Director of Public Prosecutions v Bowen

[2021] VCC 516

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01286

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY BOWEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 April 2021
CASE MAY BE CITED AS:	DPP v Bowen
MEDIUM NEUTRAL CITATION:	[2021] VCC 516

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Ms J. Willard

HER HONOUR: 

1Bradley Bowen, you have pleaded guilty before me to one charge of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, one charge of possession of substance, material, document or equipment for trafficking a drug of dependence and one charge of possessing a drug of dependence, namely boldenone and testosterone.

2The facts underlying your offending are as follows.  On 12 June 2019 police received information about a possible clandestine laboratory being operated at your home and they attended there, intercepting you in your car outside the premises at 31 Frobisher Street before you arrived home.  You were arrested and then police waited with you for the Clandestine Laboratory Squad to arrive.

3In the meantime you told police, 'What you're looking for is in the shed and on the top of my wardrobe'.  You described the shed and noted that the chemicals in this shed were of a type that police should wear masks and rubber gloves and that there were syringes and vials in the top of the wardrobe.  You told police there were precursors and acids in the shed and there were two burners in the shed.  You told police strangely that you wanted to go back to prison. 

4Police then conducted a search of the house and found two vials of boldenone, which is an anabolic steroid, and two of testosterone in your wardrobe.  Your possession of those drugs underlies Charge 3 on the indictment.  Police then searched a rear shed in the premises using a key from your keyring and took a number of photographs of the contents of the clandestine laboratory that was found in the shed.  Within the shed were found large amounts of scientific glassware and literature about manufacturing ice and your possession of those items underlies Charge 2 on the indictment.

5Substances were being heated inside the locked shed on the electric stove as part of a methylamphetamine laboratory process.  Police obtained samples of the methylamphetamine from the shed as well as washing subsequently recovered from the hotplates, the pH meter digital scales, the heating portion of a rice cooker, a gas stove, a heating mantle and two glass dishes.  The total amount of chemicals containing methylamphetamine from the shed and analysed totalled 3418.9 grams, of which 192.1 grams was methylamphetamine.  Your possession of those items essentially and your manufacture of them underlie Charge 1 on the indictment.

6Precursor chemicals were located, they being 228.8 grams of iodine, 131.3 grams of mercuric chloride and I think it is - I don't think that can be right, Mr Pickering.  I'm sorry.

7MR PICKERING:  I'm sorry, what - - -

8HER HONOUR:  It says 18,845 - sorry, 188,845 grams of aluminium.

9MR PICKERING:  So there's - - -

10HER HONOUR:  There's a point missing, decimal point missing there.

11MR PICKERING:  It's not the decimal point, it's one extra digit.  It says in the summary 188,845.  In Dr Neely's report it's 18,845.

12HER HONOUR:  All right.

13MR PICKERING:  That's on the second page of the first report.

14HER HONOUR:  Yes, I'm sorry.  I should have checked that.

15MR PICKERING:  Well, I should have corrected it, Your Honour.

16HER HONOUR:  Yes.  In a record of interview conducted at the Melton police station you admitted manufacturing the methylamphetamine and said that at the time of the search you had left some of the substances heating on the burners inside the shed. 

17You also pleaded guilty to a summary offence of breaching parole.  You had been released on parole on 3 September 2019 and were on parole at the time of committing these offences.  The maximum penalties applicable to these charges are, firstly, trafficking in drug of dependence commercial quantity, 25 years' imprisonment; possessing substances and equipment for trafficking, 10 years' imprisonment; possessing drugs of dependence, 30 penalty units or one years imprisonment; breach of parole, three months' imprisonment or 30 penalty units or both.

18I now turn to your personal circumstances.  Are you 35 or 36 now, Mr Bowen?

19OFFENDER:  I'm still currently 35.

20HER HONOUR:  Thirty-five.

21OFFENDER:  For the next three weeks.

22HER HONOUR:  Yes.  You are 35 years of age and I have received three reports in total, psychological reports, and they have revealed in addition to what your counsel told me a most traumatic history.  Your parents were effectively never together.  Your birth was the result of an extramarital affair between the two of them, both of whom had at the time long-standing relationships.  You had intermittent contact with your father and were largely raised by your mother.

23You told in particular, forensic neuropsychologist Dr Laura Jackson and forensic psychologist Dr Victoria Jackson, that essentially you saw your father on supervised visits and suffered an amount of derision at the hands of your half-siblings, who told you over the years that you had been born as a result of a rape perpetrated on your mother.

24Over time you came to disbelieve this, but as you were growing up it is quite clear you had a difficult and rather traumatic relationship with your half-siblings and a very distant relationship with your father.  You last saw your father in 2009 when you were married.  Additionally you told both psychologists that your mother spoke in a disparaging way about your father.

25This went on in some ways to cause difficulties for you at school.  You had a particular problem with the authority of male teachers.  You did well in primary school.  You were quite outspoken, you were captain of various teams and organisations in primary school but were eventually expelled from one primary school for throwing a chair at a teacher and then in secondary school were expelled in Year 8 for passing on a  knife to another student.

