R v Benjamin
[2013] VSC 668
•22 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0101
| THE QUEEN |
| v |
| FRANKLIN EDWARD BENJAMIN |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2013 | |
DATE OF SENTENCE: | 22 November 2013 | |
CASE MAY BE CITED AS: | R v Benjamin | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 668 | |
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CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Victim stepson– Stabbed with knife 11 times to the chest and back – Longstanding paranoid schizophrenia – R v Verdins (2007) 16 VR 269 applicable – Relevant and serious prior convictions – Serious violent offender – Sentence of 19 years’ imprisonment with a non-parole period of 15 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
Franklin Edward Benjamin, you have pleaded guilty to the murder of your stepson, Scott McAllister, and have admitted prior convictions.
You are 60 years old and your life has been marked by mental illness. In the 1980s, you were diagnosed as suffering schizophrenia and you have been on medication essentially ever since. You met your wife, Joyce Benjamin, in the 1990s at a Psychiatric Disability Services facility in Coburg. You and she married in 2003. Mrs Benjamin had two sons, one of whom was the deceased, Scott McAllister. In 2007, you and Mrs Benjamin moved into a house occupied by Mrs Benjamin’s eldest son, Simon Carr. Mrs Benjamin did not have insight into her own mental illness and for two years was not compliant with her medication, with the consequence that she was very abusive towards you. This led to a deterioration in your marriage and, as a result, you lived apart from your wife in various boarding houses for much of your marriage.
However, at the beginning of 2010, you secured a unit in Heidelberg West. This was Department of Human Services accommodation and was effectively your first home. It provided you with a degree of stability previously lacking in your life. Shortly after, Mrs Benjamin joined you at the unit. This concerned you, but you felt obligated to her. You were concerned that her presence would affect your tenancy. Ultimately you advised Centrelink that Mrs Benjamin was living with you and your pension was adjusted accordingly.
In mid October 2012, Scott McAllister came to live with the two of you. You were distressed at this, and you were worried about the impact it would have on your pension and on the residency of the unit. The three of you were living in a one-bedroom unit and, not surprisingly, this created a degree of disharmony. You believed that Scott McAllister had taken some of your possessions, including your cigarettes, so much so that you had to leave your tobacco with a neighbour to keep it from him. You had also asked him to leave the premises, but he declined to do so.
On the afternoon of 2 November 2012, as arranged with the Department of Human Services, a locksmith attended at the unit and changed the locks. You packed Scott McAllister’s belongings and put them outside the front door. Mrs Benjamin had been out that afternoon and, when she returned to the unit, you let her in. Scott McAllister and his girlfriend, who had stayed the previous night at the unit, had also been out, having spent the day at Northland Shopping Centre. They returned to the unit at 9.00pm and Mrs Benjamin let her son in. An argument between you and Scott McAllister ensued, during which you picked up a paring knife and stabbed him in the chest and back. Mr McAllister stumbled out of the unit. He was bleeding and fell to the ground. He was attended to by Mrs Benjamin and Mr McAllister’s girlfriend, who attempted first aid. He yelled out that he had been stabbed multiple times by “That fuckhead, Frank. I didn’t do anything. Frank’s psycho”. You immediately went to a neighbour’s unit and asked her to ring an ambulance as, you told her, you had stabbed your stepson. You went to the front of the unit and waited for the police to arrive.
You were subsequently taken to the Heidelberg Police Station. You told the police that you did not want to say what had happened. You were assessed as unfit to be interviewed. You were charged with murder and have been remanded in custody since that date.
A post-mortem conducted by the pathologist, Professor Steven Cordner, determined that Scott McAllister had suffered 11 stab wounds; three to the front and eight to the upper and lower back area. One of the stab wounds to the front chest area had penetrated the chest, the pericardial sac and the right ventricle of the heart. Three of the stab wounds to the right back penetrated the chest, and two of those in turn penetrated the lung. The cause of death was described by Professor Cordner as haemorrhage and multiple stab wounds to the chest, including one to the right ventricle of the heart. There were no witnesses to the dynamics involved in the infliction of the stab wounds, but Professor Cordner was of the view that the degree of force required to inflict them was at least moderate.
