Director of Public Prosecutions v Bowden

[2015] VCC 1659

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

AT MELBOURNE
CRIMINAL JURISDICTION       

CR 15-00651

DIRECTOR OF PUBLIC PROSECUTIONS

V

SHANE SCOTT BOWDEN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2015
DATE OF SENTENCE:	18 November 2015
CASE MAY BE CITED AS:	DPP v Bowden
MEDIUM NEUTRAL CITATION:	[2015] VCC 1659

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to one charge of aggravated burglary, one charge of theft and two charges of recklessly causing injury – home invasion while in possession of knife – three occupants of the house asleep - victim suffered laceration with severed tendon requiring surgery – accused has complex personal issues – drug abuse – cognitive deficits – impulsive behaviour but with evident planning – guarded prospects for rehabilitation.

Legislation Cited: Sentencing Act 1991 s 44(1)

Cases Cited:Hogarth v R (2012) 37 VR 658; Ross v R [2015] VSCA 302; Filiz v R [2014] 212; DPP v Meyers [2014] VSCA 314; Carrington v R [2015] VSCA 175; DPP v Barnes & Barnes [2015] VSCA 293, Boulton & Ors v R [2014] VSCA 342

Sentence: 3 years and 9 months with a non-parole period of 2 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	OPP
For the Offender	Mr C. Farrington	Steven Andrianakis

1HER HONOUR:  Shane Scott Bowden, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and two charges of recklessly causing injury.  Because of the seriousness of the charges, I will be imposing a period of imprisonment such that excludes the possibility of a Community Corrections Order.

2On the night of 19 January 2015, you and the co-accused, Aysen Unlu, went to a house in an inner suburb of Melbourne.  Apparently your motivation was that money was owed by one of the occupants of the house to Ms Unlu for services rendered as an escort.  You drove there in Ms Unlu's car which bore registration plates spelling out her first name Aysen, A-y-s-e-n, and parked in the driveway of the house.  You were both dressed in dark clothing and you had with you a jemmy bar, a set of ground-down keys, night vision goggles and unbeknown to Ms Unlu, a large hunting knife.

3It is not clear from the depositions how you gained entry to the house, although there were indications that you had gained access from the rear.  Equipped with a jemmy bar, you had the means to gain entry by force, although as far as I am aware there is no evidence that you did.

4At about 4 am on 20 January, you both entered the house and went into an upstairs bedroom where Anthony Sass and Emily Reidel were sleeping.  Ms Reidel woke to see you in the doorway dressed in a camouflage suit and hood with a light in one hand and a knife in the other. She screamed, waking Mr Sass who tried to get out of bed.  You ran towards him and you both started fighting.  You were swinging the knife around.  Those facts constitute the charge of aggravated burglary.

5The occupants of the house were shocked and terrified.  Ms Reidel heard Mr Sass repeat, "Call the police" several times, and she saw blood splash on the wall and carpet.  Steven Sass came into the room and the three men continued fighting.  You dropped the knife and Ms Reidel picked it up, together with a phone that was on the floor, and ran outside with them and called the police.  You threw the knife into the bushes near the house.

6Anthony Sass fell to the floor inside a wardrobe in the bedroom where you kicked him to the face and stomped on his head.  Steven Sass dragged you away.  Ms Unlu then entered the room and hit Steven Sass to the head with a large shifter.  Anthony Sass punched her to the face.  She and Steven Sass then left the room and you remained there with Anthony Sass.  You kept repeating to him, "Where's the money, I know the money's here".

7Mr Sass denied having any money but said he would give you what he had in his wallet.  The two of you went downstairs and you were given cash of between $500 and $700.  You and Ms Unlu were then observed to leave the house very calmly via the back door and you were found soon afterwards by the police hiding at an intersection some distance away.  Items belonging to Ms Reidel were found in that location and a search of the premises produced the items you had had in your possession.  Ms Unlu's car was still parked in the driveway containing identification documents of yours.