26You have gone on to clock up a decent employment history.  You immediately obtained work at the Victoria fruit and vegetable market.  You then went into general labouring.  For about six or seven years in your 20s you worked for a glass company in Spotswood and indeed at the time when you were on parole you were working up to six days a week in general labouring.  Primarily you have done this in the transport industry.  This is apparently work that you enjoyed and I received a reference from your employer which was a labour hire company.

27I received a reference from Mark Lundy, the managing director of MC Labour, who talked about you being a valued employee of MC Labour since 2017.  He stated: 

'As his employer I have always found him to be very professional and a person of integrity and honesty whilst employed by MC Labour Services'.

28He said he was aware that you were facing serious charges but would welcome you back to the company and -

'employ Bradley upon eventual resolution of the charges he currently faces.  Bradley is highly regarded by MC employees and clients who have worked with him'.

29It appears you have felt a certain amount of distance and dissociation from people all your life and you have described to the psychologist a long history of either getting on well with people or getting on very badly with them and being unable to properly resolve personal conflicts when they have arisen.  You described how in your teens you started associating with older people who were engaged in criminal activity.

30You started doing this from about the age of 12 and you told one psychologist that, looking back, you realised that you were largely used by them as a pawn.  In any event your choice of associates at that time soon led you into criminal trouble and you have a long, although not necessarily terribly extensive, criminal history.  The history that I have goes back to 2004 when you were dealt with for armed robbery, false imprisonment and driving in a dangerous manner and you were sentenced to three years in a youth training centre.

31In 2007 you received a four-month suspended sentence on a charge of recklessly causing serious injury.  I understand that that involved an attack on another person by a group of people and your involvement at the time was found to be minimal.  I am going to turn temporarily from your prior convictions to talk about your personal life, as the two in my view are intertwined.

32You are married with three children.  You have two sons and a daughter. You have a 15-year-old son Lucas, a 12-year-old girl Taisha and an 11-year-old son Logan.  Both Lucas and Logan have been diagnosed with autism spectrum disorder.  Lucas is apparently high-functioning, but Logan has a very, very severe case of autism spectrum disorder and is non-verbal.

33You began your relationship with your wife when you were in your late teens and that relationship is ongoing.  On your release from custody in the early 2000s you had a period of really good stability.  You were working for the glass company in Spotswood that I have referred to.  You were actively involved with your children, but this all came to a crashing halt, if you like, in 2011 when you discovered your wife had some years previously had an affair.

34You went into a violent rage.  You smashed up the belongings in your house.  Your wife left with the children.  She took out an intervention order against you and you went into what I could properly call an ice binge. 

35You had been exposed to drug and alcohol from about the age of 12.  You were introduced to cannabis and alcohol at those ages.  You used cannabis on a very regular basis for many years, although alcohol has never been a particular problem for you.  However, you started using stimulants when you were about 16, starting with speed and then progressing to ice. 

36At first it was on a recreational basis when you went to nightclubs and then in the industry that you were involved in, drug use was rife and slowly, which is so often the case, your drug use increased to the point where you were using it more than you were prepared to tell anyone. Ice really became a problem for you when your marriage ran into severe difficulties in 2011 and your wife left you for a period of time.

37It appears at that time you for about two years were engaged in daily ice use.  During that time you apparently acquired the drug manufacturing implements that were discovered in the shed by police in 2019.  You were trying to manufacture ice in those earlier days presumably both to feed your habit and also to bring in some money.  This appears to have been a particularly difficult time, but your reaction to it also appears to have been extreme in that you did nothing constructive in that time.

38You turned to ice use at a level you never had before to the point where you were trying to produce it yourself.  You apparently were in extreme distress over the separation with your wife and your distance from your children.  You turned to ice use to resolve the emotional difficulties that you were experiencing, your ice use escalated and you ended up committing a serious armed robbery where you attended an entertainment centre.  You tied up staff, you threatened them with a gun and you stole money.

39You were finally apprehended for this and in 2017 you were sentenced to six years' imprisonment with a non-parole period of four years.  In that time your relationship with your wife mended itself and you reconciled.  For reasons which I will enlarge upon, gaol settled you down, it would seem, and you were eventually released on parole on 29 November 2017.

40The offending that has brought you before this court occurred 18 months into that parole period.  At that time you were doing extremely well.  You had undergone 17 urinalysis tests, all of which were clear.  You were working up to six days a week.  You had lost your house as a result of what occurred between 2011 and 2013 and you have told various psychologists that you hate drugs as they represent to you the loss of everything that was important to you at the time of your offending and committing the armed robberly.

41The question is why you engaged in this offending, which immediately resulted in your parole being cancelled.  You have been in custody ever since your arrest and your parole was cancelled and your release date is now 16 May 2021.  So you have served virtually six years' imprisonment.

