Director of Public Prosecutions v Bux

[2016] VCC 689

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00306

DIRECTOR OF PUBLIC PROSECUTIONS

v

HOWARD BUX

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 20216
DATE OF SENTENCE:	23 May 2016
CASE MAY BE CITED AS:	DPP v Bux
MEDIUM NEUTRAL CITATION:	[2016] VCC 689

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence - Pleas of guilty – Aggravated burglary – False imprisonment – Robbery – Recklessly causing injury – Damaging property – Summary offence of commit indictable offence whilst on bail – Relevant criminal record -  Elderley, frail, disabled and vulnerable victim – Soft target -  Affected by alcohol and ice at time of offending – Degree of deliberation in offending – History of alcohol and drug use - Remorse

Sentence:Convicted and sentenced to Total Effective Sentence 9 years and 1 month’s imprisonment with non-parole period of 6 years and 6 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – Pre-sentence detention 280 days – Ancillary order Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning (Plea) Ms C. Picone (Sentence)	Office of Public Prosecutions
For the Accused	Mr M. Page (Plea) Mr P. Skehan (Sentence)	Patrick Dwyer

HER HONOUR:

1Howard Donald Bux, you have pleaded guilty to the following offences:  aggravated burglary; false Imprisonment; robbery; recklessly causing injury; damaging property; and the summary offence of committing an indictable offence whilst on bail.

2The maximum penalties are as follows:  aggravated burglary: 25 years’ imprisonment; recklessly causing Injury: five years’ imprisonment; false imprisonment; and Damaging property: ten years’ imprisonment; robbery:
15 years’ imprisonment; committing an indictable offence whilst on bail, which is a summary offence, has a maximum penalty of three months' imprisonment.

3The maximum penalties reflect the seriousness with which Parliament regards these offences.

4Your offending was opened as follows:

5I was told that you were 49 at the time of the offending and you have, on my calculation, just turned 50.

6The victim, Robert Arthur Smith, was 70 at the time you committed the offences. He was born with an intellectual disability and has difficulty communicating verbally.  He also suffers from osteoporosis, walks with the support of a walking-frame and is legally blind.  He receives daily carer support.

7Mr Smith moved to his unit in Reservoir eight years ago and was able to live there with the daily assistance of Yooralla Disability Services.

8You and Mr Smith did not know each other.

9At the time that you committed the offences you were on bail, which gives rise to the summary offence.

10On Sunday, 9 August 2015, the victim was alone at his home when, at 2.30 am, he heard a knock at the front door.  He opened it and saw you through the screen of the locked security door.  You asked him for a cigarette and Mr Smith said, "No", then shut the door.

11At about 3.30 am, with the use of his walker, Mr Smith unlocked the back door to have a cigarette outside.  As he opened the door, you grabbed him and dragged him to his bedroom.  This conduct gives rise to Charge 1, aggravated burglary.

12You then struck the victim to the face multiple times, causing extensive bruising to the face, head and neck.  Later examination also showed signs of blunt trauma to multiple sites on the head, face, ears, and upper limbs- this attack upon the victim gives rise to Charge 2; recklessly causing injury.

13After assaulting the victim you tied his legs together and tied his hands to the bed.  You blindfolded and gagged him.  At times, the victim could not see at all.  This conduct gives rise to Charge 3, false imprisonment.

14You then took a suitcase and filled it with Mr Smith’s belongings.  You took three World War II medals, a bank book, personal identification cards, two mobile phones, a clock, a watch, items of clothing and food, as well as coins and cash. These thefts in the preceding circumstances give rise to Charge 4, robbery. However, in sentencing you I am mindful that I must not double count the violence or false imprisonment in sentencing you for robbery.

15Before leaving the premises, you damaged the landline, so as to ensure that Mr Smith could not raise any alarm. (charge 5 Damaging property)

16After you left, the victim managed to free his hands and remove the blindfold. He untied himself and saw that his home was in a state of mess, evidently from you ransacking it.  Mr Smith felt helpless without a phone and stayed in the lounge room until the morning. He urinated in his pants.  Mr Smith’s carer arrived at the house later in the morning and upon finding Mr Smith, he called emergency services.

17When police arrived, they observed the victim’s eyes to be extremely swollen and bruised, with dried blood around his mouth.  It was evident to them that he had a disability and was quite frail, requiring a walking frame to move out of his unit.  He was treated by paramedics at the scene then taken to hospital, where the full extent of his injuries, to which I have previously referred, were noted.  I have viewed photographs of those injuries also and they are sick making.

18Subsequently, Mr Smith was moved to alternative accommodation.