8Steven Sass was badly injured, suffering a laceration to the left hand with a severed tendon which required surgery.  He also had minor lacerations and grazing to his shoulder and arm and bruising to the upper chest.  Anthony Sass had a small laceration to a finger and bruising and swelling to his face.

9You and Ms Unlu were remanded in custody where you have remained.  Ms Unlu pleaded guilty in the Magistrates' Court and was placed on a two year community corrections order after having spent just over two weeks in custody.

10Turning now to your personal background, you are a single man aged 43.  Your background is complicated by the fact that you were taken at birth from your parents who were both aged 12 when you were born and were adopted by a couple with five older children.  Whilst you have a good relationship with your elderly adoptive parents who live in Adelaide, you were not able to establish a close relationship with your adoptive siblings as they were so much older.

11In your thirties you learned that you were adopted and made contact with your biological parents and their children but were not able to establish any relationship. Your biological father has since died.  You struggled at school and left early, having achieved literacy only to Grade 4 level.  You attended the Australian Institute of Sport where you excelled at cycling. Your adoptive parents encouraged and supported you and you applied yourself to the sport with a view to taking part in the 1996 Olympic Games.  Despite repeated success, you became burnt out and gave the sport away before the Olympics.

12You took up body building and quickly became successful.  You frequented gyms and met members of motor cycle clubs, leading to your membership of a motor cycle gang bringing you an experience of belonging which was lacking in your life.  You had felt angry at being denied a family life with closeness to any of your siblings and the club membership has provided you with a peer group that you otherwise lacked.

13Over the years you have had only limited employment and have spent 13 of the last 15 years or so in custody in Queensland.  Your offending covers a range of serious crimes including serious assaults, drug offences and what appears to be the equivalent of aggravated burglary.  You are still in contact with your adoptive parents and you have an eighteen year old son from a previous relationship with whom you are in regular contact.  You have a partner who has had difficulty trying to visit you in prison because of the circumstances in which you are detained, that is as a high risk prisoner owing to your membership of the motor cycle gang and you are held under 24 hour lockdown.

14You have been assessed recently by a neuropsychologist, Dr Robert Burke, and a clinical psychologist, Ms Carla Lechner.  Dr Burke investigated the possibility of an acquired brain injury and could not rule it out but diagnosed extreme depression and impaired cognitive function.  He considers that your depression is likely to have been present for a long time and the cognitive impairments are consistent with learning difficulties since school days and also with significant benzodiazepine use.  By way of explaining your behaviour, you told Ms Lechner that you had taken a large amount of Xanax during the hours before the offending which she considers would have further compromised your already poor executive functioning and judgment.  Your abuse of Xanax was part of your daily routine of amphetamine use, and historically you have used other drugs as well.

15You were able to express to Ms Lechner your remorse and empathy with the victims, despite an apparently impaired ability to reflect on your behaviour.  Hand in hand with that, Ms Lechner identified a low tolerance for frustration and an impulsive nature.  She considers that because of your long periods of cumulated imprisonment, you are at significant risk of institutionalisation.

16This very serious offending carries maximum penalties of 25 years' imprisonment for aggravated burglary, five years for recklessly causing injury and ten years for theft.  It deserves a term of imprisonment with the aim of deterring others from similar behaviour, indeed general deterrence for such offending is very important.

17In your case there are all the hallmarks of impulsivity consistent with the opinions expressed by Dr Burke and Ms Lechner, although there are also clear indications of planning, albeit clumsy and unsophisticated.  You are likely to serve your sentence in the restricted circumstances you have been experiencing and that, together with your depression, will make your time in prison more difficult than for others.  This means there will be a modest reduction in your sentence.

18Another mitigating factor is your plea of guilty which has facilitated the process of criminal justice and accordingly you are entitled to a discount on your sentence.  I accept it as an indication of remorse which you also expressed to Ms Lechner.