42Apparently when your house was lost in 2017 your wife and children moved in to live with your mother.  Your mother packed up the paraphernalia and the chemicals that you had acquired in those self-destructive years between 2011 and 2013 and they were kept in a shed.  You have told various psychologists and your counsel, Ms Willard has also informed me, that for about that 18‑month period where you doing very well on parole you avoided the shed because it caused you anxiety as a reminder of the trauma that you had experienced in those two years.

43You then decided to go in and sort out the shed and immediately, it would seem, became somewhat obsessed with those items in two ways:  firstly, you did not know how to dispose of them; and, secondly, you thought you might engage in seeing if that paraphernalia still worked and if you could possibly make ice.  As you told police in your record of interview, your efforts could either have resulted in methylamphetamine or nothing.

44Ultimately the findings of the forensic scientist Dr Neely on analysis were that whilst there was that amount of methylamphetamine in the substances that were taken from the shed none of it was useable methylamphetamine and that indeed without further equipment and further actions on your part it would not have been useable methylamphetamine.  You conducted an extraordinarily honest record of interview in that you told police that if you had been able to manufacture ice you may well have sold it.

45But as it stands now, there were no signs of enrichment.  There is no evidence of you selling drugs that you had manufactured and the trafficking charge is based on the definition of trafficking in the Drugs, Poisons and Controlled Substances Act, that is by manufacturing those drugs.

46The anabolic steroids and testosterone that were found in your wardrobe related back to many years ago and a period in your life many years before, where you became obsessed with body building and for period of time used, although not for particularly long, those steroids and the testosterone, although you abandoned use of them after about six months.

47You represent quite a difficult sentencing proposition, Mr Bowen. Psychological testing shows quite superior strengths at one level and somewhat inferior strengths at another.  Your emotional intelligence, if I could put it that way and I do not mean to be insulting, appears to be low.  The testing found that you have a very concrete style of thinking.  You tend to be somewhat obsessed in your thinking, but on other levels of perception you are found to have superior capabilities.

48Of particular importance was the indication on the first neuropsychological testing by Dr Anderson that you demonstrated traits of an autism spectrum disorder.  I sought a further report from Forensicare in order to determine whether this was so; unfortunately that testing was not carried out, but the psychologist Dr Victoria Jackson certainly found you had personality traits consistent, or the testing certainly showed traits consistent with an autism spectrum disorder.

49Fortunately Dr Anderson then engaged in further formal testing and she found that you do fill the diagnostic criteria for autism spectrum disorder, although you are low on the spectrum.  This does, however, cause particular problems for you.  Certainly you told Dr Jackson that although you have been engaged with your children you do not regard yourself as a particularly competent father in terms of the emotional attachment you have with your children.

50It appears, according to the reports, that you have had a life-ling problem of engaging with people.  When you do, you do, if I can put it that way; but, when you do not and you come into conflict with people such as teachers, you have a very poor capacity to resolve that conflict.  And this was particularly demonstrated in the way you dealt with your wife's revelation that she had had an affair some years before.

51You went into, as I have already said, extreme anger and grief and your response to it was totally destructive, resulting in the temporary separation from your wife and children and you abandoning years of abstinence and spiralling into destructive drug use, ultimately ending up in a serious armed robbery for which you received a serious sentence.

52Of concern is the fact that you appear to do very well in gaol and that is consistent with the disorder that you have.  In saying that you have a disorder, Mr Bowen, please understand I am not trying to describe you as a person who is fatally damaged and cannot live any sort of life of any productivity or use in the community, but it does mean you have a tendency to react and to behave in particular ways.  The fairly rigid structure of gaol, it appears, suits you.  You seem to be comfortable there. 

53You ran into some difficulties with authorities at Ravenhall because you took it upon yourself to be a spokesperson for other prisoners about various conditions that existed in gaol and you have a general disapproval of private prisons.  And you have voiced that.  That has got you into management trouble on one occasion it seems, at least, whilst you have been in custody.  Whilst in custody you have been tested 13 times for drug use and you have always provided clear samples.  You have worked throughout your time in gaol.

54Gaol has also been particularly difficult for you because of COVID.  You have been unable to have proper contact with your wife and children.  There has also been the knowledge that shortly after your arrest for these matters the Department of Health and Human Services were called in.  My understanding from the reports is that, although you believe your mother called in DHHS, the notification process came about as a result what was overheard by your son Josh talking about at school and teachers becoming concerned.

55As a result your wife was temporarily, or for a period of time, separated from the children, who were in the care of your mother.  Your older son has chosen to remain living with your mother, but your daughter and youngest son Logan are now back living with your wife.  So there has been a lot of damage and a lot of destruction out of this extraordinary decision of yours to actually engage in the use of these chemicals, which I accept were left over from your previous attempts to manufacture ice, although it also appears that you purchased some other chemicals and some equipment in order to carry out the cook, if I can put it this way, that police found in your shed when they came to your home in 2019.

