Director of Public Prosecutions v Bourke

[2018] VCC 261

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-01768

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN BOURKE

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2018
DATE OF SENTENCE:	14 March 2018
CASE MAY BE CITED AS:	DPP v Bourke
MEDIUM NEUTRAL CITATION:	[2018] VCC 261

REASONS FOR SENTENCE

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Subject:  Domestic violence, aggravated burglary

Catchwords:  Recklessly cause injury, repeated punching, breach IO

Legislation Cited:                  

Cases Cited:

Sentence:  TEFS 4y3m, NPP 2y3m

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Boyd-Wilson
For the Accused	Mr B. Johnston

HIS HONOUR:

1Shaun Geoffrey Bourke, you have pleaded guilty to one charge of aggravated burglary, where you intended to commit an offence involving an assault, and at the time of your entry, either knew or were reckless as to the presence of a person.

2You have also pleaded to Charge 2 of recklessly causing injury to
the complainant on the same day, namely 17 May 2017.  In addition, you have pleaded guilty to Charge 3, that on the same day you breached a family violence intervention order, wherein the protected person under that order was the complainant.

3You have also pleaded guilty to the related summary offence (no.8), of unlawfully assaulting the complainant between the 6th and 7 May 2017. 

4The respective maximum penalties for the offences to which you have pleaded guilty are: aggravated burglary, 25 years' imprisonment; both charges of breaching a family violence intervention order and causing injury recklessly have the same maximum penalty of five years' imprisonment, and; the related summary offence of assault has a maximum penalty of three months' imprisonment.

5Tendered on the plea hearing was a prosecution summary, and also a collection of photographs.  These will remain on the court file, and having regard to this I will summarise the circumstances of your offending somewhat more briefly.

6You had been in a relationship with the complainant for approximately 14 months, however you had known each other since you in your mid-teens. 
The complainant resided with her two teenaged daughters and you moved into the family home in or about April of 2016.

7Following an incident in February 2017, an interim intervention order was put in place.  You moved out, staying with your daughter, however you returned to live at the residence after a couple of days. 

8On 4 May 2017 at the Frankston Magistrates' Court, a final family violence intervention order was granted, wherein the complainant and her two children were included as protected persons.  The conditions of this order prohibited you from committing family violence against these persons, damaging their property, and going or remaining within 200 metres of their address, or any other place where they might live, work or attend school.

9You were, however, allowed to contact and communicate with the complainant, approach her and remain within five metres of her.  These exemptions did not, however, apply to her daughters.  You were present at the final hearing and consented to the making of the order, however made no admissions concerning the conduct which formed the basis for the grant of the order.

10On either 6 or 7 May 2017, the complainant attended your workplace and took you back to her residence.  Whilst there, you became angry and threw a cigarette lighter at her.  This caused a black eye and left a lump over her left eyebrow.  She attended her doctor shortly after.  It is this conduct which forms the basis of the related summary offence of assault. 

11On 17 May 2017 in the early afternoon, the complainant attended your workplace and picked you up.  You both had an argument during the drive back to her residence.  The complainant drove you to a nearby bottle shop so that you could purchase alcohol.  She declined to hand over her EFTPOS card to you, and went into the bottle shop, where her black eye was noticed by the attendant. 

12She said to the attendant that the man who walked in was a façade, a reference to you, and as she was walking out of the bottle shop she yelled "They all love the black eye you gave me".

13Following on from this, arguing continued in the car.  The complainant decided that she did not want to take you back to your house, and you then departed the vehicle and walked away.  You did return to the residence later that afternoon, and the two children returned home from school to find you seated on the couch.  They noted several empty Johnnie Walker cans on the floor. 

14You told the children that you were sick of their mother's attitude, and that you were "pissed off".  You told them that their mother wanted you out.  When
the complainant returned home, there were a number of exchanges between the two of you, and you continued drinking and then re-attended the bottle shop, returning with more alcohol.