19On 11 August, the victim and his sister, Gail Burge, took part in a Victoria Police media conference.

20On 14 August 2015, you attended a police station in response to police visiting a relative’s property, looking for you.  You had a conversation with police and you said the following things:

·that you were with Donna Bux at her unit in Preston on the night of the offences;

·that you were not on the run and could be contacted through Aboriginal Health Service;

·that you wanted to do the right thing;

·you said you did not want to go to gaol; you had not been inside for
17 years and would be suicidal.

·Subsequently, you said, "I’ll cut you a deal".  When asked further about this, you did not reply.

21An appointment was made for you to return and speak with the police informant. As you shook the hand of a police officer, you pulled him close to you and whispered. “Tell them to stop looking".

22On 17 August you re-attended the police station with a support person.  You said that you knew the incident that they were referring to and that they could "stop looking".  You were arrested and cautioned then took part in a record of interview and made admissions:

23You said, "I’ll spill my guts ‘cause I’m guilty for what I’ve done to that poor old man, Rob".  You said that it was late Saturday night and that you were wandering the street looking to deal; that you were thinking about cash and walked past a window where the light was on and the blind was up.  You said you saw an old man smoking a cigarette and you knocked on the door to ask for a cigarette.  You said, "But at the same time, at the back of my mind, I was thinking about robbing…So I thought, 'these old fellas, they keep a lot of cash, you know, in their - under their mattresses…'"

24You said that the victim refused you a cigarette and closed the door; that you were about to walk off and, to quote you, "It was like something clicked and make me walk straight back around the back…jumped the fence…Then I stand there watching through the kitchen window, …  It was just like fucking old man, you’re going to open the back door', and he did.  He opened the back sliding door, I just walked around and said, 'I need to talk to you, old man, come in here’, you know, and I said, ‘Look I don’t want to hurt ya, just gimme the cash and I’ll go…’"

25You said that you walked the victim into the room and laid him on the bed. You said that you told him to tell you where the money was and you would not hurt him.  You said that you had no intention of hurting the victim.

26You said that as you were leaning over the victim, the victim started swinging punches at you and that you then retaliated.  You said, "I fucking ended up punching him twice I think…I punched him either fucking side of the head or face".  You said that you put a towel on top of his eyes so he would not look at you, and spent two hours taking his belongings.

27You also said that you leant over the victim, asking him where the money was and that the victim tried to hit you, so you, "cracked him again a couple of times".  You said that this time you were "sort of wild".

28You said that after you collected the victim’s belongings, you left, but that you tied up the victim to give yourself a head start.  You said, "As soon as I left there I fucking knew I done the wrong thing, mate, I tell you. I felt bad. I knew I was going to get caught for this…I deserve to anyway".  You said that you still had the victim’s medals, bank book and key cards and wanted to give them back to him.  You told police where these items were buried, and said, "I deserve whatever I get…it’s not about me, I know that, it’s about Rob.  He’s the one that’s suffering, not me".

29The interview was suspended and you helped police find the medals and bank items, which you had placed in a drawstring bag and buried at an address in Reservoir.

30The  record of interview was resumed and you said that you wanted to pay the victim back all the money you had taken, which you estimated was $300 in gold coins and $150 in notes. You had spent the money gambling, and had exchanged some of the victim’s belongings for drugs.

31You said that you kept the medals because you were told by people that you would be brought undone by selling them.  You said that you thought that the best thing to do was to bury them and at the same time, you did not want to get rid of them because you could give them back if you got caught.  You said that you were going to try to work out how to get the $4000 balance out of the victim’s bank account but you did not because you were too frightened.  You said that you snapped the landline so the victim could not call anyone.

32You also said that you were ashamed of yourself, that you did not feel good and felt like killing yourself.  You apologised to the victim’s family, as indeed you did on the day of the plea hearing before me.

33Where there is a divergence of accounts between yours, Mr Bux, and
Mr Smith’s I sentence you on the basis of Mr Smith’s account, which was accepted as an appropriate way to proceed by your Counsel.

34Mr Bux, as you well know, your offending is most serious and is deserving of strong punishment and denunciation.  Also, strong weight must be given to general deterrence.  A message must be sent to the community in no uncertain terms that conduct such as yours is utterly intolerable, in a bid to deter others from behaving as you have.  You targeted a most vulnerable victim in the dead of night in the sanctity of his own home where he was entitled to feel safe.  While the full extent of the victim’s disabilities may not have been apparent to you at that time, it must have been obvious that the victim was elderly, frail and had compromised mobility.  You had it in mind to rob Mr Smith from an early stage when you saw him through the window and you surveilled him for a good while before pouncing on him as soon as he opened his back door.  In leaving him tied up and without his phones and landline, you deprived him of any ability to raise alarm.

