Director of Public Prosecutions v Bowler

[2019] VCC 1998

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00158
CR-18-00159

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL BOWLER
BENJAMIN TARASINSKI

---

JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February, 26 July, 15 August, 23 August, 1 November 2019
DATE OF SENTENCE:	29 November 2019
CASE MAY BE CITED AS:	DPP v Bowler & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1998

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Home invasion; conviction following trial; serious example of offence; offending committed whilst on bail; delay between verdict and sentence; sentences between offenders distinguished by prior criminal history and prospects for rehabilitation.

Legislation Cited:                  Criminal Procedure Act 2009; Sentencing Act 1991

Cases Cited:DPP v O'Brien [2019] VSCA 254; Hogarth v R [2012] VSCA 302; 37 VR 658; DPP v Meyers [2014] VSCA 314; 44 VR 486; R v Renzella [1997] 2 VR 88.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Office of Public Prosecutions
For Accused Bowler	Mr A. Marshall	Ann Valos Criminal Law
For Accused Tarasinski	Mr J. Mortley	Ann Valos Criminal Law

HIS HONOUR: 

1Carl Bowler and Benjamin Tarasinski, on 13 November 2018 you were arraigned before a jury panel in respect of the following charges:  one charge of home invasion (charge 1), one charge of armed robbery (charge 2), one charge of causing injury intentionally (charge 3), one charge of causing injury recklessly (charge 4), three charges of common assault (charges 5, 6 and 7), and three charges of theft (charges 8, 9 and 10).  You pleaded not guilty to each charge, save that you both pleaded guilty to charge 8, being theft of cannabis. 

2A jury was then empanelled and your trial proceeded. At the close of the prosecution case, I upheld a submission that there was no case to answer in respect of charge 9, being theft of a key. The jury was discharged from delivering a verdict on that charge and I directed a verdict of not guilty in respect of each of you be entered in the records of the court pursuant to s 241(2)(b) of the Criminal Procedure Act 2009.

3On 28 November 2018, the jury returned unanimous verdicts in respect of five charges on the Indictment:

·charge 3 - intentionally cause injury to Emmanuel Katsanis - both of you were found not guilty; 

·charge 4 - recklessly causing injury to Emmanuel Katsanis as an alternative to charge 3 - both of you were found guilty; 

·charge 5 - no verdict was taken as this was an alternative charge to charge 4; 

·charge 6 - common assault on Pauline Benic - both of you were found not guilty;

·charge 7 - common assault on Maria Celona - both of you were found guilty;

·charge 10 - theft of a mobile phone belonging to Pauline Benic - both of you were found not guilty. 

4On 29 November 2018, the jury delivered further verdicts in respect of charges 1 and 2.  On charge 1 - home invasion, both of you were found guilty unanimously.  On charge 2 - armed robbery, both of you were found guilty by majority of 11 of the 12 jurors.  I should say at the outset, that for the purposes of imposing sentence upon you, I am satisfied that the jury, by its verdicts, substantially accepted the prosecution case and rejected the defence case.

Circumstances of offending

5Turning to the circumstances of these offences, the prosecution alleged that by about 9am on 5 March 2017, you had both formed a plan to arm yourselves and rob the occupants of 15 Glendale Crescent, Berwick of cannabis and perhaps other items. 

6Emmanuel Katsanis gave evidence that he was awoken by the sound of crashing glass and men yelling, 'police, police.'  The rear glass sliding doors of the premises were smashed to gain entry.  In the course of the violence that ensued, it was alleged that one or either of you were armed with a mallet and a large knife.

7Mr Katsanis said that he was confronted by the offender identified as you, Mr Bowler, at his bedroom door.  He said you tried to bash down the door and a desperate struggle ensued that moved to the dining room area.  He stated he was struck with a knife and a hammer during the struggle, and the second offender joined in, hitting him from behind.  Mr Katsanis sustained injuries to his head, knees, elbow and arms.  He said that he did not know the offenders.

8Pauline Benic stated that she first heard a voice yelling 'police', and then saw a man attempting to break down the door of Mr Katsanis' room.  She gave evidence of an assault of which you were both acquitted.  With respect to the armed robbery, Ms Benic stated that she used a tub containing approximately 9kg of cannabis to push you, Mr Tarasinski, against a wall.  She said you were armed with a mallet and a knife.  She said that you said, 'give me the shit, give me the shit' and you then took possession of the container.

