Director of Public Prosecutions v Dowdle
[2012] VCC 1201
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00667
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEGAN DOWDLE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 20 July | |
DATE OF SENTENCE: | 17 August 2012 | |
CASE MAY BE CITED AS: | DPP v Dowdle | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1201 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – making threat to kill – plea of guilty – co-offender pleaded guilty to reckless conduct endangering a person and being a prohibited person in possession of a firearm – threat to kill made prior to co-offender producing shotgun – considerable weight to just punishment, denunciation and deterrence – disadvantaged background – first assessment for Community Corrections Order deemed unsuitable – second assessment recommended as suitable – sentenced to Community Corrections Order for period of 12 months – 50 hours community work – judicial monitoring condition
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Lee | OPP |
| For the Accused | Mr B. Nibbs | Robert Stary Lawyers |
HER HONOUR:
1 Megan Dowdle, you have pleaded guilty to one charge of threat to kill. That charge carries a maximum penalty of a term of imprisonment of ten years.
2
The events that give rise to that charge occurred on the evening of
23 October 2009. On that night a man by the name of Mustafa Kundarachi was meeting with some friends of his at a factory complex in Maffra Street in Coolaroo. They were apparently using the premises as a meeting place for the Hume Fishing Club. In the same area was your husband, Mr Joyce’s business premises, DJs Performance Engine Rebuilds. You and your husband had apparently gone there after dinner. For reasons I find difficult to understand in a man of 36 at the time, your husband was doing burn-outs in the car park.
3
Mr Kundarachi approached him while he was doing the burn-outs and told him to stop. He drove back into the building at DJ Performance Engine Rebuilds. You, Ms Dowdle, came out and immediately started yelling verbal abuse at
Mr Kundarachi. That led him to call 000. You asked Mr Kundarachi whether he had done that and when he said he had you verbally abused him again and threatened him saying: "I have a gun, I'll shoot you." Somebody in
Mr Kundarachi's group heard you saying words to similar effect but including saying that you had plenty of bullets. Your husband then emerged from DJ's premises and started swearing at Mr Kundarachi and threw a punch at him. Mr Kundarachi evaded that punch and punched him back. On the agreed summary of facts Mr Kundarachi's punch was described as being: "in self-defence."
4 The incident further escalated when you, Ms Dowdle, re-appeared from DJ’s, this time armed with a knife, with which you tried to stab Mr Kundarachi. He avoided the stabbing, and punched you in the face. He then retreated back into the factory complex where he and the other members of the Hume Fishing Club had been, but you followed him. This time you had a small sledge hammer and you threatened to damage cars belonging to members of the fishing club, before going back to DJs. You came out again. This time you knocked on the front window of the premises that everybody had retreated into and made threatening hand gestures, demonstrating a gun. You were heard to say: "You're dead - boom, boom."
5 Mr Kundarachi and his group ignored you, and eventually you went back into DJ’s premises. At some stage, whilst they were still inside their premises, some tyres were let down on a car that one of the members of the Hume Fishing Club members had parked in the street.
6 That was discovered as the group was leaving to go home. As a result, some members remained in the street, fixing the tyres before they could leave. While a group of people gathered around the car, Mr Joyce came out, this time armed with a shotgun. He pointed the barrel up and said to those men who were still there: "You're already dead; I'll kill you." When one of the group came towards him, he lowered the barrel to point it at the ground. It discharged into the ground and according to the account your husband later gave the police he himself was hit in the leg by a pellet which ricocheted off the ground and into his calf.
7 As Mr Kundarachi walked towards his car your husband fired another shot, which, as the photographs that were tendered show, peppered his car with bullets. The force of the impact was such that you can clearly see in the photographs that one pellet has gone through the back of the headrest of the car, out through the front of the headrest so you could see the wadding material forced out with the shot. The shot, despite its travel through that headrest still had sufficient force to go through the windscreen and shatter it after it had emerged from the headrest.
8 Shortly after that you, Ms Dowdle, your husband, and your two young children were seen driving away from the scene. That means that although your children did not actually witness what had been happening, they were present at DJ's premises whilst all of this was occurring.
