Director of Public Prosecutions v Bourbard

[2010] VSC 673

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0121
S CR 2010 0122
SCR 2010 0124

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAX WILLIAM BOURBARD
FRANCIE PATTI BOUBARD
SCOTT MATTHEW SMITH

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JUDGE:	Coghlan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2010
DATE OF SENTENCE:	3 September 2010
CASE MAY BE CITED AS:	DPP v Bourbard & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 673

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders
For Accused M. Bourbard	Mr C. Mandy
For Accused F. Bourbard	Mr. S. Zebrowski
For Accused S. Smith	Mr G. Traczyk

HIS HONOUR:

1. Max Bourbard, Francie Bourbard and Scott Matthew Smith, you have each pleaded guilty to one count of common assault.  That offence, as an offence at common law, but because of the provisions of the Crimes Act carries with it a maximum term of imprisonment of five years.  The circumstances that gave rise to your offending require to be set out in some detail.

1. Kenny Bourbard, the son of you Max and you, Francie Bourbard, came to live at Unit 1, Mullet Street, Hastings, in about April or May 2009.  He shared that unit with his friend Christopher Mitchell.  Uli, known as Willy Teotola, the victim of these assaults, who was subsequently killed by Kenny Bourbard lived in Unit 6 at 1 Mullet Street with his partner, Kerry Potter and their four children.  Both Teotola and Mitchell had lived in the complex for a number of years and it was through that contact that Kenny Bourbard met him.

1. The events relevant to the sentence occurred on 8 and 9 July 2009.  During the afternoon of 8 July Kenny Bourbard was at his unit with his girlfriend, Brooke Lowe, and at about 5:00pm they were joined by Willy Teotola, and some time later Jonathon Rumbold.  At least the men were drinking alcohol, beer.

1. Kenny Bourbard had arranged to meet you, Max and Francie Bourbard, at the Westernport Hotel but cancelled the meeting.  At 7:25pm he and Willy Teotola went and purchased a slab of Carlton Draught stubbies.  Mitchell arrived home about 9:00pm and Rumbold left shortly afterwards.  Some time afterwards Steven Crisp and Jake Styles, friends of Kenny Bourbard, came to his unit.

1. Over the evening there had been a number of arguments between Kenny Bourbard and Willy Teotola.  At about 9:45pm you three arrived at the unit and Styles and Crisp left shortly afterwards.  A further argument developed between Kenny Bourbard and Willy Teotola about the respect which he was showing to you, Max and you Francie - that Kenny was showing to both of you.  You were annoyed by that you, Francie Bourbard, told Mitchell that he should kick Teotola out.  Teotola who had remained calm did leave but returned a short time later to collect alcohol he had left behind.  At that time you, Francie Bourbard, are reported to have said ‘What the fuck are you doing here?’  ‘No, Crisp’.  ‘Do you want here?’  ‘No’.  ‘Well fuck off’.

1. After Teotola left you, Max, and you, Francie Bourbard, encourage your son to act out his expressions and desire to fight Teotola and punch his head in.  At about 10:26pm Kenny Bourbard unsuccessfully tried to ring 000.  At 10:30pm he rang Crisp asking for his assistance.  Crisp, Styles and one, Sean Peterson, later came to the unit.  At about the time of those telephone calls Teotola had returned to his unit and told Potter that ‘Those idiots downstairs said that they were going to get someone to smash the car’.  He described Kenny Bourbard as going mental and yelling.  He went out and moved his car.

1. When Styles, Crisp and Peterson arrived at the unit, Kenny Bourbard told Peterson he was going to fight the deceased.  It appears that by about 11:30pm Teotola was asleep and Crisp, Styles and Peterson left as it appeared their services would not be required.  After they left you, Smith, joined Kenny Bourbard in yelling up at Teotola’s unit calling for him to come out.  Potter said he was asleep.  Kenny Bourbard then told her that earlier Teotola had wanted to fight 15 year olds.  You, Smith, then told her that Teotola was cheating on her.  Her response was to tell you not to damage the car.

1. On several occasions after that Kerry Bourbard went outside and screamed up to the unit ‘I’m going to bash you, I want to smash your head in, I want to fight you.  You’ve only got into an argument with you, Francie Bourbard which reduced you to tears’.  Shortly afterwards you spoke to Potter who told you that her husband was asleep.

1. At some stage Teotola woke up and Potter reported to him what had occurred, and he got up, got dressed and went downstairs followed by her.  It was then about 1:30am on 9 July 2009.  Teotola knocked on the door and it was answered by you, Francie Bourbard.  Behind you were you, Smith, you, Max Bourbard, and Kenny Bourbard.  The fight started between Kenny Bourbard and Teotola.  It started outside the unit but moved into the unit where both you, Max Bourbard, and you, Smith, became involved.  You, Francie Bourbard, stopped Potter getting into the unit and Potter called 000 at 1:32am.

