Director of Public Prosecutions v Bowler (No 2)

[2024] ACTSC 321

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Bowler (No 2)

Citation: 

[2024] ACTSC 321

Hearing Date: 

18 October 2024

Decision Date: 

21 October 2024

Before:

Christensen AJ

Decision: 

See [24].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – review – s 80ZE cancellation of Drug and Alcohol Treatment Order following withdrawal by participant on medical grounds – imposition or resentence – no further offending while subject to Treatment Order – successful rehabilitation in reach – resentence – term of imprisonment suspended

Legislation Cited: 

Crimes Act 1900 (ACT) 24, 26, 27, 29A, 43
Criminal Code 2002 (ACT) ss 318, 326, 332, 403
Crimes (Sentencing) Act 2005 (ACT) s 80ZE
Crimes (Sentence Administration) Act 2005 (ACT) s 85
Road Transport (Safety and Management) Act 1999 (ACT) s 7

Cases Cited:

DPP v Bowler (Supreme Court of the Australian Capital Territory, Refshauge AJ, 9 May 2023)
R v Cook (No 2) [2024] ACTSC 27

Parties: 

Director of Public Prosecutions ( Crown)

Dylan Bowler (Offender)

Representation: 

Counsel

C Muthurajah ( DPP)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Numbers:

SCC 312 of 2022; 87 of 2023

CHRISTENSEN AJ:

Introduction

1. On 9 May 2023, Dylan Bowler was sentenced in relation to sixteen offences, including dishonesty taking and driving motor vehicles, and aggravated dangerous driving: DPP v Bowler (Supreme Court of the Australian Capital Territory, Refshauge AJ, 9 May 2023) (DPP v Bowler).  The offending occurred in five series’ in October and December 2021. 

2. Mr Bowler was sentenced to a total term of imprisonment of 5 years and 2 months.  In relation to ten of the offences the subject of that sentence, a Drug and Alcohol Treatment Order (Treatment Order) was imposed.  The sentences, and the applicable maximum penalties for each offence the subject of the Treatment Order, were:

SERIES 2 – offending on 9 December 2021
Dishonestly taking a motor vehicle without consent  CAN 528/2022	Criminal Code 2002 (ACT) – s 318(1) 5 years imprisonment, 500 penalty units, or both	12 months imprisonment
SERIES 3 – offending on 12 December 2021
Dishonestly driving a motor vehicle without consent CAN 1280/2022	Criminal Code 2002 (ACT) – s 318(2) 5 years imprisonment, 500 penalty units, or both	13 months imprisonment
SERIES 4 – offending on 15 December 2021
Dishonestly taking a motor vehicle without consent CAN 12298/2021	Criminal Code 2002 (ACT) – s 318(1) 5 years imprisonment, 500 penalty units, or both	13 months imprisonment
Dishonestly driving a motor vehicle without consent CAN 12299/2021	Criminal Code 2002 (ACT) – s 318(2) 5 years imprisonment, 500 penalty units, or both	13 months imprisonment
Obtaining financial advantage by deception CAN 12300/ 2021	Criminal Code 2002 (ACT) – s 332 10 years imprisonment, 1000 penalty units, or both	2 months imprisonment
Damage property CAN 12302/ 2021	Criminal Code 2002 (ACT) – s 403(1) 10 years imprisonment, 1000 penalty units, or both	3 months imprisonment
Driving a motor vehicle at police CAN 12303/ 2021	Crimes Act 1900 (ACT) – s 29A 5 years imprisonment, 500 penalty units, or both	14 months imprisonment
Aggravated dangerous driving as a repeat offender CAN 12305/ 2021	Road Transport (Safety and Management) Act 1999 (ACT) – s 7(1) 5 years imprisonment, 500 penalty units, or both	15 months imprisonment
SERIES 5 – offending on 22 and 23 December 2021
Dishonestly driving a motor vehicle without consent CAN 12296/ 2022	Criminal Code 2002 (ACT) – s 318(2) 5 years imprisonment, 500 penalty units, or both	13 months imprisonment
Obtaining property by deception CAN 12130/ 2022	Criminal Code 2002 (ACT) – s 326 10 years imprisonment, 1000 penalty units, or both	3 months imprisonment

1. The total effective term for those sentences was suspended, with a Treatment Order for a period of 3 years, 9 months, and 20 days, until 28 February 2027.  The treatment and supervision part of the Treatment Order was for a period of two years, until 8 May 2025, with a good behaviour order to continue thereafter. 

2. On 3 October 2024, a review of the Treatment Order occurred, and Mr Bowler indicated withdrawal of his consent for the order: s 80ZE(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).  The withdrawal of consent occurred in circumstances where Mr Bowler has been experiencing physical health challenges such that he has been unable to comply with the conditions of his order. 