9Maria Celona described in her evidence opening her bedroom door and being grabbed by the throat by you, Mr Tarasinski.  You were yelling at her and had a mallet in your hand.  She said that she put her hand over the mallet to try and stop being hit.  As she did so, she fell backwards and you fell on top of her.  She then said that you stood up and raised your foot and stomped down on the side of her face. 

10Although you both fled the scene, you were arrested in the vicinity shortly afterwards.  During that day, you both participated in records of interview in which you denied having anything to do with what occurred at 15 Glendale Crescent and told, what the prosecution contended on the trial were, a number of lies.  I interpolate that it is plain that you both did lie to police. 

11You, Mr Bowler, gave an account in which you said you were walking down a laneway and saw three people loading buckets into the boot of a car.  You said you got into a scuffle, were hit on the head with a mallet and tasered to the chest. 

12You, Mr Tarasinski, gave a disjointed account to the effect that you had woken up inside a house in Berwick being assaulted.  You told the jury in your evidence that these were lies you had told to avoid getting yourself and others into trouble.

13After the close of the prosecution case, you, Mr Bowler, elected to remain mute.  You, Mr Tarasinski, chose to give evidence.  You told the jury that you knew about Mr Katsanis through a third party.  You were aware he was a cannabis trafficker.  In the week prior to 5 March 2017, you said that you had run into Mr Katsanis at K-Mart.  You said that you had not seen him for three years or so and he invited you to attend at his house sometime over the following weekend to purchase cannabis.

14The next Sunday morning, you went there with Mr Bowler.  You told the jury that you knocked on the door.  The door was deadlocked and Mr Katsanis indicated from inside to come through the garage and into the house.  Once inside, you, Mr Tarasinski, alleged that Mr Katsanis told you that you owed him $17,000 because you had stolen an equivalent amount of cannabis from a mutual acquaintance.  A fight then ensued in which Mr Katsanis used a taser on Mr Bowler.

15You claimed that you, Mr Tarasinski, then acted to defend yourself as did Mr Bowler.  When leaving the house, you took the tub of cannabis without consent and that is why you pleaded guilty to theft of that cannabis.  I note that Mr Katsanis denied using a taser during cross-examination, however, an independent witness, a neighbour, Ms Tracey English, gave evidence that she heard sounds very much consistent with that of a taser at the relevant time.

16In his final address on behalf of you, Mr Bowler, your counsel Mr Marshall relied upon Mr Tarasinski's evidence in support of your case.  Your counsel, Mr Tarasinski, urged the jury to reject the evidence of the prosecution witnesses in light of your evidence. 

17By its verdicts, the jury clearly rejected the joint defence contention that this was an argument or fight that erupted inside the premises after entry was gained by invitation.  You will be sentenced on the basis that the jury accepted the Crown case that you were both engaged in a joint criminal enterprise to arm yourselves, force your way inside the complainants' home and rob them of cannabis.

18There was some variance in the evidence as to whether one of you was armed with a large knife.  I am satisfied for the purposes of imposing sentence that between the two of you, one or either of you was armed with a mallet and at least some wooden implement which was employed during the violence.  I am not satisfied to the requisite standard that either of you was armed with a large knife. 

19You have also each pleaded guilty now to a related summary offence of committing an indictable offence whilst on bail.  At the time of the incident, you had both been granted bail on the condition that you resided at a drug rehabilitation facility known as Recoveroz, located in Burwood.

Theft as an alternative to Armed Robbery

20As I indicated earlier, at the time of Arraignment, pleas of guilty were entered in respect of charge 8 and your trials were conducted on the basis that you were both guilty of that charge.  The verdicts of guilty with respect to armed robbery, however, completely subsume that charge and should perhaps have been treated as an alternative during trial.  Having raised this matter with the prosecutor, Ms Pezzimenti, it was submitted that because the armed robbery charge proceeded after the plea of guilty to theft was entered, it was implicit that the plea of guilty to the charge of theft was not accepted.  It was contended therefore that I should sentence on the armed robbery and record no finding in respect of the theft.  In the absence of any argument to the contrary, I will proceed on that basis. 

Victim impact statements

21Both Ms Benic and Ms Celona provided victim impact statements.  It is clear that your actions have had a life changing effect on both women.  In those statements, they expressed themselves in somewhat colourful language and refer to matters that either were not part of the Crown case or could not be said to have been suffered as a direct result of the offending.  In particular, I note that the assault charge involving Ms Benic was not sustained. 

