R v Stanley Thomas BOWDEN

REMARKS ON SENTENCE 1I am sentencing a young man who committed a shocking home invasion as well as an aggravated break, enter and steal and a car theft. There are three crimes that I have been asked to sentence him for. He has pleaded guilty to them all. 2The first in time was an especially aggravated break, enter and steal. That is the crime I referred to as the shocking home invasion. It was specially aggravated because it was in company, and because it involved a reckless infliction of grievous bodily harm. That is an offence against s 112(3) of the Crimes Act 1900. Parliament has fixed a maximum of 25 years imprisonment to that crime, and a standard non-parole period of 7 years imprisonment. 3The next crime I am sentencing him for is the theft of a car. That is an offence against s 154A(1)(a) of the Crimes Act. Parliament has fixed a maximum of 5 years imprisonment to that crime. 4The last crime is an aggravated break, enter and steal. The aggravation was knowing there were persons inside the house. That is an offence against s 112(2) of the Crimes Act. Parliament has fixed a maximum of 20 years imprisonment to that crime, and again a standard non-parole period has been fixed for that crime, which is 5 years imprisonment. 5The young man's name is Stanley Bowden, and I formally convict him of all of those offences. 6I should add that when I am sentencing him for the aggravated break, enter and steal, he has asked me to take into account 6 offences under s 32 of the Crimes (Sentencing Procedure) Act 1999. I will take the offences into account. I will list those offences in due course, and I will sign the certificate to that effect. That certificate is a copy of the certificate and is part of exhibit A. 7A judge needs to say something about the crimes that the judge is sentencing an offender for, and I will give a brief description of each of the crimes. I will start with the car theft and the aggravated break, enter and steal, even though those were later in time than the home invasion. 8Brett Strickland's Holden Apollo was parked outside his house in South Windsor on 13 April 2011. At some time that evening, after 4.30pm in the afternoon, it was stolen. The car was driven to a petrol station in Berkshire Park where $73 worth of petrol was taken but not paid for. It was eventually recovered some weeks later at Mosman. 9Mosman was also the scene of the aggravated break, enter and steal. The house was in Holt Street. There was a garage. The owners went to bed on the night of 14 April 2011 and secured their house. Between 10.00pm that night and 3.00am the next morning Stanley Bowden opened a window at the side of the house and got in. He got the owner's wallet, and the house and car keys from the kitchen bench. Then he stole the car in the garage. However he left his fingerprints on a window. The car was found a week or so later burnt out in Windsor Downs. 10On 30 April 2011 a car was stolen from another house in Mosman. Stanley Bowden's fingerprints were found on that car as well. Yet another car was stolen from Mosman in Glover Street and Mr Bowden was seen in that car. Again petrol was taken and not paid for. 11All of that criminal activity gave rise to the aggravated break, enter and steal, which was the house in Holt Street, Mosman. It was aggravated because Mr Bowden knew that there were people inside at the time. 12The original theft of Mr Strickland's car gave rise to the offence of take and drive conveyance, which I have to sentence Mr Bowden for, along with the aggravated break, enter and steal. 13There are 6 offences, as I said, that I have to take into account when I am sentencing him for the aggravated break, enter and steal. Two of those arise from stealing the petrol, which is an offence against s 192E(1)(a) of the Crimes Act, and is called obtain property by deception. One of them is a take and drive conveyance, an offence against s 154A(1)(a) of the Crimes Act, and the remaining three are all offences of being carried in a stolen car, which is an offence against the same section, but cl (b). In due course I will take those offences into account when I am sentencing Mr Bowden for the aggravated break, enter and steal. 14I now need to describe the home invasion. That occurred on 3 January 2011. The circumstances were truly shocking, and I should give a little more detail than I usually would about the crime. 15On 3 January 2011, after 9.00pm, Mylos Pavelec, a 65 year old man, was at home lying on his couch in Canoelands. His wife, Mirsolava, who was 61, got back from working in their son's pizza shop. They settled in for the evening. They were sitting down having dinner when two men broke into their house. The two men literally broke through the glass front door. Mr Bowden was the first of the two men to come in the door. Both of the men had a knife in each of their hands. Mr Bowden shouted "This is a home invasion, give us the money". 