Director of Public Prosecutions v Bouras

[2018] VCC 1651

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02333

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK BOURAS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2018
DATE OF SENTENCE:	9 October 2018
CASE MAY BE CITED AS:	DPP v Bouras
MEDIUM NEUTRAL CITATION:	[2018] VCC 1651

REASONS FOR SENTENCE
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Subject:         Stalking, Make threat to cause serious injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle (Plea) Ms K. Voulanas (Sentence)	OPP
For the Accused	Mr G. Chisholm (Plea) Ms M. Greener (Sentence)	Emma Turnbull Lawyers

HER HONOUR: 

1Nick BOURAS, you have pleaded guilty to Indictment C1711173.2 containing one charge of stalking and one charge of making a threat to cause serious injury.  You have also pleaded guilty to Indictment C1711173.1, two charges of possession of a drug of dependence. 

2The maximum penalties for these offences are:

3Stalking: 10 years

4Threat to cause serious injury; 5 years

5And possession of drug of dependence: in your circumstances, where the drugs were not for a purpose relating to trafficking – 1 year or 120 penalty units.

6The details of your offending are fully set out in the Amended Prosecution Opening dated 18 September 2018.

7You met the victim Vicki McGregor and her autistic son Emmanual in August 2016, through a mutual acquaintance named Dale Charter.  At that time she was renovating her house in Reservoir and you were recommended by Dale Charter to fix her fence.  She contacted you on 20 August.

8Soon thereafter you sent her a number of texts and also spoke to her when you were at her home, expressing a sexual interest in her.  She made it clear she was not interested in you, that you had not as you expressed “found” her, and all she wanted was for you to fix the fence – you became angry.

9Between 29 August 2016 and 5 September 2016, you stalked Ms McGregor by a course of conduct (Charge 1) including calling her by phone, sending text messages and voicemails some of which contained threats to kill.

10On 29 August 2016 you sent 2 text messages referring to her funeral – you met her the next day and told her that you wanted to see your daughter and that you would go out in cross fire with police.  You tried to kiss her and she pulled back – you then threatened her, “You’re next!"   You said you would track her down if she ran from you.

11Other text messages you sent were of a threatening nature.  You started ringing her non-stop, telling her you were going to shoot her.  She called Dale Charter for help, who arrived at her house whilst she was packing her bag.  She left with her son Emmanuelle and drove to a service station in Dandenong, where she slept in the car.  The following day, terrified, she checked into a motel.

12On 31 August 2016, you sent a message from a payphone which read, "You can run but you can’t hide. I know where your Mum lives".  Minutes later you left a voice message demanding that she ring you. 

13The next day you called her 35 times between 2.30 am and 11.00 am.  In one voice message you said "I’m coming for you" and in another, "I’m gonna get you dog.  You’re gonna get got".  You also sent a large number of text messages to her including with pictures of guns (see Exhibit B) accompanied with written threats.  Ms McGregor blocked your number after receiving these messages and went to the police who applied for a Personal Safety Order against you on her behalf. 

14When Ms McGregor checked her phone the next day she discovered a text that was abusive the end of which read:  "If you go to cops I swear I will gut you like a fish. You think you know me you have no idea cunt’.  More threatening and abusive messages were sent  

15On 3 September 2016 you sent more threatening messages to her, including that she was going to die and that you knew that she was at home, because the shutters were closed.  On 5 September 2016 you sent messages threatening both Ms McGregor and her son, and also abused her for going to the police.

16You sent another message on 5 September and Ms McGregor sent a copy of it gave to police.  Sergeant Petsas rang your aunt, with whom you were living and she told him that you had just left.  You rang Sgt Petsas about an hour later and abused and threatened him.  You rang again asking him what time he finished work and threatened to be at the station and follow him.  Later investigations revealed that your mobile phone was being used in the vicinity of the Preston police station. You called Sgt Petsas again later that night saying you would see him soon (Charge 2). That relates to Charge 2; that is the conduct in respect of Sgt Petsas.

17You were arrested on 6 September 2016 and found in possession of 1.7 grams of methyl amphetamine and 38.1 grams of 1-4 butanediol (Charges 1&2 on Indictment C1711173.1).  You have been in custody since that time.