22Nevertheless, Ms Benic was the victim of the armed robbery and one of the victims of the home invasion.  Accordingly, I must be cautious in assessing Ms Benic's victim impact statement, but nonetheless take it into account.

23All parties urged, and I accept, that I should take a practical approach when taking these victim impact statements into account.  Ms Benic was 53 years of age at the time of the incident.  She described herself as being stunned, terrified and helpless when the incident occurred.  She has developed debilitating anxiety whereby her sleep, appetite, confidence and sense of security in her own home have been severely disturbed.  These problems have been ongoing.

24Ms Celona was 47 years of age at the time of the offending.  She said that she thought she was going to die when this incident occurred and the memories of what she went through have haunted her since.  She too feels unsafe in her own home and is constantly vigilant and fearful.  She stated that she had to leave her job which she loved because of the anxiety she developed and was unable to maintain further employment.  She is constantly plagued by nightmares and flashbacks.  She remains angry and scared.

25Mr Katsanis did not provide a victim impact statement, however, I will infer from the injuries depicted in the photographs tendered at trial and the evidence given by Dr Martin to the effect that Mr Katsanis suffered a close head injury, some lacerations to the left side of his head, the back of the head and multiple abrasions to other parts of his body, that this was a frightening ordeal which will stay with him for a very long time to come.

Nature of offending

26Having described the factual basis of a sentence and the impact your offending has had on the victims, I must now say something about the nature of your offending.  A striking feature of the conduct you engaged in on this morning was the explosive violence you used, smashing your way into the house with weapons to assault and instil terror in order to get drugs.  This was a home invasion in every sense of the word.  I note that in the decision of Hogarth v The Queen[1], the Court of Appeal stated at [1]:

Home invasion is a particularly nasty form of criminal conduct.  Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong.  The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.

[1] [2012] VSCA 302.

27That statement was made long before the offence of home invasion came into existence, but it is still apt to describe much of what you did on this occasion.  Indeed, a measure of the seriousness of this conduct is the fact that the maximum penalty for the offence of home invasion is 25 years' imprisonment. 

28It may be that Mr Katsanis was less than frank about some aspects of his evidence, but he and the other occupants of the house were absolutely entitled to enjoy their home free of the aggression and harm you inflicted upon them.  It is important that you both understand that the damaging impact your actions have had on these people will be a very important factor that is taken into account in formulating the sentence that must now be imposed on you.

29I should add that I am satisfied that this is a serious example of the offence of home invasion.  It is aggravated by the level of violence you displayed and the fact that it was committed whilst you were both on bail and purporting to get treatment for drug addiction.

Delay

30There has been quite a delay between verdicts and sentence.  The reasons for that delay are as follows:

31Once the final verdicts were taken on 29 November 2018, the matter was adjourned for plea to 11 February 2019.  On that day, the trial prosecutor was unavailable.  There were difficulties with the criminal histories of both of you and Mr Marshall wanted an opportunity to call a psychologist on behalf of Mr Bowler.  The plea was then adjourned to 8 April 2019.  However, that hearing was administratively adjourned to 26 July 2019 due to one counsel being hospitalised.

32On that day, victim impact statements were read and a plea in mitigation was put in part.  The matter was adjourned to 15 August 2019 to allow those representing Mr Bowler to obtain further neuropsychological material and call a psychologist to give oral evidence.

33After the hearing of 15 August 2019 proceeded, the matter was listed for sentence on 23 August 2019.  I then allowed a further application for adjournment to enable your legal representative, Mr Tarasinski, to seek further psychological evidence on the basis of new information that had come to hand.

34On 1 November 2019, a further psychological report was tendered and supplementary submissions put.  The first available opportunity to sentence due to list commitments was this day, 29 November 2019, precisely one year after verdicts.  As that history illustrates, much of the delay is explicable on the basis of allowing further time for each of you to place before this court all of the information that was felt might assist your respective cases.  That said, the uncertainty associated with having to wait so long to be sentenced, irrespective of the reason, I appreciate is punitive and it will be taken into account.

Personal history – Carl Bowler

35Turning to you, Mr Bowler, and your personal history.  You were born on 30 November 1987 and are now 31 years of age, about to turn 32.  You were 29 at the time of the commission of these offences.  You grew up in the Lakes Entrance area where your father worked as a fisherman on trawlers and your mother managed the home.  You had six older sisters and a younger brother. 

