Director of Public Prosecutions v Bowes

[2016] VCC 101

Pages 1 – 1     IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01362

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL THOMAS BOWES

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 February 2016
CASE MAY BE CITED AS:	DPP v Bowes
MEDIUM NEUTRAL CITATION:	[2016] VCC 101

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 N. Batten	Office of Public Prosecutions
For the Accused	Mr P. Smallwood	James Dowsley & Associates

HER HONOUR: 

1Mitchell Thomas Bowes, you have pleaded guilty to a 13 charge indictment relating to offences committed between 5 and 17 December 2014, the most serious occurring in the last five days of that period.

2There are two charges of each of the following offences:  obtain property by deception; robbery; armed robbery; handling stolen goods.  There are three charges of theft and one charge of attempted armed robbery.  In addition you consented to me dealing with relevant summary matters:  dangerous driving; committing an indictable offence whilst on bail; and possession of a prohibited weapon.

3The maximum penalties for these offences are as follows:  obtain property by deception, ten years; robbery, 15 years; armed robbery, 25 years; handling stolen goods, 15 years; theft, ten years; and attempted armed robbery,
20 years.  In respect of the summary matters:  dangerous driving two years or 240 penalty units and mandatory disqualified of licence; committing an indictable offence whilst on bail, three months or 30 penalty units; possessing a prohibited weapon, two years or 240 penalty units.

4Charge 1 relates to an occasion where you used a stolen credit card to pay for approximately $100 worth of items from Coles.  Charge 2 is the summary matter of dangerous driving relates to events on 12 December.  On that day you were driving an old BMW with no registration plates in rural Victoria.  You went to a petrol station and drove off without paying for it, the cost being $115.  The police were notified and you were seen by police driving at speeds of
127 kilometres an hour on the Calder Highway in Wycheproof.  Police pursued you for about 15 kilometres in their van with lights activated, but ultimately lost sight of you.  It is estimated that you drove at a speed in excess of 170 kilometres to avoid being intercepted by police.

5Charges 3 and 4 happened the next day.  At about 9.15 pm on Saturday
13 December, you, with at least one co-offender, approached Lloyd de Cruz, who was in the driveway of his home in Noble Park North.  You told him you were the police.  You went towards Mr de Cruz and struggled with him.  He fell to the ground and screamed.  You took a bag from him that contained his credit cards and other personal items.  You and your co-offender ran off and got in the BMW which was parked in the street nearby.  You used one of the stolen credit cards to purchase goods at Coles and Liquorland in Dandenong.  You were seen on CCTV with this bag and some of the credit cards were later found by police in the BMW. 

6Both the police and ambulance were called.  As a result of the incident Mr de Cruz was distressed and suffered minor abrasions and pain to his neck, back and knee.

7The next day you went to a petrol station, filled up the BMW and got some cigarettes from inside the shop.  You told the attendant your wallet was in your car but you drove off without paying for either the petrol or the cigarettes.

8At about 9.45 am on 15 December you went with a friend to a fish and chip shop in Dandenong.  The owner of the shop, Mr Shen, had unlocked the door and had placed his phone on the counter.  You followed him into the shop when he opened the door, even though you were told the shop was not open yet.  You took a drink from the fridge and refused to pay for it.  You walked into the kitchen, took the phone from the counter and made a threatening gesture to Mr Shen.  You went to the BMW and drove off.  On 6 March 2015 Mr Shen identified you from a photo board.  The iPhone has not been recovered.

9Later the same day you took some items from Coles, Dandenong without making any attempt to pay for them.  You ignored staff who approached you outside and drove away in the BMW.  CCTV footage captured you leaving the store and staff noted the registration plate number.

10Charges 8, 9 and 10 all occurred on 16 December.  At about 7 o'clock on that day you went to Dandenong railway station car park and stole some registration plates from a car using a drill.  These plates were not recovered.  Soon after, at approximately 8.30 am, Ajay Sharma was walking along Chandler Road in Noble Park on his way to work.  As this victim's surname is the same as that in Charge 11, I will refer to Ajay Sharma as Ajay.  You followed Ajay in your car before getting out and approaching him.  You demanded he give you his phone and he told you he had no credit.  Ajay continued walking and you followed, saying, "Show me your phone".  You were holding what appeared to be a black rod, which was an electrical Taser device.  This is depicted in the photos in the depositions.  Ajay again told you he had no credit.  You patted him down and said, "I'll zap you if you don't give me your phone".  Ajay was very frightened and you demanded that he give you everything.  You touched Ajay on his side with the Taser and gave him an electric shock.  You removed his wallet and phone from his pockets and drove off.  Ajay suffered redness and minor bruising to his abdomen as a result of the use of the Taser.  Soon afterwards you used Ajay 's credit card.  His wallet and cards were recovered from the BMW though his phone was never found.