35By way of some explanation for your offending, I was told by your Counsel that you were affected by alcohol and ice when you committed the offences, that you were in need of money to buy more ice.  This heightens the dangerousness of your offending, but I have not treated this aspect as aggravating your offending.

36I make the observation that you were not so affected by any substance or in need of such substances, that you did not act with a good degree of deliberation and calculation on this occasion.  You did what you could to ensure that the victim could not raise alarm and you tried to cover his eyes to avoid being identified.  Your thought processes in targeting the victim were also somewhat calculating and rather chilling.  However, I do not sentence you on the basis that there was much in the way of pre-planning involved in your offending.  The only aspect of this were the steps that you took once you had seen the victim though the window the first time on that night.

37I take into account the impact on the victim and his sister, which has been devastating.  The police informant wrote down remarks made by Robert Smith, who said that he felt shock and he described how he managed to untie himself, which took him about ten minutes.  He said that he was scared to get help and at the hospital he was scared to be by himself.  He said that it felt strange to have moved to the new care facility and that he missed his neighbours from his ‘old house'.  He missed going into the garden and it was harder to go outside at the new place.  He said that he missed some of his personal belongings, such as his watch, although most of the things had been replaced.  He said that he felt unhappy after the incident but felt a bit better when the police process finished and the medals were returned.

38In her victim impact statement Gail Burge spoke of her distress at receiving a call about what had befallen her brother.  She spoke of her and her brother’s immense distress when she attended the hospital.  She said that her brother was scared and thought he was going to be killed.  She said that his one bedroom unit was his prized possession and spoke of the very long and difficult road the victim had travelled in order to have become independent.  She spoke of her anguish at seeing her brother in such an injured state and of seeing how you had trashed his unit.  She felt very angry about you leaving the victim tied up and without any means of calling for help.  She said that her brother had been very particular about his belongings and knowing where they all were, and that your actions in taking or disturbing a good deal of these had caused him significant stress.  She said that the loss of their father’s medals had caused a great deal of anguish until they were returned.  She said that after the incident, her brother was too scared to live alone and was calling her at least ten times a day.  She said that some four months after the offending, her brother was still becoming emotional if anyone spoke to him about what you had done.  Eventually, he was forced to move to aged care accommodation, giving up his cherished independence and freedom.  Ms Burge said that Rob had been institutionalised since he was 16 years old and that life in these institutions had been terrible.  She spoke of his move to live independently with the assistance of Yooralla, and that he was so proud of what he had accomplished in achieving independence.

39She said that she had to come to Melbourne from her home in Queensland on two occasions after the offending to help her brother with moving and to reassure him.  She said that dealing with Rob and her emotions of anger and disillusion and disgust over the incident had been very distressing.

40Ms Burge also detailed the financial impacts on Rob and on her which related to his respite care, her flights to Melbourne to assist him and her accommodation.  She said that four months on her brother still called her and asked her where various of his belongings were, and that she was called on to sort out things long distance when simple things like Rob wanting to go outside caused an issue at the aged care facility.  Ms Burge said, "I feel very sad knowing that Rob will have to live in aged care for the rest of his life and that this incident has cost him most of his independence".

41Mr Bux, these are the very real and profound impacts that your offending has had on the victim and his sister.

42I take into account your criminal history which is extensive and has a good deal of relevance.

·You have been dealt with for burglary and criminal damage in October 1985 by way of a three month attendance order.

·In May 1986 you were dealt with for attempted armed robbery and two charges of assault occasioning actual bodily harm and you were sentenced to a total effective sentence of two years’ imprisonment.

·In March 1988 you were sentenced to a total effective sentence of six months’ imprisonment for burglary, theft and theft of a motor vehicle.

·In April 1988 you were sentenced to a total effective sentence of two months’ imprisonment for burglary and theft.

·In May 1991 you were fined $300 for assaulting police.

·In November 1994 you were sentenced to a total effective sentence of 12 months’ imprisonment, which was suspended for two years as well as an alcohol treatment condition for intentionally or recklessly causing injury, child stealing, arson, assault police, intentionally or recklessly causing injury, two charges of theft and one charge of assault police on duty.

·On 5 March 1996 you were sentenced to a total effective sentence of eight months’ imprisonment which was suspended for 12 months for two charges of robbery, and on 7 April 1997 you were dealt with for two charges of resist police, possess regulated weapon and being drunk in a public place, for which you received fines.

