Director of Public Prosecutions v Bowler

[2015] VCC 1061

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00208

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE BOWLER

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2015
DATE OF SENTENCE:	5 August 2015
CASE MAY BE CITED AS:	DPP v Bowler
MEDIUM NEUTRAL CITATION:	[2015] VCC 1061

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Hollingworth
For the Offender	Mr I. Polak

HIS HONOUR: 

1Shane Travis Bowler.  You have pleaded guilty to two charges.  Your plea of guilty was first recorded on 11 May 2015.  Charge 1 is a charge of attempted aggravated burglary.  This offence has a maximum sentence of 20 years' imprisonment.  Charge 2 is a charge of common assault.  This offence carries a maximum sentence of five years' imprisonment.  You have also admitted an extensive criminal history commencing in March 2001 to March 2014.  I will refer to your prior offending when dealing with the sentencing considerations. 

2I first of all turn to the circumstances of your offending.  In the course of this proceeding, the prosecution tendered a summary of prosecution opening.  This document is Exhibit A on the plea.  The document sets out the circumstances of the offending by you.  You were previously in a relationship with Tamara Ryan.  You have children together and used to live at 6 Fernberg Place in Melton West.  Raelene Minogue and Troy Walters are in a relationship and live at 7 Fernberg Place, Melton West.  They were neighbours of yourself and Ms Ryan and previously friends of you.  You broke up with Ms Ryan at some point and moved from 6 Fernberg Place, Melton West.  You left some of your property at the complainant - that is Walters' house because you did not want your ex-partner Ryan selling it.  In particular, you left two cars with Mr Walters including the car that was left to you by your deceased father. 

3On 26 September 2013, you and Ryan were spending some time together with your children.  At that time, neither of you lived at 6 Fernberg Place in Melton West.  Between 1 and 2 pm, you stated to Ms Ryan that you wanted to get your cars back that you understood were being stored at Mr Walters' place.  Ms Ryan then told you that the cars had been sold for $300.  Ms Ryan said that she had kept $100 and that your sister had got $200 from the sale. 

4At that time, you have admitted to the police that you were "hitting the roof" and demanded that Ms Ryan drive you to Walters' house.  It appears that you were upset because Mr Walter had promised you that your cars would never be moved or sold whilst they were stored at his property.  Ms Ryan dropped you at 6 Fernberg Place, Melton West and drove away.  You have then been observed from another neighbouring property on CCTV running towards Walters' house.  Walters was home at the time with several children in the house.  Walters has seen you running towards his house and has immediately gone into his own home.  You ran up to the front door of that property and began shouldering and kicking the door whilst yelling at and threatening both Walters and Minogue.  This had caused damaged to the door which is referred to as - that is what makes up the attempted aggravated burglary. 

5Both Walters and Minogue have pushed up against the door to try to prevent you from gaining access.  They were successful.  The door to their house had been opened a small amount in the process with the complainants and you pushing and pulling from competing sides of the door.  The complainant Minogue has pushed her arm through the opening of the door and opened it up in an attempt to ward you off.  You grabbed her arm and that is what makes up the charge of common assault.  In the process of the pushing and shoving, Ms Minogue's arm got stuck in the doorway when Walters has pushed it shut.  This has caused Minogue pain, redness and swelling in her arm.  You have then run from the scene. 

6

On that day, you were located by police and you were interviewed by them.  In that interview you stated that you had attended Walters' property to talk to Walters about the fact that your car had been sold.  You were angry with Walters and that Walters had run inside and would not talk to you.  You were upset and hurt that Walters had broken a promise to care for your cars.  You had tried to open the door and shouldered it.  You agree you may have damaged the door, and if you had, you were prepared to pay for any damage.  You never went to the house with the intention of assaulting Mr Walters or

Ms Minogue, but rather "confronting" him, is the word you used, about the fact that the cars had been sold by your ex-partner, Ms Ryan. 

7

When you got to the house, you have stated, "If we come to blows at the end, so be it".  By this, you have meant that if you got to the house and Mr Walters started something, you would have retaliated.  You admitted that your fingers went through the front door of the house and got jammed and then at that time you hit the door.  As soon as you heard that the children were screaming, you apologised and left the premises.  You never got hold of Ms Minogue's arm - this is in the record of interview, you are saying you did not get hold of

Ms Minogue's arm or assaulted her in that way. 

8In the course of the plea, your counsel Mr Polak submitted that your very long answer to the police question number 19 of the record of interview sets out why you went to Walters' and Minogue's home, and in particular the following points he made:  You were going to fix the BMW to sell it; you were angry when you were told Troy had sold the cars; you bashed the door and tried to get into the house; when you realised the kids were in the house, you stopped and left the scene straight away; your deceased father gave you the cars and they were your last reminders of him; that you were remorseful for your actions and expressed as much to the police in the record of interview; you did not mean to terrorise the kids or Minogue; Troy has broken his promise to keep the cars for you; and, "I wanted to get the cars back".  In question 163, you, in the course of an answer, offered to pay for the damage to the door if you had caused any. 

