Director of Public Prosecutions v Dow

[2021] VCC 1800

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY SITTING IN MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 19-00630

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP DOW

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JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Latrobe Valley sitting in Melbourne
DATE OF HEARING:	17 September 2021, 4 November 2021, 11 November 2021
DATE OF SENTENCE:	11 November 2021
CASE MAY BE CITED AS:	DPP v Dow
MEDIUM NEUTRAL CITATION:	[2021] VCC 1800

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              aggravated burglary - common assault - causing injury intentionally - intentionally damaging property – verdict of guilty following a trial – COVID-19 – poor prospects of rehabilitation – poor physical health

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Bugmy v R (2013) 302 ALR 192; R v Verdins & Ors (2007) 16 VR 269

Sentence:                  Total effective sentence of five years and four months.  I order that you serve a period of four years before becoming eligible for parole

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Solicitor for the Director of Public Prosecutions
For the Offender	Mr R. Thyssen	Kurnai Legal Practice

HIS HONOUR:

Introduction

1Phillip Dow, you were found guilty by jury at a trial at the La Trobe Valley County Court of the following offences:

(a) two charges of aggravated burglary, contrary to s 77 of the Crimes Act 1958, the maximum penalty for which is 25 years' imprisonment;

(b)   common assault, the maximum penalty for which is five years' imprisonment;

(c) causing injury intentionally, contrary to s 18 of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment; and

(d) intentionally damaging property, contrary to s 197 of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment. 

2Based on the jury’s verdicts, they have accepted the evidence of the victims in this matter, being Sarah Stace and Leslie Bassman, at the exclusion of your version of events offered in your record of interview.  I propose to sentence on that basis. 

Summary of Offending

3On 21 August 2018, Ms Stace was home alone in the bedroom of her unit with the door ajar.  The front door and security screen were closed but unlocked.  You burst into the unit and repeatedly yelled, 'Where is he?' (Charge 1, aggravated burglary).  You approached Ms Stace’s bed, where she was lying, with a bottle in a paper bag raised above your head.

4Ms Stace told you that you had entered the wrong unit.  You left her after approximately 20 seconds.  Ms Stace was terrified as a result of your actions , and that is the actions with the bottle and the paper bag in the context in which it was done (Charge 2, common law assault). 

5You then went to a neighbouring unit and knocked on the door.  Mr Bassman was inside and he opened the door to you.  You said, 'I have a message from Craig'.  Mr Bassman walked back into his unit and you followed him. 

6You said words to the effect of, 'You owe Craig $50' and also that 'You’ve got to pay him up, you white dog!'.  You then began punching Mr Bassman.  You threw at least four punches to the face of Mr Bassman.  Mr Bassman temporarily lost consciousness (Charge 3, aggravated burglary and Charge 4, intentionally cause injury).  Mr Bassman sustained multiple facial fractures as a result of your actions. 

7You then went to Mr Bassman’s TV and kicked it over with your foot (Charge 7, intentionally damage property).  You then left the unit. 

Impact on the Victim

8Ms Sarah Stace read her victim impact statement, dated 2 August 2021,[1] to the court. In her statement she says that even three years after the offence she is still scared to be left alone. She says that she has been ‘left reeling’ by your crime and suffers panic attacks. She fears that she will never be the same person she was.

[1]Prosecution Exhibit 1

9Mr Leslie Bassman did not provide a victim impact statement.  He did, however, give evidence on the trial and has clearly endured a distressing experience.

10The impact of a crime upon its victim is a matter that I must take into account pursuant to s 5 of the Sentencing Act 1991, and I do so.  In properly placing weight on the impact to the victim, I am conscious not to let this one factor overwhelm other relevant sentencing considerations.

Gravity of Offending

11In relation to the offence of aggravated burglary, the fact of its maximum penalty of 25 years' imprisonment indicates that it is an offence of inherent seriousness. 

12These are both serious examples of the offence, and there is in my view no reason to distinguish either Charge 1 or Charge 3 as being more serious than the other.

13Both offences involved you entering premises with an intention to assault the occupant who you believed to be Mr Bassman.  In relation to Charge 1, that you were mistaken about this, does not make your intention upon entry any different.

