Director of Public Prosecutions v Bowling

[2018] VCC 2196

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-0313

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS BOWLING

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2018
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	DPP v Bowling
MEDIUM NEUTRAL CITATION:	[2018] VCC 2196

REASONS FOR SENTENCE
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Subject:  Aggravated burglary x 1.
Sentence:                  4 years and 3 months' imprisonment
  with a non-parole 2 years and 9 months' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace
For the Accused	Mr M. Reardon

HIS HONOUR: 

1Travis Bowling, you have pleaded guilty to one charge of aggravated burglary for which the maximum penalty is imprisonment for 25 years.  On 21 January 2018, you went to premises armed with a knife intending to assault a person within the premises.  You have also pleaded guilty to a charge of criminal damage for which the maximum penalty is imprisonment for ten years. 

2On the hearing of the plea, you have also pleaded guilty to three summary charges and agreed to those charges being dealt with by me in this court.  Those charges were using a drug of dependence, methylamphetamine, Charge 7, for which the maximum sentence is 30 penalty units or one year imprisonment or both; and committing an indictable offence whilst on bail, Charge 8, for which the maximum penalty is 30 penalty units or three months' imprisonment; and one rolled-up charge of contravening bail conditions by failing to report whilst on bail, Charge 9, for which the maximum penalty is also 30 penalty units or three months' imprisonment.

3The circumstances of your offending are set out in the summary of prosecution opening which was filed as Exhibit A.  The summary was read to the court by the prosecutor, Ms Wallace.  Your counsel Mr Reardon accepted that the prosecution opening was accurate and forms a proper basis upon which I can proceed to sentence you for these matters.  In those circumstances, it is not necessary that I here set out again what is in the prosecution summary and I refer to the facts in an abbreviated way.

4You are now aged 36.  At the time of offending, you were aged 35 and living in South Melbourne.  You commenced an intimate relationship with the victim in May 2017.  The relationship ended in early January 2018 and the victim was then living with her mother at her residence.  On the day of the offending, you entered the premises uninvited where both the victim and her mother resided at around 2.20 am in the morning.  You used a key to gain entry.  You were observed standing in a doorway between the lounge room and the laundry and you were holding a knife.  You asked as to the whereabouts of the victim and went into her bedroom, still with the knife in your hand. 

5The victim was asleep in her bed.  She woke to see you standing over her with the knife.  You dragged her from her bed and onto the floor and held the knife above your head as if you were going to stab her.  As you did so, you yelled, "I'm going to kill her, she's going to be dead tonight."  Both the victim and her mother feared for the life of the victim.  The victim's mother tried to shield her daughter from you.

6The victim escaped to the lounge room and then back to the bedroom from where she called police.  You went around to the laundry where you covered your arm and smashed a window that adjoins the laundry in the victim's bedroom.  The victim's mother tried to appease you and you eventually ran from the premises down the rear laneway.  Multiple police units attended the scene soon afterwards and an application was made for a family violence intervention order.

7Later in the day, you returned to the premises apparently to apologise for what you had done in the early morning.  Around 6 pm, you voluntarily attended at St Kilda police station and turned yourself in to police.  You were interviewed and charged.  When interviewed, you admitted your offending, telling police you were "in a bit of a rage".  You told police you were under the influence of the drug ice at the time of offending.  You also told them that you gained entry to the home of the victim by means of a key which you had in your possession.

8You have remained in custody since that time and the family violence intervention order naming the victim as a protected person was made.  Your offending occurred whilst you were on bail for other offences.  Whilst on bail, you had failed to report at the South Melbourne police station on at least nine occasions.  Your offending is a serious example of what is a serious offence, occurring as it did in the situation of family or domestic violence.  Offending of this kind will not be tolerated.

9You entered the home of the victims in the early hours of the morning armed with a knife and your purpose in entering was to confront and assault the victim.  The sentence imposed in such circumstances must properly reflect the sentencing principle of general deterrence and the sentence imposed must denounce the offending.

10Mr Reardon relied upon a report from clinical psychological Laura Scott, Exhibit 6, who carried out various cognitive testing of you whilst in prison.  Ms Scott found that you have a history of risk factors from an acquired brain injury.  At p.14, she opined that your neuropsychological profile is consistent with having an acquired brain injury.  Mr Reardon argued that because of this and the finding from another psychologist, Dr Cunningham, that you suffer from post-traumatic stress disorder that at the time of your offending, your moral culpability should be regarded as having been reduced in the result that general deterrence in sentencing you should be reduced.  I reject that submission.  It is impossible for me to make such a finding on the evidence when it is clear that at the time of offending, you were also affected by the drug ice.  There is no clear evidence of a causal link between any likely acquired brain injury and consequence cognitive deficits and the offending in a situation where you were also drug affected. 

11I admitted into evidence a victim impact statement from the victim, Exhibit B, which was read to the court.  It is a compelling document properly expressing the impact of your offending upon the victim.  In passing sentence, I have taken the content of that document into account.

