Director of Public Prosecutions v Rowarth, Darryl
[2012] VCC 1975
•22 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARRYL ROWARTH |
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JUDGE: | His Honour Judge Pilgrim | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 November 2012 | |
CASE MAY BE CITED AS: | DPP v Rowarth, Darryl | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1975 | |
SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | |
| For the Accused | Ms J Kennedy |
HIS HONOUR:
1 I propose to deal finally today with the summary offences, that is the driving offences and the possessing the weapon that caused the criminal damage, put it that way, get rid of those.
2 But for reasons that I will express very briefly, I have not written them down, I should be writing reasons down so it does not become garbled, there are two or three things here that worry me about this man.
3 Firstly, there is no doubt and has been for a long time perhaps, the vast majority of his life he has had a terrible issue with his father and I am not the sitting judge on his father today but apparently, and I again say apparently, his father has been involved in some sort of motor vehicle accident and it is not unusual in the courts to hear of personality changes as a result of what happens in motor vehicle accidents. It must have been a severe motor vehicle accident because two people became deceased as a result of it. One of them at least was family, highly probable the other person was friends. Perhaps that is something to do with the background with the father becoming an irresponsible father in terms of violence towards those in his family but again I am not the sitting judge on that man, he is not here, under any trial of any description but there is a lot riding about your client Mr Rowarth, Mr Darryl Rowarth, being - well, he "shits' himself when speaking of his father. They are the words he uses when he speaks to Mr Cummins. He is either a good actor or it is genuine. I suspect it is genuine because we have further evidence of his fear and his issues raised about his father when Ms Diamond is called. She also speaks of it and she goes back a long way in terms of her history with this fellow.
4 So I am concerned (a) about the effect that this is all having on Mr Rowarth. Whether counselling is going to in any way assist this man with the issues with his father he apparently had is problematic and highly probably too late now.
5 Another thing that worries me is that this man says he is petrified and terrified of going to prison. I am somewhat sceptical about that. Here is a guy that has been in gaol for eighteen and a half years of his young life, he would know more about prison than most blokes and I think he would know how to handle himself within prison. Of course nobody likes being incarcerated, that might be what he is concerned about but he would not have the fear, I would have thought, that a fellow that has never been to prison would have. Nevertheless that is also raised.
6 But the next part that does very much worry me is this man Mr Rowarth was the victim of an impact that seems to be so unfair, he is the good Samaritan helping a pregnant lady and he then gets severely damaged. As a result of that he finds himself in a protracted and long civil action and clearly from the medical report that comes from Euroa Medical Clinic, I hope that is what they are called, it is near enough, he has been fiddling around with all sorts of medications. One of those medications and I am not a doctor, I do not understand medications, but it is said in this court room that one of them the after effects or side effect or whatever is to cause aggression. I am surprised that an aggressive man because of his background is prescribed a drug that is going to make him aggressive. Then foolishly he gets on to the turps, he gets on to the grog and he has little or no memory which is not surprising, assuming everybody has been truthful, when he has got a cocktail or drugs and a cocktail of alcohol and he commits very serious crimes. I am not intimidated by mandatory sentencing but mandatory sentencing is a reality, and at the end of the day with a background that Mr Rowarth has got, he is in great difficulties. But what I am prepared to do and what I was looking at when I left this court Bench, in the Magistrates Court and I am not going to do what my colleague Chestle did, I am not sure that I agree with what His Honour did. I am not going to try and duck it the way it might be said that judge did but I am going to defer sentencing. I do not have the power to defer sentencing under s.83 of the Sentencing Act the way a Magistrates Court can. But I believe I can do it in another manner that the deferral of the sentencing in the Magistrates Court is limited to six months so I am going to adjourn this matter for six months and deal with it in Ballarat, that is the two indictable offences. I am not talking about the summary offences. Mr Moore I do not expect you to be there, obviously. I think you should be Ms Kennedy because this has got its own unusual twists.
