R v Bene

[2020] NSWDC 397

District Court

New South Wales

Medium Neutral Citation:	R v Bene [2020] NSWDC 397
Hearing dates:	1 July 2020
Decision date:	24 July 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 3 years 2 months with a non parole period of 1 year 11 months.
Catchwords:	CRIME - SENTENCE - assault occasioning actual bodily harm whilst in company
Legislation Cited:	Crimes Act 1900 (NSW): s59(2)
Category:	Sentence
Parties:	Regina (Crown) David Bene (Offender)
Representation:	Mr Kotsis (Crown Prosecutor) Mr Jiang (Counsel for the offender)
File Number(s):	2017/136556
Publication restriction:	Nil

Judgment

1. David Bene, you appear for sentence today in relation to one offence, namely assault occasioning actual bodily harm whilst in company of others.

2. This involves a contravention of s59(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment. There is no standard non-parole period.

3. The facts surrounding your offending are contained in an agreed statement of facts. Slightly recast by me as to style, but not substance, the facts are as follows.

4. On 17 April 2017, you were on bail for alleged offences of: stalk / intimidate and possess drug; resist / hinder police and intimidate; incite assault police; intimidate police; affray; custody of a knife in a public place; driving matters; possess drugs and driving matters; supplying drugs; possessing drugs; goods in custody; and driving matters.

5. Whilst on that bail, you were picked up by Mr Youkhana and an unknown man in a motor vehicle in the Sydney suburb of Bonnyrigg.

6. The three of you then drove around the local area and, according the agreed facts, you “socialised” – whatever that may mean.

7. But at some point, this “socialising” turned to illicit drugs and you asked the unknown man if he were able to source ice.

8. As it turned out, the unknown man was able to source ice. In fact, he knew a man called Mr Chandra who could supply that drug. A text message was sent to Mr Chandra in which there was a request by the unknown man for Mr Chandra to supply ice.

9. The three of you then travelled in Mr Youkhana’s motor vehicle to Mr Chandra’s house in Green Valley. At the time you arrived, Mr Chandra was not at home. However, shortly after your arrival, he returned to his home. He saw the unknown man and walked across the road to meet him. The unknown man and Mr Chandra spoke through one of the windows of the motor vehicle.

10. It was at this point that you, having earlier got out of the car, arrived at the scene. You said, “Do you remember me?” Why you said that is not revealed in the material before me; and has not been the subject of any explicit submission by either the Crown or your counsel.

11. When Mr Chandra turned his attention from the unknown man to you after you asked that question, Mr Youkhana got out of the motor vehicle and, in an unprovoked attack, punched Mr Chandra in the head from behind. It is not clear to me whether this assault was part of the joint criminal enterprise. I have not understood it to be part of the Crown case that it was – or that your otherwise unexplained earlier question was intended to be a distraction to Mr Chandra, thereby allowing Mr Youkhana to punch him in that vulnerable position.

12. Mr Chandra fell to the ground as a consequence of that blow by Mr Youkhana.

13. Somehow, Mr Youkhana managed to get Mr Chandra into the motor vehicle after which he, the unknown man, you and Mr Chandra “went for a drive” – as it is referred to in the facts.

14. The purpose of the drive is unclear. However, it does not seem to have been an agreeable one for Mr Chandra because, during the course of the drive, he was elbowed to the face and burnt with something on his chest.

15. The agreed statement of facts does not tell me who it was that elbowed Mr Chandra in the face; nor who it was who burnt him with something on the chest – but it is agreed that, whoever did it, the other two were involved in a joint criminal enterprise to do it; therefore, all three of you are criminally responsible for the actions of whoever it was who did these things in the car.

16. Eventually the car stopped. Mr Chandra got out of it and made his was home.

17. Whether the drugs were ever supplied is also not revealed in the material before me.

18. Mr Chandra went to the police and you were arrested on 6 May 2017.

19. You were refused bail.

20. In terms of the objective seriousness for an offence of its kind, the offence for which you are to be sentenced today is slightly above a mid-range offence.

21. It is additionally aggravated by the fact that you were on conditional liberty.

22. There is no victim impact statement from Mr Chandra. The Court does not know whether there were any permanent injuries – physical or psychological – sustained by him. Undoubtedly, the experience would have been a frightening one for him, but I shall not speculate about the extent of his injuries, adversely to your interests, in the absence of anything particular being put before me.