11At about half past six the same day you approached Justin Banawan at a bus stop in Mulgrave.  You started a conversation with him, then took his bag from the bus stop seat.  You produced a Taser and pressed it against
Mr Banawan's stomach over his jumper.  Mr Banawan pushed the Taser away with his hand and it fell to the ground.  You then punched him to the face and did so repeatedly, despite Mr Banawan trying to stop you.  He was on the ground.  You both stood up and you tried to kick Mr Banawan but did not connect.  You continued punching him and he kept fighting back.  You eventually picked up the Taser device and walked away without
Mr Banawan's bag.  A passer-by who saw the attack stopped and came to his assistance.  She described your attack as brutal.  This was reported to Protective Services.

12Charge 11.  Early the next morning at about 6.20 am on 17 December you were with co-offenders including Takaha Campbell, in a stolen black Holden Captiva in Clayton South.  The car stopped and approached Nishan Sharma, who was walking along Oaks Avenue, carrying a black bag.  Nishan was approached by Campbell, and you came up from behind and touched him on the back of his neck with the Taser device and gave him an electric shock.  Nishan fell to the footpath and was shaking on the ground.  You stood over Nishan, holding the Taser in a threatening manner and said, "Do you want more?"  Campbell showed Nishan an axe and said, "Give me your money".  Nishan said he did not have any money so you then also checked his pockets.  Campbell removed his iPhone which was in a cover containing $50 cash.  Another co-offender took Nishan's card holder containing debit cards and other ID cards.  You took his bag from him as he was lying on the ground.  You tried to pull a silver necklace chain from his neck, and he tried to unhook it for you, but was shaking too much and could not do it.  The co-offenders ran back to the car and shouted for you to leave.  You punched Nishan twice to the left of his head, causing pain to his ear.  You returned to the car and drove away.

13A passer-by came to Nishan's assistance and the police and an ambulance were called.  At 6.50 am you and the co-offenders used one of the bank cards stolen to purchase food at McDonald's.  A Commonwealth bank card belonging to Nishan was later found in the white BMW but other items, including the bag, iPhone and cash, were not recovered.

14On 17 December you were arrested in Dandenong.  You had in your possession a bag containing a double edged sword in a sheath, a prohibited weapon under the Control of Weapons Act.  This is the summary offence of possessing a prohibited weapon.  Again, this article is depicted in the photos in the depositions.

15On 18 December police located the white BMW sedan bearing stolen registration plates ACB 734 in Dandenong South.  The vehicle was secured and searched.  Various items linked to this offending, including clothing worn by you, and the Taser, were found.  In the BMW police located a stolen driver's licence in the name of Aaron Myart which had been stolen from Mr Myart's vehicle in Dandenong on 5 December 2014.

16Throughout the period of offending, between 5 and 17 December you were on bail and committed these various indictable offences.  During the period of offending you displayed stolen registration plates BMB 346 and ACB 734 on the BMW sedan.

17On 17 December and again on 5 January you were interviewed by police about various matters but denied any offending and made no comment.  You were remanded in custody on 17 December 2014 and have remained there since that date.  No victim impact statements were tendered.  In respect of the more serious offences, particularly those involving random attacks on people going about their own business, it would have been a terrifying experience.  No doubt they would have been scared and felt threatened or actually hurt by your violent and unprovoked attacks which on some of these occasions, occurred whilst you were with others.

18I received a report from Dr Aaron Cunningham, forensic psychologist, dated 17 November 2015.  This report outlines your personal circumstances and I take that material into account. You are currently age 31 and grew up in Noble Park with a brother and a sister.  Your father subjected your mother to domestic violence and they separated when you were eight years.  Your mother had significant drug addiction issues, of which you were aware or exposed to, growing up. 

19You left school after Year 10 and gained forklift driving qualifications.  You have been gainfully employed over various periods, however, you lost jobs due to your methylamphetamine use.  Additionally, about six weeks before you were involved in this offending, you were involved in an accident, stepping on a knife and cutting tendons on your foot, which also limited your capacity to work.  You have various qualifications with certificates in transport and logistics in civil construction.  You have a reasonably solid work history.

20You moved out of the family home when you were about 24.  Around this time you were in a relationship with Natasha and remained so for a number of years.  However, that relationship broke down with your increased drug use.  At around this time your father was suffering from a terminal illness.  You had become close to him during this period of sickness but he died in February 2014.  After your father's death you resorted to, and increased, your drug use.  You described yourself as being on a drug bender.  As a consequence your relationship with Natasha broke down.  At this time you were using drugs on a daily basis and after a dispute with your brother at your mother's house, had nowhere to live.  You were living in an intransient life, living at friend's places or in your car.  In your evidence before me you expressed that your life had spiralled out of control.  It was these circumstances that led to this offending, needing money for both food and to maintain your drug habit.  It was reported that you had a habit of half a gram a day at the time of the commission of these offences.  I understand that your mother and Natasha, who were in court with you, are currently supportive of you and will continue to assist you on your release from custody.