Scott McAllister was 21 years old. He had two half-sisters on his father’s side, and his half-brother, Simon, on his mother’s side. He was brought up by his father, John McAllister, in Broadmeadows and, because of his mother’s illness, only saw her periodically. He was actively involved in sport and, during his teens, embraced his Aboriginal heritage and attended the Kangan Batman TAFE, studying Aboriginal culture and arts.
Victim Impact Statements tendered on behalf of his father, brother, sister and niece speak of the physical and emotional consequences that they have endured as a result of your actions. Mrs Benjamin has not made a Victim Impact Statement because her mental health further deteriorated to the point where she was not able to give evidence at the committal. Tragically, her mental health is such that she still believes that Scott is alive, which causes considerable distress for her surviving son, Sam, who repeatedly has to tell his mother that Scott is dead. No sentence imposed by this Court can ameliorate the grief and suffering of Scott’s family, nor can it restore to them their loved son, brother and uncle.
The maximum penalty for the crime of murder is life imprisonment. Clearly, this is the most serious offence on the criminal calendar. In sentencing you, I take into account the nature and gravity of the offence here committed and your culpability for it. You murdered your stepson, you admitted later, out of anger, although I accept that this was a spontaneous and somewhat impulsive act. It appears the knife, a small vegetable knife, was on top of a cupboard, where it had been left previously by the deceased. You had picked it up in the course of the argument, and I accept in those circumstances the killing was not planned or premeditated in any way and, as your counsel Mr Marsh submitted, resulted from a momentary loss of control borne of the culmination of considerable stress. Nonetheless, 11 stab wounds are indicative of an attack of considerable brutality, if not ferocity, inflicted with a moderate degree of force on a young man who was your stepson and for that reason, a person who must have been in your life one way or the other since he was a young boy.
Both Mr Marsh and Mr Kissane, who appeared on behalf of the Crown, submitted that the commission of this offence sits at the mid-range of the offence of murder, and I accept that this is so.
I turn now to matters personal to you.
You have admitted approximately 24 prior convictions and matters secured between 1972 and 2009. Your prior convictions include a number which are both relevant and serious. In 1978, you were sentenced in the Supreme Court to one count of wounding with intent to commit grievous bodily harm and two counts of assault for which you were sentenced to a term of five years’ imprisonment with a minimum of two years’ imprisonment. The conviction for wounding with intent to commit grievous bodily harm qualifies you to be sentenced in respect of this offence of murder as a serious violent offender. Those charges occurred at a time when you were significantly mentally unwell and arose out of an incident where you attacked two police officers on patrol duty with a knife, and stabbed one of them in the arm in an apparent attempt to get the police officers to shoot you.
In 1984, in the County Court, you were convicted of two counts of inflicting grievous bodily harm and assault occasioning actual bodily harm and robbery, for which you were sentenced to six years’ imprisonment with a minimum of two years. This offence also involved an assault with a knife when you got into a dispute with a person with whom you were playing cards in a coffee shop and had to be removed from the shop by three others.
In 2009, you were convicted of one count of recklessly causing injury and sentenced to three months’ imprisonment wholly suspended. This offence involved an assault on a co-tenant at a boarding house, who had been causing you stress and aggravation. You attacked him with a knife. As your counsel fairly submitted, you have a propensity to react with violence when you are unable to manage life’s stresses.
Your brother, Raymond Benjamin, gave evidence on your behalf. He supports you in your predicament, visits you once a week in prison and describes you as coping well in that environment and feeling safe there. He stated that your marriage, in its early years, was happy and mutually supportive, but that your home life deteriorated after Mrs Benjamin refused to take her medication. When you moved to West Heidelberg and your new unit, you relished your new home and you became more communicative with your family and more sociable.
Your brother stated that when Scott McAllister came to live with you, you were unhappy that he was living there, there were lots of arguments and you were very anxious about the impact of that on the neighbours, and worried that the Department of Human Services would evict you because you had taken an extra tenant. You also complained to your brother that Scott had stolen your tobacco.
Your brother gave evidence that you had enjoyed a close and supportive relationship with your mother. You used to ring her most evenings and you would visit her and help her with her garden. She would prepare meals for you to take home for yourself and your wife. Your mother died in July 2012 at the age of 78, after an illness of some three months, and your brother reported that you were devastated by her death.