1. You, Max Bourbard, you, Smith, and Kenny Bourbard, and Teotola, were fighting in the kitchen of the unit.  Neighbours were awoken by the commotion.  In the fight furniture was upturned and items such as the electric stove and the refrigerator were moved out of their usual places.

1. At about that time, Potter smashed a window in an attempt to get into the unit.  The fight moved out of the unit, onto the driveway, where you, Francie Bourbard, joined in.  The witness, Shelly Lackington, observed the three of you involved in the fight and observed Teotola trying to move away from you.  You all kept moving towards him and Teotola was holding up his hands, saying, ‘I don’t want to fight’.

1. You backed him up against the fence and you, Francie Bourbard, were continuing to try and hit him and were shouting at him.  Teotola was holding his hands up trying to push you away.  You, Max Bourbard, with the assistance of you, Smith, then pushed Teotola up against the fence, so that his side was pushed against the fence and you, Francie Bourbard, took hold of his legs.

1. At some stage, Kenny Bourbard left the group, went inside the unit, obtained a knife, returned and stabbed the deceased with sufficient force to break the handle of the knife off.  You do not fall to be sentenced for that.  It has been accepted, by the prosecution, that you were no part of any agreement, which would have contemplated the use of a knife, in these circumstances.  I regard that decision of the prosecution as entirely appropriate.  Witnesses heard, at that stage, a comment from you, Francie Bourbard, in which you said, ‘You’ve stabbed him’ or ‘You’ve killed him’, followed by the name, ‘Kenny’.  Witnesses say that the three of continued to hold Teotola until he escaped.  You, Smith, however, told the police that you discontinued the assault before the stabbing.  You suggested that you moved away from Teotola before he was stabbed and that Kenny Bourbard had started throwing bottles at him and you had returned inside the unit.

1. You, Max Bourbard, told people in the vicinity to leave the scene and you, Francie Bourbard, and Lowe, did so.  You, Max Bourbard, and you, Smith, went into the bathroom to clean yourselves.  I am satisfied, beyond reasonable doubt, that the fight involving you, Smith, was still continuing, at the time of the stabbing.

1. I am not sure whether it can properly be said, that this was ever a true case of self-defence or the defence of another.  But, if it started in that way, it clearly reached a point where the continuing assault on Teotola was entirely unnecessary and it is in those circumstances that you plead guilty to and are found guilty of the crime of common assault.

1. I have no doubt that alcohol played a part and, to some extent, a significant part in these events and that each of you, unlikely to have behaved in the way that you did, absent the use of alcohol.  But, given the ages of which you have reached and the life experience that you have had, it affords little consolation to you and does not particularly act as a matter in mitigation.  You simply should have known better.

1. From the point of view, you, Francie Bourbard, and you, Max Bourbard, you have the additional burden of knowing that your behaviour and example, on this night, has led to the circumstances that your son now stands, charged with murder.  A burden that you will have to bear for the rest of your lives.

1. I come now to deal with the matters personal to each of you.  You, Max Bourbard, are 49 years of age.  You have spent the last 25 years working for BlueScope Steel.  Through your counsel, Mr Mandy, reference was made to a prior matter, in which you were involved, in excess of 25 years ago.  For more than 25 years you have not come to the attention of police.  Mr Mandy was under the responsibility to reveal those matters to me.  I afford them no weight in terms of the sentence that I will impose in this matter.

1. With regard to the facts counsel submitted that on your own view your son, Kenny, was under some attack and required some defence and that is how you came to be involved in the altercation.

1. Mr Mandy further explained and submitted that the events on the night have taken an enormous toll psychologically on the family in broad terms and I accept that very much for the reasons that I have already stated.  Ultimately, you were involved in a fight it was accepted where someone died and your eldest son has been charged with murder.  It raises the question in your mind, I suspect, of how it came to that.

1. Mr Mandy further submitted on your behalf that you were regretful and remorseful with regard to these events which is evidenced by your plea and I accept that.  I accept, also, that your prospects of rehabilitation are very good and I accept that it is most unlikely that you would reoffend.  You are employed by BlueScope Steel as a crane driver and have held that position for the last eight years.  You grew up in Frankston where your father and mother worked in a dry cleaning business.  You left school when you were 17 and worked in various positions until you took up your more recent position with BlueScope Steel.

1. I move now to Francie Bourbard.  You are currently 49 years of age and the mother of three children, one of whom is the accused, Kenny Bourbard.  Your other children are Becky Bourbard who is 18 and currently enrolled in an agriculture course at Frankston TAFE and your youngest child, Billy Bourbard, who is 12 and attends Year 7 at Mornington Secondary College.  You have been married to your husband, the co-accused, Max Bourbard for 13 years but have been in a relationship with him for 24 years.  You have no prior convictions.