7 MS KENNEDY: Yes, Your Honour, I don't have a problem with that.
8 HIS HONOUR: So I have not fixed a day but I just say this so that you understand, Mr Moore and I have discussed this but you were not here, I do not quite understand why but I am a reserve judge as you know, having compulsorily retired through statutory senility having turned 70 and they immediately then appoint me a reserve judge so apparently I was senile one day and not the next. But I can only sit on specific days fixed by the Attorney despite the fact that I am appointed until 21 February 2017, I can only sit on days specifically nominated by the Attorney and that comes from the Governor in counsel appointments in that sense so I will be a practicing reserve judge in Ballarat from 6 May onwards. So I thought I better be courteous and see if that is suitable. Are you available in May? I mean I know it is a long way away but you have not got overseas trips or holidays or anything like that?
9 MS KENNEDY: No, I do not have anything that time, Your Honour.
10 HIS HONOUR: I do not think I will do it in the first week I am back there but I will do it in the following Monday which has to be the 13th does it not? Monday the 13th, it has got to be.
11 MS KENNEDY: I don't have any problem with that date, Your Honour.
12 HIS HONOUR: Just stand up for a moment Mr Rowarth.
13 PRISONER: Yes sir.
14 HIS HONOUR: You have heard me say I am sceptical about you being frightened to go into gaol, I think you have been in gaol that many times you know more about the place than most and you know how to look after yourself because you have been there and done that. That does not impress me much at all. It may be the truth, it may not be. But I am very concerned about those other matters. You need a lot of help. Eight and a half years gaol, here you are, back again. You have got to understand, it is not Mr Moore, not me, it is not your barrister or anybody else. The politicians have said you commit this offence, mandatory terms of imprisonment. The only power that the court has got is the length of time. A way around it is if I do not impose a prison sentence, well then there is another issue.
15 I am going to get some more reports within that period of time. I am going to ask you through your counsel to provide a report probably from Cummins I think would be the best so that we see how you travel over the next six months. I do not know what your medication program is now but Ms Kennedy tells me that your civil matters are behind you and gone. So those issues I hope, that is the pressure, causing your frustrations have resolved. I do not suggest that your health issues have disappeared, you have got post-traumatic stress and all of the things that follow that and no doubt you have got a drug program to follow. If you have a drug program to manage your post-traumatic stress or whatever other matters might come with that burden, you have got to manage them and to combine that with any other drugs such as cannabis or alcohol is crazy. I accept that you are highly probably telling the truth because it is a thing that we hear in courts all day every day where people are intoxicated be it through drug abuse, alcohol - well alcohol is a drug, alcohol or drug abuse, your memory is frequently in a position of confusion if not total absence. So I accept you are probably truthful in saying you cannot really recall some of the monstrous acts you were performing. You were very lucky to avoid yet another mandatory sentence that comes with aggravated burglary. You have come that close to getting a charge of ag burg, you know. And that too attracts a mandatory sentence because there is violence involved. The prosecution has been very considerate, I believe, in terms of what has happened. I do not know what the negotiations were but they could have easily played hardball and left you a battle in that one.
16 PRISONER: (Indistinct.)
17 HIS HONOUR: You better not speak to me. I do not mind you speaking but you should tell Ms Kennedy what you want to say before you say - - -
18 PRISONER: Can I say it to Ms Kennedy?
19 HIS HONOUR: Just a minute. I will deal with the summary offences. There is two 0.05s is that right, Mr Moore?
20 MR MOORE: Yes.
21 HIS HONOUR: And there is a dangerous driving, is that right?
22 MR MOORE: There are two dangerous drivings - - -
23 HIS HONOUR: And two 0.05s.
24 MR MOORE: Two 0.05s, yes.
25 HIS HONOUR: And there is the weapon offence.
26 MR MOORE: Yes.
27 HIS HONOUR: You have got to understand also, there is mandatory, there is that awful word, sentences applicable to those. I will explain that. One of your readings is 0.9, you have got no prior convictions so there is a mandatory loss of licence for nine months in relation to that. And in relation to the 1.15, there is a mandatory loss of licence for 11 months in relation to that. That is fixed by the politicians, that is correct is it not?
28 COUNSEL: Yes sir.
29 HIS HONOUR: You agree with those? So your licence on all four matters, your licence is cancelled and you are disqualified from holding a licence in this state for a period of 12 months which is a month longer than the mandatory period dating from - what date Mr Moore, 24 November?