15By about 8.30 pm, the children had gone to bed, and you indicated you wanted the complainant’s car keys.  Arguing then ensued, and amongst other things the complainant told you that she wanted you out of the house.  You picked her up by the shoulders and threw her onto the end of her bed.  She was crying "get off me" repeatedly, and you then grabbed the car keys.  As you were leaving, she got up and tried to stop you from leaving with the keys.  You pushed her into a doorway near the front door.  She got to her feet and attempted to get the keys off you.  You then kicked her to the left side of her body and punched her to her head and chest at least four or five times.  You stood over her, and she was trying to kick you in order to get you away from her.  She was unsuccessful in this endeavour, and you then performed a sidekick on her, which hit her on the right side of her body in her ribs, causing her to fall to the floor.  She then experienced trouble breathing.  It was noted that you were wearing steel-capped boots at the time.

16One of the children was talking to her mother, asking if she could get up so that they could leave and go somewhere safe.  You then departed the premises, driving off in the complainant’s car.  After your departure, the complainant asked her daughters to lock the doors and windows, which they did.

17A short time later, you were noticed to be in the backyard of the premises.  You were asking one of the complainant’s daughters to open the door, however you opened the door with a hard pull, notwithstanding that it was locked, and then walked straight into the complainant’s bedroom.  Your entry to the premises in these circumstances constitutes Charge 1 of aggravated burglary.

18On entering the bedroom, you immediately began punching the complainant in the chest and face with both of your clenched fists.  She was trying to protect herself, and the children were screaming, asking you to get off their mother and stop hitting her.  You were abusing the complainant, and she was yelling that she was not going to stay in the house.  You left through the front door, and sometime later returned.

19At this stage, you were holding more alcohol, and shortly after this the complainant returned back to the residence.  You threw an object at her, hitting her in the left cheek, causing her to fall to the floor.  This caused severe pain to her face.  You charged at her, punching her about five times in the face with your fists, and were also pulling her hair.  The complainant was crying and begging you to stop, and one of her daughter's was trying to intervene.  You bit the complainant’s wrist and hand and grabbed her right foot and leg and commenced to twist her skin with both hands, causing her pain.

20The complainant then retreated back into her bedroom, and observed something being thrown at her and was struck in the back of the head.  This was a beer bottle.  The impact of this object caused it to smash into pieces and cut her head.  Both of the children saw you throw the beer bottle at their mother.  By this stage, the complainant was scared for her life, and she describes experiencing excruciating pain.  She requested an ambulance, but you refused to help.

21The complainant wrapped a towel around her head and ran outside the premises in order to seek the assistance of neighbours.  She was unsuccessful, and she then attempted to drive herself to hospital with her daughter in the car.  She was ultimately given assistance by road workers, and an ambulance was then called for her.

22When police arrived, they observed her seated by the side of the road with her daughter.  The complainant told police that the injury had occurred when she walked out of her bedroom door and slipped on the floor and hit her head. 
She was then transported to the Dandenong Hospital.

23It was documented that she had received the following injuries:  a 10-centimetre laceration to the back of her head requiring eight stitches; a left black eye, with red bruising on the upper eyelid, and a red mark on the side of the right eyebrow; bruising over the right upper eyelid; a red mark on her neck area underneath the right jaw; bruising to the left cheek bone and temple; a small linear mark over the right side of her abdomen; a round bruise on the left wrist; a round bruise on the back of the mid-left thigh; a bruise on the right thigh, and; a red mark on the right knee.

24It is the infliction of these injuries that are relied upon as constituting Charge 2 of recklessly causing injury, and also Charge 3 of contravening the family violence intervention order.  Both parties agree that the current state of the evidence is such that I cannot find that further injury, which your victim attributes to you, has in fact been caused by you.

25Having regard to this agreed position, I will sentence you on the basis of the injuries that I have catalogued.

26The next day, plastic surgery was required to repair the damage to the back of the complainant's head.  She was released from the Dandenong Hospital on 18 May.  On 16 June, she attended her general practitioner, complaining of headache and balance disturbance.  She's not been fit to work since the incident.

27On 9 August, the complainant attended the Monash Neurology Department, and her symptoms were attributed to concussion suffered as a result of her multiple head injuries.  Whilst the concussion had settled, it was noted that she had residual memory and headache issues.  She was also diagnosed with anxiety from her physical and emotional trauma.

28Police attended at the complainant’s address in the early hours of the morning of 18 May, and you were present.  You were arrested for breaching the intervention order.  Inside the premises, police observed the shattered beer bottle and other matters consistent with your conduct.  You were charged with breaching the intervention order and released on bail.

