Director of Public Prosecutions v Rowley

[2015] VCC 1477

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -15-00942/ CR -15-00941

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW ROWLEY
DOUGLAS BROWN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2015
CASE MAY BE CITED AS:	DPP v Rowley
MEDIUM NEUTRAL CITATION:	[2015] VCC 1477

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For Offender Rowley	Mr D. Cash
For Offender Brown	Ms M. Casey

HIS HONOUR:

1Andrew Rowley and Douglas Brown, on 9 October after a relatively short trial, you were each found guilty of various offences. You, Mr Rowley, were convicted by that jury of aggravated burglary, intentionally causing injury and recklessly causing injury.  Those crimes carry maximum penalties of 25 years, ten years and five years respectively.  You have also pleaded guilty to a breach of a CCO which had been imposed on you by me some time ago. 

2Insofar as that is concerned it is effectively breached by re-offending but I note that of the 250 hours, which was the only condition imposed by me, none of it was completed.  If there was an inability to complete it, I should have been told at the time.  But in any event, as I have indicated what I propose do with that, without going into any more detail, is simply impose a custodial sentence with a significant degree of concurrency.

3You, Mr Brown, were found guilty by the jury of aggravated burglary, intentionally causing serious injury, which carries 20 years' imprisonment as well as the intentional injury.

4

Firstly, pursuant to s.464 of the Crimes Act I make an order that you,

Mr Brown, 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 and that order is made and handed down.

5You, Mr Rowley, are 39 years of age and you, Mr Brown, are 40.  I take account that neither of you has been in gaol before.  You have now been in custody for this for about six days.  Insofar as prior matters are concerned you, Mr Brown, have nothing of real significance.  You, Mr Rowley however have been before the courts before for violence, as I understand, causing a fractured jaw to a partner.  You have also been before the courts on the matter for which I gave the CCO.  That was a matter of sexual offending and whilst it is of no real relevance to this particular matters you were placed on a Community disposition and you are no stranger to the courts.

6This is a situation where neither of you pleaded guilty and accordingly you do not get the normal benefit of pleading guilty either in a utilitarian way or by the exercise of remorse.  There is no evidence before me that I am prepared to accept that either of you has any remorse and indeed there seems to be a sense of self-justification about the way the whole thing has been put.  The references on your behalf, Mr Brown, refer to remorse but it is difficult to glean that from the way all this has panned out and been conducted. 

7

The Crown case, as was found by the jury was this and again I am not going to go into minute detail.  On 12 January 2015 in the early hours of the morning the pair of you went into a rural property at Waratah Road, Fish Creek.  That house was at that time being rented by a Rodney Hodkinson, who was then 52 years old and his son, James Hodkinson, who was then 28 years old. 

Mr Hodkinson was asleep in a front room and James was asleep in a rear room of the house.

8You gained entry to the house, Mr Brown, it doesn't matter really how but in my view it would have been through a window.  Whether it was the one referred to by Mr Rodney Hodkinson or not, I do not need to decide.  Your first appearance was in his room beside him where you began to assault him with a didgeridoo.  He was struck to the head, body and legs. 

9

The two of you obviously went there together and left together.  You have both been convicted of aggravated burglary with the intention to assault and being aware or reckless as to the presence of a person present.  In the sense of that criminality I see no need to distinguish between you.  Ultimately you,

Mr Rowley, were let in through the back door of the house in all probably by James Hodkinson under threat from Mr Brown but I am sentencing on the basis of an agreement for you to enter. It is clear from the material, in my view, that one of you was at the front and one of you was at the back and you attended with the intention of assaulting. 

10There is no evidence before me that you attended armed.  The evidence before me is that the - or it was before the jury, that the didgeridoo was obtained from within the house.

11

In any event James Hodkinson woke up hearing voices.  He said, at various stages, out the front and out the back and he also heard knocking, he said, at the windows at the front.  He went to his father's room where he observed you, Mr Brown, assaulting his father in the same way that his father described.  That is, being belted with a didgeridoo.  There is some confusion as to exactly what happened next but in any event he shouted or whatever at you,

Mr Brown.  You then were striking at him with the didgeridoo.  He raised his left arm to defend himself and that arm was struck.  It was fractured.

12Each of the victims said that that particular assault, and I accept that that was the blow that fractured his arm, took place towards the doorway near the fridge in the kitchen. 

13The assault continued.  You, Mr Brown, assaulted Rodney Hodkinson whilst he was under the doona and whilst he was on top of it.  Welts described by a witness at a subsequent time fit that scenario, in my view, perfectly and it was never satisfactory answered.  Mr Hodkinson afterwards said that he was in pain, that he had difficulty walking and that he did not go to work for some time.  You, Mr Brown, have been convicted of intentionally causing injury to him and you, Mr Rowley, of recklessly causing injury to him.