1. Mr Zebrowski, on your behalf, submitted that your involvement in these matters was, in fact, initiated by your want to defend your husband or son who were involved in the fight with the deceased.  That, of course, as everyone will understand has to be read in the context of the general unfolding of these events, as I have set out in these reasons.  You completed Year 9 at Bonbeach High School.  You met your husband, Max, when you were only 18 or 19 and as I have indicated you have been together ever since.  Your first child, Kenny, was born just prior to your 21st birthday.

1. Mr Zebrowski highlighted that when not caring for children at home you have consistently maintained employment.  Counsel described you as a hardworking contributor to both the family and to society.  Over ten years you worked intermittently in the Frankston area as a cab driver.  It is suggested that I said you were 49.  You are 42, if I got that wrong, it is your husband, Max, who is 49.  I cannot always read my own handwriting.

1. Over ten years you worked intermittently in the Frankston area as a cab driver.  You also worked for five or six years fulltime at Peninsula Refinishing Supplies.  You began there as a delivery driver and worked your way up into administration.  You have also worked as a school cleaner of the Hastings Primary School where all your children attended.  You have had an affiliation with that school as a volunteer organising raffles, Father’s Day stalls, canteens, excursions and the like, and on our plea I was provided with a letter from Sue Lyons, the principal of the Hastings Primary School.

1. I also received a certificate dated 26 May 2010 from K-Mart in recognition of the great customer service, and a certificate of appreciation in recognition of your assistance and support to the 2009 football season in the under 12 Hastings Junior Football Club.

1. Both you and your husband, Max, have had to suffer the additional problem which has arisen by the need for your youngest child, Billy, to change his place of schooling as a result of these events.

1. In relation to you, Mr Smith, Mr Traczyk, who appeared on your behalf on the plea, first of all emphasised the confession made by Mr Saunders in the prosecution opening, that as the fight originally starts there is an element of self-defence involved in terms of you and the other accused involved in this fight.  He rightly noted that at some point at the very least that the bounds of the operation of self-defence was exceeded and as a result the offence of common assault is committed.  He noted that in the statement of the police officer who attended upon the deceased when he had been stabbed the following was said:  Scott Smith asked of Teotola, the deceased ‘Is he going to be all right’.  He also offered assistance.  Again I have not the least doubt that the consequences of the death of Mr Teotola was an unintended consequence from your point of view of these events.

1. You have no prior convictions and I received various references which were exhibited and marked as Exhibit 2S on the plea.  They were a reference from Tony Clark the shift supervisor at Bluescope Steel, a reference from Rob Nichols, president of the Rosebud Football Club, a reference from Daniel Giarusso and a reference from Michael Caine from Caine & Co., who all speak highly of you.

1. In a sense really for the whole three of you the previous good character that you have enjoyed makes these events all the more inexplicable.

1. You, Mr Smith, are currently 31 years of age, you have two sisters aged 32 and 27, you completed Year 12 at Rosebud Secondary College and obtained employment at flour mill in Bridgewater for one year, and before moving on to Bluescope Steel where you have worked as a process technician since.  You own your own home and presently live there alone.  You have played football over a long period of time and are highly regarded by your club.  In general it is fair to say that there is otherwise nothing remarkable about your background.

1. On the plea it was submitted that it would be unnecessary to impose upon any of you a custodial sentence.  The question was raised on the plea as to whether a non-conviction disposition ought reasonably open in the circumstances of the case.  It was subsequently submitted  to me on behalf of the Director of Public Prosecutions that I would fall into appellate error if I was to undertake such a course.  That response from the Director was directly in accordance with the question that I had asked of the plea having been heard.  Having looked at the whole of the material and in particular the length of time over which these events occurred the part of the role played by the, first of all, you, Francie, and you, Max Bourbard, in the encouragement of your son to get involved in the fight with Teotola and your role, Smith, in joining Kenny Bourbard in the abuse and, effectively, the invitation to fight while standing outside the unit and the fact that, ultimately, the assault that involves you, involves you in a incident which involves three people against one person, I am satisfied that the relative seriousness of the offending and the parts, played by each of you in it, are such that I could not exceed to the submissions made to impose no conviction.

1. Equally, and for the reasons I have just stated, I see no particular reason to distinguish between the three of you, in the penalty that I have decided to impose.  It is true to say that if these matters were to be viewed separately from the unfortunate consequences, which bring the matter before this Court, you would have, ordinarily, perhaps, been dealt with in the Magistrates’ Court, certainly, probably not more significantly than the County Court.

1. Because I have regard to your good prospects of rehabilitation, I now speak of all of you, your previous good character, the extreme likelihood that you will not re-offend, in any way, I have decided that the most appropriate disposition, in this case, is a fine, and you will each be fined $1500, to be paid to the Prothonotary of the Supreme Court on or before 3 March 2011.  That is six months to pay.

1. I will sign the orders indicating that penalty and I have decided, in the circumstances, it would be appropriate to make the order for the retention of Mr Smith’s sample.  I will sign those orders.  I will provide a copy of the order imposing the fine to each.