Director of Public Prosecutions v Bouvac

[2018] VCC 47

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01860

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA BOUVAC

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:	29 January 2018
DATE OF SENTENCE:	5 February 2018
CASE MAY BE CITED AS:	DPP v Bouvac
MEDIUM NEUTRAL CITATION:	[2018] VCC 47

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Ms K. Webster	Valos Black & Associates

HIS HONOUR:

1Joshua Bouvac, last week you pleaded guilty to 41 charges on an indictment and 18 related summary charges.  In addition you have pleaded guilty to breaching a 12 month community corrections order imposed by another County Court judge on 11 July 2016.  Your criminal conduct was concisely summarised by the prosecutor in a written opening that was read to the court.  The document was tendered on the plea.  I do not intend to restate all the details of each of your crimes.  Rather, I will ensure the written opening is attached to these reasons.

2Many of the crimes have similar circumstances and patterns.  What I will do is indicate that between 12 April and 17 June 2017 you engaged in a criminal spree of burglaries, thefts, dangerous driving and other dishonest behaviour.  More particularly, 31 of the indictable charges and 11 of the summary offences were committed in the days from 3 June until your arrest on 17 June 2017, with still the most intense period, that is with the majority of the offences being committed in the six days, from 8 to 14 June 2017.

3By and large you committed serious burglaries and thefts on rural homes and small businesses.  You stole valuable tools, cars, cash and electrical equipment.  In one house burglary, you stole a valuable coin collection and jewellery, including engagement and wedding rings.  The value of those items was in excess of $10,000.

4On two occasions you stole firearms from locked gun safes.  In one instance the 11 guns were returned to the owner upon him paying $3,300.  In the other instance, although you have co-operated with police, the two guns remain at large.

5Burglaries on rural properties and the consequent thefts of particular firearms stored necessarily on rural properties is very serious criminality.  The need for denunciation and deterrence is high given the danger of unregulated weapons being on the streets.

6In the course of your crime spree you were from time to time seen by the police in stolen or borrowed cars.  When pursued you drove dangerously to avoid apprehension.  In one instance when you had a passenger, you narrowly avoided a head-on collision with a truck.  This type of conduct is serious and must be condemned.  The community needs to be protected from your thoughtless and dangerous driving behaviour.

7As noted, this crime spree was serious offending committed on ordinary hardworking and vulnerable home owners and business owners.  The courts must reflect the community's concerns about such crimes.  They are corrosive in that ordinary members of the community are made to feel less safe than they should be.

8As to your moral culpability, it is plain this outbreak of crime was so as you could get what property and cash you could to feed your drug habit.  That is the explanation and an all too familiar one.  However it must be plainly understood that your drug problem provides no excuse at all.

9Indeed your previous offending was also due to drug addiction and the court did what could be done to help you by imposing a community corrections order with treatment conditions directed at drug addiction and the underlying mental health problems.

10Thus you knew what happened when you took drugs.  Your own responsibility is to take up opportunities offered so as to avoid the chaotic behaviours such as what occurred in April, May and especially in June 2017.

11What also is important in my assessment of your moral culpability as well as what the future holds for you is your young age at the time of your offending and now.  You were 21 when you committed these crimes.  You have now turned 22.

12The youth of an offender is always an important matter in the sentencing process.  Ordinarily I would give paramount weight to establish conditions to facilitate your rehabilitation.  However the gravity of these many offences taken with your recent and relevant prior criminal history means that rehabilitation must yield to other sentencing purposes of denunciation, punishment and deterrence to you and others.

13I intend to make it clear however that your youth and rehabilitation are not ignored, but other sentencing factors are more important.  Your counsel, in his thorough and realistic written and oral plea acknowledged as much.

14As your counsel made clear, you have had difficulties as you grew up.  Much of your background was set out in the helpful psychological report from
Ms Ferrari.  Your mother was a drug user and ultimately incarcerated for dishonesty offences.  Her imprisonment came in one instance as a complete shock to you as you came home from school and she was gone, taken to prison.  She continued to use drugs and was in prison for further periods.

15You began to misbehave at school and sadly experiment with drugs.  School was difficult because you suffered ADHD which was compounded because your mother did not take up medical advice regarding medication.  The  result of difficulties with attention, truancy and poor behaviour when at school meant that you got little from education, whether that was at alternative schools or at the local high school.

16You gained some labouring work including panel beating upon finishing school.  You hope to get back to that employment when released.

17One aspect of your past is your relationship with an older woman who also struggles with drugs.  You took on responsibility as a parent to her children at a very young age.

18Your accommodation became problematic in 2017.  Your life was becoming more chaotic.  You separated from your partner because you thought you were a bad influence.  From then you were couch surfing and living in your car or a car, your drug use escalating and your crime spree began.