14James Hodkinson eventually ran out the back of the house and went to an adjoining property in his underwear.  He awoke the occupants there asking for help.  He told them that he had been in an assault in the house and kept asking "Why would we be assaulted?"  He said that to them that he had been assaulted with a trumpet.  Mr Hodkinson later that morning said he had been assaulted by a didgeridoo and I have no doubt, not that it matters particularly in terms of the sentencing in this case that young James Hodkinson, who clearly had some form of learning difficulty and being an English migrant albeit on an expired visa, was endeavouring to describe a didgeridoo.

15He was taken to hospital, that is James Hodkinson, with a fractured arm and other serious injuries.  He was taken then from the Foster Hospital to Latrobe Hospital where he was operated on and was subsequently operated on again.  It was obviously a serious fracture to the ulna bone in his left forearm.  There were bruises and abrasions to various parts of his body.  There was suspected, though it proved inconclusive, as I understand it, that there may have been a brain bleed and there was a suspected broken nose. 

16As I understand it neither of those actually proved to be the case.  However he was a patently seriously injured young man and when asked here what the sequela of all this had been, he became distressed when describing the pain and the lack of sleep that he still feels over that arm approaching ten months later.

17Rodney Hodkinson had the bruises and pain to his legs as well as other various injuries to his body and one obvious one to his eye. 

18When you were ultimately admitted to the houses I find - and no doubt the jury found also, Mr Rowley, you then appeared to have assaulted, or endeavoured to assault, James Hodkinson. That simply supports the Crown case that it was your intention to assault and your understanding that Mr Brown would assault upon entering the building.  I do not think I need to go into any more detail of the actual jury finding.  I simply say this, that I found both the Hodkinsons relatively accurate and, indeed, compelling witnesses.

19I have before me a victim impact statement from each.  Rodney Hodkinson says that after the attack he could not walk on his left leg or see out of his left eye and had to depend on friends to care for him for the first couple of weeks.  Then another friend for another week and another friend for a month.  He said that during that time he found it hard to sleep at night with anxiety.  He was constantly worried and on edge, had an alarm fronted to the front gate so he would be aware of anyone coming.

20After several weeks off work due to his injuries and not getting paid he was, he said, financially ruined.  He said it took him months to come to grips with the assault and he still has trouble sleeping and relaxing.

21His son, James, who as I said was 28, says

"After the attack I was taken to the hospital with a broken arm and I thought I had fluid on the brain.  I had two operations because I had a plate put in my arm and then my arm and hand became swollen.  So the second operation was to release the swelling.

I was in hospital for about two weeks and then stayed with a friend.  I could not eat or sleep properly because of the trauma and pain.  I was constantly on medication and would see a counsellor to get me through the hard time I was having.

I struggle with things mentally and have constant pain in my arm, which I still wear with a sling.  I'm still on medication to help me sleep and relax.  I always keep the doors and windows locked because the fear is constantly with me".

22That was the damage to each of those persons in what can only be described as a savage attack.

23Insofar as remorse for those consequences is concerned you have both run a trial where each complainant has been called a perjurer and each victim has been told, or had it put to them, that they have conspired to commit perjury.  As I said, evidence of remorse is simply non-existent.  Those matters do not aggravate a trial but they certainly are a very different circumstances to where one pleads guilty in a situation like this and shows at least some degree of contrition.

24The offending is, in my view, very serious.  There are levels of aggravated burglary and, in my view, this is the sort of aggravated burglary that decisions such as Hogarth or whatever is standing at the present time, were really directed. 

25It calls for the application of general deterrence.  It is a true home invasion where two men who were asleep had their home invaded by a person who, at least, subsequently wields a weapon and basically flogs them.  Specific deterrence, because neither of you seem to have any comprehension as to the consequences or remorse for the consequences of what you did and brought about.  Obviously there must be denunciation and there must be appropriate and just punishment.

26The next question so far as that is concerned was the motive for all this.  Matters have been put that there was simply an attendance at the house to have some sort of discussion about an allegation against the complainant's son.  Neither of you, on what I am told, had been drinking.

27The situation with you, Mr Rowley, is that your counsel put to me that that was some sort of motive.  You previously, in talking to a witness called Phillip Jones, had told him, or displayed animus towards James Hodkinson and had told him, that witness, that you were going to "belt the shit out of James".  As was put by the prosecutor that is exactly what occurred.

28

You described him as being a "piece of shit" that you said afterwards that they both had deserved "what they got".  You have also indicated, I accept, to

Mr Jones that the purpose of - future intent insofar as James was concerned was because he had stolen money from you.