23. At the time of your offending you were a little over 20 years old. You are now 23 years of age.

24. You did not give evidence in the sentence hearing. Rather, your subjective circumstances came before the Court through a sentencing assessment report, an update of that report, and a psychologist's report prepared on your behalf by Dr Klamer. She has diagnosed you as having a substance / medication induced psychotic disorder and an anti-personality disorder. I am not satisfied, however, on the balance of probabilities, that there is any causal connection between those conditions and your offending on this occasion.

25. Your parents were Christian Iraqis and suffered persecution in that country because of their faith. Accordingly, in 1985, they came to Australia to escape that persecution. After your parents came to Australia, they had 6 children - and you were the third of those 6 children.

26. Although your father was very strict (but I do not use that expression critically of him), you were brought up in a loving and supportive household.

27. Your education was unremarkable.

28. You left school at the end of Year 10 without any clear idea about what you would do for work. For a time, at least, you worked in your father’s shop. But you have had limited legitimate work. You have no additional educational qualifications.

29. Since you were 16, however, you seem to have spent most of your time in acquiring and consuming illegal drugs, mainly cannabis. It is noteworthy that, in the two years before the commission of the offence for which you are to be sentenced today, you would spend approximately $100.00 to $150.00 a day on cannabis. As you were not legitimately employed in this period, it is clear that this money would have necessarily been obtained through questionable activities.

30. In fact, your criminal history dates back to when you were 14 years of age.

31. The offences you committed as a child cannot be held against you, but as an adult you have a number of drug offences and driving offences. Those matters mean that you cannot be extended the leniency which, in appropriate circumstances, can be extended to a first offender.

32. However, you were a relatively young man at the time you committed this offence and the Court is required to extend leniency to you for that reason.

33. To date, you have not sought any professional assistance for your significant illicit drug use.

34. In both the psychologist’s report and in the sentencing assessment report there is a notation that you have minimised your responsibility in connection with your offending behaviour. Indeed, in the psychologist’s report, you denied asking the question, “Do you remember me?” – and notwithstanding that it is contained in the agreed facts.

35. Because of this minimisation, and your absence from the witness box, I am not persuaded on the balance of probabilities that you are genuinely remorseful for your criminal conduct.

36. Remorse is of course an important factor in assessing a person’s prospects for rehabilitation.

37. In all the circumstances, I regard your prospects for rehabilitation as being guarded – the most positive factors in your favour being: your relative youth; and the support of your family (I note that your parents were present during the sentence hearing).

38. In your case, because of your psychological conditions, general deterrence is of reduced (but still some) significance. However, specific deterrence is fully engaged, as is the need to encourage your rehabilitation.

39. Parity is also a significant consideration in your case because I have already sentenced Mr Youkhana (cf R v Youkhana [2020] NSWDC 100).

40. Mr Youkhana was of course older than you. His moral culpability was slightly higher in that it was he who initially punched Mr Chandra, and he had a more significant criminal record. On the other hand, his childhood was seriously dysfunctional (yours was not), and he had a more significant psychological condition by reason of his long-term involvement with drugs. And he, like you, was on conditional liberty (both on parole and on bail).

41. You entered a late plea of guilty and, accordingly, there will be a 10 per cent discount for the utilitarian value of the plea.

42. No sentence other than a period of fulltime imprisonment is appropriate and the contrary was not submitted on your behalf by experienced counsel.

43. Notwithstanding that this will not be your first period of fulltime imprisonment, I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I am doing this: first, because of your age; secondly, because in order to address your long term drug addiction a longer period on parole would be appropriate; and thirdly, because of the more onerous conditions which offenders now serve as a result of the coronavirus pandemic and the virtual non-existence of visits.

44. There were competing submissions before me as to what the start date should be for the sentence. This has been complicated by reason of the fact that you have not been in custody solely referrable to this matter. It is additionally complicated because you were refused bail following your initial arrest; released on Supreme Court bail following an inconclusive trial in this Court in August 2018; and re-arrested following that trial. Although you were subsequently formally granted bail for the matter for which you had been re-arrested, you remained in custody because of matters unrelated to the offence for which you are to be sentenced today.

45. In the result I shall fix a start date which is not entirely accumulated upon those other matters but equally one which is not entirely concurrent. 

46. David Bene, for the offence of assault occasioning actual bodily harm whilst in company, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years 6 months. Because of the plea of guilty, the term of imprisonment is 3 years 2 months.

47. I fix a non-parole period of 1 year 11 months to date from 25 August 2018 and which expires today, 24 July 2020. You are, therefore, now eligible for parole.

48. I fix a balance of 1 year 3 months to date from 25 July 2020 and which will expire on 24 October 2021.

49. I order that the psychological report of Dr Klamer dated 25 June 2020, being part of Exhibit 1, follow the warrant.

Decision last updated: 29 July 2020