Director of Public Prosecutions v Bishop
[2012] VCC 808
•19 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01656
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOWARD BISHOP |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2012 | |
DATE OF SENTENCE: | 19 June 2012 | |
CASE MAY BE CITED AS: | DPP v Bishop | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 808 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Sentence – Plea of guilty - Common law Assault-Recklessly Cause injury- Whether conviction warranted – Relevance of evidence of good character – Previously of outstanding character
Sentence:Without conviction - Adjourned undertaking to be of good behaviour for 2 years – Donation to Oxfam
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. McWilliams | Solicitor for Public Prosecutions |
| For the Accused | Mr A. Halse (Plea) Ms A. Sampson (Sentence) | Lanham Lawyers |
HER HONOUR:
1 Howard Bishop, you have pleaded guilty to one charge of common law assault and one charge of causing injury recklessly. The maximum penalty for each of these offences is five years’ imprisonment.
2 Your offending was opened by the Crown as follows:
(a) You are fifty years old. Your date of birth is 10 December 1961. You were 48 years old at the time of the offending.
(b) As at the time you committed these offences, you had known the complainant for about four and a half to five years, having come to know her after you moved into the street where the complainant lived.
(c) You and the complainant had a friendly relationship leading to the evening of 13 June 2010. The relationship extended to the complainant visiting your home on occasions, primarily to use your computer.
(d) On the evening of 13 June 2010, the complainant attended your house at about 8.30 pm. She wished to use the computer on this evening.
(e) Once inside your home, she saw that you were alone and were having a drink of alcohol. You said that it was alright for her to use the computer and offered her a beer, which she accepted. You and the complainant spoke for a short time before the complainant went to the front of the house where the computer was found.
(f) After spending some time on the computer, the complainant returned to the kitchen and finished the beer which you had given her. You and the complainant then had a short conversation and the complainant went outside to have a cigarette. You gave the complainant another beer, she having finished the first. Your conversation continued through the opened back door whilst the complainant was outside.
(g) The complainant then returned to the house and prepared to leave so as to go home. She put her drink down and started to move towards the computer room, intending to log off the computer before leaving for home.
(h) The complainant could not move to the computer room because you prevented her from doing so. You approached her and tried to kiss her. The complainant moved away from you and said words to the effect that you should back off and she wanted to go home. You then grabbed her by the arms and pushed her to the ground. This gives rise to Charge 1 – common law assault.
(i) Whilst on the ground, you continued to kiss the complainant. You also began to touch her breasts and crotch outside of her clothing. The complainant was yelling for you to stop and to get off her. During the struggle on the ground, the complainant bit you on the finger. You were distracted by this and the complainant was able to get away from you and get to her feet.
(j) I pause here to observe that the opening at this point appeared to me to encapsulate an indecent assault. However, when I discussed this aspect with the prosecutor, Mr McWilliams, he said that the Crown did not proceed on the basis that there was an indecent assault, as it was accepted by the Crown that you had misread the situation at that time and the Crown could not prove that you were aware of the complainant’s lack of consent. I note in your record of interview that you said to police that you and the complainant had not only a friendship but a casual sexual relationship of such a nature that your misreading of signals on this occasion could be understood.
(k) In any event, I do not sentence you on the basis that any indecent assault was committed but I must sentence you on the basis that having grabbed the complainant by the arms and pushed her to the ground, you then embarked on the conduct, just described, in the course of which the complainant bit your finger. Mr McWilliams continued that this had distracted you and the complainant was able to get away from you and get to her feet. You stood up also and threw a drink over her. You also gestured towards your finger which had been bitten, saying words to the effect that she had made you bleed.
(l) You then grabbed the complainant by the throat and applied pressure to her throat and shook her. The complainant was able to push you away initially and you released your grip. You grabbed the complainant’s neck again and applied force. The complainant was able to push you away and ran towards the front door. She went to the computer room first in order to log out of private web pages she had logged into. You followed her and forcefully grabbed her by the arms, then pulled the complainant out of the front room and ultimately out of the front door where you pushed her backwards onto the ground outside.
(m) As a result, the complainant received injuries including bruising and abrasions to her neck and arms. I have viewed the photographs in the depositions at pages 76-84 which depict those injuries, albeit that the photos are in black and white. Notwithstanding the lack of colour in the photos, the injuries are evident from them and are consistent with the complainant’s account of what befell her.
(n) The complainant ultimately returned home and soon after this she took her three children to the home of a friend, Billie-Jo Bates. The complainant and her children arrived at Bates’ home at around 10.30 pm. When she arrived, she was crying and said to Bates words to the effect that you attacked her. Bates observed that the complainant had bruising and redness to her arms and neck. The complainant was driven by Bates to the Sunshine Police Station a short time later.