30 MR MOORE: 24 November.
31 HIS HONOUR: Eleven?
32 MR MOORE: Yes.
33 HIS HONOUR: Dating from 24 November 2011. Taking into account there are four counts, on each count that the exceeding the 0.05 legislation, on each count of dangerous driving is convict and fine $250. That is $1000. In relation to the weapons offence is convicted and fined $500 in relation to that. I take it - did you get the steel bar, is there an order sought for forfeiture?
34 MR MOORE: I think it was recovered , Your Honour.
35 HIS HONOUR: I will make an order for forfeiture if it is needed. I am sure that is not opposed?
36 MS KENNEDY: No, Your Honour.
37 HIS HONOUR: I do not think there is a need for any other orders for the summary offences?
38 MR MOORE: No, Your Honour.
39 HIS HONOUR: In relation to the two indictable offences, the accused will be remanded on bail to appear in the Ballarat County Court for sentence on 13 May 2013.
40 MR MOORE: If Your Honour please.
41 HIS HONOUR: Just a minute. I just want to say a couple of things to your client. I am not threatening you with anything but in the next six months you are going to have to demonstrate you are fair dinkum in terms of your rehabilitation. I am not talking about going out and talking to kids at school, I am not talking about doing the right thing in terms of what you have been putting it in that sense. But what I am talking about is that you are managing your ingestion of the appropriate drugs and you are managing it in terms of your alcohol consumption. It is a disaster if you combine the two, you have seen where you stand now, it is highly probably something to do with that, you understand that?
42 PRISONER: Certainly.
43 HIS HONOUR: You have got to receive counselling of some description and Mr Cummins will give you some advice there on how you manage the real issues that exist between you and your father. That is not going to go away, you need a lot of help and that may well be, I do not know the character of the lady - I am not in any way putting her down for goodness sake, she writes are very fine letter about you, she might be able to assist you in that sense.
44 So you will be released on bail in the same terms and conditions. Are there any other bail conditions required?
45 MR MOORE: No.
46 HIS HONOUR: The bail is that you are bailed to continue to appear at the Ballarat County Court on 13 March 2013, the special condition is that you are to continue living at 44 Lucknow Street in Bairnsdale. Is that all right?
47 PRISONER: Yes.
48 HIS HONOUR: That address is available?
49 PRISONER: Yes.
50 HIS HONOUR: Thank you. You better go and find out what he wanted to say because I am not going to prevent him saying it.
51 MS KENNEDY: No, Your Honour.
52 HIS HONOUR: But you have got to make sure what he says is A-OK.
53 MS KENNEDY: Thank you, Your Honour. He did want to convey to the court that he hadn't had any alcohol or cannabis since this incident.
54 HIS HONOUR: Well, I am not going to impose no-alcohol on him. I cannot say anything about cannabis. If he is going to have a drink, he has got to drink responsibly.
55 MS KENNEDY: Yes, Your Honour.
56 HIS HONOUR: All right, well he is free to leave.
57 MS KENNEDY: Thank you, Your Honour.
58 MR MOORE: Would Your Honour take the step of ordering a transcript? Only so that other counsel can pick the matter up?
59 HIS HONOUR: I will, I will make sure the transcript is provided Mr Moore.
60 MR MOORE: Thank you, Your Honour.
61 HIS HONOUR: Just take a seat with your family and friends. Get out of the dock and sit over there, please.
62 I want one to come with me too but I am going to write up my comments now so that it does not get out of my head.
63 MR MOORE: Yes.
64 HIS HONOUR: You are excused, you are not expected to be there. You are not.
65 MR MOORE: Thank you, Your Honour.
66 MS KENNEDY: I will be there, Your Honour.
67 HIS HONOUR: He has to come back with a report from Cummins.
68 MS KENNEDY: Yes, Your Honour.
69 HIS HONOUR: Can you ask Cummins - I do not know whether he is qualified to make comment about Ristadol but I would like it from him or a medical trained individual, I know he is an arts degree man, not a medical but he might be able to make some comment about Ristadol. I want it in black and white what the known after effects are. You are excused Ms Kennedy.
70 MS KENNEDY: Thank you, Your Honour.
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