Director of Public Prosecutions v Gow

[2021] VCC 131

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01451

DIRECTOR OF PUBLIC PROSECUTIONS

v

TREWIN GOW

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2021
DATE OF SENTENCE:	12 February 2021
CASE MAY BE CITED AS:	DPP v Gow
MEDIUM NEUTRAL CITATION:	[2021] VCC 131

REASONS FOR SENTENCE

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Subject:

Catchwords: home invasion – armed robbery – threat to inflict serious injury – assault with intent to prevent lawful apprehension – guarded prospects of rehabilitation – sentence of four years imprisonment with a non-parole period of two years and six months.

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Kelly
For the Accused	Mr D. McGlone

HIS HONOUR: 

1Trewin Gow, you pleaded guilty to one charge of home invasion, one charge of armed robbery, one charge of making a threat to inflict serious injury and assault with intent to resist lawful apprehension.  The circumstances of the offending are summarised in the prosecution opening upon your plea which outline agreed facts and which was tendered to the court.  I will use this summary to briefly describe the circumstances of the offending.

2On 19 December 2019, you with three others, McLean, Dawson and Ryan, drove to the victim’s home in Mount Helen in a car.  You arrived at 11 pm when it was dark.  You drove onto the driveway and parked behind the car owned by the victim, Gundhi.  McLean, Dawson and you went to the front door and knocked on it.  Ryan was told to remain in the car by McLean. 

3Gundhi, the victim had arrived home some 10 minutes before having been out with a friend, Middlemiss.  Gundhi opened the door but did not recognise the man who was standing there, that was McLean, and proceeded to walk into the house.  You and Dawson also walked in.  You were known to Gundhi having previously worked with him as a concreter.  Dawson, although familiar with Gundhi did not know him personally.  McLean asked Gundhi 'what have you got?' repeatedly, and Gundhi asked, 'what do you mean?'

4Dawson took the keys which were near the door and then went and got into the driver's seat of Gundhi's car out in the driveway.  McLean followed.  Gundhi also went to his car, took the keys from Dawson and ran back into the house and closed and locked the front door behind him.  One or more of you broke through the front door and then the same three of you, including again yourself, entered the house with intent to steal.  That is the basis for the first charge, home invasion.

5You and Dawson had glass beer bottles in your hands at that time and you began to assault Gundhi by hitting and punching him.  He was struck with a beer bottle by you during this assault.  One of you demanded the car keys again.  You and Dawson entered the bedroom of Gundhi's daughter.  Fortunately she was not in the house.  Gundhi yelled at you to get out but both of you and Dawson then fought with him there and having regained possession of the keys to his car you finally stopped hitting him and left the house.  The assault was heard by Ryan who was in the Honda in the driveway in which all of you had arrived, as well as the neighbours who had also heard the fracas inside the house.

6Gundhi remained in the bedroom and you and the others left the house.  He had sent a text messages to Middlemiss, a female friend, after he had gone back into the house and Gundhi could now hear her saying to you, 'Trewin what are you doing?'  The three of you got into Gundhi's car and Ryan also got in.  McLean who was driving reversed this car, a Navara dual cab ute, into the Honda, ramming it out of the way to enable the four of you to flee the scene.  Those are the matters at the basis of the second charge of armed robbery.

7You drove away from the house and a police car responding to a neighbourhood 000 call saw the Navara being driven at high speed and followed it.  After a pursuit, before stopping, as the car was slowing down, you fled from the Navara into a residential property.  McLean was arrested in the driver's seat, Ryan was seated in the rear.  You were then pursued by Senior Constable Mitchell into the rear yard of a property.  You tried to jump the fence but failed.  When Mitchell caught up to you, you began to punch him in the ribs in a stabbing motion and as you did so, you said, 'I've got a knife cunt' and 'I'll stop you cunt'.

8Although Mitchell grabbed hold of you, you continued to punch him to the torso.  Mitchell attempted to draw his firearm and to do so was trying to push you off but you again punched him to his torso and yelled, 'I've fucking stabbed you'.  Mitchell pushed you into a gate on a fenced horse paddock.  The gate broke open.  You ran away from him but he tackled you taking you to the ground.  You wrapped his arms around your neck and applied pressure, you thrashed around and punched him again to the face.

9You then appeared to have lost consciousness briefly and Mitchell tried to put handcuffs on you but while Mitchell sat on top of you, on your back, you again punched Mitchell to the face three or four times.  He finally elbowed you to the face twice before grabbing both of your arms.  You appeared to be calming down at that point saying, 'all right, all right, I give up' and asked Mitchell to let you go.  He used the radio to request backup but while he was doing this, you rose up and rolled him onto his back and you began to punch him again to face and head.  He was also throwing punches.

10Other police officers approached and as they did so, Mitchell kicked you to the face causing you to fall.  You continued to resist as police tackled you.  Once you were handcuffed, Mitchell removed his jacket to see if he had been stabbed but found no visible injury or blood.  He had scratches on his legs, arms and torso. 

11I was taken to a photograph of a knife in the depositional material which depict Mitchell identifying where the offending occurred against him.  A serrated-edge knife is shown at that location as having been found.  Gundhi was taken to hospital.  Clinical findings were a small laceration 1-centimetre in length on the nasal bridge requiring sutures and a small laceration, 1.5-centimetre in length on the outside of the left eye, closed with Steri-Strips.  A CT brain and facial bone scan was undertaken which showed non-displaced fractures of the left zygomatic arch and left cheek and subcutaneous haematoma, that is a broken cheek bone and surrounding swelling.

12Senior Constable Mitchell had soreness to his torso, knees and face, dizziness and nausea, difficulty breathing.  After your arrest you declined to be interviewed and you were remanded.  The following morning, as I have indicated above, while conducting a search of the area where you assaulted Mitchell, detectives from the Ballarat CIU found a knife with a serrated edge and wooden handle in the horse paddock where the assault occurred.

13No victim impact statement was received from Gundhi by the court.  However, I have noted the injuries sustained by him and I infer from your conduct and the circumstances of the offending generally in relation to him that it would have created fear, apprehension and significant anxiety beyond the physical impact.  Often the result of physical assaults are long lasting and traumatic.  These effects are just as enduring and serious for police officers confronted by this level of violence, aggression and wilful disregard for considerations of personal safety and contumacious criminality.

14This indeed is reflected in the victim impact statement of Senior Constable Mitchell.  He says he was struggling for his life.  He has lost confidence from his fearful incident, stress levels have increased, he had concussion and bruising to his ribs and face and this experience has left him affected in his work in which he is hypervigilant.  The confrontational nature of the home invasion that night in company with the intent to steal which is then realised by violence and sustained force with the use of objects and the occurrence of physical injury is utterly unacceptable and a serious breach of the most fundamental rights of citizens to be in their home, undisturbed and safe.

15This behaviour is abhorrent and leaves the community perturbed by its occurrence for which it seeks the protection from the court by appropriate punishment.  It is an offence which is unfortunately all too prevalent in our community and calls for stern punishment.  When combined with armed robbery, this course of conduct is very serious offending.  Both of these offences carry 25 years' imprisonment as a maximum.

16By this level of punishment, the legislation has indicated the seriousness with which the law use this conduct and it provides a guidepost in the sentencing process which will be taken into account among the various sentencing considerations. Certainly the nature of these offences give pre-eminence to general deterrence, denunciation and just punishment.  Making a threat to inflict serious injury and assault to prevent lawful apprehension carry a maximum of five years' imprisonment.  Though not as high as the previous penalties, this conduct taken together in the repeated, sustained and dangerous assault on Senior Constable Mitchell must be denounced and punished accordingly to its seriousness.

17I was told that all of you were approximately of the same age. You were 26 years old, McLean was 29, Dawson 26 and Ryan 28. Ryan pleaded guilty in the Magistrates' Court in April 2020 to theft of a motor vehicle and he was convicted and the matter was dismissed under s.76 of the Sentencing Act.  It was put he was a passenger in a car he knew to be stole and that was the extent of his criminality. 

18McLean and Dawson apparently had matters listed for a contested - had a contested committal on 13 January 2021 this year but I have not been told of what the outcome of that particular listing was.  As I have indicated, you have been on remand since your arrest.  On my calculation, you have served 422 days by way of pre-sentence detention excluding today.  Your matters resolved prior to a contested committal, no witnesses were cross-examined.  It was entered at a relatively early stage therefore.