16No doubt unexpectedly to Mr Bowden and his co-offender, who is not identified, Mr Pavelec responded by saying "Out from my house you bastards". He picked up the beer bottle that he was drinking from and threw it at Mr Bowden. Mr Bowden and his co-offender dodged the beer bottle but Mr Pavelec threw a torch at them. The other man walked towards both victims. Mr Pavelec picked up a cushion and used it to push the co-offender into the corridor next to the toilet. He then ran into the kitchen, picked up some mugs and other items and threw them at the men. He picked up a bread knife. He yelled out to his wife, "gun". He wanted to get her to go into the bedroom and collect the .22 calibre rifle, which they kept above their wardrobe. She went in. 17Mr Bowden followed Mr Pavelec into the kitchen. Then Mr Bowden dropped one of his two knives and grabbed the blade of the knife that Mr Pavelec was holding in order to get it out of his hands. Mr Pavelec responded by pulling the knife back, which injured Mr Bowden's hands, and then he lunged forward. He stabbed Mr Bowden between the legs and caused a penetrating injury around the scrotum at the base of Mr Bowden's penis. Understandably Mr Bowden backed away from the kitchen, but he followed Mrs Pavelec into the bedroom. She had got the rifle from the wardrobe and was sitting on it on the bed. He pushed her off the bed and grabbed the rifle. 18Meanwhile the co-offender threw some kitchen chairs at Mr Pavelec and Mr Pavelec started throwing knives back. Then the co-offender advanced towards Mr Pavelec, who picked up the kettle. Mr Bowden shouted "Steven, come in" and the co-offender left the kitchen and went into the bedroom. But then he went back to the kitchen armed with a baseball bat. This is when things got particularly serious. 19The co-offender hit Mr Pavelec three times with the bat. The first was aimed at his head. He blocked the strike by holding his forearm. The second hit the victim on his left wrist, and the third struck his left fingers. 20Mrs Pavelec left the bedroom and went back into the living room. She was put on her knees by Mr Bowden, who put a knife to her throat. He said to her "Lady, I don't want to hurt you." Then he shouted to her husband "Drop that knife down or I am going to kill this fucking old cunt". Mr Pavelec dropped the knife. At that point the co-offender hit him again with the baseball bat to his head. Mr Pavelec fell to the ground unconscious and Mrs Pavelec saw blood coming from her husband's head. 21Mr Bowden and his co-offender went through the house and stole a couple of laptop computers and a mobile phone. They stole Mrs Pavelec's handbag, which had $1000 cash in it. They stole two watches and the rifle. Mr Pavelec got up and wanted to untie his dogs from outside but he found he could not do that because of the injury to his hand. He went back inside and fell to the ground. By that time the men had left. Mr Pavelec could not speak properly. Twenty minutes or so later he could speak again. He asked for water but could not drink it; it kept running out of his mouth. 22Mr Pavelec had a CT of his brain and facial bones. There was an extradural haematoma seen in his left temporal lobe. It was about seven millimetres in depth. There was another one as well, which was five millimetres. There was a third haemorrhage. The report said there was "extensive left sided skull fracture (temporal Bone) with associated 3 focal areas of extradural haemorrhage". It was noted there was another fracture. He also had a fractured ulna. 23Mr Bowden himself went to Westmead Hospital the next day and was admitted with a scrotal injury and a haematoma at the base of his penis. He was discharged the following day. Mr Bowden's DNA profile was found on one of the knives. He was arrested on 29 May 2011 and Mr Bowden has been in custody since. His sentence will date from then. 24I now turn to make some remarks about Mr Bowden himself. He is 24. He has an extensive criminal record. He has offences recorded from appearances in the Children's Court. They involve break, enter and steal offences, possession of housebreaking implements as well as drug offences, assault and property damage. As an adult he has been convicted of offences to do with car theft, deception and break, enter and steal, which have been punished by full time custody. He has breached good behaviour bonds and has been sent into custody as a result of those breaches. 