9 It was not until the following day that police intercepted you and your husband as you were driving away from home. The car was searched and a shotgun was found in the boot of the car. It was apparently in two parts but it had a live shell in its rear barrel.
10 When interviewed you denied making any threats. You said Mr Kundarachi hit and you retaliated by letting down a tyre. You said you saw members of the group changing the tyre as you and your husband drove home.
11 It is your conduct in making the threats to kill, all of which occurred before your husband produced the shotgun that give rise to the charge to which you have now pleaded guilty, of making threat to kill. In addition to the charge that I am dealing with you for, your husband pleaded guilty to one charge of reckless conduct endangering a person, and one of being a prohibited person in possession of a firearm. That relates to his conduct after your threats had been made and I have already sentenced him.
12
On the hearing of the plea, as the prosecution summary, from which this account is taken, was read, you shook your head in apparent disagreement with it at various times. In particular it appeared to me that you were signifying disagreement or apparent disagreement with those parts of the summary which recounted the threats made by you after discovering
Mr Kundarachi had called 000, and which referred to the presence of your children in the car when you left Maffra Street.
13 I indicated that I was concerned as to the basis on which your guilty plea was entered, when you appeared to disagree with the prosecution summary about the making of the initial threats to Mr Kundarachi. I was concerned to ensure that I did not accept your guilty plea unless I was satisfied that you understood it involved an acceptance of evidence which established the elements of the offence. I asked Mr Nibbs to clarify the factual basis upon which the plea was entered, and whether any of the prosecution summary was in issue. After conferring with you, Mr Nibbs advised me that you accepted the prosecution summary, and that your guilty plea involved an acceptance of the making of the threats in the terms described in the summary. He said the only disagreement was in relation to the circumstances of your arrest the following day. The plea therefore proceeded on the basis that I should treat the whole of the prosecution summary as agreed facts. So far as you are concerned that relates to the conduct relevant to your charge. I treat the threat to kill charge as based on a course of conduct from the initial threat to shoot after discovering Mr Kundarachi had called 000, through to the producing of the knife and the attempt to stab Mr Kundarachi, and then to the threat to shoot him when he had retreated inside.
14 When I sentenced your husband I said to him that the circumstances of his offending reflected no credit on him at all. So too for you, the circumstances of your offending reflect no credit on you.
15 Mr Kundarachi made a reasonable request to your husband to stop doing burnouts near the building where he and the club members were meeting, and where their cars were parked. On the agreed summary, you were not even present when he approached your husband to make that request. It was nothing to do with you. There was no reason for you to take exception to his request and to approach him and abuse him. There was no justification for you threatening to kill him because his response to your abuse was to call 000. There was no reason for you to continue to escalate the matters by threatening him with a knife, or to put yourself in the role of victim when he punched you when he defended himself against that threat by punching you. There was no reason to make further threats to shoot him when he and his group had retreated indoors.
16 This makes it clear that the offending does not fall at the lowest end of the scale, and that considerations of just punishment, denunciation and deterrence must carry considerable weight.
17 We live in a society, a community. Living in a civilised society involves acting with consideration for the rights of others, not just acting as we please without regard for the impact of our behaviour on others. It involves responding to requests about modifying our own behaviour because it is impacting on others with respect and courtesy, and resolving differences by calm and rational discussion, not by abuse, threats of harm or resort to violence.
18 It is nearly three years since the events, the subject of the charges against you and your husband, occurred. Your guilty plea to this charge was not entered until the week before your trial was listed in April of this year. This was its second listing for trial in this court. A trial date for June last year was vacated due to your husband’s need for surgery for a chronic condition of ischaemic peripheral vascular disease.
19 Although this is a late entered plea of guilty, you are entitled to a greater reduction in sentence for that plea than a court-door plea would normally attract. It would appear that resolution of the charge you faced was treated as being dependent on resolution of the charges your husband faced. After a contested committal, his offer to plead guilty to the charge of reckless conduct endangering the person was rejected, the prosecution electing at that stage to proceed on the more serious charge that had been laid against him of reckless conduct endangering life. His offer was finally accepted by the prosecution shortly before the second trial was due to commence, and your guilty plea followed on from that.
