R v Bouras
[2012] VSC 77
•15 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0109
| THE QUEEN |
| v |
| NICHOLAS BOURAS |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2011 | |
DATE OF JUDGMENT: | 15 March 2012 | |
CASE MAY BE CITED AS: | R v Bouras | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 77 | |
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CRIMINAL LAW – Sentencing – Stalking, possession of unregistered firearm whilst prohibited, possession of drugs of dependence, possession of cartridge ammunition – Stalking in breach of family violence intervention order – Plea of guilty – Prior convictions – Attention deficit disorder – Drug abuse – Prospects of rehabilitation – Sentenced to 4 years and 3 months’ imprisonment with non-parole period of 3 years for stalking and firearm possession – Fined total of $1,000 for three remaining charges
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane | Solicitor for Public Prosecutions |
| For the Accused | Mr P Morrissey SC | Robert Stary Lawyers |
HER HONOUR:
Nicholas Bouras, you have pleaded guilty to stalking, possessing an unregistered firearm whilst a prohibited person, two charges of possessing a drug of dependence, and possessing cartridge ammunition without a licence.
The primary victim of your stalking was your ex-wife, Mariadela Longano. You and Ms Longano have known each other for more than 11 years. You married in January 2005 and separated in December 2008. The two of you have a daughter, who is now 6 years old and living with Ms Longano.
Your marital breakdown was acrimonious, and you did not cope well with it. Because of your inappropriate behaviour, a family violence intervention order was made on 14 January 2010, at the Broadmeadows Magistrates' Court. Among other things, the order prohibits you from following or keeping under surveillance Ms Longano or your daughter, or contacting or communicating with Ms Longano by phone, text message or email, other than to arrange contact with your daughter. The order will expire on 14 January 2013.
Between 17 and 25 October 2010, you called Ms Longano four times, and sent her 19 text messages, at all hours of the day and night. Your text messages were abusive towards Ms Longano and her family, and frequently menacing in tone. At times, the text messages described Ms Longano’s whereabouts or activities, in such a way as to indicate that you were watching her. Your stalking was not confined to calls and text messages; for example, on one occasion you rode past Ms Longano on your bike as she was getting petrol, and on another occasion she saw you near her home. Fearing that you were following her and watching her from the street outside her home, Ms Longano contacted police several times during this period. That led to you sending further texts, abusing her for contacting the police. This conduct all occurred in breach of the intervention order.
In pleading guilty to the count of stalking, you have accepted that you engaged in this conduct with the intention of causing physical or mental harm to Ms Longano, or arousing apprehension or fear in her for her own safety or that of her family.
As a result of the escalating breaches of the intervention order, and the increasingly aggressive and threatening nature of your communications to Ms Longano, the police decided to arrest you.
At around 11:30pm on 24 October 2010, police placed a cordon around your home in Brunswick West. Around midnight, you were seen leaving the house. As you walked down the driveway, police identified themselves and called out to you to show your hands. You responded by running back up the driveway, away from the police, then crouched down behind a black vehicle and threw an object over the fence into a neighbouring yard.
When police arrested you, you admitted that you had thrown over the fence a revolver loaded with 6 bullets. The firearm was retrieved from next door, and found to be a double action revolver. You did not hold a firearms licence under the Firearms Act 1996, and no firearms were registered to your name. By virtue of the intervention order, you fall within the definition of a “prohibited person” for the purposes of the Firearms Act 1996.
You were also found to have a plastic bag containing about 16 bullets in your pocket, upon your arrest.
A warrant was executed at your home shortly after your arrest, in the early hours of 25 October 2010, at which time the police seized a small quantity of cannabis and a small quantity of amphetamine.
A further search warrant was executed at your home on 3 November 2010, at which time a red coloured shotgun casing was located, concealed within a cavity in the fireplace of your lounge room, along with a black handgun pouch.
When interviewed by police after your arrest, you provided some answers to questions, but otherwise either denied the allegations, or gave “no comment” answers.
You denied sending Ms Longano the texts, or otherwise breaching the intervention order. When asked about your most recent contact with Ms Longano, you said you could not remember. You also said: “Well, she's not letting me see my kid, mate. And I – I'm just getting that frustrated that I've started, like, taking drugs and drinking and fucking, I – I'm just over it, man. I'm getting sick of this.”