21You acknowledge that you have significant issues with anger, which is heightened in periods of stress.  Dr Cunningham is of the opinion you have no indicators of thought disorder, psychosis or other mental illness.  It was submitted on your behalf that your commission of these offences reflected your utter desperation to feed yourself and your uncontrolled drug addiction.

22I accept that your plea could be considered early given the matters that you were originally charged with and the ultimate resolution.  The plea is of utilitarian value as witnesses were not required to give evidence and thus suffer further trauma.  Additionally, you have saved the cost of a trial to the community and the court.  Your plea is also indicative of remorse and illustrative of an acceptance of responsibility of your actions by you.

23In your evidence before me it was apparent you were deeply remorseful for your actions and you expressed appropriate victim empathy.  You have prior convictions for assault and driving offences.  Of most significance is your prior conviction on 24 January 2014 for recklessly cause injury.  You were placed on a 12 month CBO for that offending and had almost completed that order when this offending occurred.  That order was not breached.

24I also note that the conditions in the CBO did not incorporate any conditions regarding drug testing, treatment or counselling or address any anger management issues.  In your evidence you admitted that you previously had not acknowledged the effect of drug use on your daily functioning.  You expressed a desire to overcome your drug and anger issues, having spent a great deal of time on remand thinking about getting your life and family back on track.

25You started to take appropriate steps whilst in custody.  You have usefully spent your time in custody thus far.  However any programs are more limited since the riots last year.  I was informed that you were injured in or in the aftermath of the riots, and suffered damage to your tooth and memory loss.  As a consequence you were transferred to Barwon from MRC.

26You have completed a 24 hour drug rehabilitation program and have indicated that you have not used drugs whilst in custody.  I was informed that you had provided three random screens, all of which were negative.  Dr Cunningham noted that you reported positive motivation to gain employment and stability.  You have the support of your family, including Natasha.  You are a hard worker with a good employment history.

27It was recognised that you had not received any treatment or assistance in respect of your drug addiction.  You have been assessed as a medium risk of re-offending.  Clearly any chance of you getting your life back in order depends on drug abstinence and addressing your anger issues.  You are fortunate to have the support of your family and Natasha and your job prospects are good.  I accept your rehabilitation prospects are good, however much depends on your motivation and commitment to addressing these issues.

28There are a number of aggravating features in relation to this offending. i) Some of the offending was committed in company; ii) the random nature of the attacks; iii) the use of Taser or actual violence - it wasn't just threatening violence to ensure you succeeded in stealing from people; iv) on one of the occasions you continued with the assault whilst your co-accused were calling you away; v) you were on bail and on a community based order when you committed these offences; and vi) one of the offences occurred in the home of a driveway or driveway of a victim. 

29The series of offending could be described as a drug induced random violent spree lasting about five days.  It was fortunate that no-one was more seriously injured in either your driving or your vicious attacks on the individuals.

30The prosecution highlighted the need for specific and general deterrence and protection of the community, particularly given the serious nature of this offending.  The relevant principles I must apply in sentencing are just punishment, specific and general deterrence, denunciation of your conduct and protection of the community.

31The sentence I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done, particularly the robbery and the armed robbery offences and the circumstances in which they occurred were very serious.  The protection of the community is also an important sentencing consideration, particularly given your conduct when under the influence of drugs.

32Your rehabilitation prospects are an important sentencing consideration and I note that the past 14 months have been your first experience of custody.  It is necessary to strike a balance between community denunciation of your criminal conduct with the interest of that community in your rehabilitation and reintegration into society.

33The prosecution submitted this offending was so grave that an immediate term of imprisonment was warranted.  It was further submitted that any combined disposition, namely the imposition of a term of imprisonment with a community correction order to be served at the completion of that term was outside the range of sentencing options available to me.

34Your counsel submitted that all relevant sentencing purposes could be served by the imposition of a combined disposition described above.  Your counsel emphasised your good rehabilitation prospects and plea and other matters in mitigation.  Reliance was placed on Bolton and the sentencing purposes that such a combined order can serve.  It was conceded that a term of imprisonment must be imposed, but emphasis was placed on the principle that a CCO is a punitive measure intended to operate in that way for the duration of the order.

35As recognised in Bolton it was submitted that even in cases of objectively grave criminal conduct the court may conclude that all the purposes of sentencing can be served with a CCO of lengthy duration with conditions tailored to your circumstances and to address some of the causes of your offending.