56I want to refer to a couple of passages which I think are of significance in terms of my determining what is an appropriate sentence in this regard.  Understandably the prosecution have submitted that the seriousness of this offending, particularly given your prior history, means that I should deal with you by way of a term of imprisonment which contains a maximum and a minimum term.

57Your counsel Ms Willard submitted, however, that I should deal with you by way of a combination sentence.  Ordinarily were you not in a position where you had served out the rest of your parole I would have no hesitation, and indeed my sentencing exercise would have been easier, in determining that you should be dealt with by way of a term of imprisonment in the way suggested by the prosecution.

58However, it is my view that you do not fall into the category whereby exceptional circumstances apply so that any sentence I might impose should not be served cumulatively on the parole period that you have now been serving.  What that means is that any sentence I impose will be served on top of, or cumulatively, to once your parole period has expired in May.

59Therefore the issue of totality comes into my sentencing considerations.  In other words I take into account you have now served six years.  And in the circumstances I am concerned that any term of imprisonment I do impose upon you is going to lead to you being in gaol for a considerable period of time.  And this is a matter that has weighed heavily upon me.

60I do accept that your autism spectrum disorder has had some part to play in your offending. Dr Anderson stated at paragraph 8.2 of her second report of March 2021:

'My clinical opinion is that Mr Bowen's disrupted emotional development, lack of secure attachment and poor interpersonal skills have contributed to him engaging with antisocial peers as a means of achieving a sense of connection with others.  It is now understood that some of Mr Bowen's developmental difficulties, such as connecting with peers and expressing his emotions and needs in adaptive ways, were likely due to the neurodevelopmental delays he experienced as a result of his autism spectrum disorder.  As a result of his deficits on these aspects of functioning, antisocial attitudes and maladaptive behaviours have been somewhat normalised for Mr Bowen and certainly maladaptive coping mechanisms such as alcohol and other drugs have become his default coping mechanisms in the context of his deficits in emotional coping skills.  That is to say it is hypothesised that to some extent, because of his neurodevelopmental deficits, Mr Bowen has been influenced to utilise antisocial means to have his various needs met because he demonstrates deficits in his adaptive skills, required to have his needs met in a more prosocial manner'.

61And that refers to what I was talking about earlier, Mr Bowen, that your attraction to criminal peers over a long period of time in your life as a way of attaching to people and also talks about you turning to what are described as maladaptive behaviours such as turning to drugs, turning to crime, when times of crisis have come upon you, where you are in trouble, if I can put it that way.  Just excuse me.

62Dr Anderson states at paragraph 8.3, 'Sadly Mr Bowen is quite familiar and comfortable within a custodial environment'.  She states that you have no particular difficulties with goal that would impact upon you in a negative mental health way.  She also notes that, as a result of the people that you have associated with over the years, you have developed antisocial personality traits and in particular you told Dr Anderson that, “you know, when things go wrong you turn to what you know, if I can put it that way”.  And that is criminal activity and drug use. 

63Dr Jackson talked about how you have difficulty understanding and regulating your own emotions, difficulty identifying and effectively responding to emotions in others, difficulty with interpersonal social interactions, a concrete thinking style, elements of rigidity and fixation on certain topics and interests and a high sensory sensitivity.  She states:

'These features of Mr Bowen's clinical profile appear to have been long-standing and pervasive throughout his life'.

64She also stated, however, that you present with quite a high level of awareness and insight into your current circumstances and a reasonable level of awareness and insight into your offending behaviour.  Am I making sense what I have read out to you, Mr Bowen?

65OFFENDER:  Yes.

66HER HONOUR:  I understand that it is not a pleasant experience, sitting and being told how everybody has analysed you and what you have come up with.  But you do have this rigid way of thinking, you do have trouble understanding how others are feeling and you do have trouble, as I have said several times, in coping with interpersonal stress.  And again it seems to me your life between 2011 and 2013 very much demonstrates that.  Does that make sense to you?

67OFFENDER:  It does.

68HER HONOUR:  Yes.  I accept to some extent you did become obsessed, and all three reports note this, you did become obsessed with the old drug paraphernalia that you found in the shed.  But you went a bit further, you added to it and then decided that you were going to see if it worked.  And indeed if it did work you were not quite sure what you were going to do with the drugs should you manufacture them.

69That is an extraordinary way of thinking in someone who is on parole and doing very well on parole.  The thought appears to have come out of nowhere, if I can put it that way.  It just seems to have arisen in you and you have gone from studiously avoiding the shed for 18 months, because it caused you anxiety, to finally going in there and immediately getting obsessed about 'Can I make ice', even though you hate drugs and even though on all the evidence available you were not using any drugs.

70You completely put at risk everything you had achieved for no sensible reason beyond an obsession with these materials, which again as you frankly said to police might have resulted in you being able to produce ice and you might have sold it.  And that has resulted in you being sent straight to gaol having to serve out the remainder of your non-parole period, putting you in a position where you have now served six years for this offending.