Asked about the revolver, you said you had found it some years ago, when digging on a job. You admitted that you had put the bullets in the gun. Asked what you were doing with the gun when the police found you, you said you weren’t sure. You also claimed not to know how the gun ended up in the neighbour’s yard.
Seriousness of the offences
The maximum penalty for each of the offences is:
Offence Maximum penalty Possess unregistered firearm whilst prohibited
(s 5(1A) Firearms Act 1996 )
15 years’ imprisonment or 1800 penalty units Stalking
(s 21A Crimes Act 1958)
10 years’ imprisonment Possess a drug of dependence (small quantity amphetamine, non-trafficable purpose)
(s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981)
1 year’s imprisonment or 30 penalty units or both Possess a drug of dependence (small quantity cannabis, non-trafficable purpose)
(s 73(1)(a) Drugs, Poisons and Controlled Substances Act 1981)
5 penalty units Possession of cartridge ammunition
(s 124(3) Firearms Act 1996)
10 penalty units
At the time of offending, a penalty unit was $119.45.
As far as the offence of stalking is concerned, the offending occurred over a period of one week until the evening of 24/25 October 2010, when the police finally intervened by arresting you, thereby preventing any further escalation of your behaviour.
Your counsel argued that, because your conduct did not also involve an act of physical violence, your stalking should not be regarded as serious. But the essence of the offence of stalking is a course of conduct that is intended to cause physical or mental harm to the victim, or of arousing apprehension or fear in the victim for their own safety or that of any other person. The psychological harm in such cases can be devastating, even without actual physical violence.
In this case, your text messages were offensive and frightening, and were intended to be so. You were indeed following Ms Longano and watching her movements, and you wanted her to be well aware of your surveillance and to be frightened by that fact. You sent many messages, over a number of days, often in the middle of the night, to a rather anxious woman, who was frequently alone in the house with a young child. You did so in knowing breach of an intervention order. You only ceased your conduct when the police stepped in and arrested you. This is a serious example of stalking, albeit that it is not in the worst category for this offence.
With respect to the offence of possessing an unregistered firearm whilst prohibited, I agree with the Crown that this is also a serious example of that type of offending. It was a handgun, for which you had no legitimate use. The weapon had been loaded by you with six bullets, and was capable of being fired. Further, you took the loaded weapon with you, when you left your house in the middle of the night.
As to what you intended to do with the gun that night, as your own counsel conceded, there is a “worrying absence” of evidence. The Crown urged me to conclude that you took the loaded gun that night, intending to go over to Ms Longano’s house and use the gun in some way (presumably, either as a threat or to cause actual harm). When interviewed by the police, you did not provide any explanation for what you were intending to do with the weapon that night. You later told your forensic psychologist, Mr David Ball, that after you had seen the police at Ms Longano’s house, you had no intention of going back to her house, and went home to dispose of the gun. I view that explanation with some suspicion. Ms Longano had called the police before, but that had not deterred you from further stalking and threatening her. Nor does it necessarily explain your behaviour that evening. But, notwithstanding my suspicions, I am not able to be satisfied beyond reasonable doubt that you took the gun intending to use it in some way in connection with Ms Longano. That means that I have not treated the fact that you took the loaded gun that night as some sort of aggravating feature. But, it also means that I have treated the offences of stalking and firearm possession as relatively separate, for the purposes of cumulation of sentence.
You have also pleaded guilty to two charges of possessing a drug of dependence. Having regard to the small amounts of drugs involved, I accept that these two offences were at the lower end of the range, and only require the imposition of fines.
As far as the charge of possession of cartridge ammunition is concerned, having regard to the number of bullets, and the fact that they were capable of being used with the firearm you were carrying at the same time, I regard the possession of the cartridge ammunition as in the middle range for that offence.
Before I consider your personal circumstances, I want to say something about the impact your actions have had on others.
Ms Longano read her victim impact statement, as well as providing psychological reports concerning the impact your actions have had on her and your daughter.
Your conduct in stalking Ms Longano caused her tremendous fear and distress, as you knew full well, and intended, that it would. She remains psychologically damaged by what you put her through, distrustful of people, and fearful and apprehensive for the future. She has felt unable to take up a promotional opportunity at work. She and your daughter have moved house and changed schools, in order to get away from you.
