R v Myles Owens
[2013] VCC 679
•6 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
CR-11-02013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MYLES EDMOND OWENS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May and 4 June 2013 | |
DATE OF SENTENCE: | 6 June 2013 | |
CASE MAY BE CITED AS: | R v Myles Owens | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 679 | |
REASONS FOR SENTENCE
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Subject: Recklessly Causing Serious Injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Convicted and released on a CCO for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | |
| For the Accused | Mr A. Marshall |
HIS HONOUR:
1 Myles Edmond Owens, you have pleaded guilty to one charge of recklessly causing serious injury.
2 A contested trial began before me in the May sittings of the County Court at Wodonga. The indictment alleged both intentionally causing serious injury, recklessly causing serious injury and making a threat to kill.
3 The jury was empanelled on Thursday 23 May, however, I discharged them at the beginning of the next day.
4 On the following Monday, 27 May, a new indictment was filed over and you pleaded guilty to the current charge of recklessly causing serious injury.
5 Plea submissions began on Thursday 30 May.
6 Mr Pirrie, on behalf of the prosecution, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’. This constituted an agreed statement of facts on which I was asked to sentence you. The written document was tendered as an exhibit.
7 I will not repeat the details but will have an electronic version attached as an appendix to these reasons for sentence. In brief, having armed yourself shortly before the stabbing, you stabbed the proprietor of the Gardenview Lodge Motel in Wangaratta in the course of a struggle. He sustained three knife wounds to the chest area, one of which was more serious than the other two.
8 Victim Impact Statements from the victim and his wife were tendered. Your conduct has resulted in significant and detrimental consequences for the victim and his family.
9 You consented to me making an order for the taking of a forensic sample. I will make the order, which will be for the taking of a scraping from your mouth. My reasons will appear in the Order. You must understand that a police officer may use reasonable force to obtain the sample.
10 I will also make a disposal order as sought.
11 The hearing of the trial was expedited during the current sittings when I noted your age. You are still only 20 but will turn 21 in August. You will have turned 21 by the time the next sittings are held in Wodonga. The stabbing occurred on Sunday 9 January 2011 and the victim, at this time, was aged 47. You have no prior criminal history. You have a minor subsequent history but it is of no significance to my sentencing task.
12 When interviewed by police you said you were acting in self-defence. However, as early as May 2011 you indicated that you were willing to plead guilty to the current offence. The offer was initially rejected by the prosecution but finally accepted after the jury were discharged. Although the aborted jury trial was not conducted on the basis of this concession, you maintaining that you were not guilty of any offence, I nevertheless consider it appropriate to attach weight to your offer and ultimate plea of guilty once a new indictment was filed. You must benefit from this course.
13 Your counsel, Mr Marshall, sketched your background. You were born in Queensland where your mother, an 18-year-old sister and her two children and a 9-year-old brother still live. Your father was murdered mid-December last. I only learned, as a result of information obtained by Mr Riordan, that the circumstances of the murder of your father were that he was celebrating a successful land claim when he argued with his best friend and his friend stabbed him. Your father died at the scene and you were informed the next day. Although nothing was submitted to me concerning this, I think it is clear, knowing what I do about you, that this is likely to have had a very significant impact upon you and I would clearly expect that it would have caused you to reflect deeply on the crime you committed. Your father was a miner and your family moved much when you were young with your father pursuing work.
14 You completed year 10 at secondary school and also years 11 and 12 at TAFE. You have other qualifications in horticulture and security work. You have done some work in horticulture. The fact that you have pursued further education is very much to your credit.
15 In 2010 you met your current partner online and your relationship blossomed. She is also of Aboriginal heritage. After about 4 or 5 months you came to Melbourne to join her. She had 4 children. The two older children aged 8 and 9 live with you and her. They have speech and learning problems. Her younger two children are in care at the moment and the Department of Human Services is trying to find accommodation for the whole family.
16 You and your partner together had another child, a boy, in early September 2012. You have a strong parenting role in the family.
17 As I have already noted, both you and your partner are of Aboriginal heritage and you are both very proud of your heritage.
18 You returned briefly to Queensland after coming to Victoria. Whilst in Queensland for about 2 weeks you were engaged is work searching for artefacts connected to your native tribe.