25Mr Pavelec and Mrs Pavelec provided victim impact statements. I propose to read those out and put them on the record. Mr Pavelec's victim impact statement reads as follows - "My name is Milos Pavelec. I am a victim of a home invasion that happened on the 3/1/2011 at the above address. As a result I have suffered a multitude of injuries. My skull received three fractures. One was across my skull from one side to the other and was about 150 mm long. My right eye socket was broken and another was over my left ear and was about 70 mm long. After I was hit by the baseball bat, I lost consciousness for about 30 seconds. After that I could not speak for about 40 minutes. My left arm was broken and in plaster for 13 weeks. After all this time, I still have problems with my right hand as a direct result of my head injuries. I have hardly any feeling in three of my fingers and repeatedly drop things. I also suffer from frequent headaches. My skin suffers from a painful rash, which only now is starting to heal after taking many different medications. My doctor does not want to prescribe me any sleeping pills, even though I have trouble sleeping. I suffer from mood swings. I am constantly angry and upset. I am not the person I used to be before the home invasion. The violent crime that took place in my home has severely diminished the quality of my life." 26Mrs Pavelec's victim impact statement reads as follows - "When the home invasion occurred at my home by the two armed robbers. I received small cuts to my hands and a cut to my throat, which was about 20 mm in length. I suffered bruising to my back and neck. Compared to my husband, these were minor injuries. Little did I know that after two and a half years, I am still not able to sleep at night. When I come home from work at night, I wait outside in the car until my husband comes outside and gets me. I constantly suffer from nightmares. I have tried antidepressant pills and sleeping pills though neither has much effect. I go to bed at 3 or 4 o'clock in the morning. This in turn means that I always feel tired. Since the home invasion happened, I have not felt safe in my home. I will never feel safe at home again. Not even if I move." 27Those two victim impact statements provide a graphic and articulate illustration of the impact, indeed long lasting impact, which the shocking crime committed by Mr Bowden can have on its victims. I should add, without detracting from the impact of those statements, that regarding any matters related to descriptions of medical conditions, I rely not on the victim impact statements but on the medical material that I have already referred to and the agreed statement of facts. Nevertheless, I repeat, the victim impact statements illustrate the effect a crime such as this has on its victims. 28I return now to the pre sentence report which I referred to earlier. The author points out that Mr Bowden had breached various bonds before. It points to the following about his childhood - "Mr Bowden reported a stable and positive childhood until the death of his father in 1998 following an accident, witnessed by the offender, where his father was badly burned in the family home. Mr Bowden stated and enquiries confirmed that from the age of ten following his father's death, he was a very difficult child to manage at home." 29It noted he had been using prohibited drugs for a long time, these included cannabis, amphetamine, ecstasy, crystal methamphetamines and heroin. He first started drinking alcohol when he was 10. The author summarised her conclusions as follows: "Mr Bowden is a 23 year old indigenous man who appears to have the benefit of a supportive family. He has previously been supervised by this Service on a Community Service Order, a Section 12 bond and a Parole Order that were all subsequently revoked due to non attendance, further offending and continued drug use. While he has demonstrated an understanding of the seriousness of the crimes and his awareness of the impact on the victims, he needs to address his drug issues to ensure he has an opportunity to gain fulltime employment and maintain a pro-social lifestyle free from criminal behaviour." 30Mr T Edwards, who appeared for Mr Bowden, also tendered a report by a forensic psychiatrist, Dr Jeremy F O'Dea. Dr O'Dea collected the same history of the traumatic events in Mr Bowden's childhood and his early use of alcohol and drugs. It noted he had commenced the methadone programme in custody and wanted to see if he could get into the drug unit at Parklea. Dr O'Dea noted that "Mr Bowden appeared thoughtful, positive and optimistic regarding the future." Dr O'Dea said he "did not diagnose Mr Bowden as suffering from a major psychiatric illness." He said his primary problems "appear to be with a longstanding history of Substance Abuse Disorder, in particular alcohol, cannabis, amphetamine and opioid use disorders, and offending behaviours, and offending behaviour