36Reference was also made to R v Manorati and the distinction between the sentence with a non-parole period and a combined disposition order.  For the purposes of considering your suitability for a combined disposition order I have received a pre-sentence report from Corrections Victoria.  You are deemed suitable with a number of conditions, including supervision and others relating to drug abuse and anger management.

37It will be a lengthy order and also require supervision from Corrections and judicial monitoring from me.  I propose to make such an order which will commence at the expiration of the term of imprisonment that I am about to impose, as long as you are prepared to consent to that order.  It is clear that you will need to be committed and work towards your rehabilitation, especially when you are released from custody.  I will have no hesitation, Mr Bowes, in sentencing you to a significant term of imprisonment if you breach this order on your release at the end of your sentence.

38If you could stand up please, Mr Bowes, and I will read out the relevant sentences?  I should indicate that it is a combination of fines for some of the offences and then periods of imprisonment with a CCO at the completion of the time.  In respect of Charge 1, obtain property by deception, you are convicted and fined $200.

39In respect of Charge 2, theft, you are convicted and fined $200.  In respect of Charge 3, robbery, you are convicted and sentenced to 12 months' imprisonment.  In respect of Charge 4, obtain property by deception, you are convicted and fined $200.  In respect of Charge 5, theft, you are convicted and fined $200.  In respect of Charge 6, theft, you are convicted and fined $200.

40In respect of robbery, Charge 7, you are convicted and sentenced to a period of imprisonment of 12 months.  In respect of Charge 8, theft, you are convicted and fined $200.  In respect of Charge 9, armed robbery, you are convicted and sentenced to a period of imprisonment of 15 months.  In respect of Charge 10, attempted armed robbery, you are convicted and sentenced to a period of 12 months.

41In respect of Charge 11, armed robbery, you are convicted and sentenced to a period of 17 months.  In respect of Charge 12 you are convicted and fined $100.  In respect of Charge 13 you are convicted and fined $100.  In respect of the summary matter of dangerous driving you are convicted and sentenced to one month imprisonment.  In respect of committing an indictable offence whilst on bail you are convicted and sentenced to one month imprisonment, and in respect of possessing a prohibited weapon you are convicted and fined $100.

42The base sentence is that imposed in respect of Charge 11, which is
17 months.  In respect of Charge 3, one month will be cumulative on that base sentence.  In respect of Charge 7 one month will be cumulative.  In respect of Charge 9 three months will be cumulative, and in respect of Charge 10 one month will be cumulative.

43That should provide a total effective sentence of 23 months and I propose to order a community correction order to commence at the end of that sentence for a period of three years.  I think that the total amount of fines comes to $1500.  There is a mandatory disqualification in respect of the summary offence of dangerous driving.  There is a 12 month minimum, but I will cancel your licence and disqualify you for a period of 18 months.

44Could you please confirm the PSD, Mr Batten?

45MR BATTEN:  Yes, Your Honour, it is 422 days.

46HER HONOUR:  422 days.  I declare pre-sentence detention of 422 days.  The community correction order, as I indicated, will be for a period of three years.  Within the order will be a supervision condition, a condition to do
125 hours' community work and also a treatment and rehabilitation condition which includes assessment and treatment, including testing for drug abuse or dependency, any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, offending behaviour programs, any programs that address factors relating to your offending behaviour.

47Additionally there will be a judicial monitoring condition which will require you to come back to court before me.  You will be coming back before me,
Mr Bowes, on 1 February 2017, and it may well be that I at that time ask you to come back again because that is a provision whereby I can personally monitor how you are going on the order.  As I indicated to you, Mr Bowes, this was very serious offending and I am giving you the opportunity to continue to work at addressing the issues that you have already started doing, but it is very important and it will be a lot more difficult to do that when you are not in custody.

48Pursuant to s.6AAA if you had not pleaded guilty to these matters I would have imposed a sentence of six years with a minimum of four years. 
I understand that - have I made the 464 already, Mr Batten?

49MR BATTEN:  Your Honour, I did not think that you had.

50HER HONOUR:  Have you got the orders there?

51MR BATTEN:  Your Honour, there is a disposal order.  There are several compensation orders and there is the 464 order.  At least one of those needs to be amended, Your Honour.  Would it be acceptable if those were emailed to Your Honour's associate?

52HER HONOUR:  Yes, that is fine.  Could you please take the corrections order to Mr Bowes and, Mr Smallwood, if you want to go with my associate, thank you?

53MR SMALLWOOD:  As the court pleases.  Mr Bowes, has signed that order.

54HER HONOUR:  Thank you.  Are there any other matters?

55MR BATTEN:  No, Your Honour.

56HER HONOUR:  Can I just apologise for that mistake this morning?  I just have too many red folders.  Thank you, you are excused.

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