20 In sentencing your husband, I was critical of both prosecution and defence for failing to take active steps to resolve the matter earlier. That failure by your husband’s legal advisers to properly explain the basis of the offer, and for the prosecution to carefully assess its prospects of conviction on the more serious charge, was not something I considered should disadvantage your husband when assessing the weight to be given to the guilty plea.
21 It is unfortunate that it would appear your fate appeared to be treated by you, or those advising you, and possibly the prosecution as well, as dependent on the resolution of his charges. If, as I was told on your plea, it was always going to be a guilty plea for you to this charge, it is of real concern that you, or those advising you did not take the necessary steps to deal with your case separately, and earlier. In the circumstances, I treat your guilty plea in the same way I treated your husband’s, that is that its utilitarian benefit is deserving of more weight than a court-door plea usually attracts.
22 I also take into account in your favour the fact, that by reason of the treatment of your charge as secondary to the charges your husband was facing, you have had this matter hanging over your head, unresolved, for a considerable period. In the waiting time, you have given birth to your 6th child, who is now 18 months old.
23 You have had a life of considerable deprivation and disadvantage. Your childhood was marked and marred by malnutrition born of poverty and neglect. Your mother, an alcoholic, left the family when you were 6. You suffered physically and emotionally at the hands of a violent, abusive father, and a sexually abusive neighbour. You would run away to try and find your mother, only to be returned to your father. You married young, a man who came from what you thought was a “real” family. You had 3 children with him. He was violent and abusive, and your attempts to escape from him were met with further violence and threats. On one occasion he tried to set fire to a refuge where you had taken shelter. On another, he raped you. I was told your third child was conceived as a result of that.
24 While he served a term of imprisonment, you moved interstate to try and escape him. He tracked you down after his release, and assaulted you, breaking your nose.
25 You ran away again, this time further away to Alice Springs. You formed another relationship. It too was abusive. You left that and then met and partnered with Mr Joyce. You have been married to him for nearly nine years. Your youngest children, now aged seven, five and 18 months are of that relationship.
26 You have shown in the circumstances a remarkable resilience. Your oldest children are all achieving well. The oldest, at 18, I am told works as a strapper. The next, a 17 year old is undertaking a childcare course at TAFE, and the 15 year old is on a scholarship at school.
27 You have a steady work history. Although you left school young, and schooling would have been made more difficult for you by reason of the abuse and neglect at home, you have a good work history. You have worked as a cook in nursing homes, hotels and cafes. I am told you enjoy working with your hands, building, and working on cars.
28 You have some convictions. Some are for violence, intentionally causing injury and summary assaults. Some are for criminal damage or possession of weapons, and some for threatening language. All but one criminal damage charge were committed between 1991 when you were 20, and 2004. The age of those convictions and their relative infrequency and relatively minor character indicate they carry little weight in assessing your prospects for further offending as of today.
29 The prosecution submitted a community corrections order was in range for this offence. Having heard of your personal circumstances, and bearing in mind the consequences for your children as I was considering a custodial term for your husband, I was of the opinion that that was a sentencing option I should consider. It was the sentencing option argued for by your counsel.
30 An appointment was made for the assessment on the date of the plea and a date was set for sentencing the following week.
31 You had previously successfully completed a six-month community based order in 2009, before the commission of this offence. In addition, you had done 45 hours of unpaid community work that same year imposed in default of payment of a fine. Quite extraordinarily it would appear that that fine was one that was originally imposed in 1992 and which had caught up with you in 2009.
32 When you had your assessment for the community corrections order on the day of the plea you left Community Corrections with no option but to assess you as unsuitable for a community corrections order. The report says that you were aggressive and uncooperative, that is, verbally aggressive. You said that you would be unable to comply with an order due to your childcare commitments. You refused to engage, ostentatiously playing with your phone and eventually became abusive and walked out.
33 When the matter returned before me for sentence a week later, Mr Nibbs proffered an apology and an explanation on your behalf. He explained you had been surrounded by press as you crossed the road from this court to the Magistrates court where the assessment was to be conducted, and that you had been distressed and unsettled by that experience. You indicated that you were prepared to resubmit for assessment. I adjourned your sentence, and made a further appointment for assessment, at a time which should have given you opportunity for calm reflection, and to give you opportunity to make arrangements for childcare, if you wished to reconsider cooperating with a community corrections order if assessed as suitable.