71Thankfully Dr Anderson does conclude that whilst she has not conducted a formal assessment of your risk of reoffending that, and this is at paragraph 8.4:

'Based on the information gathered as part of these assessments, including identification of criminogenic risk factors [that being your tendency towards antisocial behaviour] and protective factors [that being your good work history and the support of a long-standing relationship with your wife and your children] it is considered that Mr Bowen presents with relatively reasonable prospects for rehabilitation'.

72She does go on to say that support services need to address your criminogenic needs.  What that means is that you actually have go into and look at the fact that you have developed a sort of casual attitude towards undertaking criminal activities.  That is a default position for you.  And you absolutely have to understand and work on the difficulties that your ASD creates for you both into the risk of you getting into trouble again, criminal trouble again, and in terms of building relationships and maintaining a relationship with your wife and children.  Is that making sense to you?

73OFFENDER:  It does, yeah.

74HER HONOUR:  Yes.  Note was also made in the psychological reports about your difficulties on parole, which tends to operate on sort of spot checks.  You were abiding by a curfew, you were not returning any positive urine samples and you were coping with it.  But because of the very rigidly patterned way you liked to live, you found meeting appointments, coping with random checks and the like difficult, and distressing. I note that as being probably a part of your ASD.  So what they are saying is if the patterns in your life are interrupted you find that more difficult than persons without ASD would. 

75I have talked at some length, in fact probably more than I would, about the various factors that make up your own personality and that play into your offending history.  They have all been important aspects for me to take into account in determining what is the appropriate sentence that I should impose in your case ultimately.

76I accept that you have pleaded guilty at an early stage.  I accept that you do have remorse for your offending probably more in terms of the effect that it has had rather than it being a remorse based on social awareness of the ills that drugs inflict on other people.  But I also accept that you have got reasonable insight into the connection between what you did and what led to it.

77You have been diagnosed for the first time with ASD, which I regard as an important protective factor in a way.  You have struck me throughout the proceedings, Mr Bowen, as a man of some intelligence and you appear to have some insight and a capacity to grasp what ASD means for you.  The offending you engaged in was extremely serious.  I do not need to tell you about the terrible damage that ice wreaks in your community.  You have been through that yourself.  Your drug addiction led to the loss of everything you held dear and you have made it clear to the psychologist who examined you that you hate ice; you hate that drug because of what it represents in terms of loss in your life, yet you engaged in this activity again.

78I am prepared to accept the reasons that were put forward for you engaging in this activity.  I also accept that it was somewhat open-ended, that, whilst it might have been born of your obsession, you also were not quite clear about what you were going to do and it could have led to further criminal offending.  I accept that as well.  But I also accept that your autism spectrum disorder had some part to play in this inexplicable decision to behave as you did.

79You were not in trouble with housing, you were not in trouble with finances.  You were doing well and yet you engaged in an activity which completely destroyed, as I said, everything you did, and so I do accept that your hitherto undiagnosed autism spectrum disorder had a part in the decision-making that you engaged in and that to some extent limb 1 of Verdins is engaged.

80Despite the extremely persuasive and well put arguments by Mr Pickering in this plea, I have decided after much thought that I am going to accede to your counsel's request.  Largely there are two major factors underlying that decision.  The first is that in ordering a combination disposition the incarceration element of it will be 12 months.  That will be served additionally to the sentence you are currently undergoing and that will result in a total of seven years, which I regard as sufficient in terms of the offending for which you were originally sentenced and the offending you have now engaged in.

81It is somewhat ameliorated by the second prominent feature in the sentencing scenario that I am dealing with, and that is the diagnosis of your autism spectrum disorder and the fact that to some extent in my view this reduces the moral culpability in relation to your offending.

82You have been found suitable for placement on a community corrections order.  The assessing officer said that you displayed some impression of management and minimisation of your behaviour.  In other words they believed you were trying to impress them to some extent, you were trying to minimise your behaviour to some extent.  The assessor stated:

'When questioned, Mr Bowen indicated no financial stressors at the time [that is at the time of the offending] and no personal illicit substance abuse'.

83It was also noted that you -

'Outlined significant familial support from his wife and anticipates to reside with her and his children in the foreseeable future.  He was transparent with regards to current Department of Health and Human Services involvement'.

84And I understand it is your intention to reside with another person who is close in your life before returning home to your wife because of that. 

85You have been assessed as being a high risk of reoffending and I agree with that.  And with you, Mr Bowen, it could go one of two ways:  you could successfully complete this order and never get in trouble again because you have decided that is what you are going to do; or something unexpected could simply come up and you could go right down the other path.  Do you know what I am saying?

86OFFENDER:  Yes.

87HER HONOUR:  And I am saying that because of what happened on the occasion of this offending.  You were doing perfectly well and then all of a sudden you engaged in serious behaviour which appeared to simply come out of the blue, although I do accept the explanation for it.  And it has been catastrophic for you.  So it could just go one way or the other, but it does seem to me because of the totality issue that I should deal with you in the way that I have decided to.