36According to your counsel, Mr Marshall, your home life was happy and comfortable in the early years.  Unfortunately, your mother contracted a terminal illness.  You were 12 when she passed away and thereafter, your life changed very much for the worse.  Your father turned to substance abuse to cope with the grief.  Your older siblings were able to manage for themselves for the most part but you and your younger brother were often left to your own devices.  Your father re-partnered and the family moved to Melbourne which appears to have exacerbated your difficulties.

37So far as your education is concerned, it seems that it was evident before your mother's death that you had difficulty in sustaining concentration and needed speech pathology and other additional support.

38You had a year off school when your mother died and when you returned, you were disruptive and unable to settle.  You were expelled from Mount Waverley High School in Year 9.  In this setting, you began using cannabis and experimented with so-called ‘recreational drugs’ such as ecstasy and amphetamines.  It is significant that your drug abuse largely ceased when you turned 18. 

39After leaving school, you commenced working at a door manufacturing company and then a number of other labouring jobs until you turned 18.  At that time, you started your own business as a courier and thereafter built up a transport business which became successful in partnership with your father-in-law.  The business now owns four vans and a truck and delivers for large entities such as Steggles and V-Line.

40You have had one significant relationship in your life which has been with Ms Larna Hohapata.  You have been with her since you were 18 and there are three young daughters of that relationship.  It was really with Ms Hohapata's support that you were able to build the business I have referred to and to purchase your own home.  Your relationship with her deteriorated in the period 2015 and 2016 in the wake of you resuming drug use, specifically methylamphetamine.  Over time, it appears you had become dependent on that drug in the setting of feeling the need to stay alert and meet ever increasing work demands. 

41When you broke up with your partner, an intervention order was put in place and you left the family home and the business, essentially becoming homeless.  I should add that your prior criminal history tends to reflect the history as it was outlined by counsel. 

42There were apparently some Children's Court matters (which were not alleged) that likely coincide with the instability associated with the aftermath of the death of your mother.  The only appearance constituting your adult criminal history was at Melbourne Magistrates' Court over 12 years ago on 22 January 2007.  That appearance related to possess and use of amphetamines and some driving offences which resulted in an aggregate fine of $900, imposed without conviction.

43I was told that after leaving the family home you committed some burglary and thefts and breaches of your intervention order which were dealt with at Sunshine Magistrates' Court on 9 August 2017.  You were there sentenced to 12 months' imprisonment, but 324 days was taken into account as having been served by way of pre-sentence detention. Those matters are not prior convictions for the purposes of imposing sentence in this matter. 

44Factoring those matters into the overall time you have spent in custody, it follows that from 18 September 2017, your pre-sentence detention has been directly referable to these charges.  As to this offending, you told your assessing psychologist Ms Ferrari that in February of 2017 you were released on bail to attend a drug rehabilitation facility known as Recoveroz.  You told her that staying at this facility was not helpful and that drugs were readily available and you rapidly relapsed.  In that setting, you became involved in this offending. 

45A significant matter put on your plea was the fact that you had reconnected with your partner, Ms Hohapata, after you were remanded in respect of these matters.  I noted that she was present throughout each day of your trial.  It is put that her support and the incentive to re-establish yourself with her and your daughters substantially enhances your prospects for rehabilitation.  You would also, I am told, be welcomed back into the business once you are released.

46Ms Hohapata provided a written reference which confirms the matters set out above.  Written references were also provided by a cousin, Ms Macbeth, and one of your older sisters, Ms Cooper.  Those references further confirmed the personal history set out by Mr Marshall, and I will take them into account.  Ms Macbeth refers to what she sees as the changes that have occurred since you have been in custody.  And I will turn to that matter now.

47A report from Dr Kiara Bird, a senior psychologist attached to the Mobile Forensic Mental Health Service, of 30 April 2019, details the mental health treatment you have received in custody.  You were experiencing a range of psychological problems including paranoia, hypervigilance and underlying issues concerning childhood trauma.  To your credit, you attended 10 sessions with her and appear to have made some positive steps in understanding and managing your mental health.  Your application to that treatment augurs well. 

48Whilst in custody, you have been maintained on methadone.  You have been subject to random urine analysis.  The 10 sets of results tendered on the plea were negative for illicit drugs. 

49In addition, you participated in a range of relevant rehabilitative courses which seem well-directed.  They related to a men's behaviour change group, an alcohol and drug stress management program, an alcohol and drug loss program, a general alcohol and drug program, numerous workshops which seek to build psychological resilience and, since July 2019, you have worked as a prison peer listener.  In that latter role, you have shown developing leadership and insight which, it was submitted, demonstrates that your prospects for rehabilitation are very good.