12Since you have been taken into custody, you have been dealt with for other offending which preceded this offending.  On 29 June 2018, you were dealt with in the Melbourne Magistrates' Court on a consolidated plea for offending that occurred in three separate sets of offending in January, June and September of 2017.  Those offences apparently involved driving and drug offences.  You received a total effective sentence of eight months' imprisonment and a declaration as to pre-sentence detention of 149 days was made dating from the time of your arrest on 21 January this year.  The effect on this sentence, apart from issues of totality, is that as of yesterday, you have served 84 days pre-sentence detention for these matters but have remained in custody in fact from 21 January 2018. 

13You have pleaded guilty to the charges and that is to your credit.  You pleaded guilty following a contested committal at which the victim and her mother were cross-examined.  By your pleas of guilty, you have saved the time and cost of a trial and you have saved the victims from having to again give evidence reliving these events.  By your pleas of guilty, you have admitted responsibility for your crimes and you have facilitated the administration of justice.  Whilst your pleas of guilty were not made at the earliest available opportunity, I nevertheless treat them as early pleas.  Because you have pleaded guilty, you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.

14I turn to some matters personal to you.  When you pleaded guilty, you also admitted prior convictions from eight previous court appearances between 2001 and 2013.  You have prior convictions for dishonesty and drug offences as well as crimes of violence.  In 2002, you were convicted for, amongst other crimes, aggravated burglary and assault for which you received a suspended sentence.  In 2009, you were convicted of assault with a weapon and sentenced to a community-based order.  In 2010, you were again convicted of assault with a weapon and in 2013, for intentionally causing serious injury and intentionally causing injury arising out of the one incident.  You are obviously no stranger to this kind of criminal behaviour.  In your case, the sentence imposed must properly reflect specific deterrence.

15I received as Exhibit 1 a helpful written outline of submissions from your counsel.  You grew up in a dysfunctional household.  Your parents separated when you were four years' old.  You have had no contact with your father since you were aged 13.  Your mother has long suffered from substance abuse issues and mental health problems.  She is bipolar.  I was told and accept that your upbringing was marred by instability and exposure to drug use from a young age.  You witnessed and experienced domestic violence at a young age.  Your mother abused alcohol.  Her parents, your grandparents, abused both alcohol and heroin.  You witnessed your mother's attempts at suicide.

16You have had lifetime contact with Father Bob Mcguire's Foundation and Father Mcguire was himself in court to support you and he provided a reference, Exhibit 3.  Father Mcguire speaks of the difficult upbringing that you have experienced.  I accept that evidence.

17You left school partway through Year 9.  You worked as a roof climber in assembling roller shutter doors.  Your longest period of employment is said to have lasted two years during your late teens and early 20s.  In recent years, you have been the recipient of either a disability support pension due to depression or Newstart allowance.  You have had a number of significant relationships, one of which produced a child now aged 12 with whom you have no contact.

18You are a long-term drug user following a familiar path to addiction commencing with cannabis use then amphetamines and heroin and methamphetamine.  You have been using methamphetamine since aged 18.  I was told and accept that at the time of offending, you were using half a gram per day.  In custody, you were on the methadone program but have not otherwise used methylamphetamine.  I received into evidence a certificate of urine analysis, Exhibit 4, taken on 12 July 2018 recording a negative result to various tests. 

19Whilst in custody, you have completed various courses available to you and that is to your credit.  Certificates to that effect went into evidence as Exhibit 5. 

20I also received into evidence today a letter from Caraniche, Exhibit 7, which conducts drug and alcohol programs within prison.  You have nearly completed participation in such a program which targets the link between drug use and offending.  That is to your credit and I have taken this into account.

21Before this offending, you were involved in another altercation with a neighbour which resulted in your being stabbed in the neck and hand with a pair of scissors, and as a result you have been diagnosed as suffering post-traumatic stress disorder.  I was told you carried a knife for self-defence after that assault.  Your counsel argued there is a causal connection between the post-traumatic stress disorder and you being armed with a knife such that your moral culpability for offending whilst being armed should be reduced.  I reject this submission.  There is never justification for being armed with a knife.  Here, you entered the home of the victim in the early hours of the morning while she was asleep whilst armed with a knife to threaten her. 

22You are in protection having informed on other prisoners.  This means your time in custody will likely be more burdensome than for other prisoners.  I have taken this into account. 

