R v Beniamini; Beniamini v Storman, Chapman and Faccin [2014] ACTSC 40

2. In this context, I must sentence Adam Beniamini in the following circumstances.

3. On 16 March 2012, he assaulted a young woman and damaged property at her residence in order to gain entry. He was sentenced to imprisonment for these offences on 28 August 2013, but I have upheld an appeal against the sentence imposed in the Magistrates Court and must now re-sentence him. See Beniamini v Stormon [2014] ACTSC 2.

4. These offences, and others committed at the same time and on 25 November 2011, breached a good behaviour order that I made on 9 December 2010, when I suspended a sentence of imprisonment for an offence of assault occasioning actual bodily harm.

6. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) rendering Mr Beniamini liable to a maximum penalty of five years' imprisonment.

7. Intentionally damaging property is an offence against s 403 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 1000 penalty units (that is a fine of $110,000) or imprisonment for ten years, or both.

8. Common assault is an offence contrary to s 26 of the Crimes Act which provides for a maximum penalty of two years' imprisonment.

9. The circumstances of the offence of assault occasioning actual bodily harm is set out in my remarks on sentence R v Beniamini (Unreported, ACT Supreme Court, Refshauge J, 9 December 2010). The circumstances of the other two offences are set out in my reasons for upholding the appeal in Beniamini v Stormon. I do not need to repeat them.

10. I do not need, either, to repeat the personal circumstances of Mr Beniamini which I have set out in those two decisions. I take them into account as there set out.

11. The offence of damaging property was a relatively serious version of the offence, which resulted in a modest amount of damage. It was the second, though first successful, attempt to gain forcible entry to the home of the victim without her consent.

12. The assault on the complainant was a serious one. It was aggravated by being committed in her own home and in the presence of her children. It was also very late at night. It consisted of threats and physical attacks, the most serious being described as Mr Beniamini strangling the complainant, but for a few moments. The whole incident, however, lasted for some time.

13. The assault occasioning actual bodily harm resulted from what I described as "a silly neighbourhood issue". At least there was a perceived cause for the interaction; it was not an unprovoked and completely unexpected attack as we have seen reported in the press so much recently.

14. It was constituted by a single blow by Mr Beniamini, disinhibited by alcohol, when he hit the victim with the heel of his hand. The blow caused the victim to stumble backwards and cause bruising near the victim's right eye. This was the actual bodily harm, but it was at the lower end of seriousness. The significant damage to the victim came from a vicious attack by the partner of Mr Beniamini's then partner's sister, who punched the victim until he lost consciousness.

15. I received three character references for Mr Beniamini as part of the sentencing exercise I had for the breach of the good behaviour order.

16. These were from Mr Beniamini's father, Mr Beniamini's current partner and from the mother of his current partner.

17. They all attest to Mr Beniamini being, fundamentally, a law abiding person who has made wrong choices in his life, largely associated with the misuse of alcohol.

18. Thus, he is described as a hard worker who has a positive and loving relationship with his children. Both his father and his current partner state that he has ceased drinking alcohol.

19. The relationship with his current partner is clearly a significant factor in the change that he has made in his approach to life.

20. In sentencing Mr Beniamini in the Magistrates Court, the learned Magistrate rightly pointed out that this did not, however, prevent the incidents which resulted in the charges of which he has been convicted. Those incidents clearly were at the early stage of their relationship and it is relevant that not only have they not been repeated in the seventeen months between offence and his incarceration, but this has been the most significant period of their relationship.

21. Her Honour also pointed out that the relationship and her influence had not "turned [him] into a model citizen". This appears to be a reference to his "non-compliance with things". I assume her Honour is referring to Mr Beniamini's failure to co-operate with ACT Corrective Services in the preparation of the Pre-Sentence Report and about his failure to appear in court.

22. Such matters do not aggravate the offences for which Mr Beniamini is to be sentenced. They may be relevant to the assessment of whether he will comply with a community based sentence, but should not otherwise form part of the penalty to be imposed.

23. All the references refer to the lack of violence towards his partners that Mr Beniamini has showed, putting these current incidents into a category of being out of character and isolated.

24. The references do not minimise his past criminal history, but they are consistent with the reference I had in the earlier proceedings, when I had sentenced Mr Beniamini, that attested to his impressive role as a father which, together with his voluntary assumption of financial and residential responsibility for his children and the care and support he provides for his current partner's children, shows an important level of responsibility.

25. I note that no victim impact statements were tendered to the learned Magistrate nor to me. That does not, of course, mean that I do not take to account the serious effect the incidents must have had on his former partner, the victim of the most recent offences.

26. I take into account Mr Beniamini's pleas of guilty. I accept, as did the learned Magistrate, that they were "early-ish" and entitle him to some discount.

27. I take into account the seriousness of the offences and the circumstances in which they were committed.

28. I take into account the subjective circumstances, which I have described in earlier remarks in sentence and in the appeal. I also take into account the references that I have read and earlier summarised.

29. It is clear that the response of the court must be proportionate and I consider, after having regard to all the options, that a term of imprisonment was appropriate.

30. I accept that Mr Beniamini appears to have turned a corner. I am aware of the need, often referred to by the courts, as in R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], that a court approach such submissions with care. No doubt, a significant taste of custodial confinement has focussed his mind and will be a deterrent.

31. I also accept that I cannot ignore the breach of the good behaviour order. As I noted in Saga v Reid [2010] ACTSC 59 at [99]- [101], it will quickly bring good behaviour orders into disrepute if they are ignored.

32. There was an issue about the suspension of the sentence I had imposed. I have now had an opportunity to consider this more carefully. I sentenced Mr Beniamini on 9 December 2010. I sentenced him to imprisonment for nine months from 29 October 2010. I suspended the sentence on that day for twelve months, that is until 8 March 2012.

33. As is available under s 12 of the Crimes (Sentencing) Act 2005 (ACT), I made the good behaviour order for a longer period than the suspension, namely for two years, that is until 8 December 2012.

34. The first offence of which Mr Beniamini was convicted was committed on 23 November 2011, that is while the term of imprisonment was still suspended. The other offences involving his former partner were committed on 16 March 2012; that is eight days after the expiry of the suspension, but still within the period of currency of the good behaviour order. The final offence, committed on 30 November 2012, was also within the period of the good behaviour order but well after the suspension of the sentence had expired.

35. Accordingly, I consider that I must proceed under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) and cancel the good behaviour order.

36. Having carefully considered the matter, I am of the view that I should re-sentence Mr Beniamini for the breach of the good behaviour order.

1. I note that you have been convicted of damaging property on 16 March 2012.

2. I sentence you to three months' imprisonment, to commence on 1 August 2012. Had you not pleaded guilty, I would have sentenced you to 15 weeks imprisonment.

3. I note that you have been convicted of common assault on 16 March 2012.

4. I sentence you to twelve months' imprisonment, to commence on 1 September 2012, that is, to be cumulative as to one month on the sentence for damaging property.

5. I direct that the sentence be suspended on 1 February 2014 for a period of two years.

6. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of two years.

7. I find that you have breached the good behaviour order I made on 9 December 2010.

9. I sentence you to the balance of the term of imprisonment I then imposed, namely four months and two weeks, to commence on 1 February 2014 and end on 14 June 2014.

10. I set the whole of that period to be served by periodic detention, the first period to commence on 7 February 2014 when you are to report, by 7:00 pm, to the Periodic Detention Centre, Symonston and the last period to commence on 6 June 2014.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the defendant: Ben Aulich and Associates