from an early age, in the context of a vulnerable personality." He pointed out the offending could be "best understood in the context of his significant substance abuse disorder." He thought "intensive and extensive alcohol and other drug counselling and rehabilitation, including in the community in the long term, with abstinence from alcohol and other drug use the aim and requirement in order to manage and minimise his risk of engaging in further offending behaviour in the community in the long term." He thought some psychological or psychiatric assistance would help as well. He concluded by saying - "[A]lthough the trauma surrounding his father's death is likely to assist in understanding, at least in part, Mr Bowden's subsequent substance abuse and offending behaviours, I could not draw a direct causal connection between this trauma and the commission of the index offence." 31Mr Edwards also tendered a document indicating Mr Bowden had enrolled at Parklea Correctional Centre in a TAFE course in engineering to do with heavy fabrication and has completed a number of aspects of that course. In addition, he has a certificate of completion of an alcohol and drugs programme which he completed in custody. 32Mr Edwards called his client to give evidence. He confirmed he comes from a supportive family; indeed his mother and his twin brother were present when he was giving evidence and are present today in court. He confirmed the history of his father being burnt when Mr Bowden was six years old. He was admitted to a nursing home and a life support system for him was turned off some years later. He then started to mix in the wrong crowd, to take drugs and abuse alcohol. He indicated his younger brother has been in trouble and is serving custody because of offences that the younger brother has committed. Mr Bowden feels responsible for that because he has obviously provided a role model. He confirmed he had been undertaking the courses in prison as well as partaking in the methadone programme. 33He has made enquiries about his longer term future. He wishes to qualify with some skills and move to Queensland where he has, he hopes, an opportunity to secure some accommodation and some employment. He made specific reference to the two victim impact statements and acknowledged the harm which he had brought about by the home invasion offence. He expressed his remorse for the crime he had committed and says he thinks about it every day. 34I was assisted by both Mr T Edwards and Mr D I Curran in their submissions. Mr Curran appeared for the Director of Public Prosecutions. 35The home invasion I have described as a shocking crime. It was indeed a shocking crime as is obvious from the description which I gave of how it came about and what happened to the victims. Mr Edwards however undertook a careful analysis of his client's role in that home invasion. He argued that the analysis supported the proposition that his client's conduct placed him towards the lower end of the range of seriousness for this kind of offence. That is the kind of assessment that I need to make, namely, how serious is the offence which Mr Bowden has committed compared with other examples of this crime? 36Mr Edwards' analysis is correct. He pointed out his client did not use the baseball bat at all. He acknowledged he had entered the house contemplating grievous bodily harm because they were armed with knives. He pointed out his client had dropped one of his two knives and attempted to remove Mr Pavelec's knife from his hand. He mentioned his client had indicated to Mrs Pavelec that he did not want to hurt her. There are many cases which are far more serious examples than this. That is not to say the description of the crime as shocking is not appropriate, but I do accept his submission that his client's conduct in the crime, compared to the conduct of offenders who have committed other such crimes, falls within the lower end of the range of seriousness for such offences as this. 37Mr Curran acknowledged that the co-offender did most of the damage and caused most of the injuries but he also pointed out correctly that Mr Bowden was the first to enter the house. Mr Edwards acknowledged realistically that there was an additional aggravation in that in going into the house, Mr Bowden, along with his co-offender, was armed with a knife. That was not one of the specific matters pleaded by the Crown so it could be relied upon as an additional aggravating factor. 