34 On your second assessment, you were more cooperative. Although you still indicated reluctance to engage, resistance to rehabilitative conditions relating to drug and alcohol use, mental health intervention and behavioural programs such as anger management, and although you expressed reservations about meeting unpaid community work commitments, you were noted to be apologetic about your somewhat hostile demeanour, and also it was noted that you became more responsive as the interview progressed.
35 Significantly, the report says that Corrections considers that you are a person with significant treatment needs which are currently unmanaged, and they consider you could benefit from conditions under a community corrections order. Although the report clearly spells out the assessing officer’s reservations about your suitability, given your reluctance to engage, he expresses the hope that some treatment programs may be implemented which could be of assistance to you. He recommends drug, alcohol, mental health and offence behaviour programs, as well as supervision and judicial monitoring. Noting that you had successfully completed community work hours in the past, you were again assessed as suitable for such a condition.
36 Despite your reluctance, I am of the view that a community corrections order with the recommended conditions will meet both the punitive and rehabilitative factors that I must take into consideration. It will provide the best prospect for addressing the issues which contributed to your offending on this occasion, and so, reduce the likelihood that you will re-offend. It will mark denunciation of your behaviour, and the conditions I am about to impose should act as a deterrent to you, and to others who might think to react to a request to behave in a more responsible fashion in the manner in which you did that night.
37 Whilst your behaviour on this night is deserving of condemnation, I am very conscious of the fact that you have not had the advantages of a secure stable and violence-free childhood or adult life. You are more deserving of compassion than many who come before this court, and more deserving of being afforded opportunities which focus on addressing the underlying causes of your offending than others who have been more privileged.
38 On the other hand, you may be more at risk of non compliance, and more in need of supervision, and more in need of judicial monitoring than others who are better resourced. I consider this is a proper case to impose not only a condition for supervision but also one for judicial monitoring..
39 The conditions of the community corrections order must be viewed as a whole. Because of the number of program conditions which I consider to be appropriate here, having seen the assessment and heard of your circumstances, I am reducing the hours of unpaid community work which would otherwise be appropriate as part of the package in a community corrections order.
40 One of the reasons I am imposing a judicial monitoring condition is that I appreciate that you are at risk of non-compliance because of the disadvantages that you face and still face.
41 It counts very much in your favour and my hope for your prospects that you have since the matter was first before me taken active steps to engage with services and to enlist the support of services that can help you. But one of the purposes of imposing a judicial monitoring condition is to try and avoid you getting into a situation where you are non-compliant on the order and you are brought back before me on breach proceedings. Judicial monitoring, I hope, will mean that if you are having trouble with compliance and you are at risk of breach proceedings that the matter will come back before me at that stage and that with the assistance of Corrections we can work out why you are having trouble with non-compliance and give you further opportunities to comply without putting you through formal breach proceedings.
42 It is a great pity that having been yourself the victim of threats, violence, and unreasonable and irrational behaviour throughout your life that your response on this night was to treat Mr Kundarachi in the way you did. On the one hand it may be understandable if that is what you were exposed to and that is what you thought was the way to behave. On the other hand you treated him in a way that, after your experiences, I would expect you would hope nobody else would be treated.
43 My hope is that this order will assist you to understand that, and to make it unlikely that you will think to react in such a way again.
44 Megan Dowdle, can you now stand please? On the charge to which you pleaded guilty, you are convicted. You are sentenced to be placed on a community corrections order for a period of 12 months commencing today and ending on the 16 August 2013.
45 You must attend at the Broadmeadows Community Correctional Services Offices at 25-27 Dimboola Road in Broadmeadows within two clear working days after the commencement of this order. That means by Tuesday of next week.
46 There are mandatory terms that apply to all community corrections orders and they are these, that you must not commit another offence for which you could be imprisoned during the time that this order is in force, that you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. They are obligations and requirements not to be affected by drugs or alcohol when you attend at Corrections for any conditions of your order and not to take drugs or use alcohol within eight hours before attendance.