3 You took part in a record of interview in the early hours of 14 June 2010. During the course of the interview, you admitted that you knew the complainant and she had been at the house that night. You admitted that you had touched her breasts and crotch, and had tried to kiss her. You also said that a physical altercation developed soon after this, during the course of which the complainant bit your finger. You said that the biting of the finger resulted in you grabbing the complainant by the arms and forcing her from the house. As I have previously mentioned, there were other matters which were canvassed in the record of interview which were not in the summary of prosecution opening, and I understand that your account of the relationship which you said you had with the complainant before this evening, was not accepted by her.
4 In discussion with your counsel upon the plea hearing, it became rather clear that the resolution of this matter has produced an opening which in some ways does not logically follow. It would appear that there is some melding of the complainant’s account of events and yours in order to reach the resolution, but I put this to one side and sentence you on the basis of the facts going to Charge 1 and the facts going to Charge 2, which as I understand it are essentially accepted by you.
5 Both of these offences are fairly serious in their nature, in circumstances where the complainant was attempting to make it clear to you that she was not willing to accept your advances on that evening. I accept that in relation to the second charge, you reacted to the complainant biting your finger, but she was only doing so in order to make it clear to you that she did not wish to accept your advances – a message which you had not clearly received before this.
6 I regard the charge of recklessly cause injury as particularly serious in that it comprised a number of violent acts on your part, including the most dangerous one of applying pressure to the complainant’s throat. This was severe enough to produce bruising, although I do bear in mind that sensitivity to bruising can vary from one person to another; but also, part of that charge comprises the manner in which you unceremoniously removed the complainant from your home which I regard as quite dreadful.
7 I was told by your counsel that immediately after this event, you moved from your home and resided on a block of land which you had purchased, well away from the complainant. You conducted yourself in this way to avoid any further contact with the complainant, notwithstanding that the complainant had obtained an intervention order. This was an initiative taken by you so as to unequivocally remove yourself from any chance encounter. In this way, you have shown that you have taken responsibility for your actions, and although I understand this matter took some time to resolve, a central reason for this, as I understand it, was that there was initially a further charge which was resisted by you and which is no longer on the Indictment.
8 As I understand the position, although the Indictment does not reflect charges that you were always willing to admit to, you were always prepared to take some responsibility for what you had done. In the circumstances, I am prepared to allow for a not insubstantial discount in the sentence that you would otherwise receive and accept that there is a degree of remorse which can be discerned from your attitude to the proceedings. In pleading guilty, you have saved the witnesses, especially the complainant, the time and trauma of giving evidence at trial and you have saved the community the time and expense of a trial. You did conduct a contested committal hearing but this was in circumstances where a more serious charge was alleged – a charge which is no longer alleged. Therefore in the circumstances, as I have said, I will allow a not insubstantial discount for your plea of guilty and make allowance for the fact that you have indicated some remorse.
9 You have no prior convictions and have a most impressive history which stands you in good stead. It is very clear from the character references tendered on your behalf and the evidence of Mr Twentyman, as well as the support of those who came along to your plea hearing, that you are a person of otherwise outstanding character.
10 In relation to the offending itself, Mr Halse said that leading to it, you had been sitting in your home, having a drink when the complainant visited. As I understand the situation, you had been drinking throughout the day before this. Mr Halse said that you had allowed the complainant to use the computer on numerous occasions prior to this day as she did not have internet at her home but she had a Facebook account which she ran through your computer. Mr Halse said that as a result of the complainant biting you, you became agitated and that you did not deny the actions that then ensued.
11 Mr Halse said that such was the nature of your close relationship with the complainant, that even on that evening she returned for her mobile phone and charger which she had kept at your home.
12 You are divorced and the complainant was separated from her husband and it was in that context that you struck up a friendship that was going well until this particular incident. Mr Halse submitted that the fact that you moved away immediately, eventually selling your home, went to the level to which you were prepared to accept responsibility and was an indicator of your character overall. As I have already indicated I find that that submissions is made out.
13 Mr Halse submitted, and I accept, that for the most part of your life, you have been a clear thinking and good citizen with no criminal history.
14 For many years you have been a member of the Metropolitan Fire Brigade, having obtained senior positions in that organisation.
15 One of the character references comes from an Inspector Kernin Lambert who said he has known you for about 20 years. He is also an officer in the fire services, currently stationed in Sydney. He said that you are completely dedicated to the service of the community and fellow members of the emergency services. He referred to the fact that you had to perform the unenviable task of assisting in recovering bodies of the deceased from Marysville in highly distressing circumstances, following the Black Saturday bushfires of 2009.
16 He spoke of the fact that you had served as a mentor to him and that you now embraced your mentoring role to other fire-fighters, especially to junior fire-fighters. Mr Lambert also said that you were a very close friend of his and he described you as a person of integrity and high moral standing “who is compassionate, trustworthy, loyal, considerate, dependable and honest.” Further, he said that you always put others’ welfare ahead of your own. He said that the circumstances of your offending are completely out of character to the person that he knows, who is a person of non-violence. He also said that you were deeply saddened by these events and said that you were very regretful of their occurrence.