50Your matter was adjourned to 15 August 2019 to enable you the opportunity, through your solicitors, to subpoena the results of neuropsychological testing which had apparently been conducted whilst you were in prison.  As I indicated, you had been previously assessed by a consultant psychologist, Ms Carla Ferrari, who provided a report of 4 February 2019. 

51Ms Ferrari gave oral evidence on 15 August 2019.  She confirmed her view that you presented as a low risk of offending overall.  I understood Ms Ferrari to express that view as contingent upon you continuing to engage in the treatment that you have, with the support that you have from your family.  Ms Ferrari suggested that your condition appears to have improved whilst you have been receiving the treatment that you have in custody and she pointed to what she described as a number of protective factors which enhanced your prospects for rehabilitation. 

52The most significant of those factors is your family unit.  Having regard to the fact that you had a lengthy period of abstinence when you were young and working, it was suggested that there was a firm basis for the conclusion that your prospects were in fact very good. 

Sentencing submissions – Bowler

53Mr Marshall submitted that you have already spent a considerable time in custody and much has changed over that time.  He argued, having regard to your age and mental health problems which have been addressed in custody, your substantial family support, your business which you can return to, the extensive rehabilitative steps and your limited criminal history, I should sentence you to a further term of imprisonment but combine that further sentence with a Community Correction Order (‘CCO’). 

Personal history – Benjamin Tarasinski

54Turning to you, Benjamin Tarasinski, you were born on 29 October 1984 and are now 35 years of age.  At the time that you committed these offences, you were 32.  Unlike Mr Bowler, you have an extensive criminal history to which I will refer shortly. 

55Your parents were of Polish origin who worked hard running a fish and chip shop in Paynesville in East Gippsland.  There were four children of the marriage.  You were the second.  Your older brother works as a police officer in Western Australia and you have two younger sisters with whom you maintain contact. 

56Because your parents worked very long hours, you had little supervision and guidance through your primary schooling.  You struggled with your grades and attended a special school in Bairnsdale one day a week for children with behavioural problems.  You were disciplined very harshly by your father who regularly beat you. 

57When you were about 12 years of age, your family moved to the western suburbs of Melbourne.  You attended Werribee Secondary College until Year 8 when you were expelled for smoking cannabis.  You transferred to another school where you also were expelled for the same problem.  You then left school for good.  You were also told to leave the family home. 

58At the age of 14, you went to live with an uncle.  His wife had at that time recently died of breast cancer.  In that setting, you resorted to heavy cannabis use.  You did not work and apparently spent much of your time smoking cannabis over the next four years or so. 

59Around 2002, when you were 18 years of age, you returned to live in Melbourne.  You formed a relationship with a young woman which motivated you to stop cannabis use and obtain work as a concreter.  That has since been your primary occupation when you have been able to work.  There are two children from the relationship you formed when you were 18 or so, and they are now around 10 and six years of age.

60I was initially provided with psychological reports.  The first was obtained for a hearing related to your earlier offending.  Ms Carla Lechner, psychologist, provided a report of 19 December 2011 when you were 27 years of age.  She described you at that time as engaging in self-defeating behaviours and that you needed assistance 'in breaking the nexus between [your] depression and drug use.  [You have] prospects for rehabilitation but need supervision and support.'

61For the purposes of this plea, you were assessed by Mr Jeffrey Cummins, psychologist, who provided a report of 4 February 2019.  You recounted to Mr Cummins the same account that you gave to the jury as to the circumstances of these offences, although you conceded to him that you went 'overboard'. 

62Mr Cummins assessed you as being of low-average intelligence.  You did not present as anti-social and he was of the view that you did not think of yourself as having an established need to commit criminal offences.  Mr Cummins believed that it was imperative that you receive treatment for the feelings of anger and resentment you harbour as a result of your childhood experiences. 

63You have a documented history of depression and, in his opinion, have suffered from a major depressive disorder since your adolescence and you have likely sought to self-medicate that disorder through your longstanding abuse of methylamphetamine and other drugs. 

64As I indicated in recounting the procedural history of this matter, a further supplementary psychological report was tendered on your behalf on 1 November this year.  Your counsel, Mr Mortley, submitted that you have had difficulty in the past explaining the extent of physical and emotional abuse you were subjected to as a young person.  This was important, it was contended, because you were finally able to provide some context to your entrenched substance abuse related history. 

