Director of Public Prosecutions v Bowden

[2017] VCC 133

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01892

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE BOWDEN

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2017
DATE OF SENTENCE:	22 February 2017
CASE MAY BE CITED AS:	DPP v Bowden
MEDIUM NEUTRAL CITATION:	[2017] VCC 133

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	Office of Public Prosecutions
For the Accused	Mr N. Power	James Dowsley & Associates

HIS HONOUR: 

1Mr Bowden, I have given a copy of the typed sentence in its complete form to Mr Power and you will have an opportunity to read that, but I am going to read from the sentence and I am addressing my comments to you so that you can hear them.  You can remain seated at present.

2On 17 February 2017, you, Jamie Bowden, pleaded guilty to the indictment containing a single charge, being aggravated burglary contrary to s.77(1) of the Crimes Act 1958. The maximum penalty for this offence is 25 years' imprisonment.

3The prosecution opening was tendered in evidence before me as Exhibit A and read aloud in court.  In summary form, you gained entry to the victim's property by climbing over a fence and smashing the window of the front bedroom where the female victim was sleeping.  At the time, you were carrying a hammer and a kitchen knife.  The victim has awoken moments before she heard the sound of the window smashing and observed you climbing through the window.

4You stood at the foot of the victim's bed holding the hammer and the knife above your head.  You appeared angry, and the victim was obviously terrified by the offending.  It would appear that after a matter of a few minutes with the victim pleading with you, you left her house without further incident.

5There are no adverse matters alleged against you in relation to any prior offending and I accept that you largely cooperated with police and you have pleaded guilty at an early stage. The victim has been spared the trauma of giving evidence and the community saved the cost of a trial. You are therefore entitled to the benefit of s.6AAA of the Sentencing Act 1991.

6Nevertheless, the offending for which I am required to pass sentence upon you is, in my view, most serious.  The victim impact statement made on 19 May 2016, some six weeks after your offending, was read in court and has been tendered in evidence before me as Exhibit B.  Unsurprisingly, the victim notes a constant fear of being unsafe in her own home, fear of harm to herself or those close to her, and recurrent feelings of panic, illness, anger, anxiety and memory loss in addition to frequent emotional outbursts.  These are only a few limited examples of the matters enumerated in her victim impact statement which flow from your offending.

7Your personal circumstances were put to me in some detail by Mr Power who appeared on your behalf in this plea hearing.  Significantly, you are 53 years of age and there are no prior offences alleged against you.  Additionally, you were born with  profound hearing loss which I accept has significantly impacted upon your ability to develop or maintain forms of social communication and long lasting friendships throughout your life.

8You were examined by a psychologist, Mr Mathew Staios, on 20 September 2016 and his report dated 30 September 2016, was tendered in evidence before me as Exhibit 2.  Mr Power had also tendered an outline of the defence submissions which were dated 16 February 2017 and they were Exhibit 1.

9Reference was made during the plea to a number of matters contained in
Mr Staios' report and I am prepared to accept these as factually accurate.  It is appropriate to briefly summarise the matters which I regard as relevant to the disposition of your case.  You were born with prelingual deafness and as a result of you were delayed in language and speech.  You were otherwise physically healthy and completed education to Year 12 at a school for deaf children in Kew.  You did not acquire any formal education around the use of sign language and you went on to complete an apprenticeship in floor covering and finishing.  You performed work of that nature for a period of five years post-apprenticeship and then an eight-year period working as a plastics trimmer and cutter.  You have otherwise not been employed for approximately 20 years and you have been in receipt of a disability pension.  There is no history recorded of any drug or alcohol problems.

10You have been diagnosed as suffering from an “Unspecified Communication Disorder” by Mr Staios.  His report indicates that you are currently at moderate risk of recidivism or reoffending due to the following risk factors:

·    reduced verbal communication;

·    underdeveloped social communication skills,

·    maladaptive coping mechanisms,

·    poor emotion regulation,

·    poor insight into the triggers associated with the current offending.

11Mr Staios further opines that you had misinterpreted and romanticised your initial encounters with the victim and that you were in a highly emotional and vulnerable state as a result of once again being rejected, leading you to ruminate for several hours without anybody to turn to during this period of crisis.