19Although in theory that might indicate positive prospects for rehabilitation, other factors such as your long term drug use, peer group associations and poor decision-making ability, mean that there can be only guarded confidence in those prospects and specific deterrence remains an important part of this sentence.

20The use of a knife to demand money and inflict injury, having entered the victim's home with another person during the night is a grave crime.  But it was submitted, with no opposition from the prosecution, that this particular example probably ranks in the middle of the range of seriousness for this type of offence.  I agree, except to add that in my view it ranks at the higher end of that level range.

21As to parity, the co-accused was charged and was dealt with in the Magistrates' Court presenting with many features of difference between her case and yours and was sentenced to a Community Corrections Order, one point of difference being that she was released on bail after spending 15 days in pre-sentence detention.

22It was urged upon me by Mr Farrington of counsel who appeared on your behalf that I should, subject to assessment, impose a Community Corrections Order in addition to a sentence of imprisonment. This would enable an opportunity for you to benefit from the supervision and assistance you need. You have been assessed, as you know, and found to be suitable with a medium risk of re-offending but after giving careful consideration to that option within the constraints of s.44(1) of the Sentencing Act, I have concluded that the offending is too serious and that a term of imprisonment, without the combination of a community corrections order is the only appropriate sentence.

23In this regard I have noted the recent decision of the Court of Appeal in the case of Ross v The Queen[1] where a sentence of four years for aggravated burglary was held to be not excessive.  The court referred to the decision in Hogarth[2] and the more recent decisions of Filitz[3], Myers[4] and Carrington[5] in which the gravity of the crime of aggravated burglary was discussed.  A recent decision handed down at the same time as Ross v The Queen is that of DPP v Barnes & Barnes[6] in which similar issues are dealt with.  In that case a sentence of two and a half years for aggravated burglary was held to be manifestly inadequate in circumstances where a terrifying assault was perpetrated on the occupants of the house.

[1][2015] VSCA 302

[2] (2012 37 VR 658

[3][2014] 212

[4] [2014] VSCA 314

[5] [2015] VSCA 175

[6] [2015] VSCA 293

24While it is true, as Mr Farrington has submitted, that there are differences between these cases and yours, the court in each of them refers to the need for sentences that appropriately acknowledge the seriousness of the crimes that were committed, beginning with the charge of aggravated burglary and then whatever took place after that.

25I have also given careful consideration to the decision Boulton v The Queen[7] that a Community Corrections Order may be available even for relatively serious offences including aggravated burglary.  However, I have concluded that a violent confrontational home invasion such as this takes this case outside that range.

[7] [2014] VSCA 342

26Will you stand please, Mr Bowden?  I sentence you to the following terms of imprisonment:

27For Charge 1, aggravated burglary, three years.

28For Charge 2, recklessly causing injury to Steven Sass, 18 months.

29For Charge 3, recklessly causing injury to Anthony Sass, 12 months.

30For Charge 4, theft, six months.

31The sentence for Charge 1 will be the base sentence for the purposes of cumulation and I order that four months of each of the sentence for Charges 2 and 3 and one month of the sentence for Charge 4 be served in cumulation upon the base sentence.  This results in a total effective sentence of three years and nine months.  I order that you serve a minimum period of two years and four months before being eligible for parole.

32I have had regard to the need for proportionality and totality by imposing a just sentence that provides for appropriate punishment in all the circumstances.

33I note that you have spent 303 days in pre-sentence detention, not including today and I declare that time to be reckoned as already served and I shall cause that to be noted on the court record.

34If you had pleaded not guilty to these charges, I would have sentenced you to five years' imprisonment with a non parole period of three years. 

35The prosecution seeks an order for the disposal of items listed on the schedule and I make that order to which you have consented through your counsel.  Are there any other matters that I have neglected or omitted, Mr Hutton?

36MR HUTTON:  No, Your Honour.

37HER HONOUR:  Mr Farrington?

38MR FARRINGTON:  No, Your Honour.

39HER HONOUR:  Officers, you may take Mr Bowden,  thank you.

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