29In your situation, Mr Brown, it was put that that the allegation was the reason for attending.  As I indicated to your counsel I was going to do I have now been through your record of interview in some detail as to all this.  There is a patent animus on your part, Mr Rowley, towards certainly James.  You, Mr Brown, during the course of your record of interview firstly, as I see it, endeavoured to create an alibi.  You then referred to the animus that, so far as James and Rodney were concerned, of staying without paying any rent.  You were clearly aware of the allegations about money being taken and the exact amount of it, in fact, from your co-accused's wallet. 

30You were clearly aware of allegations about a battery charger being stolen which, in my view, corroborates what was said by Rodney Hodkinson during the trial that you were going on, about a battery charger.

31You, in that record of interview, effectively accused each of them of having taken "stuff".  You refer to the fact it was your understanding that Rob was going to give you a "smack on the mouth".  You then talked about the barbeque.  When you talk about going there from the barbeque the police then talk to you about that they could understand somebody going to "quilt", I think was the exact word used, James over such an allegation and you readily agreed with all those propositions.

32You, at one stage, despite the way this trial was run, told the police that in that record of interview that the two of them weren't telling lies but there were two sides to it.

33

Whether these allegations against the son were true or not, I will accept in the case of each of you and in fairness to you, Mr Rowley, that you were given that information earlier that night.  It may well be that that information was the trigger to go round there.  If it was the trigger it is quite clear from your interview, Mr Brown, and from your earlier comments to witnesses,

Mr Rowley, that the gun was already loaded.  Whether this was simply an excuse or not I would not purport to make a finding.  The fact of the matter is that I have no doubt that you did not go there with any intention of discussing anything.  The intention was to inflict injury.

34In your situation, Mr Rowley, it is clear that you were aware when Mr Brown entered the premises that he was going to assault but no jury could be satisfied that you were aware that he would pick up a weapon when he got in there.

35James was the target, it would seem, in your mind and it might be said that Rodney, so far as your case was concerned, was simply collateral damage.  In my view the jury verdict shows that they have thought this through clearly and in my view, for what it is worth, got it absolutely dead right.

36It is a vigilante attack in any event.  I just want to make it very clear that it is a very serious aggravated burglary and the consequences of it were, indeed, serious.  Whatever the reason, I think in this particular situation, or combination of reasons does not make a lot of difference. 

37It was accepted, as I understand, each of the pleas on your behalf that a custodial sentence was inevitable and obviously such a custodial sentence would need to be of significant proportions.  No submission was put to me about a Community Corrections Order either as an alternative disposition or as a disposition to follow a gaol sentence. That is a proposition I would have rejected in any event because of the seriousness of the offending and an amount of time, in my view, has to be served because of all this.

38Matters were then put on your behalves as to the duration of that sentence.  In your circumstances, Mr Rowley, you are 39 and I have dealt with you before.  As I have indicated the matter that I dealt you for was for a different type of offending and it is of no great import here.  You do have the prior disposition that was given to you for breaking the jaw of a partner.

39As I was told some time ago you have two children, one aged 16 and one seven or eight.  There has been DHS involvement in the family in the past and as I am told and have no reason to dispute, the mother of the child has difficulties and the child has severe behavioural disorder.  You were essentially the carer of that child and all this may well involve DHS becoming engaged in it all again.

40There were no exceptional circumstances put to me but I do take that into account as one, one of the consequences to you of being imprisoned for a significant period of time.  I have no doubt that will make it harder but it is a matter for you to come to terms with it.  It is nobody's fault but your own.

41You were involved in a tractor accident back in March 2011 which resulted in serious injuries to your leg and back and you were hospitalised.  You do have, as I am reading from my earlier sentencing remarks, a good work ethic going back many years and at the time that I sentenced you, back in October 2014, you were working three days a week, five hours a day.  I am not sure whether I was told if that was on the basis of a medical certificate because if it was I doubt I would have given you any work hours.  But in any event I will not revisit all that.

42At that time you had stable accommodation, you had employment, responsibility for your children and I said that the prospects of your rehabilitation should be good.  They clearly were not.

43You have had difficulties with alcohol in the past I am told from the Bar table but you no longer drink.  No suggestion has been put to me that you had been drinking on this particular night and I obviously therefore sentence on the basis that you were sober.

44I have a reference from the owner of the house where you reside and references from Mr Delbridge for whom you have worked.  It is clear that over the years you have been a hard worker and there is nothing to suggest that you have been anything other, or endeavoured to be anything other, than a good father to your children.

45You, Mr Brown, are 40 years of age.  You have had obvious family support in court.  A significant number of references have been tendered on your behalf and I clearly take those into account.  Those references might refer to the word "remorse" but they do not, in my view, constitute proof of it.  Whether you have said what happened to others or not I have got no idea and it is not for me to investigate. 