65As a child, your father would routinely refer to you as 'stupid' or 'a piece of shit' and told you that you were 'fucking useless' and that you would never be good at anything.  You were frequently hit by your father with a jug cord with such intensity that you thought you might die.  You were physically abused in many other different ways that led to suicidal ideation at a very young age. 

66In his latest report, Mr Cummins stated:

In my earlier report of 4 February 2019 I expressed the opinion that Mr Tarasinski was suffering from a Major Depressive Disorder which was recurrent in type and of moderate severity and dated back to his early adolescent years.  Having re-interviewed Mr Tarasinski and having interviewed his sister and having read his 11-page handwritten notes, it is my opinion that he has been suffering from trauma related symptoms including flashbacks and some nightmares in conjunction with suffering from a Major Depressive Disorder. In my opinion, he suffers from at least an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (DSM-5 Code 309.4) and most probably suffers from a Complex Posttraumatic Stress Disorder - reflective of the trauma integral to the abuse he received from his father and also concerning the trauma of his mate, Zeb's death in 2006.  In my opinion, the stress/trauma related symptoms did not have any direct nexus to his offending behaviour but I am prepared to state that there was most probably a nexus between his stress/trauma symptoms and his drug dependency.

At interview on 20 September 2019 he again stated he hoped he would receive mental health treatment and treatment of relevance to his drug dependency when he is released from custody.  Again, at interview on 20 September 2019, he agreed that he must participate in a comprehensive anger management program.  

In conclusion, it is my opinion that the major risk factor for Mr Tarasinski is a return to illicit drug use.  It is my further current opinion that it is also imperative he receive mental health treatment to help him work through and put into a more understandable perspective his recollection of his dysfunctional upbringing and his associated physical and emotional abuse.

67You say that in 2006 you witnessed a close friend die in a motorbike crash.  Thereafter, your drug use escalated and you developed an addiction to methamphetamine.  Your adult criminal history commences in 2009 and coincides with you developing a dependence of that drug.  For example, in November 2009, you were convicted of possessing amphetamines, steroids, cannabis and, among another charges, unlicensed possession of a handgun, for which you were placed on a Community Based Order. 

68In April 2012, you were dealt with in this Court for aggravated burglary, theft, make threat to kill and possession of methamphetamine and received a total effective sentence of two years and three months’ imprisonment, with a non-parole period of 17 months’ imprisonment.  The circumstances of that offending involved you committing a burglary on a house where you gained entry by climbing onto the roof and removing some roof tiles.  At the time you did so, you were armed with an imitation gun. 

69In breaking into the house, a security alarm was activated and when a friend of the owner of the house attended to investigate, you took out the imitation gun and pointed it at him and said, 'Back off or I will kill you.'  When that person ran after you, you turned again and pointed the imitation gun at him and said, 'Fuck off or I'll shoot you.'  Clearly, that was serious offending and bears some similarity to what you did on this occasion. 

70In May 2012, you were sentenced to six months' imprisonment, to be served concurrently with the aggravated burglary sentence, for drug and dishonesty offences.  In July 2012, you were sentenced to a further one month aggregate term of imprisonment for being a prohibited person in possession of a firearm and drug offences. 

71As the circumstances of this offending reveal, you were on bail in respect of a large number of drug and dishonesty offences when you committed these offences.   A condition of that bail was that you were to reside at Recoveroz and undertake drug rehabilitation.  As I have already indicated, that is a further aggravating feature of your offending. 

72When you were arrested for these offences, you remained in custody and you were ultimately sentenced for the other outstanding matters on 16 June 2017.  The principal offence for which you were sentenced at that time was trafficking in methamphetamine and a total effective term of imprisonment of 270 days was imposed.  However, 234 days were reckoned as already served under that sentence.

73Whilst in custody, you have undertaken random drug screening and completed a number of rehabilitative programs such as the 24-hour managing ice program and alcohol and drug courses dealing with communication, relationships and managing cravings.  Indeed, the comments of the convener of the 24-hour course were positive and do suggest that you are motivated to try and deal with your drug abuse problems.

Sentencing submissions – Tarasinski

74Mr Mortley submitted that now, with the benefit of Mr Cummins' latest assessment, there can be a much more informed understanding of your substance abuse and the underlying psychological conditions which have driven that abuse.  You are now more amenable to treatment and, in Mr Mortley’s submission, a much better prospect for rehabilitation than your prior criminal history suggests.  He submitted that you are at risk of becoming institutionalised. 