Testimonials by Dr Murray Seiffert and Ms Denise Maresh were tendered in evidence on your behalf. Dr Seiffert has known you for 40 years and first met you at a Christian Youth Centre. You and his family lived together in a residential community which was part of that centre. He described you as a trusted and caring member of that community and regards you as a thoughtful, valued and faithful friend, honest and true to your word. Ms Maresh first met you when she came to board with your family when she was ten years old, and she remained a close friend of your family. Ms Maresh regarded you as a source of great strength to your mother, in particular upon her death and she observed your sorrow, grief and despair at the loss of your mother, to whom you had been a loving and devoted son. She described you as a good man, with a kind nature.
Two reports by psychiatrist, Dr Danny Sullivan, were tendered in evidence as Exhibits 4 and 5 respectively. Dr Sullivan details your personal history, which I accept. You were born in South London. You attended a Catholic school in South London but after a nun molested you, you were transferred to another school. Your family came to Australia in 1963 as ten pound immigrants. Your parents separated when you were young, and your father moved to America. You had no father figure when you were growing up. You did not see your father again until you were 40 years old. You attended Maribyrnong Primary School, Footscray Technical College and Princes Hill High School until Year 10. You also, for a time, attended Banyule High School, where you were bullied. You reported that you were not a particularly good student and that you were reasonably depressed at this time, and it was this depression which prevented you from completing various vocational courses after leaving school. Generally, you worked in factories and labouring, and your longest job was for some ten months at Repco in Richmond. You have not worked for 30 years. For more than 20 years, you have received Disability Support pension in respect of schizophrenia.
You reported to Dr Sullivan that you had lived at the unit for four years and had been happy there. You had established a network of friends in West Heidelberg and attended at the local church and Psychiatric Disability Services for meals and for fellowship.
You reported to Dr Sullivan, and it is not disputed, that you were first hospitalised at Larundel in 1972 and at that time, diagnosed with schizophrenia. You have also been hospitalised at Royal Park Psychiatric Hospital and Mont Park Psychiatric Hospital. Your most recent admission was at the Northern Hospital for three weeks after taking an overdose of your antipsychotic medication. You have, in the past, experienced delusions, depression, aggression and suicidal ideation.
Since 1972, you have been intermittently maintained on Modecate, a long-acting antipsychotic medication. You have continued this medication voluntarily while in prison. You were taking it at the time of the offence. It is your view that this medication keeps you stable, although you have suffered significant side-effects from it. You told Dr Sullivan that you felt you had become unwell around the time your mother died, some three months before this offence, and indeed you asked for and received an increase in your fortnightly dose of Modecate, which was prescribed by your general practitioner.
You are currently being accommodated at the St Paul’s Psychiatric Unit at Port Phillip Prison and you are working as the carer for an elderly prisoner and also engaged in computer studies. In Dr Sullivan’s opinion, your longstanding paranoid schizophrenia significantly reduced your capacity to think clearly and make calm and rational choices at the time you stabbed Scott McAllister, and that is so because schizophrenia tends to impair executive function and is likely to render you less capable of managing stressors or developing effective coping strategies, thus impairing your ability to exercise appropriate judgment.
Since the first report in May 2013, Dr Sullivan subsequently reviewed the medical reports of the Correction authorities since you have been held in custody. You have reported some paranoia. Your medication was reduced in June and you reported increased anxiety. On 19 July 2013, you set fire to your cell, saying you wished to die. You have reported being depressed, and in August you were prescribed anti-depressant medication. Dr Sullivan records that the files reveal little evidence of psychiatric review and assessment, simply notes taken by nursing staff. Nonetheless, he opined that there was little to suggest that you suffered an unstable mental state while in custody, apart from, of course, your suicide attempt manifest in attempting to set your cell on fire.
I accept that your mental functioning at the time you stabbed your stepson was impaired and thereby your moral culpability for the crime of murder is reduced, because the paranoid schizophrenia from which you suffered impaired your ability to exercise appropriate judgment and impaired your ability to make calm and rational choices or to think clearly, thus enlivening the principles of R v Verdins.[1] So much is conceded by the Crown.
