Director of Public Prosecutions v Dowling

[2017] VCC 331

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02235

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON PETER DOWLING

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2017
CASE MAY BE CITED AS:	DPP v Dowling
MEDIUM NEUTRAL CITATION:	[2017] VCC 331

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Accused	Ms M. Casey
For the Director of Public Prosecutions	Mr P. Triandos

Pages 1 - 5

 

 

HIS HONOUR:

1Jason Peter Dowling, you have pleaded guilty to one charge of threat to kill, one charge of common assault, one charge of possess a drug of dependence.

2You have also pleaded guilty to three uplifted relevant matters of contravene family violence order, commit indictable offence whilst on bail and unlawfully on premises.  Also, some uplifted unrelated matters of contravene family violence order.  I will deal with those matters in a moment.

3The situation is that you are now 41 years of age and you do have a significant criminal history; albeit going back quite some period of time.

4Firstly, pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

5You have pleaded guilty to a settled indictment and you obviously must get the utilitarian benefit of that.  You have expressed remorse - which is, I thought, probably pretty problematic - but I will give you the benefit of the doubt in relation to it.

6A summary of the indictable offending is that you had been in a tumultuous relationship for a significant period of time and in December of 2015 an intervention order was taken out.  I do not know what the history of all this is, but you were then breached twice within the next couple of months.

7In circumstances where I have got the preliminary brief and statements by the informant, it would seem to me fairly clear that even though the intervention order was in place the two of you were still residing together on a pretty regular basis, and I do not put anything sinister in you having been at the premises.

8The indictable matters are somewhat different because of the violence you engaged in, but, for example, the first of the intervention breaches was that on 12 October - that is, some five weeks after the intervention order was put in place where you were prohibited from attending at Uc Heart's address, or contact with her - you were at her home address.  She apparently suffered a psychotic episode, which I would assume is something to do with drugs, and when she threatened suicide with a knife you were able to calm her down and phone police.  Police then arrived and charged you with breach of an intervention order, which I find fairly astonishing, to say the least.  So I am not going to buy into what the history of all this is.  What I am simply going to do is sentence you for what is uncalled for, frightening domestic violence which took place in a relatively short period of time in a tumultuous set of circumstances.

9Indeed, as I understand it, when police attended to an earlier incident in November both you and the victim in this matter told the police that, in fact, you had reconciled and were living together, so why this matter could not have all been resolved in the Magistrates' Court is somewhat beyond my comprehension.

10Just after midnight on Thursday 31 December 2015 you were not at the residence that you were prohibited from being at, but you tried to contact the victim by text messages and telephone.  She was apparently asleep in the lounge room and did not hear the phone calls or see the messages.  The last message you sent her was at 2.28 am, saying "Thanks a lot".

11At about half past five in the morning she woke up to a banging sound, and you had got in using a set of keys that were in your possession.  I am assuming from that they were, in fact, your keys.  You then yelled at her "Hey fat slut".  She told you to leave the house but you refused and continued taunting her by calling her names.  You ran towards her, grabbed her round the throat and started to choke her.  While you were choking her you threatened to kill her, saying:

"I'm going to kill you, cunt.  Try talk now.  Say your prayers.  Go on, say a word to your God now."

12That gives rise to the common assault and the threat to kill - which, of course, is the one incident - though the charge of common assault continues.

13She tried to break free from your grip by grabbing your crotch and squeezing.  You let go of her neck and punched her twice to the left shoulder.  You got to your feet and picked up a TV saying you were going to sell it.  She got to her feet, grabbed her mobile phone and headed for the door.  As she unlatched the door you pushed her from behind, causing her to fall to the ground in pain - again, part of the common assault.  She got to her feet, went to the bedroom and called 000.  She pleaded with you to leave and you grabbed hold of her and put your hand over her face and pushed her backwards into the door.  That also gives rise to part of the common assault.

14She got out the front and waited for the police to arrive.  It is purported you were apparently trying to cut yourself with a piece of broken glass.  The police arrived and you took off before the police actually found you.  You were found with a small amount of cannabis.  You were on bail for other offences when this all occurred.

15When police interviewed you you told them you had been living at the house, which is probably true; told them you had keys to the house, which is probably true, and that you lived as a couple, which might be true.  You said the complainant hit you; I do not believe that.  In any event, I think this is clearly a matter which calls for a custodial sentence, and you have now been in custody for 455 days.  I am not going to go into how that has all been brought about, but the fact of the matter is that in my view you have done nearly enough time for the crime that you committed.

16There is no victim statement before me, but domestic violence of this sort just simply cannot be tolerated, especially with a person who has got a criminal history - albeit of some age in terms of violence - but you know what the odds are if you start to behave in this way.

17Upon your release you will be able to live with a sister in Leongatha.  Of some comfort to me is that you do have a fairly long and good work history.  You have worked at Capeview in Leongatha for some ten years.  You have a job available to you upon your release.  In gaol you have done a number of courses, you have been working as a billet, and you have been showing a lot of common sense.  You have been saving the rather paltry amount that you get paid for that.  You are a person who has been able, in the past, to be in charge of other people, such as at Capeview.  You have demonstrated that when sober and not abusing drugs - which has been your history - you are able to function quite well.  It is a situation where, were it available to me, I probably would have considered a community corrections order, but it is no longer available, so the only way to deal with it is to give you a straight sentence.  I do not think that a situation which enabled me to impose a parole period would be of any assistance in this circumstance.

18The prospects of your rehabilitation are completely up to yourself.  The risk of you re-offending is going to have to be regarded as significant, but if you can stay out of violent relationships and curb your emotional difficulties - which are described in the report of Mr Parker that has been tendered before me - then they probably should be pretty good.  I do not know whether the condition that he describes gives rise to the principles in Verdins, but I take into account that you will undergo the last month of this sentence in circumstances that might be more difficult for other prisoners.  That is a bit hard to understand when you are working as a billet and you are in charge of other prisoners, but be that well as it may, I do take it into account.

19In any event, in this situation - to try and make an end of it without going into great mathematics - on the charge of threat to kill and common assault; an aggregate sentence of 16 months.  I think in this scenario all the other charges - that is, the possess cannabis and all the other matters - I will simply convict and discharge.  I am not going to fine a man who has been in gaol for a year.  That is the simplest way of doing it.

20In that scenario I don't really think that I can do a 6AAA, but, put it this way, if you pleaded not guilty it would have been a - well, just one, say - not one.

21MR TRIANDOS:  On Charges 1 and 2?

22HIS HONOUR:  Yes, the trouble is with that, if it'd been a not guilty they probably would have done him for aggravated burglary.

23MR TRIANDOS:  Yes, Your Honour.

24HIS HONOUR:  So it doesn't sort of work that way.  I think the (indistinct words) is also that because I've got all the other matters being convicted and discharged, had it been a trial I wouldn't be - who knows what he might have got.  So I think that he has clearly saved himself a significant period of time, that's the purpose of all that, and I'll just leave it at that for the moment.

25I declare 455 days as having been served under the sentence.

26MR TRIANDOS:  As Your Honour pleases.

27HIS HONOUR:  I've made all the other orders, haven't I?

28MR TRIANDOS:  Yes, Your Honour.  Disposal and 464, yes.

29HIS HONOUR:  Yes.  All right, thanks for that.

30MR TRIANDOS:  As Your Honour pleases.

31HIS HONOUR:  Yes, I just need to talk to Mr Dane, so counsel are excused and you can take him back.

‑ ‑ ‑