19 Whilst in Victoria you attended a Gateway Community Health computer skills program between 17 February 2011 and 28 June 2012. A reference from Harry Denniss, an Aboriginal Community Support Worker, described you as “quiet, respectful and well mannered as well as clean and well presented”. Mr Denniss never saw you "angry, frustrated or hostile towards anyone”. He found your conduct in stabbing the victim hard to believe. The reference was written in July 2012 and noted that you were about to begin an engineering course.
20 This is a 12-month course leading to a Certificate III in Engineering. The course is part of a program incorporated through Mungabareena Aboriginal Corporation, Workways Australia and Wilson Transformers Company Wodonga. Successful completion of the course generally leads to full time apprenticeship employment. Olsley Patten, an Indigenous Services Project Officer with Workways Australia wrote a letter, dated 14 May 2013, describing your reputation as honest, trustworthy and reliable. He noted your dedication to your partner, your child and your studies.
21 The course was suspended when your father was killed. You had been working at Wilsons Transformers in Wodonga at this time for about 3 months. You expect to finish the course, which can be suspended. Your plan is to work in the mines in Queensland at some later stage.
22 Your age at the time of the stabbing is very important, as is the fact that you are still young. It is very unfortunate that a significant amount of time has elapsed since the offending. However, it is very much to your credit that essentially you have been able to retain your excellent record.
23 The prosecution initially submitted that you should be detained for a period of between 2 and 3 years in a Youth Justice Facility. It was accepted that the crime was out of character but the initial submission was the seriousness of the offending requires this result.
24 On your behalf it was submitted that I should release you on a Community Correction Order. It was argued that, as a condition of the Order, I should require you to be assessed for suitability to undertake the residency program at Wulgunggo Ngula Learning Place (WNLP) in Won Wron, in Gippsland. At first, very little information was provided to me concerning this proposal. Your counsel said he had been unable to make contact with those who administer the program.
25 I was told that the program provided Koori men, on a CCO, “with an important opportunity to learn new skills, reconnect with, and further strengthen their culture and participate in programs and activities to help them address their offending behaviour”. Participation in the program is voluntary and involves living on site, in Gippsland, for between 3 and 6 months. Weekend leave is refused for the first 21 days including the first 3 weekends.
26 My initial tentative view was that the seriousness of the offending required the imposition of detention but I was uncomfortable with taking this course without full consideration of the proposal suggested. Accordingly, plea submissions were adjourned until Tuesday 4 June to enable the parties to make further enquiries.
27 At the resumed hearing your counsel was able to provide some additional information concerning WNLP. Corrections had also arranged for Mr Lionel Dukakis, the Programs Manager of WNLP, to be available via video link. Both he and Ms Shari Fanning, an Indigenous Leading Community Corrections Officer based at Morwell, gave evidence.
28 I was impressed by Mr Dukakis. He confirmed a number of matters concerning the facility. He confirmed that admission was voluntary. A commitment to remain in the program for 3 months is requested, however, most people remain for in excess of this period but are discouraged from remaining in the program beyond 6 months. As I follow, the majority of people remain for something approaching 6 months. If a person is directed to undergo the program as part of a CCO, Corrections would be immediately advised of any breach of CCO conditions including leaving the program. Unpaid community work would normally be done after the period of residency. Random breath and urine tests can be arranged to confirm alcohol and drug abstinence, however, detoxification would be required before entry to the program. This is not an issue with you. The program has a good success rate in avoiding re-offending. A resident who has left the program on good terms may be able to return if having difficulty coping in the community. The program is designed to assist re-integration and stability in the community. Programs to avoid re-offending are available. Educational programs including programs focussing on the development and encouragement of cultural links including reconnecting with country are given emphasis. Skills such as cooking and cleaning are developed. Anger management courses are available. There is access to Gippsland TAFE to further education and training for employment.
29 In short, Mr Dukakis thought the program would suit you and, as I followed, likely to be life changing as it has been for other participants. As is obvious from what I have already said, the principal benefit of the facility is the focus it gives to the participant’s Aboriginality. Close cooperation with Corrections for participants on Community Correction Orders is maintained.
30 Ms Fanning confirmed that despite being a voluntary program the WNLP program can be administered under the program conditions of a CCO.