47 You must report to and receive visits from the secretary or delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections Officer know within two clear working days if you change your address or your employment.
48 You must not leave Victoria without getting permission to do so from the secretary or their delegate and you must obey all lawful instructions and directions from the Secretary or their delegate.
49 In addition to those mandatory terms I am imposing the following conditions that I have decided are tailored to your needs and to the needs of punishment. You must perform 50 hours of unpaid community work over the period of 12 months as directed by the Regional Manager.
50 You must be under the supervision of a Community Corrections Officer for a period of 12 months. You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the Regional Manager.
51 You must undergo a mental health assessment and treatment. That includes, but is not limited to mental health, psychological and neuropsychological or psychiatric assessment or treatment in a hospital or residential facility as directed by the regional manager and you must under programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
52 And so far as judicial monitoring is concerned you must attend this court for review on the 18 February, 2013, that's six months from now at 9.00 a.m. here in the County Court.
53 I am going to give a copy of this order with these conditions to Mr Nibbs and ask him to make sure he explains them, and make sure you understand them, and then if you sign it indicating your consent to the order with those conditions.
54 PRISONER: Tomorrow will be three weeks that I all by myself gave up marijuana. I went to see my doctor. He gave me some Diazepam. I threw them away and I have not touched it for three weeks, tomorrow, and - - -
55 HER HONOUR: That is really impressive given your history.
56 PRISONER: I am actually quite proud of myself after 25 years but I just want you to know that I have done that myself - for my kids.
57 HER HONOUR: Ms Dowdle, you should be very proud of yourself and I am really heartened to hear that. I saw what the report said about your long-term marijuana use. I did not impose a condition that you must abstain from drugs or alcohol - - -
58 PRISONER: I don't want to go near it.
59 HER HONOUR: - - -because I thought that was unfair and unrealistic.
60 PRISONER: If you want to test me, that's fine, that helps me.
61 HER HONOUR: If this assists you to give it up after all those years.
62 PRISONER: Yes.
63 HER HONOUR: Then that will be a really good thing for you and a really good thing for your children and for the community.
64 PRISONER: I know that. I know that.
65 HER HONOUR: But I am really pleased to hear that and I hope when you come back in six months time you will have other good news to tell me to.
66 PRISONER: Thank you very much.
67 HER HONOUR: I understand that will be a difficult ride and that you may have relapses.
68 PRISONER: I don't want to go there. I'm past - - -
69 HER HONOUR: I'm not going to be disappointed if you relapse as long as you learn from it and look ahead again and continue on the path you have.
70 PRISONER: I’m not going to allow myself to relapse. I love my kids too much.
71 HER HONOUR: That's a really good thing to have and to look forward to and as I said you have shown remarkable resilience for somebody who has faced what you have had to face throughout your life.
72 PRISONER: Mm.
73 MR NIBBS: Can I approach the dock, Your Honour?
74 HER HONOUR: Yes, please. You have signed the order and I have signed the order, Ms Dowdle. When a copy of it is made and provided to you you will be free to leave the court. You can leave the dock now.
75 PRISONER: Thank you so much.
76 MS LEE: Your Honour, can I just mention one thing?
77 HER HONOUR: Yes, Ms Lee.
78 MS LEE: And that is in respect of the requirement that Ms Dowdle report within two working days. The report indicates that there is actually a first appointment scheduled for Monday 20th, at 11.00 a.m.
79 HER HONOUR: Thank you. Thanks, Ms Lee. I had forgotten that.
80 MR NIBBS: No. Well, there's no difficulty with the order. The order is must report within two days.
81 HER HONOUR: Yes.
82 MR NIBBS: But the appointment is already in place.
83 HER HONOUR: Yes.
84 PRISONER: They made it at the assessment. Thank you so much.
85 HER HONOUR: I actually am looking forward - - -
86 PRISONER: You won't see me in a bad way again.
87 HER HONOUR: I am looking forward to seeing you in six months and I hope to see you continue to make progress.
88 PRISONER: I will.
89 HER HONOUR: It will be hard and make sure you turn to people who can help you. Don't be too proud to ask for help and to accept it.
90 PRISONER: Thank you.
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