R v Bowshire - [2004] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOWSHIRE
Reasons for Sentence of His Honour Judge Lunn
1 September 2004
CRIMINAL LAW
Sentencing - unlawful wounding and assault occasioning actual bodily harm - need for personal deterrence - single sentence of imprisonment for 27 months with a non parole period of 12 months.

R v BOWSHIRE
[2004] SADC 123
REASONS FOR SENTENCE

Trevor Newton Thomas Bowshire was charged with one count of wounding with intent to do grievous bodily harm on V1, a second count of assault occasioning actual bodily harm on V2 and two counts of rape on V2. At the commencement of his trial on 5 May 2004 he pleaded guilty to count 2 and offered to plead guilty on count 1 to the lesser alternative offence of unlawful wounding, but the prosecutor refused to accept that lesser plea. On 11 May a jury acquitted him on count 1 of the offence charged and convicted him on his admission of the lesser offence of unlawful wounding on V1. The jury also acquitted Bowshire completely on counts 3 and 4 of rape. I ignore those rape counts. I am now sentencing him only on count 1 for unlawful wounding and on count 2 for assault occasioning actual bodily harm.
V1 is a 25 year old male and V2 is a 24 year old female. For some years they had been living together in a defacto relationship in a house which they jointly owned at Evanston Gardens.
Bowshire, who is now aged 49 years, was the best friend of the father of V2 and had been very close to the whole family. He had known V2 all her life. After V2 commenced her relationship with V1 he also became a friend of V1. He was often at the house of V1 and V2, and sometimes stayed there overnight.
At the trial Bowshire, through his counsel, alleged, and he still maintains, that for some years prior to the offences there had been an ongoing sexual relationship between himself and V2. This was denied on oath by V2. Bowshire did not give sworn evidence to support the allegation. Apart from his assertions about it through his counsel, and to a psychiatrist, there is no evidence before me that there was any such relationship. I do not find it to have been proved on the balance of probabilities. However, it was quite clear that Bowshire was infatuated with V2 and romantically inclined towards her. It may well be that what he has alleged as having occurred between them is what he would have liked to have happened rather than what did happen.
On the night of Saturday, 2 November 2002, V2 went to a hen’s party for a girlfriend who was about to be married. That evening Bowshire and V1 went out together on a pub crawl and each consumed a substantial amount of alcohol. At around midnight they returned to the victims’ house where it had been arranged Bowshire was to stay for the night. Both were significantly affected by alcohol. V2 arrived home in the early hours of Sunday 3 November also significantly affected by alcohol.
The only witnesses who gave any direct evidence of what occurred in the house in the early hours of Sunday 3 November were V1 and V2. Whether through intoxication or for other reasons neither gave a full or a coherent account of precisely what then occurred. There is a strong inference that there must have been some other happenings which neither V1 nor V2 related.
It was undisputed that V2 went into her bedroom to prepare to go to bed. V1 went into the kitchen where Bowshire was present. V1 commenced to make a cup of tea for each of them. While he was doing this Bowshire, without any warning to V1, picked up a kitchen knife and stabbed V1 in the right flank of his back with that knife. The blade of the knife broke off from the handle. The most likely explanation for this was that it was from the force of the stabbing blow as there is no evidence that it was otherwise damaged in the ensuing scuffle. V1 then attempted to defend himself from further attack and he and Bowshire wrestled in various parts of the house with V1 bleeding from his back.
Very shortly after the stabbing V2 came out of her bedroom and saw the two men fighting and blood from V1. She became hysterical and distraught which may well account for her inability now to give reliable evidence of all that occurred. V1 eventually managed to break free from Bowshire and fled the house to a next door neighbour. Bowshire had some confrontation with V2 in the house in which he hit her. He also left the house shortly afterwards and drove off in his car. He surrendered to police a few hours later.
On the evidence there is no apparent reason why Bowshire stabbed V1 on that night. The psychiatrist, Dr Branson, postulated that it might have been precipitated by some feeling of rejection, but there is no evidence to provide any foundation for this. It was a mysterious and bizarre act by Bowshire. His significant intoxication probably played a role in it, but it is unlikely to have been the sole cause of it. The verdict of the jury on count 1 established that Bowshire did not do it with an intention of causing grievous bodily harm to V1.