29It is to be recalled that at this stage the complainant had not made a formal statement to police, and had explained her injuries as a result of having slipped on the floor.  Around 9 pm on the evening of 18 May however, the complainant attended the local police station and made a statement, implicating you in regards to the incidents of 7 and 17 May.  Consequent upon this, police arrested you at your workplace.

30When interviewed, you made partial admissions to being at the relevant address, however you denied throwing the beer bottle at or assaulting the complainant.

31Three victim impact statements were read to the court by the complainant.  They reference the trauma which your offending has caused to herself and to her two daughters.  It is fair to say that the impact of your crimes has been profound, and is ongoing.  The complainant and her two daughters speak of their ongoing fear and their loss of their sense of security as a result of your conduct.  I will have appropriate regard to the relevant and admissible portions of the victim impact statements.

32Appropriately on your plea, it was conceded that you had engaged in serious offending.  In the comparatively recent case of Pasinis v The Queen [2014] VSCA 97, in a factually-different context the Court stated:

"General deterrence is of fundamental importance in cases of domestic violence.  The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities.  The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

33In the case of DPP v Meyers [2014] VSCA 314, the Court said:

"Violence of this kind is alarmingly widespread and extremely harmful.  The statistics about the incidents of women being killed or seriously injured by vengeful former partners are truly shocking".

34Whilst the fact that you were intoxicated at the time of your offending may provide some explanation, it does not excuse it.  Notwithstanding your intoxication, you had decided to return to the premises in the context of your earlier aggression.  Your entry involved forcing a locked door at night.  Whilst I accept that you were not armed or in company, as is sometimes the case, your aggravated burglary was a breach of the sanctity of your victim's home.  At the time of your entry, your intention was to assault your victim.

35It followed on from your earlier conduct of that evening.  Your entry would obviously frighten and intimidate her.  You must have known that she was frightened of you.  You knew her children were present at the time.  Almost immediately after entry, you commenced to assault your victim.  This will of course attracted a separate sentence, as it occurs after your aggravated burglary had been completed.

36Once inside, you set upon her in a truly frightening example of aggression.  The incident occurred in the presence of her young daughters, who were also terrified.  The events of 17 May are preceded by the earlier episode of 6 May. 

37So far as your attack on your victim is concerned, its seriousness is underpinned by the fact that she was vulnerable, your attack was sustained, and involved the use of a bottle, which smashed on impact.  All of this took place with her two young daughters present in the house, and during the currency of an order to protect her.

38The sentence which I impose on you must adequately emphasise the court's denunciation of your conduct, your deterrence and the deterrence of others who would act as you have, and just punishment.  Given the factual overlap between Charges 2 and 3, I will moderate the sentence I impose on Charge 3, and the orders for cumulation of it, to avoid doubly-punishing you for this offending.

39To your credit, you did plead guilty to these offences, at what is agreed to be a relatively early time.  Your plea of guilty has facilitated the course of justice, and has meant that the community has been saved the time and cost of a contested trial in these matters.

40In addition, your victim has not been required to give evidence, and in addition your guilty plea is evidence of some remorse on your part.  You have a concerning significant and relevant prior criminal history for offences of both violence and breach of intervention orders.  Your last prior matter for violence was in 2013, a conviction for recklessly causing injury.  You were also dealt with for breaching an intervention order at this time.  You received an aggregate two-month term of imprisonment, and were then to participate in a community correction order of 12 months' duration.

41At the time of the commission of this offending, you were undertaking a community correction order, which had been extended.  In summary, the longest term of immediate imprisonment that you have been sentenced to previously is one of six months. 

42It should, however, be noted that there have been significant periods where you have not offended, and most notably from approximately 2007 through to 2013, and your appearance before me represents your first sentencing in the inherent jurisdiction of this court.

43Having regard to your troubling prior history, specific deterrence does need to be appropriately emphasised in your case.  You are now 42 years of age, and you grew up in Melbourne's south-eastern suburbs, living with your father, mother and stepsister.  Your childhood was one of some adversity, in that you had a volatile home environment, wherein your father was an alcoholic and your mother in particular would be violent towards you under the guise of corporal punishment.