75Given that you have now been in custody continuously for 999 days, 861 days of which is directly referable to this offending, it was submitted that a further term of imprisonment of up to 12 months should be imposed in combination with a CCO which could address your rehabilitation.

Sentencing submissions – Prosecution

76Ms Pezzimenti, on behalf of the Crown, submitted that the only appropriate sentence that should be imposed is an immediate term of imprisonment and that a non-parole period should be fixed.  The offending, it was submitted, was simply too serious to be dealt with by way of a combination sentence given the various aggravating features including the level of violence, the fact that you were on bail when you committed these offences and the complete lack of remorse shown.

Consideration

77In considering these submissions, I should make it clear at the outset that I accept the Crown's submission that this offending is simply too serious to be dealt with in any other way other than imprisonment with an appropriate non-parole period.  As I have indicated, a marked feature of your offending was the ferocious violence you have both employed in the victim's home in order to rob them of cannabis.  That sort of violence cannot be tolerated.

78I repeat what I said earlier, that this was a home invasion in every sense of the word and I regard it as a serious example of that offence.  That said, I am not unsympathetic to the difficulties you both experienced in your earlier lives and to the need to facilitate to the extent possible your rehabilitation.  However, the reality in this case is that the seriousness of your conduct renders that consideration subsidiary.

79Since adjourning for sentence, the decision in DPP v O'Brien[2] was handed down.  I invited the parties, through my Associate, to make any written submissions they may wish given that it seemed appropriate that I have regard to what was said in that decision.  No submissions were received. 

[2] [2019] VSCA 254, (‘O’Brien’).

80O'Brien was a Director's appeal where, in what might be described as a classic confrontational aggravated burglary, on a plea of guilty the offender had been sentenced to 20 months' imprisonment with a CCO of two years duration at first instance.  On appeal, the sentence was increased to six years' imprisonment.

81As was noted in O'Brien, until 2016, those who engaged in home invasions were prosecuted for aggravated burglary and that home invasions were viewed as a very serious form of that offence.  Indeed, of the 15 highest sentences for aggravated burglary reviewed in the Court of Appeal in the period 2009 to 2018, 12 were for home invasion. 

82In O'Brien, the parties accepted that sentencing decisions concerning home invasion as a form of aggravated burglary remained directly relevant in sentencing for the new offence.  The decisions in Hogarth v R[3] and DPP v Meyers[4] as to the need for higher sentences for this type of offending continue to apply.

[3] [2012] VSCA 302; 37 VR 658.

[4] [2014] VSCA 314; 44 VR 486.

83In respect of the offending in O'Brien, the Court said at [37]:

Those considering such antisocial conduct must know that stern punishment will follow their apprehension.  The sentence imposed [at first instance] does not send this message nor is it a proportionate response to this grave offending.

84Similarly, here, the sentence I impose must seek to deter others who might be minded to engage in this sort of criminal violence.  It must also seek to deter both of you, but particularly you, Mr Tarasinski, from offending in the future.  Moreover, it must denounce what you have done as completely unacceptable.

85On the plea, the issue of whether there should be some distinction between the sentences imposed on each of you was briefly referred to.  In considering that matter, I have concluded that the sentence imposed on your, Mr Bowler, should be less than the sentence imposed on you, Mr Tarasinski.  I have considered three matters in particular in arriving at that conclusion. 

86The first is that having sat through the trial and listened carefully to the evidence and in particular to the evidence given by you, Mr Tarasinski, I tend very much to the view that you, Mr Tarasinski, played a greater role in instigating and carrying out the offending.  You claim to have known Mr Katsanis and are certain that it was your previous drug dealing with a mutual acquaintance that started the argument that, on your account, led to the violence inside the house.  Although that version was rejected by the jury, it appears relatively uncontroversial that it was your idea to attend at 15 Glendale Crescent on that morning. 

87Although that view appears well open, ultimately, I find that I cannot be satisfied to the requisite standard that you, Mr Tarasinski, played a materially greater role than you, Mr Bowler, and accordingly, I will treat you both as having played an equal role in carrying out these offences.

88The second consideration which is obvious and glaring is the fact that you, Mr Bowler, have relatively little in the way of a prior criminal history; whereas you, Mr Tarasinski, have an extensive criminal history which includes similar offending.  You, Mr Tarasinski, are not to be punished again for that previous offending.  However, your history limits the leniency that might otherwise be afforded to you and requires that I emphasise the sentencing purpose of specific or personal deterrence in formulating the sentence to be imposed upon you. 