9In your evidence before me, you stated in answer to a question from Mr Polak, "I wanted to confront him".  Your actions on this day were driven by your anger at Mr Walters for what you perceived to be a betrayal of your friendship by him.  In your record of interview, you have expressed remorse for your offending.  You have also been frank with your responses to the police.  The assault on Ms Minogue was in the course of your attempt to get into the house and confront Mr Walters. 

10I now turn to the conduct of this case.  On the day of these offences, you were arrested, interviewed and taken into custody.  You remained in custody until you were granted bail on 22 October 2013.  In total, you have spent 27 days pre-sentence detention.  You conducted a committal hearing on 6 February 2014 where the two victims of the charges were cross-examined.  The matters were listed for trial on 11 May 2015.  On that day, the charges were settled and you pleaded guilty to the two charges now before the court.  You will be given the benefit of a plea of guilty in this case. 

11I now turn to the seriousness of the offending.  Mr Polak conceded on your behalf that the offending in this case was serious.  It was an attempt by you to invade a friend's home to confront him over the sale of two vehicles that you had left in his custody.  The incident occurred in the daytime but the de facto wife of your friend, Ms Minogue, and their children were present in the house at the time.  I accept that when you realised the children were there in the house by hearing them screaming, you stopped your attempts to get in the house and left the scene.  I accept that the reason you did not actually enter the house is because your prior friends, if I can refer to them that way, Walters and Minogue, were able to, in effect, hold you at bay until you gave up the task of offending. 

12The assault on Ms Minogue is at the low end of the scale in the sense of grabbing her arm.  The injuries to her arm occurred in efforts to keep you out of the house.  The offending is serious with features including:  (1) Attempted invasion of a home; (2) you knew that at least Walters was at home, that is, someone was in the house; (3) you did this because you wanted to confront him. 

13The mitigating factors, if I could call them that, are that:  (1) You desisted once you realised the children were at home; (2) it was a very short incident, short in time; and (3) there were no lasting physical injuries or damage as a result of your actions. 

14I now turn to the effect on the victims.  Mr Walters filed a victim impact statement dated 12 June 2015.  This was Exhibit C on the plea.  Mr Walters sets out that he and his four children need medication to sleep as a result of these offences.  I note that there was no accompanying medical report to support that statement.  Mr Walters also stated that he had to vacate the premises immediately and had no opportunity to retrieve furniture, clothing, children's toys and the like.  I do not accept that that fact is a consequence of your offending.  I do accept that your offending would have upset the family, that is all members of the family and the family itself, and its sense of wellbeing and safety.  I take that into account when sentencing you. 

15I now turn to your personal circumstances.  I have been told a little of your personal circumstances.  You are now 33 years old.  Both of your parents are deceased.  Your father passed away in early 2013 and your mother in July 2014.  You have no contact with your sisters and limited contact with a brother.  You are still separated from Ms Ryan.  You occasionally see your two sons, aged five and three.  You are on Newstart Allowance and looking to developing the landscaping business in the Melton area.  You have not engaged in full time work for a number of years.  You presently share a premises with two men.  You completed year 9 for education.  Since that time, you have worked as a labourer for a concreter for a period of approximately two years.  Prior to this offending, you have also operated a landscape business for a short time in the Melton area. 

16Overwhelmingly, you have had drug abuse problems over a long period of time.  You have an extensive criminal history that covers 19 pages.  This is Exhibit B on this plea.  In that long criminal history, there are a number of court appearances where you have been convicted of six separate charges involving assault.  The majority of your offending is driving related and dishonesty charges.  In the past, courts have extended supervisory court order dispositions to you.  You have been sentenced to CBOs, suspended sentences of imprisonment.  The only adult prison time that I can see that you have served is the 27 days on remand for this offending.  These offences are a breach of a CCO you were granted on 13 March 2014, only some six months prior to these offences. 

17You have not reoffended since your release from prison on bail for these offences.  That is a period of nearly 20 months.  In that time, you have remained drug free, and whilst not back to regular employment, have taken yourself off the disability pension to go onto Newstart to get back into employment.  You are to be commended for that. 

18I now turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims, Walters and Minogue.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, as an offender, you are rehabilitated and reintegrated into society. 

19Further to that, you have pleaded guilty.  You have pleaded guilty at an early stage.  I deem this to be an early stage in the proceedings; the plea was indicated before the trial in this case.  Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  There is a (indistinct) outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community. 

20You have, by your plea, relieved your victims, Walters and Minogue, of giving evidence against you in this trial.  It facilitates some closure for them as victims of your offending.  The plea of guilty also demonstrates and is consistent with your record of interview that demonstrates your remorse.  Your plea is clear acknowledgment by you that you accept the responsibility for your criminal behaviour in this case.  Your plea also recognises that you personally are willing to facilitate the course of justice in the community. 