·On 26 February 1998 you were sentenced to 12 months’ imprisonment suspended for 14 months for attempted armed robbery, burglary and two charges of theft.

·On 6 April 1998 you were sentenced to a total effective sentence of seven days’ imprisonment suspended for 24 months for resist police, drunk in a public place, theft from a shop and drive whilst disqualified.

·On 16 April 2012 you were fined for a theft, and on 17 May 2013 you received a ‘"with conviction" conditional undertaking for one year for assault with a weapon, assault police and resist police. The condition of the undertaking was that you were to abstain from alcohol.

43In addition to being relevant in a number of respects to the offences before me, your criminal history also reveals that you received the benefit of a number of suspended sentences in the past and you also received the benefit of a requirement to have issues associated with alcohol addressed by virtue of the order made by His Honour Judge Hart in his sentence in 1994.

44As your Counsel pointed out, it is also evident that there is a gap of, on my calculation, about 14 years from 1998 when you did not commit offences, and as he revealed, you became a pillar of society.

45You are an indigenous man who grew up on the Cumeragunja Mission on the Murray. When you were eight, your family moved to Shepparton.  Sadly, your parents were both alcoholics and you were subjected to physical and sexual abuse.  Violence was a way of life in your family household which no doubt impacted on you significantly.  You told Dr Turnbull, consultant psychiatrist, that from the age of 13 you were very angry and started to abuse alcohol and drugs.  This played itself out in your criminal history, seeing you commit your first serious offence at age 18.  You attended school until you were in Year 10.  You played football and undertook a plumbing apprenticeship for two years.

46From age 18 until about age 30, you were in and out of gaol, with the last incarceration being in 1991.  As I have said, you then received the benefit of a number of suspended sentences, one which was accompanied by an order for treatment for alcohol abuse.

47You have two daughters from a previous relationship.  That relationship lasted about 13 years and you have a son from your current relationship.

48In 1997 or 1998, you attended the Percy Green Memorial Recovery Centre and found sobriety and religious faith.  You also met Cynthia, who was a case worker there, and she assisted you greatly in your rehabilitation. You commenced a relationship and had a son, who is now 18 years old, and whom I understand is doing his VCE.  You were employed at the centre for three years and you became a parishioner at the Assembly of God Church in Shepparton.  You moved up the ranks of that church, starting as a deacon, then you became an elder and then a pastor. You saw yourself as an example to other people in your community and you offered them support and spiritual guidance, using your own life experiences to assist them.

49However, in 2010 you started to feel burnt out by the work that you were doing. According to the psychiatric report there were also allegations against you of abuse but these were never taken to court.  Also in that year your father died and you felt anger toward him for his poor treatment of you and for your sense of wasted opportunities.  These matters placed an immense strain on you, to a point where your mood significantly deteriorated and you turned to marijuana and alcohol.  You took it on yourself to step down from your position as you felt that this was necessary in order to maintain the church’s standards.  Your marijuana and alcohol use dramatically increased and you then began using ice, which soon became a daily habit.

50In 2011/2012 you moved to Derby in a bid to get away from Shepparton and from drugs.  In Derby you took on a role in your church, albeit that this was a lesser role than that which you held in Shepparton.  According to your counsel, you and your wife moved to Melbourne and lived in a bus in a driveway at your aunt’s house in October 2013.  You then moved between the homes of various members of your extended family.  You often wandered the streets and you separated from your wife, although you kept in contact with.  The dates which you have given your Counsel in respect of some of these events are different to those that you apparently told Dr Turnbull.

51I was told that during this period you tried to address your drug and alcohol issues.  In the psychiatric report, it says that you took such steps between 2011 and 2015.  I have received documentation from the Victorian Aboriginal Health Service Co-Operative Ltd dated 12 May this year, which says that you had been a client of its Preston branch since June 2014.  I accept that you have made some efforts to address your substance abuse issues before you committed the offences before me.  Unfortunately, you were unsuccessful, although I factor in that you were successful in this regard for a number of years from 1998.

52In the 18 months leading to the offences before me, you had returned to alcohol and drug abuse, which resulted in you returning to offending, including violent offending.  I understand that your wife was unable to cope with you, which was when you and she separated.

53However, as I understand the situation, you have now each committed to your relationship and she was present at the plea hearing in support of you and I understand she is here again today.