19You did a little in early 2017 and late 2016 in respect of your community corrections order but not nearly enough.  You disconnected with the Office of Corrections and the order completely broke down.

20As to your future, you have good support from your older brother.  Indeed your whole family which includes a number of step siblings.

21The psychologist was of the opinion that in custody you were displaying signs of acute depression, anxiety and stress but positively you are now on medication.  The psychological report says that you offered the opinion that you have insight into your criminality and expressed remorse to her.  You did so also in the record of interview.  Her view was the treatment for your mental health problems was necessary.  It is hoped that you take up drug and alcohol and mental health counselling upon your release.

22Your plea of guilty for low co-operation with the police on arrest was an early indication of a plea.  You will receive a reduction in what would have been the sentence had you pleaded not guilty.  Your co-operation and plea and what you have said to the psychologist and your own counsel allows me to see that you are remorseful.

23Your prior criminal history is concerning mainly because of the offending in recent times including the fact that you were on a community corrections order at the time of these crimes.

24Given the large number of charges and your young age, the principle of totality is particularly important.  However it remains challenging to balance the seriousness of each crime with a need to recognise that your overall criminality must be met with a single sentence of non-parole period.  That is, its total effect remains proportionate to the crimes that you committed. 

25There is a need for some cumulation, though it must necessarily be moderated.  As well, there is a need to use the appropriate aggregate sentencing process.  I also take into account the fact that you have been on remand, but the time that you have been on remand has been attributed to a sentence you are now doing imposed by a Magistrate.

26What is important is that the overall sentence and the non-parole period is what I consider justice requires in terms of incarceration for you as a young man.  As mentioned you were given a chance by another County Court judge in July 2016 and imposed a 12 month corrections order for ten charges similar to these latest crimes.

27Initially as I said, you showed capacity and willingness to engage in the community corrections order, but then your life circumstances deteriorated and your crime spree commenced.  I must re-sentence you for those offences.  Again, the issue of totality looms large.

28What I intend to do is re-sentence you for the original charges that were before that County Court judge on an appeal from a Magistrate in which he placed you on a 12 month community corrections order and make orders for concurrency and cumulation in respect to the overall sentence that I impose on the indictment.  I do not intend to impose a separate penalty for the fact of your breach.

29Mr Bouvac, the sentence I am about to announce will take some time to read through the numbers.  In the end the overall sentence will be made clear to you and what your non-parole period is.

30For committing the crimes that are set out as Charges 1, 2, 3 and 4 which involve the theft of a firearm as Charge 3, you are sentenced to an aggregate term of two years and four months;

31For Charges 15, 16, 17 and 20, they also involve the crime of theft of a firearm, you are sentenced to an aggregate term of two years;

32For Charges 5, 8, 10, 13, 22, 24, 26, 28, 30, 33, 35, 37, 39 which were burglary offences and Charge 18, attempted burglary, and for Charges 6, 9, 11, 19, 21, 23, 25, 27, 29, 31, 34, 36 and 40, the charges of theft, Charge 12, the attempted theft, and Charge 14, the obtain property by deception, Charges 32 and 38, possession of a drug of dependence, I sentence you to an aggregate term of two years and three months;

33On Charges 7 and 41, the dangerous driving while being pursued by the police, I sentence you to an aggregate term of 12 months;

34The aggregate term for Charges 1, 2, 3 and 4 will be the base sentence.  Six months of the term imposed for the aggregate term imposed for Charges 15, 16, 17 and 20;

35Sixteen months of the aggregate term for the burglary, theft, attempted theft and obtaining property by deception and possession of drugs; and four months of the aggregate term for the dangerous driving while being pursued by police, will be cumulative upon each other and cumulative upon the base sentence that I have imposed.

36Further, in respect of the summary offences, the breach of bail offences, Charges 6 and 7, an aggregate term of one month;

37For the driving while disqualified offences, Charges 8, 12, 40, 46 and 59, an aggregate sentence of six months;

38For the summary of offence of go equipped to steal, Charges 11, 22, 33, 36, 39, 45, 52 and 58, an aggregate sentence of four months;

39In dealing with the proceeds of crime, Charges 63 and 64, one month as an aggregate sentence;

40For use methylamphetamines, Charge 65, you are convicted and fined $100;

41For using an unregistered motor vehicle and driving, Charge 56, you are convicted and fined $100.

42All gaol terms imposed for the summary offences are concurrent with each other and concurrent with the sentence imposed on the indictment.