3. The matter now comes before the Court for finalisation of the review proceedings, with a determination to be made as to whether to impose the suspended term, or to re-sentence Mr Bowler. 

Review 

1. On behalf of Mr Bowler, it was sought that the Court engage in a re-sentence exercise.  The prosecution did not oppose this course in the circumstances of this matter and did not submit full time imprisonment was warranted.   

2. The terms of s 80ZE of the Sentencing Act are such that where there has been cancellation on a basis of ‘unsatisfactory circumstances’, which is the legislated title given to a cancellation pursuant to s 80ZE, the court is to apply subsection (2) in determining the consequential orders.  That is, the court is required, as a preliminary matter, to consider the extent to which there was compliance with the treatment and supervision part of the order, and then consider if it is appropriate in the circumstances to resentence: R v Cook (No 2) [2024] ACTSC 27 at [10].

3. Given the reason for cancellation that occurred here, it is apparent that there is a risk of unfairness to Mr Bowler from such a legislated requirement, as there is in the description given to his circumstance of Treatment Order cancellation.  Nonetheless, the court is required to consider the matter with reference to the legislated considerations. 

Compliance with the Treatment Order

1. Mr Bowler’s engagement with the Treatment Order has not been without issue.  He commenced in a residential rehabilitation program, but was exited from the program within the first week.  This led to the Treatment Order being provisionally cancelled and Mr Bowler being remanded in custody for a period. 

2. He returned to the community and complied with the order, including complying with a curfew, engaging in counselling, and initially not returning any positive urinalysis results.  Mr Bowler came to be admitted to a rehabilitation day program, which he successfully completed. He progressed to phase two of the Treatment Order within four months of the order been made.  

3. From the time he was in phase one, Mr Bowler has raised challenges he has experienced with a back injury.  There were a number of occasions when he produced medical certificates relating to this health issue such that it meant he could not always attend scheduled Treatment Order appointments or urinalysis testing. 

4. The urinalysis testing that did occur, in 2024 at least, showed that there were occasions of substance use in February, April, June, and July.  Mr Bowler’s disclosure as to his use was not always consistent.  He has been consistent in his contact with the Court for reviews, and with maintaining contact with the treatment team. 

5. Mr Bowler made positive progress as a prosocial member of the community, supporting family members, securing his licence, attending the gym, and gaining employment.  He progressed to such an extent that he graduated to phase three of the Treatment Order in the middle of July 2024

6. From around mid-2024, his back injury was aggravated.  Medical information confirmed that Mr Bowler has a chronic disc herniation, which causes significant pain and immobility.  He will require ongoing treatment and potentially surgery.  The impact of this on his ability to attend appointments and meet the requirements of the Treatment Order led to him withdrawing consent to the order.

Appropriate to resentence

1. The circumstance of Mr Bowler having withdrawn consent, leading to cancellation of his order, is a compelling circumstance tending towards resentence.  His level of compliance with the Treatment Order, while not without issues, is not at a level that the circumstance of cancellation ought not be afforded significant weight in the determination.  Plainly, a withdrawal of consent for a Treatment Order on a basis of medical grounds enlivens it being appropriate that the Court have the ability to give consideration as to the appropriate sentence order having regard to the circumstances as they now arise.

2. I consider it appropriate in the circumstances to resentence Mr Bowler: s 80ZE(2)(b) of the Sentencing Act.   

Re-sentence

1. As set out above, Mr Bowler was sentenced to the Treatment Order in respect to offending that occurred on four distinct occasions in December 2021.  The facts of that offending are set out in detail in DPP v Bowler.  The offending occurred in the context of what was described as a “shortened crime wave”: DPP v Bowler at 5. 

2. In summary, Mr Bowler drove a number of vehicles that had been stolen, used stolen credit cards to make purchases, and, in the course of evading police while driving one of the stolen vehicles, he drove at the police, and drove dangerously which included putting a cyclist and a passenger at risk. 

3. His subjective circumstances are also set out in detail in that decision, including his criminal history.  In addition to those matters is the information now known to the Court as to Mr Bowler’s physical health challenges, and his progress with rehabilitation.

4. I have had regard to the sentencing considerations as considered by his Honour in DPP v Bowler and I agree with the conclusions made there, including as to imprisonment being the only appropriate sentence, the reductions afforded for the pleas of guilty, and the application of the totality principle.  I agree with his Honour’s assessment of the objective seriousness of the offending, in particular that the offence of aggravated driving and driving at police is particularly serious and warrants deterrent sentences (albeit, I did not have the benefit of the footage of this offending on resentence).  His Honour also appropriately recognised the effect on the victims, including the police officers, which I have considered.  The sentences imposed are otherwise informative as to current sentencing practice. 