[1](2007) 16 VR 269 [32].
Any sentence imposed must have regard to what is just in all the circumstances but it cannot be said and was not submitted that, by reason of your condition, prison will weigh more heavily on you or that there is a risk that imprisonment will have a significant adverse effect on your mental health. Indeed, the opposite appears to be the case. While in prison, you are receiving appropriate treatment, you are compliant with your medication and your mental state appears to be relatively stable.
In sentencing you, I take into account the nature and gravity of the offence, which I accept was a spontaneous, unpremeditated act, borne of a loss of control at a time when you were under considerable stress. I take into account also the need to pass a sentence which will serve to punish you and act in denunciation of your conduct, and give effect to considerations of specific and general deterrence, acknowledging that all these considerations must be sensibly moderated by reason of the effect of your mental illness operating on you at the time. It must be acknowledged, however, that on occasions when you have been unwell in the past, you have resorted to acts of violence involving knives, so specific deterrence nonetheless carries particular weight, even allowing for the reduction in your moral responsibility.
By reason of your prior conviction for wounding with intent to commit grievous bodily harm, you are to be sentenced as a serious violent offender and, pursuant to s 6E of the Sentencing Act 1991 (Vic), as such, I must and do have regard to the protection of the community from you as the principal purpose for which the sentence is imposed. However, I am satisfied that, by reason of the sentence I propose to impose, it is not necessary to impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances in order to protect the community from you.
In sentencing you, I take into account your plea of guilty and give you a discount for it. I take into account that, by reason of that plea, you have saved the community the cost of a trial and the victim’s family the ordeal of one, and I take into account also that your plea of guilty has facilitated the course of justice. I note that you indicated your intention to plead guilty in July 2013, that is, the plea of guilty came after the committal, so to that extent, the family were not spared the judicial process, but nonetheless I do take into account and give you a discount in acknowledgment that your plea of guilty was entered at that time, which may be said to be a relatively early plea. I take into account that you acknowledged your responsibility for stabbing your stepson immediately after the incident and that you cooperated with the authorities by, in effect, surrendering yourself to the police and that you sought to render assistance to your stepson by asking the neighbour to ring the ambulance.
I take into account also that you have expressed your remorse for your crime. It was expressed by your counsel at the plea that on 19 September 2013, you told your solicitor that you wanted to express an apology to the victim and his family, and you expressed that as follows: “I want to say I can’t forgive myself for what I’ve done and I regret it, not for my sake but for the victim’s sake, and I apologise to his family”. I accept that your remorse, expressed at that time, is genuine.
I take into account your age and that at the age of 60 you will be serving a substantial sentence of imprisonment, each year of which represents a significant portion of your remaining life. I take into account also that such sentence should not be crushing, so as to give you some expectation of life in the community after you have served your sentence. I take into account also your prior criminal history, the most serious aspects of which appear to have occurred when you were mentally unwell. I take into account also that, while in prison, you are compliant with your medication and, apart from a suicide attempt, appear to have achieved a relatively stable mental state. I take into account that you have the continued support of your brother, and that you are well regarded by family friends who have known you for many years. Although one must be cautious about your prospects for rehabilitation, you do have the support of your brother and lifelong friends, you have insight into your illness, you are compliant with your medication, and prison seems to provide an environment of some stability for you, all of which are factors which suggest that, with the right supports in place, your rehabilitation may be achievable. I am further comforted in that conclusion by the hiatus in your offending between 1984 and 2009, during which time you did not come before the courts, which suggests that you are capable of living a law abiding life in the community.
In short, I take into account all matters which go in your favour. Accordingly, without in any way diminishing the nature and gravity of the offence here committed, you are convicted and sentenced to 19 years’ imprisonment, and I propose to order that you serve a period of 15 years’ imprisonment before becoming eligible for parole.
I declare that you have already served a period of 385 days by way of pre sentence detention, and I declare that you are to be sentenced as a serious violent offender and will have that declaration entered in the records of the Court. Pursuant to s 6AAA of the Sentencing Act1991 (Vic), I declare that, were it not for your plea of guilty, I would have sentenced you to 21 years’ imprisonment with a non-parole period of 17 years’ imprisonment.
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