12I accept that in relation to the offending the matters referred to by Mr Staios have to some degree reduced your moral culpability.  I also accept as put on your behalf the opinion that it is highly likely that a sentence of imprisonment will expose you further to particular hardship, and I note Mr Staios' comment, "It is highly likely that Mr Bowden will experience deterioration in his mental health and fall prey to dominant antisocial peers".

13Mr Staios further expressed the view that a community-based disposition has the potential to reduce your risk of recidivism and provide benefits in terms of gains made via psychotherapy and to apply newly learned coping skills to your naturalistic environment without interruption.  Such an order would also permit you to remain connected to existing social network services in the community and your family.

14The submission advanced on your behalf is that a community correction order would be an appropriate sentence as opposed to an immediate term of imprisonment.  I was referred to a case of Boulton v R,[1] especially paragraphs 104-108 in relation to the sentencing options available as an alternative to imprisonment.  I was also referred to comments made in that case in relation to the sentencing principles of general and specific deterrence in circumstances where a community correction order was imposed as an alternative to a term of imprisonment.

[1] [2014] VSCA 342

15Notwithstanding the punitive aspects of the community corrections order, I am of the view that the nature of the offending in your case can only be suitably addressed by a sentence which includes some period of imprisonment.  I have taken into account comments made by the Court of Appeal in Hogarth v R[2]. I have specifically taken into account comments made in that case relevant to the current sentencing practices for aggravated burglary. I have considered the sentencing guidelines that are set out in paragraph 5(1) of the Sentencing Act 1991.

[2] [2012] VSCA 302

16Apart from aspects of general and specific deterrence, I believe it is highly relevant in your case to show the court's denunciation of the type of conduct in which you engaged by the offending, but also to establish conditions which assist in the facilitation of your rehabilitation.  I must also ensure that the community is protected from further offending of this nature.  This was one of the matters specifically addressed in the victim impact statement tendered before me.

17You have been assessed as suitable for a community corrections order and I am prepared to consider such a disposition, particularly because of your profound lifelong deafness and your difficulty in communication.  I accept that this condition would necessarily make a period of imprisonment more onerous for you than would otherwise be the case.

18You can stand up please, Mr Bowden.  In the circumstances of your case, I propose to convicted you of the offence of aggravated burglary and sentence you to a term of imprisonment of 18 months.  I fix no minimum period so you will be required to serve 18 months.  Immediately following your release, I sentence you to a community corrections order for a period of a further 24 months with a condition that you perform 200 hours of unpaid community work and that you receive appropriate mental health assessment and treatment as may be required during the period of that order, and those conditions are in addition to the core conditions attaching to a community corrections order which you have agreed to in the course of your assessment and which I am told by Mr Power you agree to today. 

19Mr Bowden, a further condition of the community corrections order is that you must not enter or remain in 12 Howard Road, Dingley Village, for a period of two years.  That is the period of the community corrections order. 

20But for your plea of guilty and the operation of s.6AAA of the Sentencing Act 1991, I would have sentenced you to five years' imprisonment with a three-year minimum term.

21I also propose to make orders pursuant to s.464ZF of the Crimes Act 1958 in relation to the taking of a forensic sample and a further order for the forfeiture of the kitchen knife and the hammer in accordance with s.79(2) of the Confiscation Act 1991.  That is the sentence that I impose upon you,
Mr Bowden.

22I am going to have my associate provide you with that community corrections order for your signature.  I am going to make the other orders now in relation to the taking of the forensic sample and the forfeiture of the knife and the hammer.

23(Order signed and acknowledged.)

24Mr Bowden, I have signed those orders and I have asked my associate to make a notation on the sentence record to Corrections personnel that you suffer from deafness, so that they are aware of that immediately when you are placed into custody.  We have got the orders now so if you would go with the Corrections officer now please, Mr Bowden.

25Thank you very much for your assistance, Mr Power, I appreciate it, your getting instructions from Mr Bowden and I am grateful for your assistance.

26MR POWER:  As Your Honour pleases.

27HIS HONOUR:  And to you too, Ms Holmes.

28MS HOLMES:  Thank you, Your Honour.

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