Victim Impact Statement

18Ms McGregor provided a Victim Impact Statement and it was read by the prosecutor.  I was also provided with a report from her social worker and I take that material into account.

19Your conduct in stalking her has dramatically affected her and her son’s lives  – after struggling financially and completing the hard work renovating her home, she has had to leave and sell the house, fearful and petrified to remain living there.  They have moved out of the neighbourhood and attempted to deal with the practical and social consequences that follow from such a move.  She describes them as living like prisoners in their own home and that she suffers anxiety.  She notes:

I suffer anxiety and feel unsafe and think the worst in every situation .. I don’t have trust in anybody.  I feel my son and I have been robbed of our lives and of our future.  I see everything in a negative light, I see the world differently; I was never that person.

20Her social worker reports that her PTSD score is very high, indicating severe levels of trauma, causing her distress and affecting her psychological functioning and ability to feel that life is worth living.

Personal circumstances

21I was provided with report by Forensic and Consultant Psychologist Ian H. McKinnon dated 17 July 2017, and I take that material into account.  I was also provided with a copy of the sentencing remarks dated 15 March 2012 of Justice Hollingworth that sets out your personal history. 

22You are currently aged 47 – you have Greek parents and you are the eldest of 3 children.  You ultimately left school at the end of Year 11 and have been in employment most of the time, though have spent periods  in custody.  You lived in the family home until you moved in with Ms Longano, the mother of your daughter.  You married Ms Longano in 2005 though separated in December 2008 – your most serious prior offending relates to her and the breakdown of that relationship.  You have not seen your daughter since you were released from custody.

23Between 1991-1996 you worked in customer service at Telstra – since that time you have worked as a fencing contractor.  It was in the context of running that business that these offences were committed.

24You have a history of drug abuse – you started using amphetamines when you were 26 and cannabis at 30.  You have used various drugs including speed, ice, GBH, MDMA and cocaine – you have never engaged consistently with drug counselling or treatment.

25As indicated, this offending commenced on 29 August 2016.  Mr McKinnon remarks that you had a sustained period of substance abuse commencing when you were retrenched in June 2016 and that at this time your psychological health had deteriorated to the point where you were paranoid, highly unrestrained, disinhibited, impulsive, suffering cogitative distortion and liable to unprovoked and aggressive outbursts.  He notes that you did not appear to have a rational reason to be angry at either Sgt Petsas or Ms McGregor.  He is of the opinion that at the time of the offending you were suffering from a depressed mood disorder and an associated poly substance abuse disorder – it was not however suggested on the basis of this opinion by your counsel that Verdins principles were enlivened.

26You have a significant prior history dating back 23 years – you have 31 prior convictions from 10 separate appearances.  In 1995 you were convicted of making a threat to kill – this involved an altercation and verbal confrontation with your mechanic.  You have a number of prior matters for ammunition, gun and drug offences.  You had a period of no offending between June 2000 and November 2007 when you were with Ms Longano.  Much of your offending after this time relates to drugs, driving and offences against Ms Longano

27Of most concern are the matters before Justice Hollingworth – you were convicted on 12 December 2012 of one charge of stalking, one charge of possessing an unregistered firearm whilst being a prohibited person, 2 charges of possession of a drug of dependence and one summary offence of possession of ammunition.  Justice Hollingworth described that stalking offence as follows:

Your text messages were offensive and frightening and were intended to be so.  You were indeed following Ms Longano and watching her movements, and you wanted to be well aware of your surveillance and her to be frightened by that fact.  You sent many messages over a number of days often in the middle of the night to a rather anxious woman who was frequently home alone in the house with a young child … you only stopped when police stepped in.   

28You were sentenced to 4 years and 3 months' imprisonment with a non-parole period of 3 years and fined $1000.  You were released from custody on 18 December 2014.

29As noted you were remanded in respect of these matters on 6 September 2016 – the matter was booked in for trial on 16 April 2018 however it was not reached, and the following day you pleaded guilty to all the charges.

Plea of guilty /remorse

30I take into account your plea of guilty though it could not be said to have been at the first opportunity.  Both Sgt Petsas and Ms McGregor were cross examined at the committal.  I accept that though your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  Ms McGregor was not required to give evidence at your trial and relive these traumatic events again.  I accept that your plea is indicative of some remorse.