Your actions have also harmed your own daughter, causing her nightmares and resulting in her being counselled to help her deal with her fears. Your daughter is just 6 years old; she should be able to look to you – her father – as a source of protection, not fear.
I turn to consider your background and personal circumstances. You were born in February 1971 and are now 41 years old. At the time of the offending, you were 39.
You are the eldest of three children, of Greek parentage. You grew up around the Brunswick area. Your parents both worked whilst you were growing up, and owned their own home. Your childhood home life seems to have been unremarkable. You lived in the family home until you moved in with Ms Longano.
As an adult, you have been diagnosed as suffering from attention deficit disorder. That diagnosis helps explain some of the problems you encountered at school, such as poor concentration and impulsive actions. You first left high school in year 9, to take up an apprenticeship in cabinet making. Apparently, the job did not eventuate, and you returned to a different school, this time until year 11.
You have been in reasonably steady employment since leaving school. You worked in supermarkets, both during and after your schooling. Between 1991 and 1996, you worked in customer service at Telstra. During the early to mid 1990s, you also had occasional work as a nightclub security officer.
Since 1996, you have worked as a fencing contractor, initially for a family friend, then in your own fencing business. You ran your own business (primarily as a sole operator) for about fourteen years, until around the time of these offences.
You have a history of illicit substance abuse. You started using amphetamines when you were 26, on a recreational, weekend basis. You started using marijuana when you were 30. It seems that your illegal drug use had previously been an issue between you and Ms Longano, and with other members of your family.
In late 2009, your general practitioner referred you to a psychiatrist, Dr Peter Farnbach, as you were “very angry with lots of personal crises.” Dr Farnbach diagnosed you as suffering from attention deficit disorder.[1] He noted that you have difficulties with inattentiveness and memory, hyperactivity, mood lability, irritability, impaired stress tolerance, disorganisation, difficulty with initiating and maintaining behaviour, and impulsivity. He also found evidence of antisocial personality traits. Dr Farnbach trialled you on Ritalin, and found it resulted in much improvement over a few months: you were calmer, less fidgety and not irritable. He recommended that you remain on daily Ritalin. He also advised you not to use illicit drugs, including marijuana, while taking Ritalin. Unfortunately, you did not follow Dr Farnbach’s advice.
[1]Also known as attention deficit hyperactivity disorder.
You told Mr Ball that the current offending occurred in the context of failing to take your prescribed Ritalin, and being addicted to methylamphetamine at the time. You told him you had been introduced to methylamphetamine whilst in prison (which occurred in mid 2010) and had continued using it after your release. You told Mr Ball that methylamphetamine made you “go mental”, impaired your judgment, and fuelled your anger and frustration.
The evidence does not enable me to draw any particular conclusion as to what role your attention deficit disorder (as opposed to your personality or illegal drug usage) may have played in your offending. I accept that the disorder may have played some role in your offending, given the features of the disorder. But, in so far as any of your symptoms were active due to your failure to take your prescription medication, I give that little weight as a mitigating factor, given that you were well aware of the likely impact on your behaviour (particularly on your impulse control and anger management) if you stopped taking Ritalin. Similarly, in so far as methylamphetamine played any role in your offending, I give it little mitigatory weight, given your knowledge of how that drug affected you.
You have a long criminal history, going back about 17 years, starting when you were 24. You have 26 prior convictions, from 9 separate appearances, as well as two matters where you were fined without a conviction being recorded.
In 1995, you were convicted of making a threat to kill; apparently this involved an impulsive, verbal confrontation with your car mechanic.
Relevantly, you also have prior convictions relating to ammunition, possession of prescribed or regulated weapons, and possession of drugs (all of which pre-dated your relationship with Ms Longano).
You had no convictions between June 2000 and November 2007, during which period you were in a relationship with Ms Longano.
In March 2010, you were convicted of unlawful assault (which I am told involved a threat of violence to Ms Longano), and contravening the intervention order taken out by Ms Longano.
Most of your convictions resulted in a fine or suspended sentence. However, you spent two months in prison in mid 2010, for driving while suspended (an offence for which you have been convicted on 4 occasions), and for breaching a previous suspended sentence.
You told Mr Ball, and I accept, that your previous offending was attributable, in part, to your inability to manage your anger and to the use of illicit substances. However, your past offending also seems to demonstrate that you have little regard for the law.
You offered to plead guilty to these particular charges prior to a committal mention on 3 February 2011, and prior to the conclusion of the contested committal in this matter on 22 August 2011.[2] I treat this as an early plea of guilty.
[2]You did not formally plead until December 2011, after the Crown dropped some other charges which had been laid against you.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Furthermore, Ms Longano and other family members have been relieved of the trauma of a trial.
The issue of remorse is not straightforward. Mr Ball assessed you as having genuine remorse and regret for your behaviour, and the harm you have caused your wife and child. He also noted that you regret the consequences for yourself, particularly having to sell your house. But, at the same time, Mr Ball did not consider that you have a great deal of insight into your offending, and noted that you disagree with a lot of what Ms Longano says in her victim impact statement.
Whilst I accept that you have some remorse, it seems that you still have some distance to go before you fully accept the wrongfulness of your actions towards your former wife.
You are currently estranged from your parents and your younger sisters. You told Mr Ball that you had stopped speaking to any members of your family just before the breakdown of your marriage to Ms Longano, and you have not spoken to them since. Apparently this estrangement arose out of conflict regarding your marijuana abuse, and the fact that your family supported Ms Longano, rather than you, when the marriage was breaking down.
However, you do have the support of some members of your extended family and friends, some of whom attended court in support of you at the plea, and two of whom have written positive character references for you.
You are of normal intelligence, and have demonstrated a capacity to engage in gainful employment and form meaningful relationships. You have reasonable prospects of rehabilitation, if you are willing and able to take your prescribed medication, and to learn to deal with your illegal drug abuse.
Even making some allowance for your attention deficit disorder, there is still a need for general and specific deterrence in this case, as well as punishment for and denunciation of your conduct.
Unfortunately, the story of somebody who refuses to accept that a relationship is over, and who harasses or stalks a former partner, is all too common. Furthermore, offenders who disregard intervention orders (a process designed by parliament to provide the protection of the law to vulnerable individuals, usually women and children, who legitimately fear for their safety) must anticipate that a stern view will be adopted by the courts.
Your response to the breakdown of your marriage was completely inappropriate. Like any member of the community, Ms Longano was entitled to terminate her marriage and get on with her life, without being harassed and threatened by you, her former husband. This was not the first time that you have behaved in a completely inappropriate manner towards Ms Longano, and your March 2010 conviction for breach of the intervention order seems to have done little to deter you from such behaviour. There is a real risk of you offending again, unless you find a positive way of dealing with your anger and hostility towards Ms Longano.
The Crown submitted that the appropriate range for each of the stalking and firearm possession offences was between 2 and 3 years’ imprisonment, that some cumulation was required, which would result in a total effective sentence of between 3 ½ and 5 years’ imprisonment. Your counsel accepted that the range suggested by the Crown would not lead the court into error, although urged that you be sentenced at the lower end of the range.
As far as the question of cumulation is concerned, as mentioned earlier, I have treated the offences of stalking and firearm possession as substantially separate, although closely related in time.
Your counsel argued that there should be a relatively lengthy period of parole, so that the Adult Parole Board can supervise your compliance with a prescription medication regime, and your counselling for drug and anger management problems. The Crown accepted that your chances of re-offending would be improved by your having a “reasonably decent period of parole”. In setting the non-parole period, I have allowed what I regard as an appropriate period for such supervision.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced as follows:
Offence Sentence/penalty Cumulation Stalking (charge 1) 2 years and 9 months’ imprisonment Base Possess unregistered firearm whilst prohibited person (charge 2) 2 years and 6 months’ imprisonment 18 months Possess cannabis (charge 3) Fine of $100 Possess amphetamine (charge 4) Fine of $500 Possess ammunition (summary offence) Fine of $400
This results in a total effective term of imprisonment for charges 1 and 2 of 4 years and 3 months’ imprisonment. I fix a period of 3 years as the period you must serve before becoming eligible for parole. For the remaining charges, this results in fines totalling $1,000.
I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you in respect of charges 1 and 2 to a total effective sentence of 5 ½ years’ imprisonment, with a minimum non-parole period of 4 years and 3 months.
Further, I declare that the period to be reckoned as already served under this sentence is 507 days, up to today. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
I will also make a forfeiture and a disposal order – both of which are consented to - in terms of the draft orders previously provided to me.
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