31 I had you assessed for suitability for both a CCO and detention in a YJC. You were found suitable for both orders. As part of the CCO assessment you were also assessed by Mr Dukakis and Ms Fanning and found to be suitable for admission to the WNLP program.
32 Mr Riordan, who conducted the YJC assessment, detailed some of your background, providing me with additional information, and had no doubt that you were suitable for a YJC Order.
33 Mr Pirrie, making additional submissions this afternoon, indicated that he had received instructions after the appropriate officer at the OPP had carefully considered the matter and that the submission on behalf of the Director was that release on a Community Correction Order as outlined, provided it was lengthy and had strict conditions, was an option available to me.
34 As I noted in discussion, I consider the decision finely balanced. It has troubled me, principally because of the serious nature of the offending. However, at the end of the day, as I indicated, I am prepared to release on a Community Correction Order and I will in a moment identify the conditions of that order.
35 DISCUSSION CONCERNING THE TERMS OF THE ORDER FOLLOWED.
36 MR OWENS WAS CONVICTED AND RELEASED ON A COMMUNITY CORRECTION ORDER FOR 2 YEARS. IN ADDITION TO THE STANDARD TERMS AS SET OUT IN S45 OF THE SENTENCING ACT 1991 ADDITIONAL CONDITIONS AS RECOMMENDED BY THE CORRECTIONS ASSESSEMENT WERE IMPOSED. THESE ADDITIONAL CONDITIONS WERE AS FOLLOWS:
· THAT MR OWENS BE UNDER SUPERVISION (S 48E).
· THAT MR OWENS PERFORM 200 HOURS OF UNPAID COMMUNITY WORK (S 48C).
· THAT MR OWENS UNDERGO TREATMENT AND REHABILITATION (S 48D). THIS CONDITION INCLUDES A REQUIREMENT THAT MR OWENS UNDERGOES ASSESSMENT AND TREATEMENT FOR ALCOHOL ABUSE OR DEPENDENCY AS WELL AS UNDERTAKING PROGRAMS RELATING TO OFFENDING BEHAVIOUR. UNDER THIS LATTER CONDITION MR OWENS, HAVING BEEN ASSESSED AS SUITABLE FOR THE WULGUNGGO NGALU LEARNING PLACE PROGRAM PRESENT HIMSELF AS DIRECTED FOR ADMISSION AS A RESIDENT OF THE FACILITY.
· THAT MR OWENS BE SUBJECT TO JUDICIAL MONITORING (S 48K). UNDER THIS CONDITION MR OWENS IS APPEAR BEFORE ME ON MONDAY 9 DECEMBER AT 10AM AT WHICH TIME CORRECTIONS IS TO REPORT ON HIS PROGRESS.
(See Summary of Prosecution Opening attached.)
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Indictment No B10137088
IN THE COUNTY COURT OF VICTORIA
AT WODONGA
CRIMINAL JURISDICTION
County Court Reference CR-11-02013
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. MYLES EDMOND OWENS |
| Date of document: | 29 May 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions | Solicitor’s code: 7539 |
Background
- The victim, Gregory Devlin, is the proprietor of Gardenview Lodge Motel in Wangaratta. He resides on the property with his wife Susan. At the time of the incident he was aged 47 years.
- The accused, Myles Owens was aged 18 at the time of the incident and had been residing in Wodonga with his girlfriend Tamara Johnson aged 23. On 5 January 2011, the Department of Human Services arranged accommodation for the accused and Johnson at Garden view Lodge Motel, Wangaratta.
- The accused and his girlfriend arrived at Gardenview Lodge at around 7:30pm on Wednesday 5 January and were placed into cabin 5 by the victim. The accommodation was booked solely for the use of the accused and Johnson.
- On Sunday, 9 January 2011 whilst accommodated at the cabin they received visitors Dillon Hayes, aged 18, Scott Edginton, 15 years, Corry-Lee Van, 16 years and Mya Meadows, 14 years. They spent the day swimming in the motel pool and consuming alcohol.
- At approximately 8:30 pm, whilst taking the dog for a walk around the motel grounds the victim’s wife observed a number of people around cabin 5 behaving loudly and inappropriately. She was concerned their behaviour could be disturbing other motel occupants and so upon her return she informed the victim of her observations.