88I accept that I must give expression to, in particular, general deterrence; and to some extent specific deterrence is important.  I am guardedly optimistic about your prospects of rehabilitation but do think that protection of community has some part to play simply because you are unpredictable, Mr Bowen.  It could go one way or the other.  You have demonstrated long periods of totally responsible law-abiding living and I believe that you could do this again, but it depends on you.

89The order is going to involve a number of appointments which you absolutely must attend to.  It has been recommended that you be treated for drug use even though I know that is going to annoy you because you hate drugs and you do not use them.  It may be that that drug treatment will not be particularly long, but you also need treatment for mental health difficulties.  And by that I mean you need psychological help to understand your emotions, to understand your difficulty with emotions and to understand and put into practice strategies designed to help you not relapse into offending.  That is going to take a bit of work because, as I have said, this is your default position.

90I am also going to place you on a judicial monitoring.  That means that every few months you are going to come back in front of me and I will be getting a report from Corrections about how you are doing, all right?

91OFFENDER:  Okay.

92HER HONOUR:  So the CCO is not going to be something you particularly enjoy, but I am of the view that sufficient can be built into what you need to do so that these issues can be dealt with. 

93Before I can place you on a community corrections order I have to outline to you the conditions that attach to this order and they are as follows.  The order will commence on 16 May 2022.  It will last for a period of two and a half years.  Two working days after you are released from prison you must report to the Community Corrections office. 

94Whilst you are on the order you must not commit another offence punishable by imprisonment.  And that does not mean you have to commit an offence for which you are gaoled, it means that if you commit any offence for which you could potentially be gaoled, like stealing a box of matches from  Woolworths, you will be breached.  You will be brought back before me and I will resentence you on this offending.

95Whilst you are on the order you may not leave Victoria without the permission of the Community Corrections office.  You must report any change of address or employment within 48 hours of the making of that change.  You must report to and receive visits from the Community Corrections office.  You must not attend upon the Community Corrections office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections office.

96The special conditions are that you will undertake 100 hours of community work.  I am limiting the amount of community work because I am actually concerned about you having contact with other people who are offenders.  I am going to order that the hours that you undertake of treatment and rehabilitation may be deducted from the work hours.  Does that make sense to you?  So the hours of - - -

97OFFENDER:  Yeah.

98HER HONOUR:  - - - drug treatment, psychological treatment, will come off your work hours. 

99I am going to order there be supervision, which means that there will be a more than ordinary involvement by Community Corrections.  I am going to order that you undertake treatment and rehabilitation.  In fact you are probably going to have to do a bit of anger management.  You are probably going to have to do a number of programs that you are going to find difficult and annoying, Mr Bowen.  Do you understand?

100OFFENDER:  I do.  I've had to do a lot of programs in gaol that I didn't like too, so - - -

101HER HONOUR:  Yes.  the difference is going to be that you are going to be out in the community, you are probably going to get work.  You are going to get into a pattern and a rhythm and it is all going well and then all of a sudden you have to go to appointments.  They are going to interrupt your life in a way that they do not in gaol.  That is the bit - - -

102OFFENDER:  Yeah.

103HER HONOUR:  - - - that is going to be hard for you.  Do you hear what I am saying about that?

104OFFENDER:  Yeah, that's something that I'm going to have to get used to.

105HER HONOUR:  Yes, you are.  You are because - I do not need to tell you this, Mr Bowen, but I am going to do it anyway.  There's you, there's gaol and there's the community corrections order.  It is a wall keeping you out of gaol.  You need to hold that wall up.  So I have got no doubt you will find it - you will be able to participate well in the various services, the support services that you will be required to undertake, but actually organising your life to go to them is going to be the challenge for you.  It is going to cause annoyance and that is going to be the big challenge, so I want you to bear that in mind, all right?

106Now, I am ordering the sentencing as an aggregate sentence given the circumstances surrounding this offending.  It all arose in the one episode, so I am sentencing you to 12 months, which will be served cumulatively to the non-parole period you are now serving.  Then you will be released on the community corrections order in the terms that I have outlined.  And as I have said, one of the other conditions will be judicial monitoring.  All right, are you prepared to enter into this order?

107OFFENDER:  Yes.

108HER HONOUR:  All right.

109OFFENDER:  I am, yes.

110HER HONOUR:  Thank you.  I apologise for how long this sentence has taken to deliver.  It has been a bit rambling, but it is a complex situation involving a great deal of your own personality make-up, your own background and the ASD that has been uncovered.  So we will be forwarding the paperwork to you in gaol. 

111Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to four and a half years' imprisonment and order that you serve a minimum term of two and a half years.  Thank you.

112Yes, Mr Pickering?

113MR PICKERING:  Sorry, if Your Honour's finished I'll just - - -

114HER HONOUR:  There's disposal orders to be - - -

115MR PICKERING:  No, there's not disposal orders.  I was going to say apparently because of what happened at the scene they've all been destroyed.