14The entry on both occasions was through unlocked doors.  The offences occurred in mid-afternoon and you acted alone. 

15The offence is aggravated, however, by the fact that you were armed with a bottle and threatened the use of it in the course of Charge 1.

16Overall I agree with the prosecution submission that the offences are mid-range examples of the offence.

17Charge 2, common assault, is constituted by you placing Ms Stace in fear by your actions.  Even though no actual physical contact is alleged, your actions as an uninvited stranger in her home terrified her.  The event was of short duration but this is a significant example of common assault.

18I consider Charge 3, however, to be above a mid-level example of the offence of causing injury intentionally.

19You had absolutely no grievance with Mr Bassman to justify your violence towards him. He posed you no threat. He was in his own home when he endured multiple injuries caused by you including facial fractures. The injuries are at the upper end for an offence that still comes within s 18 Crimes Act 1958.

20The damage to Mr Bassman’s television may be an objectively lesser offence than the others for which you stand to be sentenced but it was a gratuitous act of  vandalism of Mr Bassman’s property.

Personal Circumstances

21Phillip Dow, you are 50 years old and were 47 years old at the time of offending.  You were born in the Gippsland area and are the 17th of 18 siblings.  Your mother is of Aboriginal Australian heritage and your father was of Anglo-Australian heritage.  You were exposed to significant family violence perpetrated by your father on your mother until your parents separated when you were approximately 12 years of age.

22You report being the victim of sexual abuse from a family member on a regular basis from the ages of five through nine.  You lived with your mother until you were 14 or 15 years old, before moving to a boys' home for approximately 18 months before later moving to Melbourne to live with your sister.

23You completed Year 6 schooling but left prior to the commencement of Year 7 due to being racially bullied.  You had no literacy skills until you developed basic literacy as an adult.  Your employment history is limited as you have been receiving a disability support pension since you were 20 years old.

24You report using cannabis on a daily basis since you were 13 years of age and of being a daily user of heroin from the ages of 18 through to 20 years old.  You also report drinking up to three bottles of port per day.

25You stated in the psychological material tendered on the plea that you were diagnosed with mouth cancer and received treatment.  Royal Melbourne Hospital records[2] confirm severe squamous dysplasia in the mouth, and treatment and surgery during the 2015-2017 period.  Subsequent records tendered on the plea and that are Exhibit 4 on the plea confirm that in 2016 you had successful surgical intervention to treat throat cancer.

[2]Defence Exhibit 4.

26You also stated that you were diagnosed with cancer in the pancreas in February 2021 at Warragul Hospital when you attended due to pain in chest. 

27It is, however, difficult to place any weight on that apparent pancreatic cancer diagnosis given an absence of any evidence presented on the plea to confirm that  conclusion.

Psychiatric and Psychological Background

28A psychological report from Dr Ervim March dated 14 July 2021[3] was  tendered on your plea. 

[3]Defence Exhibit 2.

29Dr March concluded that you have a chronic substance use and alcohol use disorder, chronic paranoid schizophrenia, manic depressive disorder, post-traumatic stress disorder and a cognitive impairment that places your current level of intellect within the ‘intellectual disability range’.  He considered  your cognitive performance was similar to that assessed by Dr Ong back in 2014,[4] save for a further reduced ability to learn new, unstructured information with repetition.

[4]Defence Exhibit 3.

30Dr March opined that your mental health ‘contributes to and interacts with his vulnerable personality style, poor emotion dysregulation and anger control.'  He said that noncompliance with prescribed medication and substance use 'potentially further reduces his ability to regulate himself'.

31Based on the unchallenged material before the court, I consider that limbs 1, 3 and 5 of Verdins[5] have some application in this case. 

[5]R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’).

32Your moral culpability for the offending is somewhat reduced by reason of your impaired mental functioning.

33It is also appropriate to somewhat moderate, though not eliminate, the weight given to general deterrence.

34I consider that imprisonment is more burdensome for you than for someone not enduring your mental health conditions.

Prospects of Rehabilitation

35You have a highly relevant and substantial criminal history.  It includes multiple occasions where periods of imprisonment have been imposed, including for matters of violence. 

36Consequently, your prospects of rehabilitation must be considered to be poor.