- Approximately 10 minutes later the victim made his way to Cabin 5. It was still daylight at the time and raining lightly, the weather was warm and he was wearing a singlet. As he was approaching he heard a lot of noise coming from cabin 5. There was very loud yelling and swearing from the people on the deck area in front of the cabin and they appeared intoxicated.
- The accused and Johnson upon seeing the victim approach went inside the cabin and the others began making their way to Hayes’ car which was parked on an angle near the very front of the cabin.
- The victim noticed that one of the males, Edginton, was very drunk and was being helped to the car by the two girls Van and Meadows. Edginton fell over a number of times before he got to the car. As the victim made his way onto the verandah he told the four visitors to get into their car and get going.
- The glass sliding door was wide open and the victim walked inside the cabin, immediately observing that the cabin was in an untidy and disgraceful state. The bed covers and sheets were on the floor and saturated, there was rubbish all around and there were hand prints of what appeared to be either blood or mud on the walls. Upon seeing this, the victim told the accused and Johnson that they were to go as well.
- Johnson began gathering her belongings and as she walked past the victim he said that he would be reporting this to the Department of Human Services. With this said the accused became aggressive and began ordering the victim out. He came up to the face of the victim and pushed him with both hands to the chest area, backwards towards the door.
- The victim resisted and the accused began to punch the victim to the head and the victim punched back. As a result of the scuffle the victim went down on his knees. Hayes assisted the accused to tackle the victim.
- The victim managed to grab the accused by the legs and lifted him up and pole drove him into the floor. He got on top of him and told him he would let him go if he calmed down. The victim let the accused go when he agreed to gather his belongings and leave.
- When the accused got to his feet the victim went out onto the verandah whilst Johnson was ferrying things from the cabin to the car. Hayes, Van and Meadows were outside near the car.
- The victim went back and stood at the doorway, making the decision to remain at the cabin in the fear the occupants would cause damage prior to leaving.
- The victim noticed the accused acting suspiciously near the kitchen sink and could tell that he had grabbed something.
- Johnson and the accused finally left the cabin. The victim remained on the verandah and was standing on the deck between the front door and the steps. The others were either in or at the car. Johnson and the accused were on the ground, Johnson about a metre ahead of the accused, on their way to the car.
- The accused then turned back, ran up the stairs and rushed at the victim, The victim stood his ground and a struggle began. In the course of the struggle the accused stabbed the victim three times to the left side of his chest. The Accused either swung off or was swung off the verandah, with the victim still holding onto the accused’s hoodie pulling him up against the rail. It was then that the victim noticed the accused was holding a knife which he recognised to be one belonging to the kitchen of Cabin 5.
- When the victim saw the knife he realised he had been stabbed and called the accused a “piss weak coward” for stabbing him. The accused then threw the knife in the direction of the victim. The knife landed in the cabin and was later recovered by police.
- The accused then said to the victim, “I tried to kill ya and I’m gonna come back and finish the job”.
- The accused and the others then all got into the car and drove off.
- The victim went back in the cabin, turned off the appliances and lights and locked up. He noticed he was bleeding from the stab wounds and he returned to the motel residence where the police and ambulance were called.
- The victim was conveyed to and treated at Wangaratta Hospital and was released from hospital in the afternoon of 11 January 2011.
Injuries
- Mr Devlin suffered 3 stab wounds to his left chest. He was taken by ambulance to the Wangaratta base hospital where he received treatment including CTscan X-ray and medication.
- He was diagnosed with
- A stab wound below the clavicle approx 2 cm in length that was more than 3.5cm deep
- 1 cm stab wound below the left nipple
- 1 cm stab wound over the 5th rib
- Bruising to his right thigh and back
- Mr Devlin was discharged on 11 January,
Taped Record of Interview
- The accused was interviewed by police on 10 January 2011. He admitted to taking a knife from the kitchen and stabbing the victim “twice or three times”, “around the chest” (ROI Q&A 158-160).
- The accused stated when the stabbing occurred he was…. “going inside to get stuff’ that he was “leaping up the steps……. and that’s when he went to grab me” (ROI Q &A 291-2).
- He said that he stabbed the victim in self defence (ROI Q&A 318).
RICHARD PIRRIE
PROSECUTOR
29/05/13
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