5. Nonetheless, there are a number of factors that persuade me that terms of imprisonment involving a level of leniency for the offences, along with a different application of the totality principle such that an overall lesser term is imposed, is appropriate.  These factors are:

   (a)there has been no further offending, with Mr Bowler’s last criminal offence committed in December 2021;

   (b)there has been solid progress with rehabilitation, including Mr Bowler having completed a rehabilitation day program, solid periods of abstinence from substance use, and stability with his mental health;

   (c)Mr Bowler has built protective factors with family support and pro-social engagement in activities in the community;  

   (d)Mr Bowler has a disabling back injury that requires ongoing medical assistance;  

   (e)a further period of 11 days has been spent in custody (from 15 May 2023 to 26 May 2023), in addition to the period of some 15 months that were spent in custody prior to imposition of the original sentence and which formed part of the original sentence; and

   (f)Mr Bowler has engaged with the onerous requirements of the treatment and supervision part of the treatment order for a period of almost eighteen months of a twenty-four month order.  This has involved a form of having served a sentence of imprisonment, albeit in the community.  

6. Mr Bowler’s progress with rehabilitation enables a conclusion to be drawn that successful rehabilitation is in reach for him.  There is also reason to have confidence that the extent of rehabilitation achieved to date is such that community protection is more assured.  Mr Bowler has gone from being a daily user of heroin and methamphetamine who was engaged in criminal offending to secure funds to support his entrenched drug dependency, to someone who now rarely using substances.  Importantly, he has not
   re-offended since the time of the original offending.  The weight to be afforded to the various sentencing purposes that apply in the resentence exercise warrants a different sentencing outcome to the original sentence.  

7. I am satisfied that it is appropriate that the term of imprisonment be fully suspended.  While such an order will not entail the onerous expectations of a Treatment Order, a good behaviour order with supervision will be in place.  It is appropriate that the supervision continue for a period beyond what would have occurred under the Treatment Order given the difference in rehabilitative supports available.  This will enable continued support for his rehabilitation, a form of order that maintains deterrence, and meets the sentencing purpose of community protection.   

Orders

1. For those reasons I make the following orders:

   (1)The conviction of Dylan Bowler of dishonestly taking a motor vehicle without consent (CAN 528/2022) is confirmed and he is sentenced to 9 months imprisonment commencing on 21 October 2024 and ending on 20 July 2025.

   (2)The conviction of Dylan Bowler of dishonestly driving a motor vehicle without consent (CAN 1280/2022) is confirmed and he is sentenced to 10 months imprisonment commencing on 21 November 2024 and ending on 20 September 2025.

   (3)The conviction of Dylan Bowler of dishonestly taking a motor vehicle without consent (CAN 12298/2021) is confirmed and he is sentenced to 10 months imprisonment commencing on 21 July 2025 and ending on 20 May 2026.

   (4)The conviction of Dylan Bowler of dishonestly driving a motor vehicle without consent (CAN 12299/2021) is confirmed and he is sentenced to 10 months imprisonment commencing on 21 October 2025 and ending on 20 August 2026.

   (5)The conviction of Dylan Bowler of obtaining financial advantage by deception (CAN 12300/2021) is confirmed and he is sentenced to the rising of the court.

   (6)The conviction of Dylan Bowler of damaging property (CAN 12302/2021) is confirmed and he is sentenced to 1 month imprisonment commencing on 21 July 2026 and ending on 20 August 2026.

   (7)The conviction of Dylan Bowler of driving a motor vehicle at police (CAN 12303/2021) is confirmed and he is sentenced to 11 months imprisonment commencing on 21 July 2026 and ending on 20 June 2027.

   (8)The conviction of Dylan Bowler of aggravated dangerous driving as a repeat offender (CAN 12305/2021) is confirmed and he is sentenced to 12 months imprisonment commencing on 21 September 2026 and ending on 20 September 2027.

   (9)The conviction of Dylan Bowler of dishonestly driving a motor vehicle without consent (CAN 12296/2022) is confirmed and he is sentenced to 10 months imprisonment commencing on 21 June 2027 and ending on 20 April 2028.

   (10)The conviction of Dylan Bowler of obtaining property by deception (CAN 12130/2022) is confirmed and he is sentenced to 1 month imprisonment commencing on 21 March 2028 and ending on 20 April 2028.  

   (11)The total sentence of 3 years and 6 months imprisonment is to be suspended from 21 October 2024 until 20 April 2028.

   (12)Mr Bowler is required to sign an undertaking to comply with good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years and 6 months, commencing on 21 October 2024 and ending on 20 April 2028, with the additional condition that he accept the supervision of the Director-General of ACT Corrective Services and comply with all reasonable directions for the period deemed necessary by the Director-General or their delegate.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

Associate:

Date: