Director of Public Prosecutions v McGowan

[2017] VCC 1418

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01247

DIRECTOR OF PUBLIC PROSECUTIONS

v

BONNIE McGOWAN

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 October 2017
CASE MAY BE CITED AS:	DPP v McGowan
MEDIUM NEUTRAL CITATION:	[2017] VCC 1418

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr D. McGlone

HIS HONOUR:

1Bonnie McGowan, on 2 December 2016, you pleaded guilty to two charges on indictment, being charges attempting to pervert the course of justice and possession of a drug of dependence respectively.

2The second charge was in relation to a small quantity of cannabis which carries with it a maximum penalty of a fine.  I found that charge proven and dismissed that charge.  This leaves the charge of attempting to pervert the course of justice which carries with it a maximum penalty of 25 years' imprisonment and the summary charge which you pleaded guilty to of failing to answer bail which carries with it a maximum penalty of two years' imprisonment.

3The circumstances surrounding that offending is that you, now 32 years of age, and at the time of the offending residing at 10 Wilkinson Court in Bellfield.   Your mother Rosemary McGowan and her son Broderick resided at Diamond Creek.  At the time of the offending you were in a relationship with a Lee Baker-Kemerson who was also the father of some of your children.

4Broderick and Baker-Kemerson were charged with criminal offences concerning the kidnapping of a Luke Yeats which occurred on 13 November 2011.  On 12 June 2013, Broderick made a confessional statement which detailed the involvement of himself and Baker-Kemerson in the kidnapping.

5At the contested hearing for Baker-Kemerson, which was listed on 16 January 2015, Broderick was summoned to attend as a witness at the committal.  Upon attending at the committal, your mother Rosemary McGowan showed police a threatening text message received from you the previous evening concerning the evidence to be given at the committal by Broderick.  The text message from you stated as follows:

"Does Harley actually realise the consequences if he gets up in the dock tomorrow against Leigh? Does he remember who Leigh’s brother is? Coz if he forgets Im sure it wont be long til they meet up again. As him if he thinks Old mate would like to hear hes turned dog. Ask him what would Jake say about it? Well Jake wouldn’t say anything hed just be embarrassed as all fuck. And would Dad like him up in the stand giving testimony regardless of who the statement is about. And ye him talkin bout the same Harley that robbed his godfather LIVIO’s house 3 weeks ago. Ill be having a chat with Livio Tomoz about it. Tell him Ill be wording tanya up on a few things too. I can’t believe that after I saved his fucking life he repays me by running mine and my kids even more, whe I thought that wasn’t even possible considering my life at the moment. Remember Leigh might be in jail but not 4 ever. Fuck Harleys just like you rose – a heartless cunt. I remember when he gave my address to the tibas too. Ill see yas in court tomorrow then Harkley might wanna take my advice and get the next plane outa here coz hes gonna be lookin over his shoulder for the rest of his life. You probably will too. Just given ya the heads up that all. Revenge is best served cold and I can wait till its freezing if I have to. I love leigh hes the father of my kids, hes the man I want to marry, and your intellectually disabled son doesn’t stand a chance tomorrow. Hel probably crumble when he sees leigh in the court anyway haha".

6It was that message which is the subject of the attempt to pervert the course of justice.

7Broderick subsequently asked to give evidence at the committal from a remote facility.  Your mother also told police that prior to receiving the text message on the same evening, she had received a call from you asking if her son was going to give evidence the next day against Baker-Kemerson and that she should watch her back or her son's.

8You were arrested on 28 March 2015. At the time of the arrest you were searched and a snap lock bag containing 6.2 grams of cannabis was located in your handbag, thus the second charge of possession of cannabis which I have dismissed under s.76 of the Sentencing Act.

9You were taken to the Doncaster police station where you participated in a taped record of interview making full admissions to the allegations.

10Relevant to the charge of attempting to pervert the course of justice, you stated that you did not know if Baker-Kemerson was involved in the offending.  You had called your mother about her brother giving evidence and you remembered the text message that you sent to your mother.  You expected the text message to be passed from your mother to your brother but you did not think it was threatening anyone and was trying to explain your brother the "big picture".

11You were charged on 19 November 2015 and bailed to appear at the Melbourne Magistrates' Court on 18 December for a further filing hearing but you failed to appear on that date.  Thus the summary charge of failing to appear on bail.

12You have a limited criminal history in relation to prior offending dating from appearances at the Heidelberg Magistrates' Court in December 2008,
April 2009 and April 2014.

13You have been dealt with for offences that were committed subsequent to this offending in both the Heidelberg Magistrates' Court and in the Melbourne Magistrates' Court, including for one charge of possess methylamphetamine.  Your prior criminal history is of no particular moment in the sentencing of you.

14Your attempt to pervert the course of justice is a serious charge.  It strikes at the foundation of the criminal justice system.  It can be committed in a variety of ways, from trifling, warranting minor punishment, to others of great gravity, warranting severe punishment.

15Here there is some planning.  The text was a lengthy one.  You followed it up with a telephone call in order to emphasise the importance of what you tried to convey, namely the undesirability of Harley Broderick of giving evidence at a committal hearing.

16A psychological report was prepared by Dr Paul Gretch which became Exhibit BM1 on the plea dated 1 September 2015.

17I do not intend to rehearse the background as set out by Dr Gretch in his report, save that you are a young mother of no less than five children.  You presented as an intelligent young woman with a good memory and presented as being orientated to time, place and person, and:

"…florid indications of thought disorder or other psychotic processes were not apparent. Her thought processes were generally quite clear and adequately communicated."

18You have suffered traumatic events in your life.  Your step father committed suicide when you were but ten years of age and your brother Jake died in a motor accident on 1 July 2014.  You have lost custody of your five children and this has had a great effect upon you.

19Insofar as psychometric testing is concerned, the K-10 symptom scale was administered.  It is a scale of psychological distress developed for use in epidemiological surveys.

20At page 6 of Dr Gretch's report, he states:

“Ms. McGowan’s score placed her in the highest 2% of the population in terms of her risk of meeting criteria for an anxiety or depressive disorder and 20 times the population risk of ever being likely to make a suicide attempt.”

21In the opinion recommendations section of his report at page 8, he observes:

“It appears very clear that, notwithstanding a significant history of anxiety, recurrent bouts of depression and a significant substance use history, major grief and loss issues (suicide of stepfather; death of brother and loss of custody of all her children) are primary concerns. 

“Ms. McGowan will require ongoing medical and clinical psychological care and management in relation to her grief/ loss issues and trauma their associated depressive sequelae, but she is an intelligent person with genuine hope for the future and a brighter outlook since withdrawing from previous substance dependencies."

22He concludes with the following:

“The examiner is prepared to offer regular therapy in relation to Ms. McGowan if or when she is released from custody and assist in coordinating other required supports. Dr. Grech may be contacted if further information is sought."

23When this matter came before me on 2 December 2016 I indicated then that I would, with your consent, defer sentence.  At p.31 of the transcript, I indicated I would give my reasons saying:

"In this matter, I have decided, with the consent of Ms McGowan, to defer sentence until Monday 27 March 2017.  She has pleaded guilty to one charge of attempting to pervert the course of justice and a second charge of possession of a drug of dependence.  In relation to that second charge, I find the charge proven and I dismiss that charge.  She's also pleaded guilty to a summary charge of failing to answer bail.  The circumstances behind her offending are that she was living in circumstances where she was under enormous pressure, as a result of certain chaotic and tragic events at the time and in her past.

“She has been assessed on 1 September 2015 by Dr Gretch who made a psychological report dated 1 September 2015 where among other things, Dr Gretch stated:

“'Detailed study and pertinent aspects of Ms McGowan's psychological functioning have led to the examiner to perform a number of preliminary opinions based on the information available at the time of writing.  It appears very clear, that notwithstanding significant history of anxiety with current bouts of depression and the significant substance use history, major grief and loss issues, suicide of her step father, death of the brother and loss of custody of all her children are primary concerns.  Ms McGowan will require ongoing medical and clinical psychological care and management in relation to grief, loss issues and the trauma they are associated.  Depressive (indistinct) but she is an intelligent person with genuine hope for the future and brighter outlook since withdrawing from previous substance dependencies.'"