44You reported to Dr Aaron Cunningham of having had a good relationship with your father, but a poor relationship with your mother, who you believed would take out her own personal problems on you.  You left the family home when you were approximately 18, and it was shortly after this that your father passed away from cancer.  You attended primary school in Hallam, and completed Year 12 at Berwick high school.

45You do have a good work history, having commenced full-time employment shortly upon completion of your high school education, and you have remained in gainful employment for most of your adult life.  You have a forklift driver's licence, and are qualified as a fitter.  Prior to your remand on these charges, you had been working as a forklift driver at Coca-Cola for approximately 12 months, and you anticipate returning to this type of work upon your eventual release from custody.

46You have had three significant relationships in your adult life, and from them you have three children, each to a different mother.  You remain on reasonable terms with your eldest daughter, who is age 24, and you anticipate that she will provide you with accommodation upon your release.

47You commenced using cannabis when you were approximately 16 years of age, and this continued until approximately four years ago.  You experimented with stimulant-type drugs from around the age of 19, and report that you became addicted to these drugs after the death of your father, after which your usage increased, you believe, as a coping mechanism.  You report having ceased stimulant-type drug use also around four years ago.

48During the currency of your relationship with the victim, you were abusing alcohol, and it seems you were disinhibited as a result of having drunk what you estimate to be 24 cans in the period leading up to your offending.

49So far as your medical history is concerned, you have previously been diagnosed with Hepatitis C, a condition from which I am told you have now fully recovered.  You have also had Stage 2 testicular cancer, however you have overcome this.

50Dr Cunningham, in his assessment of you, indicates that there is no indication of intellectual disability on your part.  He references however, presumably as a result of your self-report, that you have been diagnosed with bipolar disorder, and states that your presentation is consistent with chronic symptoms of depression and socially-based anxiety.  You are currently prescribed the antidepressant medication Avanza to assist with the symptoms of your depression, and I have taken these into account in your favour.

51In summary, Dr Cunningham opines that it was your alcohol abuse which caused significant disinhibition, and the consequent inability of you to regulate your anger.  He states that you grew angry at your partner due to her attempt at what you said was stopping you from buying alcohol.  As I said earlier, whilst your alcohol abuse may explain your offending behaviour in part, it does not excuse it.  Its primary relevance, in my view, is in regard to your rehabilitative prospects. 

52In regard to these, it is encouraging that since your period of remand, which at the time of my initial hearing of your plea was 291 days, that you have engaged in a number of therapeutic programs whilst in custody.  You report to Dr Cunningham that you wish to change, and are motivated to do so.  Your rehabilitation is, in my view, bound up with your ability to abstain from the abuse of alcohol and/or any other mind-altering substances.

53Ultimately, time will tell whether you are in fact prepared to make the serious personal commitment required to rid yourself of your alcohol abuse.  Given that this will be your first lengthy term of imprisonment, and that you have pleaded guilty, and you do evidence a degree of remorse for your conduct, in conjunction with your impressive work history, I do have some optimism concerning your rehabilitative prospects.

54Balancing all matters then, I sentence you as follows.

55On Charge 1 of aggravated burglary, three years and three months' imprisonment;

56On Charge 2 of recklessly causing injury, two years' imprisonment;

57On Charge 3 of breaching the intervention order, 12 months' imprisonment, and;

58On related Summary Offence 8, 14 days' imprisonment.  The sentence that I have imposed on Charge 1 is to be the base sentence, and I accumulate on it, and on each other, the following:

59Nine months of Charge 2, and;

60Three months of Charge 3.  This makes a total effective sentence of four years and three months' imprisonment, and I will fix a non-parole period of two years and three months.  But for your plea of guilty, I would have imposed a total effective sentence of five years and six months' imprisonment, and I would have fixed a non-parole period of three years and six months. 

61I will declare presentence detention of what I understand to be 298 days now, but I will ask counsel to check that. 

62MR BOYD-WILSON:  It should be 299, not including today Your Honour.

63MR JOHNSTON:  I agree to that, Your Honour.

64HIS HONOUR:  All right, so I will declare 299.  Have a seat for now.  Are there any further orders required?

65MR BOYD-WILSON:  No Your Honour.

66MR JOHNSTON:  As Your Honour pleases.

67HIS HONOUR:  All right, that concludes the matter then.  Thank you, if
Mr Bourke could be removed.  All right, I will stand down.

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