17 Derryn Brown, a senior station officer in the MFB with 24 years’ service, also spoke of your great integrity, dedication to your family and to your role as a fire-fighter and your commitment to the community. He said that you are a committed station officer who has held a number of roles at MFB, and had worked as an operational officer for a number of years, but also held roles within operational training as an instructor and that you developed and delivered various programs. He referred to the road rescue program which you updated and delivered to road rescue operators.
18 He also said that you have been involved in a number of community groups, one involving the assistance of homeless people over Christmas in the Western suburbs. Mr Brown said that you had also taken into your household younger members of your family over the years when they were going through difficult periods – in particular, a 12 year old nephew who you took care of for some time. You have also supported Mr Brown and his family.
19 Mark McMenaman, a station officer with the Queensland Fire and Rescue Service, said that he has known you for more than 25 years. He worked with you at the MFB and later supervised you for several years and you remain good friends. He said that you are a true friend and of a very generous nature and happy disposition and that you are always there for him. You have supported Mr McMenaman and his family and he spoke in glowing terms of your support for your own family.
20 He spoke of the fact that you are completing a project management course and planning to be promoted as a senior communications officer at the MFB. Mr McMenaman remarked that you were very upset about your situation and how your career might be affected due to this offending. He said that he has a very high opinion of you and knows that you are very remorseful for your actions and that you are keen to get back on track with your life.
21 Tracey Bishop also speaks of you in glowing terms, referring to you as the rock of your family and she also spoke of the care that you have extended to them. Ms Bishop was married to you for nine years, having met you in 1995. Although your marriage broke up, you are on good terms and remain good friends. She was amongst a number of people in court to support you.
22 She also refers to the immense stress that you suffered as a result of your work during the Victorian bushfires. She said that you rarely speak about this but when you do, it is with great depth of feeling which revealed to her that you are still traumatised by this experience. She said that you genuinely cared for others and referred to the fact that on an occasion, when she was married to you, you assisted an ambulance crew in treating a man who had overdosed in the street, having observed that one of the paramedics was exhausted.
23 Grant Tompkins spoke of the tremendous support that you have provided to him, especially after the failure of his marriage. You have taken care of his three children on a number of occasions in order to assist him. He also remarked on your loving and respectful attitude towards your elderly parents and the tremendous help you were to them in dealing with the loss of your sister Rosemary. Again, Mr Tompkins speaks of your warmth and generosity towards your other family members, essentially offering them a soft landing place if they have difficulty in their own nuclear families.
24 Robert Higham said that he is also a lifelong friend of yours and has known you to be compassionate and caring for others and a gentle man of good character. He said that you are “well-meaning in everything you do”. He has not known you to have ever lifted a finger against anyone in anger. He has never known you to be aggressive in any way and he said he was “amazed” at what you have done on the occasion of your offending. He remarks that your job reflects your personality – that is that you have an ability to help others in distress. He said that the world would be a far better place if there were more people like you in it.
25 Finally, I have a report from Professor David Horgan, psychiatrist, who said that he saw you professionally in the late 1980s when you suffered with depression and a range of anxiety related symptoms. He said that these symptoms recurred from time to time, requiring further treatment from him. However, he had not needed to see you for a number of years and said that you continued to take Prozac on his advice, to prevent recurrence of symptoms of anxiety and depression.
26 He remarked that you impressed as a man dedicated to the welfare of others and it was not surprising that you were now approaching your 25th year in the fire service. He also remarked on the fact that you do voluntary community work such as work with Les Twentyman, and I will refer to the evidence of Mr Twentyman in a moment.
27 Professor Horgan also said that you had referred him a good number of people as clients which had actually caused him difficulty in overloading his practice. He said that you would meet people socially and refer them to him if you perceived they needed some help. Professor Horgan said you are an easy-going person and he also spoke of your support and help of others. He, too, referred to this offending and proceedings as causing you considerable stress, and he expressed his hope that your good character and caring personality would be given considerable weight in dealing with the matter before me.
28 Of course, the weight that I give to such matters is entirely a matter for me, but in the circumstances, as I have already indicated, I regard your character as outstanding, the one blemish to it being the incident for which I now sentence you.
29 I also heard evidence from Mr Twentyman who referred to your tremendous efforts in resolving difficulties with kids involved in Newcastle riots, and your subsequent involvement in helping to arrange Christmas parties for underprivileged youth in a bid to soften the image of police in their eyes, apart from anything else.