Time in custody

31You have spent most of your time in custody at Metropolitan Remand Centre and Fulham Prison.At the remand centre you worked as a “toast” billet which necessitated you waking in the early hours and retiring in the afternoon.  You have provided clean drug screens and had no management issues. 

32In Fulham you have spent much of your time in a lodge with eight other prisoners and you cook for yourselves.  You have worked in the trusted position as a billet at the property store and have provided clean drug screens.  I was informed that you have recently spent three weeks in management unit though your classification will improve upon receipt of your sentence.

Rehabilitation

33There are a number of features that do not auger well for your rehabilitation prospects:

34You have a significant amount of relevant of prior convictions, particularly relating to your conduct towards Ms Longano;

35You have a long history of drug abuse – though I accept that you have provided clean screens whilst in custody, Mr McKinnon views you at risk of relapse particularly if your living circumstances are not secure.

36I accept the prosecution's submission that your rehabilitation prospects are guarded.  

Aggravating features

37As to the gravity of this offending, you had only recently met Ms McGregor and your threats and abusive behaviour escalated quickly – there were many contacts over the period between 29 August and 5 September;

38The stalking was a course of conduct and including references to Ms McGregor’s vulnerable son and to weapons;

39Your actions were random in the sense that you had no established relationship with Ms McGregor – you sought to instil fear in her re your knowledge she had been to the police and her whereabouts;.

40The impact on Ms McGregor and her son has been significant

Sentencing submissions

41Your counsel submitted that you should be considered for a Community Correction Order, particularly given that you had spent a significant time in custody.  It was submitted that I was empowered to impose a combination sentence whereby you would be required to serve a further period of imprisonment (though less than 12m) and then be placed on a CCO with conditions regarding your drug use and treatment and other issues.  The prosecution submitted that given the gravity of this offending and your prior history, that the only appropriate disposition was a term of imprisonment.

42Specific deterrence and protection of the community are important sentencing considerations given your history and the continued and persistent nature of your conduct constituting this offending, particularly the stalking.  Just punishment, denunciation and general deterrence are also matters that must be given prominence in the sentencing exercise.  These features should be balanced with matters in your favour as referred to in these reasons.  I am satisfied that the only appropriate course to adopt is the imposition of a term of imprisonment.

43If you could please stand, Mr Bouras.

44In respect of Indictment C1711173.2, Charge 1 of stalking, you are convicted and sentenced to a term of imprisonment of three years. 

45In the same indictment, Charge 2 of threat to inflict serious injury you are convicted and sentenced to a term of imprisonment of eight months. 

46In relation to the other presentment, that is C1711173.1, in respect of each of those charges you are convicted and sentenced to a term of imprisonment of one month. 

47The base sentence will be the term of imprisonment imposed in respect of the stalking, so that is three years.  Two months of the sentence imposed on Charge 2 from that presentment will be served cumulatively and one month of the sentence imposed in respect of the other indictment is to be served cumulatively, giving a total effective sentence of three years and three months.

48I set a non-parole period of two years before you will be eligible for parole.

49What are the days in custody, please?

50MS VOULANAS  Your Honour, there is 732 days.

51HER HONOUR:  I declare 732 days PSD.  Sorry, is there some dispute about that, Ms Voulanas?

52MS VOULANAS:  No, Your Honour, there was the amendment - the amended opening which there was time served which was not included in the subsequent days in custody.  I think my learned friend may be confused with that.

53MS GREENER:  Yes.

54HER HONOUR:  All right, all right.  So 732 days.  What it means, Mr Bouras, is that you are almost eligible for parole, I think, from the time that you have already served.

55Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of four years and six months with a non-parole period of three years.

56Did I do the ancillary orders the last time, Ms Voulanas?

57MS VOULANAS: No, you did not, Your Honour. There is a disposal and a s.464ZF(2) order.

58A forensic sample is sought pursuant to s.464ZF(2) of the Crimes Act 1958.
Mr Bouras, you need to be aware that I am making an order in respect of the police taking a sample.  It will be a swab from your mouth.  If there is any difficulty with that, or you do not consent to that when that procedure is undertaken, the police are able to use reasonable force in relation to the taking of that sample

59Are there any other matters that I need to deal with?

60MS VOULANAS:  No, Your Honour.

61HER HONOUR:  Thank you.  I will just stand down. 

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