37Dr March summarised a number of aspects of your significantly disadvantaged upbringing. These include your history of out of home care from age 14, your interrupted schooling, your early exposure to alcohol and substance abuse, the family violence you endured and witnessed as a child, your childhood sexual abuse and your mother’s suffering at being a member of the Stolen Generation.

38I accept as a matter in mitigation of sentence that your background of trauma and abuse reduces your moral culpability in the sense referred to by the High Court in Bugmy v R[6].  As the Court stated:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender’s deprived background in every sentencing decision.

[6]Bugmy v R (2013) 302 ALR 192 (‘Bugmy’).

39However, the High Court also goes on to state that: 

The inability to control the violent response to frustration may increase the importance of protecting the community from the offender. 

40Given your significant criminal history, poor prospects of rehabilitation and the nature of offending in this matter, consideration must be given to the protection of the community from you.

Impact of COVID-19

41The time you have spent on remand has been served in altered conditions because of the pandemic.  The deprivations caused by the pandemic restrictions have included but are not limited to restrictions to visits and reduced access to various programs.

42It seems probable that the prison environment will continue to be subject to these restrictions for the foreseeable future.  I consider as a matter in mitigation of sentence that conditions in custody have been and will remain more onerous than would otherwise have been the case.

Submissions on Sentence

43Mr Thyssen submitted on your behalf that a period of imprisonment was appropriate, but that it should be structured in a way such as to allow for a non-parole period that represents a lesser than usual portion of the total effective sentence.[7]

[7]Defence Exhibit 1.

44Mr O’Toole, representing the Director on the plea, submitted that the offending warranted a term of imprisonment comprising a head sentence and a non-parole period.[8]

[8]Prosecution Exhibit 2.

Sentencing Principles

45Subject to the moderation I have already noted is appropriate having regard to the principles in Verdins and Bugmy, general deterrence remains a significant sentencing consideration.  It is also necessary to impose a sentence which seeks to deter you from further offending.  In this case, protection of the community is an important sentencing consideration.  I must also impose a sentence that expresses denunciation for your offending, and represents a punishment that is just in all the circumstances.  I have also considered your prospects of rehabilitation as I have found them to be.

46I must impose a sentence for each offence that is appropriate for its individual circumstances.  I must also make such orders for cumulation as is necessary to appropriately reflect the totality of the criminality represented by the charges on the indictment, and results in a total effective sentence that is just in all the circumstances.

47In this case, the offending occurred within a relatively short period of time and within a confined area.  It does, however, remain necessary that there be some cumulation of the common assault, intentionally causing injury and criminal damage  charges on the aggravated burglary charges, and also that there be some cumulation between the two incidents to reflect the fact that you offended against two separate people.

Sentence

48Phillip Dow, I sentence you as follows:

49On Charge 1, aggravated burglary, you are convicted and sentenced to three years' imprisonment.

50On Charge 2, common law assault, you are convicted and sentenced to 15 months' imprisonment.

51On Charge 3, aggravated burglary, you are convicted and sentenced to three years' imprisonment.

52On Charge 4, intentionally cause injury, you are convicted and sentenced to two years and three months' imprisonment.

53On Charge 7, intentionally damage property, you are convicted and sentenced to three months' imprisonment.

54Charge 1 is the base sentence.  I order that six months of the sentence imposed on Charge 2, one year of the sentence imposed on Charge 3, nine months of the sentence imposed on Charge 4, and one month of the sentence imposed on Charge 7 be served cumulatively upon each other and upon the sentence imposed on Charge 1.

55This makes for a total effective sentence of five years and four months.  I order that you serve a period of four years before becoming eligible for parole.

56Pursuant to s18(4) Sentencing Act 1991 I declare that you have served a period of 275 days of presentence detention to be reckoned as already served.

57The prosecution made application for the forfeiture of the bottle of tawny port.  This was not opposed by counsel on your behalf and I make the order in the terms sought.

58Any other orders sought and is the PSD correct?

59MR O'TOOLE:  The PSD is correct, Your Honour, and there is no other order sought, as the court pleases.

60MR THYSSEN:  I agree,Your Honour.

61HIS HONOUR:  Thank you both for your assistance.  I will adjourn the court now until 10.30.

62MR O'TOOLE:  If the court pleases.

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