DPP v Bowman

1. William Bowman stands to be sentenced for an offence of attempted aggravated burglary contrary to s 312(a) of the Criminal Code 2002 (ACT) after pleading guilty to that offence earlier this week. The offender is charged on the basis of an allegation of joint criminal enterprise. The circumstance of aggravation is that the offence was committed in company. In those circumstances, the maximum penalty for the offence is a term of imprisonment for 20 years.

2. The matter was due to go to trial last week but was marked not reached. It is common knowledge in the legal profession that the Court is currently operating under constrained circumstances, one of the Court’s six resident judges having recently been granted personal leave for a lengthy period for medical reasons. In those circumstances, it was submitted that the offender might be entitled to a discount reflecting that the utilitarian value of his plea is greater than the discount that would ordinarily be allowed for a plea so late as this one. The offender’s counsel invoked s 35A of the Crimes (Sentencing) Act 2005 (ACT) in support of that submission.

3. I am not persuaded that it is appropriate to prefer one class of offender over another for that particular reason, that is, a temporary period of constrained circumstances in the Court. However, I do accept that, in the circumstances as they unfolded, Mr Bowman having pleaded guilty shortly after the matter was marked not reached, it follows that his plea has greater utilitarian value than one entered on the doorstep of the Court because, in effect, the door had at that point been closed by the Court. The plea accordingly obviates the need to fix a further hearing date in respect of the proceedings. For that reason, I am satisfied that the offender is entitled to a greater discount than the usual small discount for a plea on the doorstep of the Court. The submission by Mr Jackson, his counsel, was that the Court would allow a discount in the order of 15 to 20%. I accept that submission.

4. The circumstances of the offence may be stated briefly. Mr Bowman was in company with Ms Chatfield, who has been dealt with in the Magistrates Court in the Galambany Court by Special Magistrate Hopkins (as his Honour then was). The two offenders deliberately waited until the occupant of the premises had left, which is a factor, as it happens, that operates in their favour, as it means there was no one present in the house at the time they attempted to enter the premises (that would have been a circumstance of aggravation).

5. It was submitted on Mr Bowman’s behalf that his involvement was limited to waiting near the side gate of the premises. However, that cannot be reconciled with the statement in the agreed facts that his fingerprint was found on the exterior flyscreen. Accordingly, I am satisfied that he must have been involved in at least some attempt to enter the window. Conversely, however, CCTV stills from the premises mainly show him far from the point of entry. Conversely, Ms Chatfield is shown collecting two bricks and throwing them at the window of the house. Ms Chatfield evidently injured herself during her attempt to enter the house, having smashed the window, and the attempt to break into the house was abandoned.

6. The objective seriousness of the offence is relatively low by comparison with offences of this nature, first, for the reason I have already identified, that there was nobody present when the offenders attempted to break into the house. Secondly, there was nothing stolen. There was damage to the window, but it was relatively limited. It is accepted by the prosecution that, by reason of his lesser involvement in the joint criminal enterprise, the offender is entitled to be sentenced more leniently than the co-offender.

7. Special Magistrate Hopkins, in the case of the co-offender, chose a starting point of twelve months which was discounted to nine months’ imprisonment by reason of that offender’s early plea, reflecting a discount of 25%. Mr Jackson submitted that the subjective cases of the two offenders are relatively comparable. They are, of course, very different in the detail, but each offender has been sentenced or stands to be sentenced in circumstances where they have had what might be termed a difficult or dysfunctional upbringing.

8. This offender’s circumstances are set out in the judgment of Christensen AJ in which her Honour cancelled his drug and alcohol treatment order for other matters. Her Honour attached as a schedule to that judgment a transcript of the reasons of Refshauge AJ dated 16 October 2023 in which his Honour set out in great detail the offender’s personal circumstances including an extensive exposition of the offender’s dysfunctional upbringing, during which he was introduced to the use of alcohol and drugs from an early age.

9. That is a significant factor because it reduces his moral culpability for the offending, which was plainly prompted by the need to fund his drug habit. Acting Justice Refshauge recorded that the offender described his childhood as “terrible”, as he was exposed to neglect, family violence and drug and alcohol use. In reciting these matters, I do not wish to further traumatise the offender but merely to record my reason for concluding that his moral culpability for drug-fuelled property offending must be regarded as lower than that of a person who was not introduced to an addictive habit before he had the opportunity to make any free choice about it by those charged with protecting him, his parents.

10. As I have mentioned, the offender was on a drug and alcohol treatment order for other offences and that treatment order was cancelled by Christensen AJ on 20 December 2024. Her Honour concluded that the appropriate course was for the offender to serve the sentence that had been imposed by Refshauge AJ, a total effective term of imprisonment of three years and three months. Her Honour published her reasons in DPP v Bowman (No 2) [2024] ACTSC 415.

11. Taking into account 585 days of pre-sentence custody for the offences the subject of imposition, her Honour imposed a term of imprisonment for three years and three months commencing on 15 May 2023 and ending on 14 August 2026. Her Honour fixed a non-parole period of one year and 50 weeks commencing on 15 May 2023 and ending on 1 May 2025. As the terms of that order will reveal, the offender accordingly became eligible for parole almost a month ago. He made an application for parole but later withdrew it in light of the matters that led to the cancellation of his drug and alcohol treatment order. At that time, of course, the present matter was still outstanding.

12. In my assessment, having regard to the principle of parity, the offender should be sentenced to a term of imprisonment reflecting a starting point somewhat less than that imposed in the case of Ms Chatfield. I propose that the sentence for this offender, with the discount of roughly 20%, should be a sentence of seven months.

13. An important principle then in determining how that sentence should be fixed is the principle of totality. There are many authorities that describe this principle. It is sufficient to refer to the decision of the New South Wales Court of Criminal Appeal in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41, where Howie J, with whom the other members of the Court agreed, noted that: There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively.

14. The fundamental question is whether the sentence for one offence can comprehend and reflect the criminality for the other offence. Even where the offences are entirely separate, total concurrency can be appropriate in certain circumstances. I understand it to be accepted on behalf of the offender that that is not the case here and that there must be some accumulation of the present sentence. Mr Jackson submitted, and I accept, that it would be appropriate to accumulate the present sentence upon the conclusion of the offender’s existing sentence by a period of four months.

15. It remains to fix a non-parole period as allowed under s 66 of the Crimes (Sentencing) Act. In my assessment, it is appropriate for the offender to have an additional period of non-parole of two months on top of the existing non-parole period, making him eligible for parole on 1 July 2025. That gives a period of almost 18 months for supervision on parole, which will plainly be necessary for him having regard to his addiction to prohibited substances and his chequered path of rehabilitation.

16. I accept that his prospects of rehabilitation are, as submitted by the Crown, somewhat guarded. On the other hand, I accept that he has made genuine efforts whilst in custody most recently to move towards a path of rehabilitation. Another significant factor in the case of this offender is his youth. He is presently 24. He has spent about two years in custody since he turned 18. That is about a third of his adult life. He has also served periods of full-time custody as a young person.

Orders

17. For those reasons, I impose a sentence as follows. William Bowman: (1) You are convicted for the offence of aggravated attempted burglary. (2) I sentence you to a period of imprisonment for seven months, commencing on 15 May 2026 and ending on 14 December 2026. (3) I reset the non-parole period to a period commencing on 15 May 2023 and ending on 1 July 2025.

18. I record my recommendation that, given the offender's youth and the length of time he has spent in custody and the principle of totality, his application for parole be considered earlier than six months after the withdrawal of the previous application.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for*Sentence of her Honour Chief Justice McCallum. Associate: Date: