R v Bohun

[2019] NSWDC 807

District Court

New South Wales

Medium Neutral Citation:	R v Bohun [2019] NSWDC 807
Hearing dates:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of six years imprisonment. Non parole period of three years and six months.
Catchwords:	SENTENCING - Multiple offences – crime spree -aggravated steal from a person - aggravated break and enter and commit assault occasioning actual bodily harm - possess prohibited weapon - Drive manner dangerous occasioning grievous bodily harm - assault occasioning actual bodily harm - contravene apprehended violence order - take and dive conveyance – assault.   SENTENCING - Relevant factors on sentence – erratic behaviour – unprovoked violence- multiple victims- offences while on conditional liberty- breach of domestic violence order- series of offences – multiple victims – impact on victims – offender’s intoxication – need for rehabilitation.
Legislation Cited:	Crimes Act 1900 Weapons Prohibition Act 1998
Cases Cited:	Mill v The Queen (1988) 166 CLR 59 Ponfield (1999) 48 NSWLR 327 R v Dunn (2004) 144 A Crim R 180 R v Errington (2005) 157 A Crim R 553 Whyte (2002) 55 NSWLR 252 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Adam David Bohun (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Z Kahn (for the offender)   Solicitors: Mr T McGeachy (for the offender) Mr A Tonks, for the Director of Public Prosecutions
File Number(s):	2018/00276064; 2018/00280312; 2018/00280325

Judgment

1. Adam Bohun was born in June 1989. He stands for sentence today for ten offences; all of them so serious that only full‑time custodial penalties could properly meet the purposes of sentencing and adequately punish him. He offended against a number of people in the community. The offences occurred over a relatively short period of time but their impact will be felt for many, many years to come. That impact will also be felt by Bohun and his family.

2. This is not the first time Bohun has been before a court for sentence but it is certainly the most serious episode. He was on a bond and a suspended sentence at the time he committed this offence. He must serve a period of custody referable to that earlier suspended sentence because he made a promise to the Court, and I presume to himself as well, that he would not reoffend. He broke those promises.

3. I will, in accordance with the suggestion made by the defence, commence this sentence on 26 January 2019. That commencement date of itself provides a rationale for a finding of special circumstances, to which I will later return. His record, which includes acts of violence and extends outside of New South Wales, does not entitle him to the leniency often afforded to first offenders.

4. He has not yet reached the stage where he must be detained, so far as the objective circumstances of his offending allow, to protect the community. But unless he changes his attitude to his drug use and to the community in general, and women in particular, his prospects will be bleak.

5. There are signs that he may, with the help of friends and family and appropriate intervention change his life. He will need help both while in custody and when under supervision in the community, if he is be a productive member of the community. A lot of hard work is going to have to be put in before that occurs.

AGREED FACTS

6. Any sentencing exercise must commence with an outline of what was done and an assessment the seriousness of what was done. On the afternoon of 5 September 2018, Bohun was walking in Denhams Beach, south of the Batemans Bay area. He flagged down a friend and asked for a lift because he wanted to speak to his then girlfriend, Ms Smit. The witness drove him to Batehaven where Ms Smit was picked up. They then drove away.

7. An argument occurred between Ms Smit and the offender. The vehicle stopped. Ms Smit got out. The offender ran after her and pushed her to the ground. Ms Smit got up. She was pushed down a set of stairs. She was then punched a number of times to the back, rib, and head. So furious was the assault that a number of bystanders not only noticed it but intervened to help Ms Smit.

8. The offender walked away but he returned and ripped Ms Smit's handbag from her hands. He then took it back to the car and the witness who had driven him there drove him away in order to protect Ms Smit from him. The offender's behaviour then became even more erratic. He was crying and saying, "I'm sorry, I'm sorry". The witness who was driving the car said, "You're fucked, you're fucked". She told the offender to get out of her vehicle. He did so, leaving the handbag behind.

9. When he attacked Ms Smit, he not only breached the implicit terms of their relationship but he breached an Apprehended Violence Order, which had been made on 16 April 2018 for Ms Smit's protection. Because of the assault, Ms Smit suffered bruising, swelling to her face, lips, head, shoulders, ribs, back, and arms. The witnesses told police they saw “good solid hits” inflicted on her.

10. Having left the witness's car, Bohun went to a property in Surf Beach occupied by Mr Percy. Mr Percy knows the offender but is not a friend of his or a close associate. At about 5:20pm that day, the offender forced entry to Percy's unit by breaking and removing the closed flyscreen sliding door. Mr Percy was inside watching television. The first he was aware of the offender's presence was when Bohun demanded his car keys.

11. Mr Percy said he did not know where they were. Bohun punched Mr Percy to the head causing a large laceration, which bled profusely. Mr Percy went to the ground and the offender stomped on his right hand, causing swelling and bruising. He then picked up a set of car keys. An indication of the offender's mental state at the time was that he dropped his own bum bag containing his identification in the kitchen.

12. Mr Percy's mother, Ms Green, who lives upstairs, heard what was occurring. She came down to see her son bleeding. She saw the offender standing over him with his fist raised, demanding the car keys. Ms Green screamed at Bohun to get out of her house. She said that she had called the police. The offender turned and punched her to the head, near her eye.

13. Bohun then left the unit with Mr Percy’s car keys. He hopped into the car and started it. Ms Green followed him and opened the passenger door, trying to prevent the theft by pulling on the handbrake. Bohun pushed Ms Green out of the car and she fell to the ground. He then reversed the vehicle harshly, spinning the tyres on the grass.

14. The car ran over Ms Green's lower limbs as Bohun reversed away. At the same time, the car collided with the rear offside of Ms Green's car, which was parked in the driveway. He then drove along Surf Beach in such an erratic manner that he collided heavily with the gutter at the nearby intersection.

15. Bohun drove the vehicle, which by then had significant wheel damage, in such a manner that he collided with another gutter and was not able to drive it any further because of the damage. As a result of this collision the offender's head collided with the windscreen, damaging it and him and leaving trace DNA and hairs in the glass.

16. The incident attracted a number of people and Triple‑0 was called. One witness to the crash was Mr Fisher who went to check on the offender after the crash. Mr Fisher was swung at by Mr Bohun, who then ran away: The signed statement of facts which differs slightly from that originally tendered as exhibit A will now be exhibit D. I will sentence on the basis of the signed version. Although Mr Fisher was swung at and there was no connection with him it is still an assault.

17. When police attended the scene, they found in the vehicle a pair of knuckledusters, a prohibited weapon and the offender's mobile phone. DNA belonging to the offender and Mr Percy were recovered from the knuckledusters.

18. Ms Green was taken to Canberra Hospital, where she received extensive treatment, to which I will later refer. She also suffered swelling, redness to her eye where she was punched by the offender.

19. The offender had been disqualified from driving at the time. He was arrested later in the Australian Capital Territory. He was taken to Canberra Hospital by Australian Federal Police for a mental health assessment. He has been in custody since 9 September 2018.

MAXIMUM PENALTIES

20. Aggravated steal from a person, s 95(1) CrimesAct 1900, carries a maximum penalty of 20 years' imprisonment. Aggravated break and enter and commit assault occasioning actual bodily harm, s 112(2) of the Crimes Act, carries a maximum penalty of 20 years and for an offence which falls in the middle of the range taking into account only objective factors, parliament has said that there is a standard non‑parole period of five years. Possess prohibited weapon, s 7(1) Weapons Prohibition Act 1998, carries a maximum penalty of 14 years and a standard non‑parole period of five years. Drive manner dangerous occasioning grievous bodily harm carries a maximum penalty of seven years. Section 52A(3)(c) carries a maximum penalty of seven years' imprisonment.

21. Assault occasioning actual bodily harm, s 59(1) Crimes Act, carries a maximum penalty of five years' imprisonment. Matters dealt with on a 166 certificate have the maximum penalties fixed in the Crimes Act or the relevant legislation. But when dealing with those matters the sentence has a cap; the jurisdictional limit of the Local Court, of two years and a maximum of three years for accumulated matters.

VICTIM IMPACT

22. I have received and considered the Victim Impact Statement from Ms Green. The absence of Victim Impact Statements from others involved does not mitigate the sentence. In her statement, Ms Green speaks of the stress and sadness caused by both the physical and emotional pain of what was done to her this day.

23. She speaks of how a nightmare turned into reality; first experiencing her son being assaulted, and then being assaulted herself and being seriously injured when the car reversed over her. She says that she will never be the same, and as a direct result of both the physical and psychological injuries that were inflicted on her. She had to undergo significant surgery because of complications arising directly out of the injuries which she suffered.

24. She is now more reserved. She no longer goes out. She is hypervigilant. She has lost her sense of independence. The incident has had a significant impact on her capacity to drive and to go out in public. She now requires assistance and struggles with many aspects of her life. It has impacted on her capacity and willingness to socialise, and this in turn, she says, has an impact on everything in her life. She is, however, a determined person who, having survived this incident, does not intend to allow it to preoccupy the rest of her life.

25. The photographs shown indicate the severity of the consequences of this particular crime. The additional report of Dr Kar, exhibit B, sets out in more specific terms the nature of the injury: chronic right lower limb pain, profound depression, severe disfigurement, and marked limitation on mobility and activities of daily life.

26. The consequences for individuals in the community for offences is one of the reasons why courts impose penalties. Other reasons to punish a person include; to extract retributive justice, to, so far as the law can, vindicate the dignity of those who were directly hurt and also to signal the community's disapproval of what occurred.

27. Careful attention must be paid to the maximum penalties and, where applicable, standard non‑parole periods. Each provides a sentencing measure. A standard non‑parole period has to be given some content though it is not necessary that a judge compare and contrast the actual offence with some abstract one.

28. I must assess the seriousness of each offence by identifying relevant factors, discussing their significance, and setting out the basis for any conclusion and value judgments I make. I am required to set out what the appropriate sentence for each offence should be. That penalty takes into account all the circumstances, objective and subjective, and the various and often contradictory purposes of punishment. I must then consider questions of accumulation and concurrence and totality.

29. In matter such as this, it is important that the Court show any a punishment is referable in a real sense to the serious and separate criminal conduct against each of the victims. There is a need here, so far as the offences against Ms Green are concerned, to accumulate some indicative sentences for offences referable to that single victim. Although part of the course of conduct, there needs to be proper acknowledgement of all the harms done. Such was the nature and extent of the offending against some victims that although there was single episode, one sentence could not reflect the criminality of them all.

ASSESSING SERIOUSNESS - MULTIPLE OFFENCES

30. The overall sentence must be just and appropriate to all of offending behaviour: Mill v The Queen (1988) 166 CLR 59. This totality principle works to recognise that sometimes simply adding up all the separate appropriate punishments can result in an overall sentence that is out of proportion to the total criminality and result in an unduly harsh or crushing penalty. The severity of a sentence is not linear. A year in gaol is a harsh punishment. Two years in gaol is even harsher. Three years in gaol, harsher still. The longer someone spends in custody, the greater its punitive aspect. Courts should, so far as possible, seek to impose adequate punishment and the minimum time in custody should reflect the various purposes of sentencing.

31. At the same time the court has to consider other consequences of imposing punishment. If a sentence has the effect of breaking prosocial bonds with the community and discouraging efforts made towards rehabilitation, some offenders can give up efforts that they have made to date. That in turn leads to them breaching their parole, committing further offences, and a pattern of criminal behaviour that leads ultimately to more community harm.

32. Returning now to each of the offences. The assault on Ms Smit was in breach of an apprehended violence order. It was a furious assault followed by nasty and vindictive stealing of her property. To breach an AVO shows a complete disregard for court orders and the person with whom the person has or had a relationship. Apart from the harm it causes the individual person who came to the courts for protection, it has the practical effect of undermining the authority of the Court. When orders are simply ignored, the power of the Court is diminished, and that in turn reduces the courts' capacity to protect vulnerable individuals. To deliberately disobey a court order is serious and ordinarily results in some independent separate punishment.

33. That Ms Smit and the offender had been in a domestic relationship does not in any way mitigate the offending behaviour. It appears that Ms Smit was personally targeted. Given the breach matters, it does here show that there is pattern of physical and mental violence towards Ms Smit, requiring denunciation.

34. Here, there could be no clearer example of the exercise of coercive power and control. It may be that at the time, Bohun thought what he did was justified. There could be no justification for such violence. Such behaviour poses a continued threat to victims. They never truly feel safe. Denunciation and appropriate punishment is required. In such matters, the way we do it is by locking someone up: R v Dunn (2004) 144 A Crim R 180.

35. Gaol, however, puts this offender in cells with other men who are capable of or have demonstrated misogynist violence against their partners. Gaol breaks prosocial bonds. Gaol encourages links with other criminals. Gaols are intrinsically violent environments, and unfortunately can have a crime‑producing effect rather than discouraging violent crime. Nevertheless, the vulnerable position of Ms Smit must be considered and her dignity vindicated.

36. So far as the steal from person is concerned, it appears to be a spontaneous act. The property was recovered and eventually, I presume, returned. The steal from person offence still is very much towards the bottom of the available range. It is not one to which I would apply the guideline judgment, which sometimes is referable to such crimes.

37. So far as the crime committed against Mr Percy is concerned, the critical element of the offence is the assault occasioning actual bodily harm. There was also a theft. Matters such as this are treated very seriously by the courts: see Ponfield (1999) 48 NSWLR 327. Mr Percy was in his home. We all are entitled to and expect the quiet enjoyment of our homes. A demand was made for his property. The demand was made by an irrational and very violent man.

38. I am prepared to accept that Bohun was at the time, as he says in his letter to me, exhibit 3, affected by the un-prescribed medication he had taken. That frank concession does not mitigate. In fact, it makes this offence more serious because he was behaving irrationally. Mr Percy had no idea what was going to happen to him, he was punched to the head, causing a large laceration, and stomped upon.

39. While the property taken was of low value, it was then later used to take the car, which was of high value. For most of us, particularly those who are not lucky enough to own a home, a car is the most important and most valuable thing that we do own. To take and drive a car in such circumstances and then leave the car damaged can have both a financial and psychological impact.

40. The degree of criminality involved in the break offence should not be underrated. It was truly a home invasion. Offences such as this cause grave disquiet. The community has a rightful expectation that judges will act responsibility and impose meaningful penalties for such offences.

41. Ms Green lives above her son's residence, to a large extent, his property was her own. She entered the unit to see her son being assaulted and, when she sought to stop what was occurring, received a punch to her eye. It would have been obvious even to someone as drug‑affected as the offender that she is an older woman deserving of respect, not violence. It was a nasty response to her justified outrage at seeing her son being assaulted. The injury she suffered as a result of this assault was overtaken by what occurred next.

42. Bohun’s driving was reckless in the extreme. Ms Green was trying to prevent a crime and further crimes. For her trouble, she was knocked to the ground and then reversed over. The real substance of this offence is not just the dangerous and reckless nature of the driving; it is the injury that was caused. I have already detailed how serious those injuries were.

43. The offender was intoxicated by some substance. In such cases, there is a particular need for sentences to adequately send a message to him and others that you can under no circumstances hop behind the wheel of a car while affected by illicit drugs. I have been referred to the decision of Whyte (2002) 55 NSWLR 252, as one check or indicator. A guideline is not a tramline and should not be used impermissibly to confine the exercise of the sentencing discretion. It is a reference point: R v Errington (2005) 157 A Crim R 553, at [40].

44. Here, the offender was old enough and mature enough to know the impact of drugs upon him and what he was doing. I have to have regard to the extent and nature of the injuries. Ms Green was put at risk and others were put at risk by the reckless driving. I cannot assess the degree of his intoxication but I have to consider the manner of driving and its motivation; being the theft of the motor vehicle, where an older woman was trying to prevent a crime occurring.

45. All of these factors indicate the offence is where the moral culpability of the offender is high. As Chief Justice Spigelman noted in Whyte, "the combination of circumstances are such that it can be said the offender has abandoned responsibility for his own conduct", at [228].