23I received into evidence a psychological report from Aaron Cunningham who met you in prison on 27 July 2018 for the purposes of assessment.  You told him you were stabbed in the neck with a pair of scissors by a neighbour several weeks before this offence.  You were treated at the Alfred Hospital but there was no report from that hospital tendered.  You told Mr Cunningham that you were in a truck which rolled when you were in primary school and you have been involved in motorcycle accidents.  Mr Cunningham recommended neurological assessment.  He thought you suffered from post-traumatic stress disorder.  He said this in his report at p.3:

"In my opinion, Mr Bowling presents with a diagnosis of post-traumatic stress disorder.  In my opinion, Mr Bowling was predisposed to the development of this disorder by the trauma and emotional disconnection in his childhood environment.  Mr Bowling suffered and witnessed violence from his stepfather.  He did not have a supportive connection with his father.  His mother suffered mental illness and attempted suicide several times in his presence.  He did not gain a sense of emotional nurturance or protection.  He was forced into the position of caring for his mother. 

"The use of drugs was normative in his home environment.  He has continued to abuse drugs as a method of numbing his emotional state.  His drug abuse, untreated mental health and unstable living environment has contributed to his instability in relationships, accommodation and mental health.  His trauma was aggravated prior to his offence behaviour by being stabbed.  In my opinion, Mr Bowling's trauma contributed to his decision to take a weapon to the victim's home.  He was abusing drugs at the time of his offence."

24I adjourned the initial plea hearing to enable a neuropsychological report to be obtained.  I have received into evidence a report from Laura Scott, a clinical neuropsychologist, Exhibit 7.  She has interviewed you in prison and carried out psychological testing.  She thought you were likely to have suffered an acquired brain injury, you having a history of risk factors for having such injury.  She found you have moderate to severe impairments in accuracy of memory recall and information processing speed.  She also found you present with moderate impairments in higher order attentional skills and aspects of executive function including abstract reasoning, response inhibition, planning and organisation.  In relation to many other functions, your cognitive functioning was found to be intact but within low-average range.  She concluded: 

"Responses on a formal questionnaire of psychological distress indicate a high degree of overall distress with severe levels of stress and extremely severe anxiety and depressive symptoms.  Mr Bowling passed five out of five measures of effort.  The overall impression was of appropriate test-taking behaviour.  As such, the results of this assessment are considered to be valid and reliable. 

"In summary, Mr Bowling's neuropsychological profile is characterised by difficulties in speed of information processing, higher order attentional skills and aspects of executive function.  This is seen against a backdrop of largely intact attentional skills, language, intellectual function, and memory.  He also presents with an extremely high degree of psychological stress overall."

25Earlier I referred to Ms Scott's report in relation to an argument put that the likelihood of you having an acquired brain injury caused you to offend.  I rejected that argument.  However, I do accept that because of your reduced cognitive functioning in the ways found by Ms Scott, there is the consequence that you will likely find your time in prison more burdensome than for most other prisoners.  In fixing the head sentence and the non-parole period, I have taken this factor into account.

26It is not in dispute that I have no other sentencing option here other than to send you to prison.  You entered the victim's home in the early hours of the morning with intent to assault her and whilst armed with a knife.  That is a serious offence and the sentence in your case must properly take account of deterrence both general and specific, and must serve to denounce your offending.  You committed the offences whilst on bail.

27I accept that you come from a dysfunctional family and a deprived background.  You have been brought up in an environment where domestic violence, drug and alcohol abuse are commonplace.  You are a drug addict and you were drug affected at the time of offending.  It is very hard to see this situation changing for you and your prospects for rehabilitation must be regarded as poor.  I have had full regard to your pleas of guilty and I accept you are remorseful for this offending.  I accept you suffer from anxiety and post-traumatic stress disorder and some reduced cognitive functioning as found by Ms Scott, and that prison will be more difficult for you.  I have taken all of these factors into account together with the fact that since your arrest on these charges, you have fully served another sentence of eight months' imprisonment. 

28In fixing the head sentence and the non-parole period, I have had full regard to the totality of the period you will be imprisoned.  On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of four years.  On Charge 2, criminal damage, you are convicted and sentenced to a term of imprisonment of six months.  On the summary charge of use drug of dependence whilst on bail, you are convicted and discharged.  On the summary charge of committing an indictable offence whilst on bail, you are convicted and discharged.  On the summary charge of contravening a conduct condition of bail, you are convicted and discharged.

29I direct that three months of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four years and three months' imprisonment.  I direct that you serve a minimum term of two years and nine months' imprisonment before being eligible for release on parole. 

30I declare that there has been 84 days pre-sentence detention and direct that 84 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and deducted administratively. 

31I declare that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six and a half years' imprisonment and I would have fixed a non-parole period of four years and four months' imprisonment. 

32I have been asked to make a forensic sample order which was not opposed, and for the reasons stated in the order I have signed it.  This means that whilst in custody, a police officer may approach you for the purposes of obtaining a forensic sample from you in the form of a swab from your mouth and may use reasonable force to do so should you not consent. 

33Are there any questions arising out of that?

34MS WALLACE:  No, Your Honour.

35MR REARDON:  No, Your Honour.  May it please the court.

36HIS HONOUR:  Yes, take Mr Bowling back into custody please.

37Adjourn the court till tomorrow please.

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