46Those reference describe you as being an honest person, kind hearted person, all sorts of things like that.  None of those reference sit very easily with the savagery of the attack you imposed upon these two men that night.  However I am very conscious that you do not have significant prior convictions and I accept, from what your counsel tells me, that you have nothing subsequent. 

47You have a partner of 23 years who has been here to support you.  You have had a very chequered medical history since the early 2000's and you are now on a Disability Support pension.  I have been given the detail of that condition, which is persistent, and it would appear to have been an operation gone wrong and I accept that it is a serious condition and that you being in custody for an extended period of time will undergo that sentence with more difficulty, or harder as the expression seems to be, than a prisoner who did not have such a disability.  What effect that has had on you over the years I am not to know.

48Importantly in your situation you have a six year old child who will now be absent a father for some extended period of times.  You also in recent times on the material before me, and I accept this, taken over the care of your mother.  She has dementia and the care of her is a difficult task indeed.  You will no longer be able to do that and I take into account that that will be hard on you in the sense of your sense of responsibility.  As with Mr Rowley it was not put to me that that constituted exceptional circumstances but I do take it into account in terms of the difficulty that you will have in gaol.  I have already indicated and I have had the medical file, which I do not need to quote from, you have had a serious medical condition which continues.

49Each of you, prospects of rehabilitation, in you, Mr Rowley, I have already said it once, should have been good.  They were not.  You, Mr Brown, I have got no real idea.  The risk of each of you re-offending is problematic.  One would hope that it would not occur but again I have been through that with you once already, Mr Rowley. 

50What I am doing is giving each of you a minimum term, which is about the best I can do in terms of ongoing rehabilitation.  However the situation here is this, that despite the references, despite the distress this is clearly going to cause your families, it was all brought about by no person other than each of you.  It is serious offending and the consequences for it, for the reason is have outlined, have got to be serious and have got to be significant.

51In terms of differentiating between you, you Mr Rowley, have the priors.  You, Mr Brown, were the one who actually did it.  To endeavour to differentiate further than that would be an exercise fraught with the potential for error.  These are, as I have indicated, serious examples of aggravated burglary and the consequences to each of the victims have been far reaching.

52You, Mr Rowley, on a charge of aggravated burglary, are to be sentenced to be imprisoned for a period of 42 months.  On the charge of intentionally causing injury, 15 months.  On the charge of recklessly causing injury, six months.  The CCO is set aside and in lieu thereof you are sentenced to be imprisoned for a period of nine months.

53I direct that five months of the sentence imposed on the intentional injury, three months of the sentence imposed on the reckless injury and three months of the sentence re-imposed on what was formally the CCO be served cumulatively and upon the sentence imposed on aggravated burglary.  That gives you an effective head sentence of four years and five months.  I direct that you serve a minimum term of three years before becoming eligible for parole and direct that six days be reckoned as having been served under this sentence.

54You, Mr Brown, because I do not see any reason to distinguish between you as to this point, on the charge of aggravated burglary, 42 months.  On the charge of intentionally causing serious injury, a very serious example of it, 40 months.  On the reckless injury, 15 months.

55I direct that 15 months of the sentence imposed on the serious injury and six months of sentence imposed on the reckless injury be served cumulatively upon each other and upon the sentence imposed on the aggravated burglary.  That comes to an effective head sentence of five years and three months and I direct that you serve a minimum term of three years and three months before becoming eligible for parole.  I direct that six days be reckoned as having been served under this sentence.  Are there any other orders I have to make?

56MS CASEY:  Your Honour referred to reckless injury for Mr Brown it's ‑ ‑ ‑ 

57HIS HONOUR:  Sorry, it's the word - what I'm looking at is the word "rod".  I've misinterpreted the word "rod".  Write intentional injury.

58MS CASEY:  Your Honour, can I just confirm my - when I heard reckless I missed the sentence on that.

59HER HONOUR:  Fifteen months.

60MS CASEY:  Thank you and the cumulation on the intentionally cause serious ‑ ‑ ‑ 

61HIS HONOUR:  Six.  I’m sorry that's the word "rod" reads as reckless as I've written it.  I've got "rod" in - yes.

62MS CASEY:  So the cumulation on the intentional to cause serious was ?

63HIS HONOUR:  Fifteen.

64

MS CASEY:  Thank you and that's six months on the

intentional ‑ ‑ ‑ 

65HIS HONOUR:  Yes and that gives you, in effect, that gives you five, three with three, three on the bottom.

66MS CASEY:  Yes thank you.

67HER HONOUR:  All right take them out.  All right I will stand down and come back in a few minutes.

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