The allegations of V2 as to the manner in which Bowshire assaulted her, which is the subject of count 2, cannot be accepted in their entirety. The numerous blows and strangulation which she alleged are not supported by the medical evidence. I am not prepared to make any findings beyond reasonable doubt against Bowshire based on inferences from the blood stains. The police could, and should, have obtained evidence as to whether the various blood stains in the house came from V1 or V2, but there was no such evidence. All that is proved beyond reasonable doubt on the evidence given at the trial is that in a situation of confusion and hysteria after the stabbing of V1 Bowshire hit V2 on several occasions as he left the house. I accept V2’s uncontradicted evidence that at least some of these blows were with a clenched fist to her face.
Oral Victim Impact Statements were given by V2 and her father and by V1 through his father. They were not challenged.
V2 suffered a deep and serious stab wound to his right flank. Fortunately, it did not damage any vital organs. He underwent operative treatment and hospitalisation. He has suffered a loss of sensation in the area of the wound and it still hurts if pressure is applied to it. He had to give up playing sport for a year and now finds that his disability from the wound restricts his sporting and working abilities. He has continued to have flashbacks and sleepless nights and has felt insecure and anxious. His relationship with V2 has been adversely affected. He is considering selling the home to escape from the traumatic memories of the night in question.
V2 suffered a laceration of her upper lip, a black eye, a sore coccyx and other minor physical injuries and had since had migraines. She was mentally and emotionally traumatised by the offences. She has suffered sleepless nights, flashbacks and a loss of trust in people. The home is a constant reminder to her of the offences. She now wishes to sell the house to escape from these memories. Her upper lip is now numb. She feels the offences have had an adverse effect on her relationship with V1.
The parents of V2 have felt a great sense of betrayal by their life-long friend Bowshire.
Bowshire is a single man. He has a good employment history as a driver of heavy machinery. He has abused alcohol at various times in his life. He believes alcohol was a major factor in this offending and has since abstained from excessive consumption of it.
I have a report from a psychiatrist, Dr Branson, of 3 August 2004. I have had regard to its contents. Bowshire has no mental disorder, although he has a tendency towards moderately severe depression.
I have character references for Bowshire from three persons, two of whom are policemen. They all speak highly of him.
Almost immediately after he had left the house Bowshire was contrite and remorseful for what he had done. He was extremely distressed by it. At his trial he acknowledged his guilt for the offences for which he is to be sentenced. He is to be given a substantial discount for his pleas of guilty on these offences. Insofar as the matter went to trial, it was only on charges on which he has been found not guilty.
The maximum penalty for each of the offences of unlawful wounding and assault occasioning actual bodily harm is imprisonment for 5 years. It is appropriate to impose one penalty under s18A of the Criminal Law (Sentencing) Act 1988.
The prosecutor urged upon me considerations of personal deterrence. In 1981 Bowshire pleaded guilty in this Court to separate offences of assault occasioning actual bodily harm and common assault for which he was given a suspended sentence of 12 months imprisonment. The victim on the common assault charge alleged in her declaration that Bowshire in an intoxicated state had threatened her with a kitchen knife when she had rejected his amorous advances. Bowshire denied to Dr Branson that he had threatened this woman with a knife. I accept the declaration in the absence of Bowshire giving oral evidence on the matter. (Dr Branson was mistaken in believing that the incident had not been the subject of a criminal charge.) The conviction for assault occasioning actual bodily harm involved Bowshire, also while intoxicated, having punched the victim in the face without warning which resulted in him falling and breaking his ankle. Bowshire’s use of a knife in the first mentioned of the 1981 offences indicates some disposition to resort to knives as weapons. I accept that in the absence of any cogent explanation as to why he stabbed V1, a substantial element of personal deterrence is required in the sentence now to be imposed.
Since the offences Bowshire has been on restrictive bail conditions which have required him to reside at premises in Port Augusta and only to leave those premises in the company of one of his guarantors or his parents. He has complied with those conditions. I take the restrictions which these conditions have imposed on his lifestyle into account in fixing sentence.
There was no dispute that a significant term of imprisonment must be imposed for the two offences. The major issue was whether there was sufficient good reason to justify a suspension of that sentence. In view of the abuse of trust by Bowshire in seriously injuring his friends in the sanctuary of their own home and because of the need for significant personal deterrence, I consider that the factors for an immediate custodial sentence outweigh personal considerations relating to Bowshire. Accordingly, I decline to suspend the sentence.
A single sentence is imposed for both offences of imprisonment of 27 months. But for his pleas of guilty to these two offences the sentence would have been one of imprisonment for 3 years. He is likely to benefit from courses and counselling available to him on a long period on parole. I can give some effect to the mitigating factors put forward by his counsel in setting a somewhat less than usual non-parole period. That non-parole period is fixed at 12 months. Both the sentence and the non-parole period are to run from today.