The total effective sentence is four years and two months.
114I will set a non-parole period of two years and eight months.
115I will declare 667 days of pre-sentence detention.
Section 6AAA
116If both of you had not pleaded guilty to the charges, I would have imposed a total effective sentence of five years and two months' imprisonment with a
non-parole period of three years and nine months' imprisonment.117Are there any other matters, gentlemen?
118MR DAVIS: No, Your Honour.
119MR O'DOHERTY: No, Your Honour.
120HIS HONOUR: If there is no other matters than I will adjourn the court.
121MR DAVIS: As Your Honour pleases.
122MR CAROLAN: As Your Honour pleases.
123HIS HONOUR: Before we go my associate's reminded me, the media or some element of the media has sought that I arrange for my sentencing remarks to be placed on our media, so that presumably that element of the media can listen to what I have said for the purposes of reporting if so desired.
124The only thing that occurs to me is that with Mr Zimin I have paid particular attention to the fact that he was sexually assaulted at the age of 11, and I am concerned about the possibility of that being publicised. Do any of you want to say anything about that request?
125MR DAVIS: Your Honour, I have concerns about Mr Zimin's history being closed. I was unaware (indistinct) - have not been able to obtain his instructions. But it would be, I think, preferable if there could be some editing or direction so that that aspect of the sentencing's not publicised. He's going to go back and live in a fairly small time, and I think there's 20 odd thousand people in the distract.
126HIS HONOUR: Does anyone else want to say anything?
127MR DAVIS: So I'm assuming Mr Zimin's instructions, but I think it's reasonable that an application be made under the Open Courts Act for some (indistinct) on that publication, Your Honour.
128HIS HONOUR: Do either of the other counsel wish to be heard?
129UNIDENTIFIED SPEAKER: (Indistinct words.)
130HIS HONOUR: I beg your pardon?
131MR O'DOHERTY: Your Honour, I endorse what my friend Mr Davis has said. That there should be - pardon me. There should be an embargo on disclosing anything to deal with Mr Zimin's sexual abuse circumstances. I mean, I don't know what Mr Zimin's position is himself but I'm assuming, unless he seriously objects to what we're proposing, he would support it.
132HIS HONOUR: Yes. I mean, the easiest way for me to do that is just to deny the request and not to place it on so it can be listened to by either the media or anyone else. But it is usually the media that listens. That would be the simplest way of doing it in ensuring that it is not disclosed. It runs the risk of perhaps inaccurate reporting at a later stage but it overcomes the risk of someone not being advised of an embargo in that regard. Do any of you wish to say anything about that?
133MR DAVIS: I'll accept Your Honour's direction, Your Honour, and it's appropriate - what Your Honour's said is an appropriate thing to do in these circumstances, I believe.
134HIS HONOUR: All right. Well, in those circumstances I will deny the request to place it on our media portal so it can be listened to by anyone.
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