43For the original charges for which you have received a community corrections order, being Charges 9 to 18 on the matter imposed by the other County Court judge, you are sentenced to an aggregate term of four months and I order that two months of that sentence be cumulative upon the sentences imposed on the indictment.

44That gives a total effective sentence of four years and eight months.  I order that you serve three years before being eligible for parole.

45That sentence is, as I understand it, no pre-sentence detention to be calculated.  Indeed there is some sentence being undertaken.

46So the sentence that I have just imposed of four years and eight months with a minimum term of three years is concurrent with the sentence that you are currently undergoing.

47Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of six years and nine months with a minimum term of four years and nine months.

48There are a number of orders seeking compensation from you, Mr Bouvac.  I need to sign those and I will do so in chambers.  That process may take some time given the number of copies.  They become debts that you owe those people who have sought compensation and I will grant their application for it.

49Is there anything further?

50MR CORDY:  Yes, the disqualification of licence and ‑ ‑ ‑

51HIS HONOUR:  Yes, I am so sorry.  Is there a minimum term for that?

52MR CORDY:  There is also a disposal order if I can deal with that first?

53HIS HONOUR:  Yes.

54MR CORDY:  So that has been provided to Your Honour.  In terms of the dangerous driving ‑ ‑ ‑

55HIS HONOUR:  While being pursued or something, yes?

56MR CORDY:  Whilst being pursued - just pardon me ‑ ‑ ‑

57HIS HONOUR:  I am so sorry, I did not pay much regard to that.

58MR CORDY:  So that carries a minimum disqualification of not less than 12 months.

59HIS HONOUR:  Yes, thank you.

60MR CORDY:  So you must cancel any licence.  That is fairly straightforward although the way in which Your Honour has sentenced Mr Bouvac in respect of aggregate sentences creates a difficulty, because there is a number of theft of motor vehicle charges and Your Honour is required to either cancel or suspend in respect of those individual offences.  I can work through them again and identify them for Your Honour.  Whether Your Honour makes it just in respect of - I do not think you can make it respect of all offences because of course some offences did not involve the use of a motor vehicle.

61HIS HONOUR:  No.

62MR CORDY:  So if Your Honour would give me two minutes ‑ ‑ ‑

63HIS HONOUR:  I am sorry, I did not ‑ ‑ ‑

64MR CORDY: ‑ ‑ ‑ I will just work out the individual charges where that needs to occur.

65HIS HONOUR:  That involved a car.  All right, thank you.  Ms Webster, is there anything that you ‑ ‑ ‑

66MS WEBSTER:  No issue with any of that, Your Honour.

67HIS HONOUR:  Does the mathematics add up as far as you are concerned?

68MS WEBSTER:  Yes, Your Honour.

69HIS HONOUR:  Thank you.

70MR CORDY:  So Charges 2, 12, 21 require Your Honour to either suspend or cancel Mr Bouvac's licence for such time as you think fit.

71HIS HONOUR:  And 7 and 41 as well.

72MR CORDY:  Well 7 and 41, they are the dangerous driving, so they carry a minimum of 12 months disqualification.

73HIS HONOUR:  Thank you.  The summary offences driving whilst disqualified, is there a requirement?

74MR CORDY:  No, there is no requirement in respect of that.

75HIS HONOUR:  All right, thank you.  In respect of Mr Bouvac's licence in respect to Charge 2, 12 and 21, I make orders that his licence be cancelled, be disqualified from driving for 12 months and in respect of Charges 7 and 41, that his licence be cancelled and he be disqualified from driving for 18 months.  Those periods are timed to run concurrently with each other.

76MR CORDY:  As Your Honour pleases.

77MS WEBSTER:  As Your Honour pleases.

78HIS HONOUR:  Is there anything further?

79MR CORDY:  That covers it.

80MS WEBSTER:  No, Your Honour.

81HIS HONOUR:  Thank you.  Mr Bouvac can be removed.  The other documents will be signed and provided to you, Ms Webster.

82MS WEBSTER:  As Your Honour pleases.

83HIS HONOUR:  They are just all compensation documents.

84MR CORDY:  As Your Honour pleases.

85HIS HONOUR:  Thank you.  Mr Bouvac can be removed.  Ms Webster,
Mr Cordy and to those that are here that support Mr Bouvac, it is just a further example of the total inadequacy of the dock in this court.  That is intolerable for people including Mr Bouvac to have to listen to.  He was most distressed and it is distressing for his family to hear that.  As lawyers, we go through a lot.  If we can change things by simply changing the architecture, then that should be done.  I am not critical of the police for what they have to go through to secure the court, but that dock at the back of this court is inadequate for modern court proceedings.  It is a matter I will raise again with Court Services Victoria and with the chief judge.  I will just stand down before we move to the next matter.

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