38Personally, about his client, Mr Edwards pointed out the circumstances of his childhood and the impact of the traumatic events surrounding his father's death. He pointed out the fact his client started using and abusing drugs and alcohol at such an early age meant that was probably related to circumstances beyond his control. It is clear the offences which Mr Bowden has committed in the past, and indeed these offences, are related to his substance abuse. Mr Edwards referred me to the remarks of Simpson J in the Court of Criminal Appeal guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. I also take into account he has expressed genuine remorse. 39Mr Edwards argued that his client's prospects of rehabilitation are good, despite his client's record. He pointed out that his client was engaged in employment in the prison and had taken on an education course, as well as a drug and alcohol programme and had a strong desire to rehabilitate himself. He also had a level of planning regarding the future. He undertook these courses whilst he was on remand, which is not an easy achievement. I see a good deal of force in those submissions. However, I would be more inclined to describe his prospects of rehabilitation as guarded. I hope they are good, and I was impressed by his evidence, but one has to be realistic because he has had problems in the past. But I do agree with Mr Edwards that his client has shown a lot of initiative whilst he has been on remand and appears to have plans in place for when he is eventually released. 40Although Mr Bowden pleaded guilty to the especially aggravated break, enter and steal, the plea was very late. Mr Edwards realistically acknowledged a discount should range between 10 and 12½ per cent. Mr Curran thought it would be worth 10 per cent. I propose to discount the sentence by 10 per cent in due course. Mr Edwards argued there are special circumstances for altering the usual ratio between a full sentence and the non-parole period. Normally, a non-parole period is three-quarters of the full sentence but the non-parole period can be reduced and the parole period extended in special circumstances. 41Mr Edwards pointed out this will be his client's longest period in custody so far. He will need a good deal of treatment, support and supervision when he is released and he referred me to Dr O'Dea's report. Mr Curran agreed there were special circumstances for making that adjustment to the non-parole period. Mr Edwards took me to a number of Court of Criminal Appeal decisions concerning especially aggravated break, enter and steal. They are R v Richard Fojt [2011] NSWCCA 20, Sheen v R [2011] NSWCCA 259, R v Van Rysewyk [2008] NSWCCA 130 and R v Rossi-Murray [2009] NSWCCA 177. I was also provided with the statistics produced by the Judicial Commission of New South Wales. Mr Edwards argued that the break, enter and steal at Mosman was at the bottom end of the range. I agree. He realistically acknowledged, however, that it should attract custody and needs to be accumulated to some extent on the sentence for the especially aggravated break, enter and steal. 42Mr Curran pointed out that the home invasion offence tends to overshadow the others. The others are serious but the home invasion was extremely serious. He is right in that submission. As Mr Curran fairly pointed out, there was nothing remotely like this on Mr Bowden's record but that nevertheless it had to be a significantly lengthy sentence. 43I am sentencing Mr Bowden for three offences. I will aggregate the sentences into one sentence but I need to indicate what the individual sentences would have been. 44For the especially aggravated break, enter and steal I would regard an appropriate sentence, bearing in mind the matters which I have referred to, as 7 years imprisonment. I would discount that by 10 per cent, say 9 months, and reduce that sentence to 6 years and 3 months. The discount is because of the plea of guilty. 45The aggravated break, enter and steal at Mosman: for that offence I would regard an appropriate sentence as being one of 5 years imprisonment. Mr Bowden pleaded guilty to that at the earliest available opportunity and I would discount that sentence by 25 per cent, so the sentence that I would fix for that crime is 3 years and 9 months. 46Finally, for the car theft I would regard an appropriate sentence as being one of 2 years imprisonment. I would discount that by 25 per cent because of his plea of guilty and I would fix a sentence of 18 months imprisonment. 47I would accumulate the larger sentences, obviously the 6 years and 3 months, for the especially aggravated break, enter and steal. I would accumulate the other two sentences to the extent that an overall sentence I would fix would be 8 years imprisonment. 48For a sentence of 8 years imprisonment the normal non-parole period envisaged by the Crimes (Sentencing Procedure) Act would be 6 years imprisonment. However, because of the special circumstances referred to by Mr Edwards, and acknowledged by Mr Curran, I would reduce the non-parole period to one of 5 years imprisonment. Hence I would fix an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years imprisonment. 