116HER HONOUR:  Right.

117MR PICKERING:  There are two days of pre‑sentence detention.

118HER HONOUR:  Thank you.  I declare that two days of the sentence have been served by way of pre‑sentence detention.  Yes.

119MR PICKERING:  And the last thing, Your Honour, and this is not part of the sentence, it's clarification for me - - -

120HER HONOUR:  Sure.

121MR PICKERING:  If Your Honour's finished - I won't interrupt you otherwise.

122HER HONOUR:  No.  Thankfully for everyone I have and I'm going to have to do a bit of editing of my sentencing remarks, but I actually wanted to talk to Mr Bowen during my sentencing remarks so he actually understood.  Because I think it's really important that he does understand - - -

123MR PICKERING:  Yes.  I just wanted to clarify - - -

124HER HONOUR:  - - - what this is all about.

125MR PICKERING:  Clarify something for the record, Your Honour, and that's that this matter was, as Your Honour will recall, listed for further plea and sentence.

126HER HONOUR:  Yes.

127MR PICKERING:  I emailed your associate yesterday regarding the interpretation of the reports which I was going to make submissions on this morning.  All I wanted to clarify is whether Your Honour received that email, because it goes to the question of the usability of the drugs.  Now, it may or may not have been relevant to the sentence.

128HER HONOUR:  All right.

129MR PICKERING:  But I don't know whether Your Honour received it.

130HER HONOUR:  Look, I have actually been between associates at the moment, so I would like to - I haven't seen it and that's nobody's fault, it's just that I have been having a - - -

131MR PICKERING:  I understand, Your Honour.  It was just that - - -

132HER HONOUR:  No, I'm really glad that you raised that.  That's perfectly proper that you did.

133MR PICKERING:  Yes.

134HER HONOUR:  Let's have a look at it.  Thank you.

135MR PICKERING:  I mean I don't want to relitigate the matter, Your Honour.

136HER HONOUR:  No, no, but - - -

137MR PICKERING:  But it is important in terms of how the seriousness is assessed.

138HER HONOUR:  Of course.  I mean I regard the offending as serious in any event.

139MR PICKERING:  Yes, Your Honour.

140HER HONOUR:  But I did say I did adopt defence counsel's submission on the usability, so I do need to look at it, yes.

141MR PICKERING:  Yes, Your Honour.

142HER HONOUR:  Thank you.  And it's been an unorthodox - the sentence has been delivered more in the say of an ex tempore sentence rather than formally, so it's - does counsel have to get anywhere?

143MS WILLARD:  Yes, I have a matter before Her Honour Judge Gwynn at 10.30, if you could just let her know.  I let her know that I was here.

144HER HONOUR:  All right.

145MS WILLARD:  So as long as - - -

146HER HONOUR:  I'm sure Judge Gwynn will be forgiving.

147MS WILLARD:  Yes, she will be.  Thank you.

148HER HONOUR:  You don't have a copy of them here, or do you have them, Ms - - -

149MR PICKERING:  Your Honour, the email, I can resend it, but the email in short version - - -

150HER HONOUR:  We're having trouble filling it - have you got - could I have a look at Ms Willard's copy?

151MS WILLARD:  No, sorry, Your Honour, I didn't print out a copy of the - - -

152HER HONOUR:  All right.

153MR PICKERING:  If I can say, Your Honour - - -

154HER HONOUR:  Yes.

155MR PICKERING:  And the problem I now have, Your Honour, is I don't want to be seen to be relitigating something you've just given sentence on.

156HER HONOUR:  No, but I think that's - it's a legitimate submission and it's not one I've referred to in my sentencing remarks and it's extremely relevant.

157MR PICKERING:  Yes.

158HER HONOUR:  So it's not relitigating.  I regard it as - - -

159MR PICKERING:  No.

160HER HONOUR:  - - - somewhat separate. 

161MR PICKERING:  All right, Your Honour.  Well, what I said was that I was going to make two submissions:  one as to suitability for the CCO - - -

162HER HONOUR:  Yes.

163MR PICKERING:  - - - and to some extent that's already been dealt with; the second one was the interpretation of the two reports of Dr Neely.  Because Dr Neely gave two reports.

164HER HONOUR:  Yes.

165MR PICKERING:  The first report was the actual analysis, the second one was a clarification. 

166HER HONOUR:  Yes.  Now I've got both of them here.

167MR PICKERING:  Yes.  And what I said, Your Honour, was that in particular regarding the reports - - -

168HER HONOUR:  Yes, thank you so much.

169MR PICKERING:  The proper reading of the report - and there's the first report, which says how he calculates the total amount of the methylamphetamine.

170HER HONOUR:  Yes.

171MR PICKERING:  Then separately he says that there are also substances where they are not in usable form.  At the request of the solicitors for the prisoner prior to the committal, the second report was prepared to say what he meant by not usable.

