Director of Public Prosecutions v Bota

[2014] VCC 423

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 13-02214

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BOTA

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 March 2014
CASE MAY BE CITED AS:	DPP v BOTA
MEDIUM NEUTRAL CITATION:	[2014] VCC 423

REASONS FOR SENTENCE

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Subject: Criminal Law - Sentence         

Catchwords:   Aggravated burglary, causing injury recklessly, one charge each – PG – home invasion at night – 3 occupants including pregnant woman and young child – one occupant physically injured – all occupants traumatised – use of imitation firearm – no motive disclosed. Offender suffering longstanding poly-drug addiction – dysfunctional childhood -  extensive criminal history – guarded prospects for rehabilitation – has been mother’s carer in past – mother needs basic daily care – difficult for other family members. General and specific deterrence.           

Sentence:4 years and 6 months; non parole period  3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Md D. Hogan Ms B Goding (for sentence)	DPP
Ms S Locke	Doogue Obrien George
For the Accused	Mr A Trotter (for sentence)

HER HONOUR:

1John Bota, you have pleaded guilty to one charge of aggravated burglary, and one charge of causing injury recklessly.  They are serious crimes, and attract maximum penalties of 25 years and 5 years imprisonment respectively.

2On 22 June 2013 at about 1.00 a.m., you and a co-offender Mazin Putrus, drove to a street in Maribyrnong where the home of the victims was located.  You parked and waited for some 40 minutes before driving away.  You went to a petrol station in a nearby suburb, and then returned to the same location as before, a few doors away from the victims’ home.

3At 3.50 a.m. you knocked on the door of the victims’ house, and the male occupant aged 35 was awoken.  He lived there with his pregnant wife, four year old daughter and his 59 year old mother.  He looked outside his window, but saw nothing.  You left the house, but remained in the area with the co-offender. 

4At 4.38 a.m. you moved your vehicle to a nearby street, and walked back to the position where you had been parked, carrying with you an imitation firearm and a back pack.  This back pack was later found in the vehicle, and inside it were found two large kitchen knives, pliers, scissors, secateurs and an almost empty roll of duct tape.  You later denied that you had intended to use any of these items.

5On arrival back at the victims’ house, you cut a hole in the security door and reached through attempting to unlock the front door.  You then tried to kick it open, and the older female resident was awoken and came downstairs.  She saw a torch being shone through the front window and thought it was a neighbour seeking help, and so she opened the door.

6You rushed into the house, pointed the firearm at her and pushed it into her stomach.  Her son came downstairs, and you pointed the firearm at her.  He said to you "Don't hurt us, what do you want?".  You did not reply, but pointed the imitation gun at the woman's head and then at the ceiling.  She thought the gun might be fake, but was still very scared.

7She grabbed you by the collar and pulled you out the front door, causing you both to fall into the garden beside the front door.  The woman yelled for help, and you pulled the trigger on the gun, producing a click sound which was heard by the male victim, leading to his belief that the gun was in fact an imitation.  He tried to pull you off his mother, and you hit her on the head with the gun causing an injury which began to bleed.  The man told his mother to run, which she did and you walked away.

8The man followed you to where your car was parked, noted the registration number and saw you drive off.  The police had been called, and intercepted you in a nearby suburb.  You were arrested and interviewed and remanded in custody where you have remained since then.

9The female victim suffered a laceration to her head, abrasion and bruising to her face, swelling and tenderness to her hand, abrasions to her elbow and a laceration to her toe.  The other two adult victims provided victim impact statements which describe the fear they experienced and the emotions they felt in anticipation of having to face you in court.

10The little girl has become anxious about being left alone and follows her mother around the house.  They fear you might return to exact revenge upon them.  The use of the gun provoked extreme fear in the male victim.  Through your counsel, you expressed your remorse about your actions and your apology to them and wanted to assure them that it would never happen again.

11You are a single man aged 40 who immediately before this matter and for some years earlier had been the primary carer for your mother who suffers from a number of serious health problems.  She suffers from peripheral vascular disease which has led to the amputation of her toe recently, and she has limited vision owing to insulin dependent diabetes.  She has heart disease, renal disease and a number of other conditions which render her dependent upon others for basic daily care.  You maintain great concern for her, and fear that she will not live long enough to see you released. 

12Since your remand, your role as carer has had to be taken up by your brother Martin who works fulltime as a carpenter, a leading hand in his job.  Your parents are separated, and although your father lives in a granny flat behind your mother's house, they have little to do with each other.

13Your brother gave evidence that several years ago when your mother's health declined, you overcame your drug addiction sufficiently to assist her, and this marked an improvement in your lifestyle.  He said before that, you had been entirely focused on your need for drugs, and this appears to have dominated your life, an observation which is borne out by an extended criminal history, featuring offending consistent with that lifestyle.