54I have taken into account these matters when assessing your prospects of rehabilitation. On the one hand, you have shown that you can abstain from substance abuse for a substantial period.  On the other hand, you returned to substance abuse and to offending when you were placed under strain.  The prosecution did not submit that you were aware that a return to substance abuse would dispose you to further offending, so that your offending before me is not aggravated in that way.  However, Mr Bux, I place you on notice that there is a definite link between your drug and alcohol abuse and your offending, if you did not know that by now.  If you decide to abuse drugs or alcohol in future and commit offences, then your decision to abuse such substances may well be treated as an aggravating feature of any further offending.  Do you understand that?

55ACCUSED:  Yes, Your Honour.

56HER HONOUR:  In your favour, I take into account your early plea of guilty, which the law says entitles you to a significant discount in the sentence you would otherwise receive.  In pleading guilty at such an early stage you have spared the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings.  Over and above this, you co-operated with the police from a fairly early stage, showing them where some of the victim’s belongings were hidden and making a number of admissions in your record of interview.

57I accept that you have some heartfelt remorse for what you have done in view of the letter from the Victorian Aboriginal Health Service and other matters to which I have referred, including your apologies, but there were aspects in your record of interview which smacked of being self- serving in nature, and which gave a skewed account of how you came to assault the victim.  Also, you have said through your Counsel, that you returned to the scene on the night in question to check that the victim was alright.  I have some difficulty in accepting this in view of the fact that you did what you could to avoid being detected, including breaking the landline at his home.  Also, you did not say that this is what you had done in your record of interview; rather, you said that you tied the victim up so you could get a head start in fleeing.  It makes no sense that you then returned to the scene. However, even if you did do this, you did not assist the victim in any way.  Therefore, on any view of it, I do not regard this aspect of your plea as mitigatory.

58I take into account the report of Dr Turnbull in a general sense.  There is nothing in it which reduces your moral culpability or impacts on any of the sentencing principles insofar as any impairment of mental function is concerned.  I regard your moral culpability as high.

59You have returned to religion now and have found comfort and some insight in this.  Your Counsel pointed to the impact that your faith had upon you in 1998, leading to a significant period of being offence free.  That is true.  However, I must also have regard to the fact that you returned to substance abuse and offending notwithstanding your previous religious enlightenment.

60As at the plea hearing, you had been in protective custody for 270 days and it is likely that you will have to serve your sentence in protective custody because of what you have done and its media coverage.  I factor in that time has been, and will be, harsher for you than for someone who is not subjected to these harsher conditions in custody.

61Whilst on remand, you have been running a prayer service once a week for those in protective custody, which is to your credit.

62In sentencing you for the aggravated burglary, I am mindful of the fact that this offence’s end point was when you dragged the victim over the threshold of his doorway.  Also, I am mindful of the fact that you did not have a weapon with you and that you committed the offence with the intention to steal.  However, all that being said, I regard your offending overall as most serious.

63In view of your offending on this occasion, your substance abuse issues, and your criminal history, but also your acceptance of responsibility, your remorse, your wife’s support, your ability to abstain from substance abuse for a lengthy period, and your return to your religious faith, I rate your prospects of rehabilitation as guardedly fair at best. I must place solid weight on specific deterrence and the need to protect the community.  Your Counsel submitted that I ought impose a sentence which adequately allowed for matters in mitigation, and which is not crushing.

64Mr Bux, it is clear that even after allowing for all mitigating factors in your case, a substantial gaol term is warranted on any view of things.  I must give appropriate weight to all relevant sentencing considerations.  However, I have borne in mind your counsel's submission.  I have done what I can to avoid a crushing sentence as such.

65Would you please stand up?

66Firstly, I make a Disposal Order in the terms set out in the document handed to me.  That order is not opposed.

67You are sentenced to the following terms of imprisonment:

Charge 1, six years, which will be the base sentence;

Charge 2, two years, six months;

Charge 3, three years, six months;

Charge 4, three years;

Charge 5, two years;

Summary offence of committing an offence whilst on bail, two months.

68I direct that one year from the sentences on charges 2 and 3, and six months from the sentences on charges 4 and 5, as well as one month from the summary charge, be served cumulatively with each other and with the base sentence, producing a total effective sentence of nine years and one month imprisonment and I direct that you serve six years, six months’ imprisonment before becoming eligible for parole.

69I declare that you have already served 280 days by way of pre-sentence detention, which will be reckoned as already served.

70If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years’ imprisonment.

71I am mindful of the fact that there were a series of events which occurred on the one occasion and I have ordered cumulation notwithstanding that because of the nature of each of those facts and the separate impacts that these would have had upon a most vulnerable victim.

72Would you please take a seat for a moment, Mr Bux?  Is there anything arising?

73COUNSEL:  No, Your Honour.

74HER HONOUR:  Yes, all right, thank you.  Could you please remove Mr Bux?

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