49Mr Bowden, I fix a non-parole period of 5 years in this aggregate sentence to commence 29 May 2011. That expires on 28 May 2016. The balance of the sentence is 3 years, commencing on 29 May 2016 and expiring on 28 May 2019. The overall sentence is 8 years, starting when you were arrested on 29 May 2011, and the overall sentence finishes on 28 May 2019. The first date on which you are eligible for parole is after 5 years, 28 May 2016. HIS HONOUR: There are a couple of things, the compulsory drug treatment - what's the section - do I recommend him for that? CHAN: It will be section 5A of the Drug Court Act, which defines what eligible convicted offender is. HIS HONOUR: Just give me that section again, Ms Chan? CHAN: Section 5A. HIS HONOUR: I need your help, both of you here, or particularly you Mr Payton. What do I do? Do I refer him-- CHAN: Well it appears by the time the Drug Court would assess him he may well be eligible for 3 years left of his non-parole period. HIS HONOUR: He's eligible I think. CHAN: I believe that he may be eligible, yes. HIS HONOUR: No, I think he is. Mr Payton, what do you-- PAYTON: Yes, your Honour, I think it relates to the unexpired portion. HIS HONOUR: It does, the unexpired portion is less than three years. PAYTON: So I would ask your Honour to make that referral. 50Under s 18B of the Drug Court Act 1998 in my opinion there are grounds on which the Drug Court might find Mr Bowden to be an eligible convicted offender and I refer Mr Bowden to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order. HIS HONOUR: I think that's all I need to do, is that right? CHAN: I believe so, your Honour. PAYTON: Your Honour, in relation to the material that might be sent to the Drug Court is it the case that the entirety of the court file-- HIS HONOUR: I don't know the answer to that. My guess is yes, but I don't know. PAYTON: In order to remove any doubt, in relation to the psychiatric report prepared by Dr O'Dea, Mr Bowden provides his consent for that report to be provided to the Drug Court for that process of assessment. HIS HONOUR: Thanks. The other thing I want his consent for - it's up to him whether he agrees or not and this might be encompassed by what you say - his classification. The prison authorities, who classify prisoners after they're sentenced, and he's now been sentenced, say that they are assisted by psychiatric or psychological material, and I ask Mr Edwards to get - or perhaps you-- PAYTON: Yes, that consent is also provided. HIS HONOUR: Good. My associate will arrange to send a copy of Dr O'Dea's report to the classification section of Corrective Services. PAYTON: Thank you, your Honour. HIS HONOUR: I note your consent. I think the Drug Court would have all of the exhibits which are before me. All right. Now I will explain the sentence in a moment because I have to. I have given an aggregate sentence, I have fixed a sentence, I have specified what the individual sentences would be, I have referred him to the Drug-- PAYTON: Sorry, has your Honour indicated that your Honour took into account the Form 1 offences when-- HIS HONOUR: I did when I signed it, yes. PAYTON: Yes, thank you. HIS HONOUR: I did take that into account. 51In response to Mr Payton's query, I signed the Form 1 and indicated that when I was fixing the sentence for the aggravated break, enter and steal, or what the sentence would be when fixing it as 5 years, I took into account the matters on the Form 1. HIS HONOUR: All right, is there anything else? Any other matters? I don't think so. Mr Payton? PAYTON: No, your Honour. HIS HONOUR: Mr Bowden, I have given you one sentence for all three, you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: The three I've got to tell you what they would have been. You would have got 6 years and 3 months for the home invasion, you would have got 3 years and 9 months for the break and enter at Mosman and you would have got 18 months for the car theft, and I would have accumulated those a bit and given you an overall sentence of 8 years. OFFENDER: Yes, your Honour. HIS HONOUR: So I have set just one sentence for all three crimes of 8 years and your non-parole period is 5, which by my calculations means you got that unexpired period which you can - it makes you an eligible convicted offender, well in my opinion it does, and I have made an order referring you to the Drug Court for that program. OFFENDER: Yes, your Honour. HIS HONOUR: And the date on which you will be eligible for parole is 28 May 2016, do you understand that? OFFENDER: Yes, your Honour. HIS HONOUR: Anything else? CHAN: No, your Honour. HIS HONOUR: Keep up the good work, good luck. OFFENDER: Thank you.