30 Mr Twentyman referred to the fact that usually you would play Santa at these functions but that you were so concerned about your offending, you had your brother play this role instead in more recent times. Mr Twentyman also said he had known you for a number of years and that you were larger than life. He too said that your offending was out of character. He said you were quite innovative in your approach to various community programs and he admired your work with “disconnected kids”, as he put it.
31 I was told of your background, a good deal of which has been referred to in the character references that I have summarised. I was told that your mother is 81 years old and your stepfather is 75 years old. When you were 31 your natural father died and sadly your older sister, Rosemary, died seven years ago. You have two brothers who are also in senior roles in the fire brigade. You have an older sister who has four children and four grandchildren.
32 You served an apprenticeship with VicRail and went on to drive buses and trucks as well as performing labouring work, before entering the fire brigade in 1988.
33 Mr Halse said that he could not say that a conviction against your name would definitely impact upon your employment, but he pointed to a policy document which was tendered on your plea in this respect. However, the policy document refers to a finding of guilt which must be declared by someone applying to the fire brigade. Obviously, it is not a question of conviction or non-conviction as to whether this might impact upon the success of a new potential recruit, and so it cannot be said that a conviction in itself will impact upon your longstanding employment. You do not know if a conviction or any disposition will affect your employment. Mr Halse conceded that it would be surprising if you were summarily dismissed for this offending but submitted that it may harm your future career and you ought be able to rely on your good name and character in order to avoid conviction.
34 Mr Halse submitted that the offending occurred in unusual circumstances in that you were in your own home and that you got yourself into trouble in circumstances where the complainant came to you. He said that your reaction of violence was in part reactionary and in part fuelled by alcohol and also relied on your plea of guilty in the circumstances I have previously made out.
35 Unfortunately, Mr Bishop, conduct such as yours is not unusual. All too often those fuelled by alcohol and anger inflict violence on others. Make no mistake, Mr Bishop, such conduct can and has led to the serious injury or death of a victim and is not unusual for the perpetrator to have led an exemplary life until that moment that they snap which leads to devastating consequences, but for the victim and for them. However, I accept that such conduct is unusual for you.
36 In the circumstances, I do not need to attach any weight to specific deterrence nor the need to protect the community and I find that your prospects of rehabilitation are excellent. However, I must impose a penalty which serves to deter others from behaving as you have and I must also impose a just punishment and denounce your conduct. On any view of it, you assaulted in fairly serious fashion, a person who was in a vulnerable position, causing her injury to a number of places on her body.
37 Mr Halse submitted that you were apologetic for what you had done and relied on the character material and the witnesses and people who attended court to support you and spoke highly of you. He submitted that in all the circumstances, I ought impose a non-conviction good behaviour bond.
38 Mr McWilliams for the Crown submitted that because of the objective seriousness of your offending and because of the weight, I ought attach to general deterrence, the imposition of a conviction was warranted in your case.
39 Mr Halse provided me with details of your income, mortgage and living expenses and I understand that you also have legal fees to pay. I factor all of this in when imposing a monetary penalty upon you. In circumstances where the Crown said that but for this admission that a conviction was warranted, all sentencing options were open to me.
40 Mr Bishop, I am most concerned as to the violence which you displayed on this occasion and I have anxiously considered whether a non-conviction disposition adequately addresses all sentencing considerations. However, I have had regard to your exemplary contribution to the community and your exemplary career and I also note that you committed these offences at a time after you had been involved to a significant extent in the 2009 bushfires. I do not have any formal psychological or psychiatric material but one would not have to be too imaginative to think that such a traumatic experience must have left a mark upon you. Your former wife has made such an observation to which I have previously referred.
41 In all of the circumstances, I have come to the view that a non-conviction disposition is warranted in your case but it will involve you donating a significant sum to charity.
42 Without conviction, I release you on an undertaking to be of good behaviour for a period of two years from today. You are required to attend court, if and when called to do so, during this period and I impose the special condition that you pay the sum of $2000 to Oxfam Australia within a period of 12 months from today’s date. Once the donation has been made, you must provide a receipt for this to the criminal registry at this court, within seven days after the time that the donation has been made.
43 Are you prepared to enter the undertaking that I have just described to you, Mr Bishop?
44 PRISONER: I am.
45 HER HONOUR: All right, thank you. I will have you sign that document in a moment. I will just indicate that pursuant to s.6AAA if not for your plea of guilty, I would have convicted you and ordered you to undergo a community corrections order with appropriate conditions including a work component.
46 Yes, thank you. You may take a seat and your counsel can assist with the signing of that document.
47 MS SAMPSON: Thank you, Your Honour.
48 HER HONOUR: Are they the matters, counsel?
49 MR McWILLIAMS: Yes, thank you Your Honour.
50 MS SAMPSON: Yes, Your Honour.
51 HER HONOUR: Thank you. Thanks for your assistance. All right, we'll adjourn.
- - -
0
0
0