21I also have regard to the current sentencing practices.  The line of authorities for aggravated burglaries starting with Hogarth v The Queen [2012] VSCA 302 and followed in cases of Filiz and Gale and finally in Anderson v The Queen [2014] VSCA 255 all stand for the proposition that aggravated burglaries call for immediate incarceration and generally the sentences are in and around the range of three years' imprisonment. In your case, the charge is attempted aggravated burglary. The maximum penalty for this offence is less than the aggravated burglary offence. You have ceased offending once you have realised the victims' children are present. You do not have any weapon or other planning going into this offending.

22You have committed this offence as a result of a loss of control on hearing your deceased father's cars were sold.  Your offending was spontaneous and without forethought.  The delay between the offence between the offence and this sentencing hearing has allowed you time to demonstrate some rehabilitation and behaviour consistent with your remorse expressed openly to police at your interview.  The delay is, of course, partly of your own making by conducting a committal and a prospective trial until May 2015. 

23Mr Polak agreed during the course of the plea that none of the Verdins considerations apply to sentencing you.  Whilst the report of M Jackson Neuropsychology Pty Ltd dated 31 July 2015 had been sent to the court and read by me prior to the plea hearing, Mr Polak did not tender it or rely upon it because there were factual errors in the report that could directly affect the conclusions and opinions contained in that report.  There was no connection demonstrated between your offending and any suggested psychological condition you are now treated for by being prescribed Zoloft. 

24I regard your prospects of rehabilitation with some caution.  However, you have remained out of trouble and drug free for a considerable time when you have been under the pressure of this case and the sentence resulting from this case.  The community and you will benefit if this course of rehabilitation can continue uninterrupted by a term of imprisonment.  I also take into account you have already spent 27 days on remand for these offences and that has prompted your change in behaviour. 

25The prosecution submitted that your offending called for an immediate term of imprisonment.  I accept the considerations of specific and general deterrence combined with denunciation of your conduct are important factors in your sentence.  However, I find that your remorse at the time of the record of interview backed up by your plea of guilty are positive signs for your rehabilitation.  The community and you are best served if your rehabilitation continues on the path it has taken since your release from prison. 

26I have ordered a CCO assessment and as you know, it recommends that you are unsuitable for a CCO due to your non-compliance in the past and an aggressive attitude towards Corrections Services people. 

27Would you stand please, I sentence you as follows:  On Charge 1 and 2, you are convicted and placed on a community corrections order for a period of two years commencing today 5 August 2015 and completing on 4 August 2017. 

28The conditions of that order are - the special conditions are that you perform 200 hours of unpaid community work, that you attend and undergo alcohol rehabilitation treatment, you attend and undergo drug rehabilitation treatment, that you undergo what I refer to as courses to address reoffending, and in your case it is anger management courses, and that you are to be supervised.  You are to report to the Corrections office at Melton - which you will get the address in a moment - by 4 pm on 7 August 2015. 

29I declare that you have served 27 days pre-sentence detention. 

30But for your plea, I would have sentenced you to 18 months' imprisonment.  That is the declaration under s.6AAA. 

31I order that a forensic sample be provided and there will be an order signed to that effect.  What that means is you will not be in custody so you will have to attend at a police station which will be nominated, probably Melton, to give there a swab which will be taken from your mouth.  If you do not attend and do not do it and do not voluntarily comply with that, the police have the power and authority to forcibly do so.  Do you understand that? 

32OFFENDER:  Yes, Your Honour. 

33HIS HONOUR:  That completes the sentencing process except you have got to sign this order, if you are prepared to do it. 

34Sorry, I omitted to put in the mental health assessment.  That is part of the conditions of your CCO. 

35I will let Mr Polak go down the back with you with a copy of this order and if you are prepared to do it, you can sign it. 

36MR POLAK:  He is very prepared to do it, Your Honour. 

37HIS HONOUR:  You can go down and explain it to him if you wish, Mr Polak. 

38Mr Bowler, just before you go, two people have taken a chance here today.  One of them is you, the other one is me. 

39OFFENDER:  I appreciate that, Your Honour. 

40HIS HONOUR:  You show your appreciation by never coming back here on a breach.  You have breached every one you have been given up to date and you have still got breach proceedings in front of you.  If you breach this one, have no doubt about what I will do.  Have absolutely no doubt I will put you in gaol. 

41OFFENDER:  I won't be back in here.  Not even in a police station, Your Honour. 

42HIS HONOUR:  As I say, it's up to you.  You're 33.  You have got to get sick of this. 

43OFFENDER:  No.  The last time I was remanded made me wake up a hell of a lot, Your Honour. 

44HIS HONOUR:  That's enough of a speech from me.  Members of counsel, thank you both for your assistance in this.  I haven't yet got the forensic sample order, I just want to sign that and give the prisoner a copy of that before I let him go.  No, wait a minute, Officer.  Thank you. 

45MR POLAK:  If I could just approach ‑ ‑ ‑

46HIS HONOUR:  Yes, certainly. 

47Yes, I have signed those forensic sample orders and one will be given to the accused man. 

48MS HOLLINGWORTH:  Thank you, Your Honour. 

49HIS HONOUR:  Sorry, the prisoner.  Thank you, 10.30 tomorrow. 

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