19The plea will be taken into account and will reduce the sentence to be imposed.  It has a utilitarian value of having avoided a criminal trial with its time, requirements, resources and cost involved as well as inconvenience for witnesses.  As far as remorse is concerned, I accept that the plea can be evidence of remorse and you have expressed regret at the impact on your victims to a psychologist and I take this into account.

20There are some technical matters which impact on your sentence for Charge 2 under s.89(4), the applicable license cancellation for stealing a motor vehicle in relation to a Charge 2 is mandatory and means the court must cancel your driver's license, cancel or suspend any driver's license held and fix a period of disqualification if no license is held and unless the courts specify a higher penalty, the period of suspension or disqualification is three months.

21Perhaps more importantly, Charges 1 and 2 are category 2 offences pursuant to s.3(1) of the Sentencing Act 1991. Charge 2 occurs in company, making it fall within category 2 offences, per sub-s.(d)(a)(ii) and under s.5(h) for category 2 offences, unless the criteria under s.5(2)(h)(a) to (e) applies, the court must make a custodial order. There were no submissions contrary to the application of these sections in your case.

22I take your background antecedent criminal history and personal circumstances into account.  You will be 28 tomorrow.  Unfortunately the choices you have made over the last few years for yourself, and as a result of the conduct on this occasion with which I am dealing will mean that instead of celebrating with your family and friends, you will be in prison instead.  For a relatively young man, you have a bad record spanning eight years and recorded in 10 pages of prior convictions.

23Many of these prior matters are relevant to this sentence.  I recite them not because the court will punish you or can punish you for them again but because they are relevant to your circumstances, inform the issue of prospects of rehabilitation and enliven the need for specific deterrence and community protection from your criminal behaviour.  The first prior relates to criminal damage in 2013.  You were fined.  The matter dealt with in 2014 refers to driving offences and graffiti damage.  You were placed on a community corrections order.

24In 2015 the court dealt with a breach of that order.  The order was cancelled and your prison sentence was suspended.  The breach was for an earlier matter dealt with in early 2015 again dealt with by way of a community corrections order and that was for recklessly cause injury.  A men's behaviour change program was included as well as 100 hours work.  However, you breached this new order.  Nonetheless the court again gave you an opportunity in effect extending the order by 12 months.

25That was to no avail.  You breached that order and then the court proceeded to sentence you to a month imprisonment on 6 July 2017.  I was provided with summaries for the offences which you committed between 2013 and 2017.  They are a litany of reckless and dangerous behaviour from graffiti damage to assaulting your sister with punches while in a drugged state to damaging property.

26In 2016, the breach report of the current community correction order, the community corrections officer notes that you believed 'I'll get away with it again'.  In 2016 in May you committed offences while drunk, abusing police, hospital staff, driving erratically, colliding with cars on both sides of the road.  On the July date that I mentioned in 2017, the Magistrates' Court dealt with a consolidation of these matters and a suspended sentence was reinstated and short prison terms imposed.

27There have been other matters from July and October 2019.  In July you assaulted someone at work punching them a number of times to the head and face.  In October you went to an address with a metal bar and knife and you smashed a window.  You appeared in court in May 2020 to be dealt with for the assault and you were given a short term of imprisonment.  This history is troubling and relevant and also needs to be seen in the context of your personal circumstances.

28You were born and raised in Ballarat and you had a stable and loving upbringing.  Your father was a toolmaker and your mother an aged car worker.  Your younger sister is a nurse.  Your moved out of home aged 22 but upon losing employment age 24 you moved back home until you were remanded.  You have remained in contact with your family through call and video conferences due to the pandemic restrictions during the lockdown period and beyond of last year.

29I take this added hardship into account in your sentence. You attended secondary school to year 10 but left during that year and although you began a plumbing apprenticeship, you did not complete it.  You went into landscaping and painting jobs, fencing and concreting but your drug use interfered with job security.  About three years ago you experienced a drug-induced psychosis with auditory and visual hallucinations and in January 2019 you were prescribed Seroquel, an antipsychotic drug which you ceased after four months.