24I then continue:

“It appears that she has been in custody in other matters for a total of 47 days and has pre-sentence detention in relation to this matter for four days.  In those circumstances she, having been placed on a community corrections order on 2 September 2015 and being dealt with by way of a breach on 9 August 2016, the matter having been proven, as I understand it (indistinct) note taken - no further action taken.  She has been appropriately punished.

”She's given evidence before me and I accept that she has much on her plate and despite some misgivings about the need for her to receive psychological treatment, it is apparent to me that what is proposed is that she would be placed in an in-patient detox unit for a period of approximately ten days in January 2017 for the purpose of confirming that she is currently drug free in order for her to then participate in another in-patient program to assist her in dealing with issues concerning her capacity - improving her capacity to address her issues and ensure that she will be able to look after her youngest child.

“That program is for the duration of some 14 days.  She has, as her evidence reveals, much on her plate, with her demands of her other children, in order to make contact with them and seeing them and continuing contact with her youngest child. 

“In all the circumstances, given those matters are to be put in place in early new year, it does not seem, to me, that it is appropriate to continue with the sentencing process and, rather, it is more appropriate to defer sentencing until late March, as I have indicated. 

“Should her expectations be fulfilled, and I hope they are, I intend, on 27 March, to release her on an undertaking to be of good behaviour for a period of time that I will then determine.  In the event that things are not as hoped, I will re-visit the issue as to whether or not she should be placed on another community corrections order with appropriate conditions addressing her need to receive appropriate psychological and counselling support. 

“For those reasons and in circumstances where she has indicated through her counsel she consents to a deferral, I do defer the sentencing in relation to all matters until that date.  As I have said, in relation to Charge 2, I will find the charge proven and dismiss that charge and therefore she will be bailed in relation to the remaining charge of attempting to pervert the course of justice and the failure to answer bail until that date at 10.30 on her own undertaking."

25On the subsequent hearing on 27 March 2017, you did not appear.  The reason you gave was that you had a mouth ulcer.  It was indicated that you had been approved for detox and in the circumstances the matter was adjourned until Monday 10 April 2017.

26The matter was called on 10 April 2017 and I ordered that you be assessed for a community corrections order.  Upon attending for the assessment, it is reported that you appeared unwell.  You went to the toilet and disappeared, failing to return for the assessment.

27The following day, 11 April 2017, I issued a warrant for your arrest.  You were subsequently arrested on 1 September 2017 on this and other warrants and brought before his Honour Judge Dean three days later, on 4 September.  Bail was refused in all the circumstances.

28In the interim period you were dealt with at the Heidelberg Magistrates' Court on 6 September 2017 for a variety of offences and fined.  You have, therefore, apart from the four days pre-sentence detention, already served the additional 30 days of pre-sentence detention since the date of your arrest on 1 September 2017, giving a total of 34 days pre-sentence detention.

29Whilst in custody you have completed no less than five courses and I am told you and your mother have reconciled, which means that you will be able to live with your mother and hopefully see at least some of your children.

30It is submitted by both counsel that in all the circumstances, the sentence that I impose should be time served.  I accede with that submission. 

31On the summary charge of fail to answer bail, I sentence you to be imprisoned for a period of seven days.  On the charge of attempting to pervert the course of justice, I sentence you to be imprisoned for a period of 27 days.

32I direct that the sentence of seven days be cumulative upon the sentence of 27 days, producing a total effective sentence of 34 days.  I declare pre-sentence detention to be 34 days.

33Does that deal with the matters, Mr Pickering?

34MR PICKERING:  Except for the s.6AAA, yes, Your Honour.

35HIS HONOUR:  I do not intend to set a s.6AAA.

36MR PICKERING:  Your Honour pleases.  Other than that there are no ancillary orders.

37HIS HONOUR:  Yes.  That means once the orders are signed and provided to the authorities downstairs, she should, subject to any other warrants, be released.  Yes, Ms McGowan can be taken down, thank you.  Any corrections to my sentencing reasons, facts or otherwise?

38MR PICKERING:  No, Your Honour.

39MR McGLONE:  No, Your Honour.

40HIS HONOUR:  Thank you Mr Pickering, thank you Mr McGlone. 
Mr Brown, would you expedite the orders so that I can sign them and Ms McGowan can be released from the cells as it needs be.

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