89The third matter to be considered, on the question of whether different sentences for each of you should be imposed, relates to prospects for rehabilitation.  In your case, Mr Bowler, I assess those prospects to be quite encouraging.  That is so by reason of your partner's support which has impressed me, the fact that in your past you have shown you can manage a large business, abstain from drugs, work productively and provide for your family, your relatively modest criminal history, the rehabilitative work you have done in custody and your psychologist's evidence to the effect that you have a low risk of re-offending.

90On the other hand, as to you, Mr Tarasinski, I assess your incipient rehabilitative steps as engendering some hope, but your prospects, it must still be said, remain far less optimistic, not least because of your much more entrenched criminal history.

91It follows on the basis of the latter two considerations, namely prior criminal history and prospects of rehabilitation, that the sentences I will impose will distinguish between each of you in favour of Mr Bowler. I note that in the case of each of you, although you have been in custody continuously since 5 March 2017, not all of that time is referable to this offending and that the declarations to be made under s 18 of the Sentencing Act 1991 (‘the Act’) will not cover some months which were referable to the earlier sentences.  I have taken that matter into account in the sense described in the decision of R v Renzella[5]. 

[5] [1997] 2 VR 88.

92I should also point out that having taken the fact that you were on bail when you committed this home invasion into account as an aggravating feature, you will not be further punished for that same act in respect of the offence of committing an indictable offence whilst on bail, other than through the fact of conviction.  Indeed, in my view, there is a considerable overlap between what is encompassed by the first offence, namely the home invasion and charges 2, 4 and 7.  Whilst I think each of those offences should be marked and punished individually and not dealt with by way of an aggregate sentence, the safest course in avoiding any measure of double punishment is to impose concurrent sentences in respect of charges 2, 4 and 7.

Sentence

93Mr Tarasinski, would you please stand?  Mr Tarasinski, in respect of charge 1, the offence of home invasion, you will be convicted and sentenced to a term of imprisonment of six years and nine months.  On charge 2, that of armed robbery, you will be convicted and sentenced to a term of imprisonment of three years and six months. On charge 4, that of recklessly causing injury, you will be convicted and sentenced to a term of imprisonment of 18 months.  On charge 7, common law assault, you will be convicted and sentenced to 12 months' imprisonment.  In respect of the related summary offence of committing an indictable offence on bail, you will be convicted and discharged.

94I will direct that the sentences imposed on charges 2, 4 and 7 be served concurrently with each other and concurrently with the sentence imposed on charge 1, making a total effective sentence of six years and nine months’ imprisonment. I will fix a non-parole period of four years and nine months’ imprisonment. I will further declare pursuant to s 18 of the Act that you have already served 861 days of that sentence by way of pre-sentence detention and will cause that declaration to be noted in the records of the court. You may be seated.

95Mr Bowler, would you please stand?  On Charge 1, the charge of home invasion, you will be convicted and sentenced to a term of imprisonment of five years and nine months. On charge 2, the charge of armed robbery, you will be convicted and sentenced to a term of imprisonment of three years and six months.  On charge 4, the charge of recklessly causing injury, you will be convicted and sentenced to a term of imprisonment of 18 months.  On charge 7, the charge of common law assault, you will be convicted and sentenced to a term of imprisonment of 12 months.  On the related summary offence of committing an indictable offence whilst on bail, you will be convicted and discharged.

96I will direct that the sentences imposed on charges 2, 4 and 7 be served concurrently with each other and concurrently with the sentence imposed on charge 1, making a total effective sentence of five years and nine months. I will fix a non-parole period of three years and nine months. I will declare under s 18 of the Act that you have already served 802 days of that sentence by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court. You may be seated.

97I will make a disposal order in the terms sought by the Crown.  Are there any other matters that arise from those sentencing remarks, Ms Pezzimenti?

98MS PEZZIMENTI:  No, Your Honour. 

99HIS HONOUR:  Mr Marshall?

100MR MARSHALL:  No, Your Honour.  

101HIS HONOUR:  Mr Mortley?

102MR MORTLEY:  No, Your Honour. 

103HIS HONOUR:  Yes, thank you.  Mr Bowler, Mr Tarasinski, if you would not mind going with the prison officers now.  Thank you.  We will stand down. 

‑ ‑ ‑