172HER HONOUR:  Yes.

173MR PICKERING:  But it only applied to a certain number of the exhibits.

174HER HONOUR:  Right.

175MR PICKERING:  The main part of the exhibits were in usable form and that's what hadn't been clarified. 

176HER HONOUR:  So they're the exhibits which form the calculation of 192.1 grams?

177MR PICKERING:  Yes.  So that was usable, Your Honour, and that's why I was concerned that Your Honour hadn't read that when you made your assessment.

178HER HONOUR:  No, may I say that this exchange between myself and counsel can form part of the sentencing remarks.  I thank you very much for that.  Notwithstanding that finding, I am still going to proceed in the way that I have.  The non-usable form I do not regard as overly significant in terms of the decision I have reached. 

179I regard the offending as serious.  I always regard manufacture or attempted manufacture of methylamphetamine as a matter of great seriousness and I note the maximum term of 25 years which applies to trafficking in methylamphetamine.  I acknowledge, as I have during my sentencing remarks, the appalling damage wreaked upon our community by methylamphetamine to the point where, apart from sex offences, I would say the most common issue the courts have to deal with is people offending either because of or whose history contains ice use.

180It is a highly damaging, dangerous and pervasive drug and I have already acknowledged that Mr Bowen made it quite clear in his very frank record of interview that he did not really know what he was going to do with that material.  It appears that police entered the premises and discovered the clandestine laboratory before Mr Bowen himself was aware of the usability of what product he had produced.

181And the offending is very serious; however, as I have said, totality plays a large part in my decision to decide as I have and I am still of the view that even in the light of counsel's very properly made, reasoned submissions the seven years that Mr Bowen will end up serving is sufficient in all the circumstances.

182MR PICKERING:  Yes, if Your Honour pleases.  I just wanted to clarify that you'd received it.

183HER HONOUR:  I'm very grateful to you.

184MR PICKERING:  That's clarified, Your Honour.

185HER HONOUR:  I certainly do not want to have been seen to have disregarded an important aspect, which I'm grateful to you for clarifying for me.

186MR PICKERING:  If Your Honour pleases.

187HER HONOUR:  I thank you for that and I want to say, Mr Pickering, that your veery powerful submissions on the last occasion that you appeared in front of me caused me enormous difficulty and it was very hard thinking about this matter and no thanks to you.  Can I put it that way, Mr Pickering?

188MR PICKERING:  I'll take that in the way it's intended, Your Honour.

189HER HONOUR:  I think you should.  But because it hasn't been easy, it's serious offending in and of itself and had this been offending standing alone without it being linked to the cancellation of his parole period I would have had no hesitation in gaoling Mr Bowen in the way I have said for the offending he engaged in.  But the totality issue is a large and live one, in my view, and the community corrections order also in my view is there to express the punitive as well as rehabilitative factors.

190But also again, and I know I'm repeating myself, as I have over and over in these proceedings, the discovery of the operation of the autism spectrum disorder gives some explanation to this offending but also needs attention.  And I'm worried about the institutionalisation aspect.  He's far too comfortable in gaol as well.  They're all matters that are in the mix.

191MR PICKERING:  Yes, Your Honour.

192MS WILLARD:  And, Your Honour, I prepared submissions in response, but perhaps there's no need for me to go through those now.

193HER HONOUR:  Do they - - -

194MS WILLARD:  It was just in relation to the report from Ian Neely.

195HER HONOUR:  Yes.

196MS WILLARD:  There was 192 grams and if Your Honour looks at the purity it's incredibly low.

197HER HONOUR:  Yes.  No, I note that the purity is very low.

198MS WILLARD:  And of course the exhibit log says that there's further equipment and chemicals required for the manufacture of methylamphetamine, which accords with his instruction that he's brought it from his mother's house and, if you look through the pictures in the depositions, it's all in bubble wrap.

199HER HONOUR:  Yes.  And again this can be part of the plea materials.  I failed to mention the purity level, which I note is exceptionally low, but nevertheless I also take into account it is in usable form.  So they are both matters that I must take into account and put into the sentencing equation that I am dealing with.

200All right, are there any orders that I need - further orders I need take care of?

201MR PICKERING:  No, Your Honour.

202HER HONOUR:  Thank you.  Mr Bowen, the order will be forwarded to you for sighing.

203OFFENDER:  Yes.

204HER HONOUR:  But that is the outcome.  You're going to be doing another 12 months and then you'll be released on the community corrections order.  And then you and I - what I will do as well, could I get a - we'll do a date as well.  So three months from 16 May is August, so I'll be seeing you on 16 August.  Hopefully that's not a Saturday or a Sunday, 2022.  That will be our first judicial monitoring.  All right?

205OFFENDER:  No worries.

206HER HONOUR:  Thank you very much. 

207OFFENDER:  Thank you.  Thank you, you have a good day.

208HER HONOUR:  Thank you very much.  We will stand down.  Thank you. 

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