30. Mr Fisher saw someone involved in a car accident. He went to help and had a punch thrown at him.

31. Further, the offender was out and about that day with a weapon. There is no evidence that the weapon was used, but his possession of it, given his history of violent assaults, requires appropriate punishment. This particular offence has a standard non‑parole period. The weapon was not used, but it was a nasty weapon. This matter falls at the bottom of the range and the standard non‑parole period and the maximum penalty are of little weight when I come to consider that particular offence.

32. The drive whilst disqualified offence is another example of this offender paying no regard to the orders of a court.

33. Punishment here is required for a number of reasons. One of them is retribution, that is, the notion that reflects the community's expectation the offender will suffer punishment and that particular offences will merit severe punishment. A proper sentence marks the Court's view of the seriousness of the crime and should let wrongdoers know what will fall upon them if they commit similar crimes. Retribution is a term often used interchangeably with deterrence.

SUBJECTIVE MATTERS

50. In his letter to me, the offender, in addition to offering his apology, spoke of, as he spoke to those who have assessed him, of his battle with use of illicit drugs, particularly methylamphetamine. He accepts that to have committed an offence while suffering from the impact of drugs cannot excuse his crime. That is the law. The fact of his addiction and its consequences, how it came about, what is to be done about it, can be taken into account as a relevant factor.

51. His drug addiction allows me to understand why someone who had the upbringing and the support he had from his family did what he did and continued to do it. It allows me to understand, as best as a judge can, his state of mind and capacity to exercise sound judgment on this date in September. It also is relevant to provide me with some assistance as to how the sentence should be structured in order to protect the community once he is released.

52. I am indebted as always to Dr Martin for his fair and comprehensive reports, dated 25 July 2019, with a supplementary report dated 24 October 2019. He speaks of the expressions of shame and remorse offered to him by Mr Bohun. He notes that while he is in custody and drug‑free, Bohun is future‑focused with has solid plans, including the completion of his apprenticeship. He is open to appropriate treatment with antidepressants and drug and alcohol programs.

53. Bohun, has while in custody, completed the EQUIPS Domestic Abuse Program and the EQUIPS Foundation Program. He will have time and the opportunity to engage in other programs which will, it is hoped, equip for normal community life on his release. Dr Martin’s report notes that he has spent time in Chisholm Ross Hospital, where possibilities of borderline personality disorder and bipolar disorder were noted.

54. But in a fair report, Dr Martin indicates that there are no symptoms of serious mental illness while this offender lives a healthy lifestyle drug‑free. There is nothing in Bohun’s background and family history which would indicate that if he comes to grips with his drug problem he cannot lead a normal life in the community. There is no indication of any psychotic phenomena or no cognitive deficits.

55. There are problems with mood instability and a lack of coping skills. It is abundantly clear to me, and Dr Martin makes it even more clear, that Bohun needs extensive drug and alcohol assistance to cope with what Dr Martin refers to as a diagnosis of substance use disorder. In custody and on release, he will need to engage with a psychologist.

56. The Sentencing Assessment Report notes his family history and his acceptance of responsibility: exhibit 3. It notes he is disgusted and shamed for his behaviour. It notes that on release, a supervision plan can be put in place. His former employer, Mr Lloyd and friend Mr O'Sullivan speak of their concern and shock at these offences and they do not match the man that they once knew.

57. His parents have sent a comprehensive letter to me. I note the family history and the battles their son has had with his extensive drug addiction. They describe the harm that addiction has caused them and their family. It would appear that at the relevant time, rather than take up rehabilitation, the drug was winning. It appears, from the offender’s letter and the family history, that if drug‑free the offender can, with assistance, turn his life around.

58. Mr Tonks, solicitor for the Director submitted, and Mr Khan, counsel for the offender, accepted, that Bohun’s prognosis is guarded as past behaviour is a good indication of future behaviour. Nevertheless, the effort has to be made. I am indebted to Mr Tonks and Mr Khan for their comprehensive submissions. I hope that this judgment does justice to them.

59. There will be a finding of special circumstances here. There will be an aggregate sentence. There is a need to fix the minimum term he must spend in custody, having regard to all the purposes of sentencing. But frankly, the longer and more actively Bohun is supervised in the community, the less likelihood it is that he will reoffend and reoffend in a serious manner. As academic studies of parole have indicated; this is the best possible outcome, and one that parole is designed to meet.

60. Bohun’s release to parole will be subject to a decision by the State Parole Authority that it is safe and in the community interest that he be released. He will have to earn his release by being of good behaviour and engaging in programs. To date, he has done so.

61. Each indicated sentence will be reduced by 25% to take into account the utilitarian value of his plea of guilty. I will take care that the process of accumulation does not undermine that benefit.

62. While not on oath, his letter to me indicates a degree of remorse and there is practical remorse in his acceptance of responsibility for his crimes. I do not expect his victims to accept his apology. Nevertheless, recognition of harm done is a step on the road to rehabilitation.

63. The letter not on oath but I note it is rare indeed for a judge to be able to assess such expressions of remorse whether on oath or not. It is notorious that even in the witness box some offenders cry crocodile tears with no intention of ever changing. Others, by practical demonstrations of efforts towards rehabilitation, justify a degree of trust. I hope Bohun falls into that latter category. I will give him some benefit for his expressions of remorse, which appear genuine.

64. While I must put some focus on subjective matters, I have to return to what was done. As I said earlier, courts have an obligation to vindicate the dignity of each victim of violence to express the community's disapproval of that offending, and by removing the offender from the community for a period, attempt to protect the community from him. But Bohun must be released to the community. It would be tragic if he came out of gaol more damaged and dangerous than when he went in

SYNTHESIS

65. To synthesise: We have a young man with potential mood problems who was unable to cope with and succumbed to a serious addiction to illicit drugs. His drug use ruined all his earlier prospects as a young man and almost ruined his relationship with his family. He committed a series of offences while subject to promises to be of good behaviour and an Apprehended Violence Order. They had serious consequences, in one instance, devastating.

66. The question has to be asked: can he be restored to normal community life or do we give up on him? As I noted, gaol can break prosocial bonds and cause prisoners to lose hope. I will take those matters into account. But against that is the need for adequate punishment for multiple offences against multiple victims. The events were only a short duration but the impact of these offences on the individual victims and the community may be longlasting.

67. Not every matter can be fitted into specific categories. Human behaviour and characteristics are too varied. A judge has to synthesise all these competing features and ultimately translate the complexity of the human condition and human behaviour to the mathematics of units of punishment: Weininger v The Queen (2003) 212 CLR 629. The purposes of sentencing require I take all those matters into account, formulate the individual sentences, and then the total sentence. I will attempt to do so.

Orders

68. In relation to the aggravated steal from person, from Ms Smit, I indicate a sentence of nine months' imprisonment.

69. In relation to the assault occasioning actual bodily harm on Ms Smit, I indicate a sentence of one year and ten months' imprisonment.

70. In relation to the aggravated break, enter, and commit serious offence, I indicate a sentence of three years and four months, non‑parole period two years.

71. In relation to the assault occasioning actual bodily harm on Ms Green, I indicate a sentence of nine months' imprisonment.

72. In relation to the dangerous drive, I indicate a sentence of three years' imprisonment with a disqualification from driving of two years.

73. In relation to the assault on Mr Fisher, I indicate a sentence of three months' imprisonment. In relation to the possession of prohibited weapon, I indicate a sentence of four months' imprisonment.

74. In relation to the drive while disqualified, I indicate a sentence of three months' imprisonment and a driving disqualification of one year.

75. In relation to the take and drive conveyance, I indicate a sentence of one year and one month of imprisonment.

76. In relation to the contravene apprehended violence order, I indicate a sentence of three months.

77. There will be an aggregate sentence in this matter of six years imprisonment, taking into account my finding of special circumstances. There will be a non‑parole period of three years and six months. The sentence will commence on 26 January 2019. There will be a non‑parole period of three years and six months' imprisonment. The offender will be eligible for consideration for release to parole on 25 July 2022, a parole period of six months. The total sentence expires 25 January 2025.

78. The other matters on the s 166 certificate are noted withdrawn and dismissed.

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Decision last updated: 18 February 2020