14There appear to have been at least three previous convictions for resisting and assaulting police.  One conviction for assault with a weapon, and one conviction for recklessly causing serious injury.  There are a large number of drug and dishonesty convictions and various driving offences.  Some at the serious end of the range of such offending.  There are two convictions for burglary, many years ago in 1991 and 1993.  I am told that you do not consider yourself a violent man and that you did not intend that anyone be hurt on the night in question.

15The fact that you had with you implements for breaking into the house with an imitation firearm and duct tape, does indicate planning with the likely need to subdue the residents by frightening or threatening them.  Physical harm may have been an unintended consequence, but could hardly be ruled out by anyone planning such an invasion.  Fortunately it was a brief incident, and without intending to minimise the pain and distress suffered, the physical injuries you inflicted were limited in their scope.  Emotional suffering is another matter, and clearly the residents all experienced this. 

16You grew up in the company of a criminal element and were introduced to cannabis at the age of nine, and to amphetamines at 13, injecting them by the age of 15.  You graduated to heroin, and it was not until a few years ago that you undertook a methadone program and began to reduce your use of drugs generally.  The only employment you have had was working with your father as a concreter.  You have two children born to different mothers, but you have no contact with them,  your lifestyle, including periods of imprisonment, having precluded that.

17In 1997, you were badly injured in a motor cycle accident breaking both legs, and you were in a coma for 31 days.  You were in traction for nine months and in rehabilitation for 18 months, with an expectation that you might never walk again.  However you were treated successfully, but developed a dependency on opiates at the same time.

18Whilst in prison, you have been working in the kitchen on a full time basis, but are hoping to learn other skills in horticulture, or maintenance to assist you establishing a drug free and stable lifestyle when you are released.  Regrettably, you have been assaulted several times whilst in custody, twice requiring hospitalisation. 

19Your history overall suggests that whilst you are not irredeemable, you have very guarded prospects for rehabilitation.  Chief amongst the impediments you face will be your very longstanding drug abuse.  You appear to have some insight into the havoc this has caused in your life, and perhaps have developed the motivation to succeed in overcoming it.  It remains the fact that specific deterrence is a relevant sentencing principle in this case.

20An aggravated burglary of this kind known as a home invasion is a very serious crime, and the fact that a person was injured as a result adds to the gravity.  You broke into the house during the night when all the occupants were asleep, and they were very traumatised by what you did.  In this case, there is no known motive for your behaviour.  It remains unexplained.  The principle of general deterrence requires a sentence that strongly condemns this type of criminality, and imposes appropriate punishment whilst bearing in mind that the sentence should not be so severe as to be crushing.

21A further mitigating factor is your plea of guilty, which while not indicated at an early stage, but rather at the time of the contested committal hearing has avoided the need for a trial, and avoided the need for witnesses to have to give evidence at all.  For that, you are entitled to a discount on your sentence to a moderate degree, and I take that into account.

22Mr Bota would you stand please while I indicate the sentence.  For Charge 1, aggravated burglary, I sentence you to four years imprisonment.  For Charge 2, recklessly causing injury, I sentence you to 12 months imprisonment.  I order that six months of that sentence be served in cumulation upon the sentence for Charge 1, resulting in a total effective sentence of four years and six months.  I order that you serve three years before being eligible for parole.  You have been in custody for 277 days, not including today and I declare that time to be reckoned as already served, and I shall cause it to be noted on the court record.

23If you had pleaded not guilty to these charges, I would have sentenced you to five and a half years imprisonment with a non-parole period of four years.  Just be seated for a moment please Mr Bota.  Now I think there was an application for a disposal order?

24MS GODING:  That's correct Your Honour.

25HER HONOUR:  Yes, Mr Trotter I didn't hear any instructions as to whether that was consented to or not?  Do you happen to have those instructions and if not, would you like leave to approach your client?

26MR TROTTER:  I don't, but might I approach the dock briefly?

27HER HONOUR:  Certainly.

28MR TROTTER:  Excuse me Your Honour for one moment.

29HER HONOUR:  Certainly.  Do you want to have a look at the disposal order.  You'll note that I've already signed it in anticipation, but you can have a look at it.

30MR TROTTER:  Yes Your Honour.  I'm aware that it's only formal in nature (indistinct).

31HER HONOUR:  Yes.

32MR TROTTER:  Yes Your Honour, it's not opposed.

33HER HONOUR:  Not opposed or consented to?

34MR TROTTER:  It's consented to Your Honour.

35HER HONOUR:  All right, thank you.  I make a disposal order in relation to a list of the number of items that were connected with the incident. Have I omitted anything Ms Goding?

36MS GODING:  No that covers everything Your Honour.

37HER HONOUR:  Thank you.  Mr Trotter anything further?

38MR TROTTER:  No.

39HER HONOUR:  All right, thank you.  Officer I understand that the prisoner's father may have just arrived.  I'll remain here, but I'll give him a moment to say goodbye to his son.  Are you Mr Bota?

40MR BOTA:  Yes.

41HER HONOUR:  Would you like to have a word with your son before he goes.  All right, thank you officer. 

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