30Your cannabis use from age 16 escalated to daily use till age 23 and you took up ice use even while on remand.  You used GHB and Xanax as well and a psychological report was provided to the court.  Its author is Gina Cidoni and it is dated 18 January 2021.  You told her that before offending you had been up for several days.  You had used methylamphetamine and GHB the night of the offending. You were experiencing paranoid thoughts that you were being attacked.

31You said you felt bad about your behaviour and the injuries sustained by your victims.  It is clear that your drug use on the night may be offering a mere explanation but no excuse.  Ms Cidoni administered some psychological tests.  She reports that your verbal comprehension index is in the low, average range and your working memory slightly lower than peers your age. Your Millon Clinical Multiaxial Inventory indicated episodes of marked emotional cognitive and behavioural dysfunction.  This profile highlights lack of drive, autonomy and initiative, difficulties forming and maintaining stable relationships.

32You are impressionable, immature and self-absorbed.  You exhibit chronic dependence to substances which has so far impacted negatively in terms of your family life, work life and positive social contributions.  This drug problem is a major factor in your past and recent offending.  You do not present with any clinical conditions of anxiety and depression but the drug use has impaired your insight, decision making and judgment.  If you do not stop using drugs, your life will continue on a downward spiral which has led you to today.

33Ms Cidoni stated that you feel confident that you can abstain from drugs.  She says she is concerned you lack the coping resources to make this change.  I accept this opinion as indicating that upon your release you will require alcohol and drug counselling, significant strategies and interventions and relapse prevention planning.  You will need to stop associating with people who are drug users and peddlers and you will need to achieve some stability of accommodation, relationship and work.

34Whether you will be able to get there is hard to say.  In my view your prospects are guarded at this point.  I accept that you are, relatively speaking, still a young man and that demeanour and conduct is immature and therefore in my view it is reasonably to bear in mind that a sentence of imprisonment may have a long-term detrimental impact on your rehabilitation, requiring the court to act with parsimony in the circumstances.

35Much of the written submission on your behalf focused on a proper assessment of the objective gravity of your offending in relation to the home invasion.  In the description of the circumstances I have highlighted the matters which bear upon those considerations.  A discussion of Meyers and Hogarth in the context of aggravated burglary, was said to bear on this assessment, urging caution.  I agree that these are cases which can be distinguished.  I have evaluated the seriousness of your offending as serious based on the factors outlined by me above.  They are sufficient to render this offence serious.

36Mr Gow, on the home invasion you are convicted and sentenced to three years' imprisonment.  On armed robbery, you are convicted and sentenced to one and a half years' imprisonment.  On making a threat to inflict serious injury, you are convicted and sentenced to eight months' imprisonment and on assault with intent to prevent lawful apprehension, you are convicted and sentenced to 12 months' imprisonment. 

37I order that four months on the armed robbery, two months on the make threat and six months on the assault be cumulative upon Charge 1, the home invasion.  That makes a total of 48 months, or four years.  I fix a non-parole period of two years and six months. 

38I declare that you have served 422 days by way of pre-sentence detention and I will have that number noted in the records of the court.  Your licenses are cancelled and you are disqualified from obtaining a license for a period of two years. 

39Are there any other orders, Ms Kelly?  Other ancillary orders?

40MS KELLY:  Your Honour, sorry, Mr Gow has served a period of 14 days' imprisonment during his pre-sentence detention period.  Counsel for Mr Gow, and I have come to the calculation of 407 days of pre-sentence detention.

41HIS HONOUR:  Four hundred and seven?

42MS KELLY:  That is correct, Your Honour.

43HIS HONOUR:  I will correct that number, 407, thank you.  Yes, thank you very much.

44MR McGLONE:  As Your Honour pleases.

45HIS HONOUR:  Mr McGlone, do you wish to speak to your client while you have the ability to have a link to him?  If you do I am happy to step down, I have a jury that is deliberating and you can have a conversation with him if you wish.  If not ‑ ‑ ‑

46MR McGLONE:  Your Honour, thank you for that opportunity but I will seek an independent conference with him.

47HIS HONOUR:  Yes, sure.  Yes, all right.  I will stand down.

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