Director of Public Prosecutions v Thadathil

[2020] VCC 884

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02506

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN THADATHIL

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 June 2020
CASE MAY BE CITED AS:	DPP v Thadathil
MEDIUM NEUTRAL CITATION:	[2020] VCC 884

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, criminal damage, young offender, good prospects of rehabilitation, Just punishment, general deterrence, combination sentence, COVID-19

Legislation Cited: s.6AAA of the Sentencing Act; s.18 of the Sentencing Act
Cases Cited:

Sentence:Imprisonment for a period of 35 days and a Community Corrections Order for a period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecution
For the Accused	Mr J. Taaffe	Doogue + George Defence Lawyers

HIS HONOUR: 

1Steven Thadathil, you pleaded guilty to one charge of criminal damage,
for which the maximum penalty is 10 years' imprisonment.  The value of the damage you caused was $279,584.80. 

2The circumstances of the offence are set out in the prosecution opening, which was read in open court and tendered and marked as Exhibit 1.

3The offending in this case took place on 20 April 2019.  At approximately 2 am on that day, you drove a white Toyota ute registered ILL8DT into the Expresso Car Wash at 246 Nicholson Street, Fitzroy.  You were towing a trailer containing a large orange water tank.

4You had stolen that vehicle and trailer from the Downer Group in Somerton in the days leading up to 20 April 2019.  You have been dealt with separately for the theft of that motor vehicle and trailer, and other offences which took place in the period leading up to this offence.

5On entering the Expresso Car Wash, you paid for a wash cycle and then went into the automatic car wash, causing the washing cycle to start.  The car wash began to clean the ute before dropping a washing arm between the vehicle and the trailer, not detecting the presence of the trailer, and becoming stuck between the tray of the utility and the trailer.

6You drove the ute slowly forward, causing the car wash machine to move on its tracks, along with the vehicle.  You then got out of the vehicle and inspected the issue before walking out of the end of the car wash and around the front to see what was happening from the other side.  You then got back into the vehicle and reversed towards the start of the wash bay before driving forward again towards the end of the wash bay, slowly.  The car wash machine moved with your vehicle, with the arm still jammed between the vehicle and the trailer.

7As you drove out of the bay, the car wash machine reached the end of its rails and stopped moving, causing you to stop the vehicle and the car wash machine to flash its orange lights in warning.  You again got out of the vehicle and returned to the back of the ute, attempting to remove the trailer from the utility.  However, you failed to do this.

8For 30 minutes or thereabouts, you attempted to extricate the car wash machine arm from between the utility and the trailer, without success.  On multiple occasions, you attempted to disconnect the trailer, and you tried again to move the ute forwards and backwards, causing the car wash machine to shake violently.  You then walked out of the end of the bay and you re-entered from the front to attempt to move the arm by hand from the other side.  Two unknown males also attended the car wash bay during this time to try and help you.

9At about 2.35 am, you got back into the ute and you drove forwards until the car wash machine reached the end of its tracks.  You then continued to accelerate until the machine arm broke from the machine on one side, allowing the arm to lift and pass over the water tank on the trailer as you continued to drive out of the bay. 

10It was this action that caused the damage to the machine, which you accept
by your plea, was an act of intentional criminal damage.

11Once the washing arm over the trailer and both of the vehicles and the trailer were free, you then put the vehicle into reverse, backing the trailer again into the washing arm, which was by that stage broken.

12It is not put by the prosecution that this was a deliberate act calculated to damage the machine, or indeed that it did further damage the machine.

13At approximately 9 am the next day, an employee of the Expresso Car Wash noticed the damage to the car wash machine.  He cut the power to the bay and called his manager, and the police.

14Police attended the car wash on 21 April 2019, obtained CCTV footage of the incident, and were able to ascertain that the vehicle was the white Toyota ute registered ILL8DT.

15You were arrested the next day, being Monday 22 April 2019, in relation to an unrelated burglary matter in Jacana, and you were remanded into custody.

16On Thursday 25 April 2019, police worked out that the vehicle involved in the criminal damage of the car wash had been stolen in the burglary from the Downer Group in Somerton.  The CCTV of that offending was reviewed, and police determined, or decided, that you were the offender on both occasions.

17On that same day, at Broadmeadows Police Station, police interviewed you regarding the burglary and theft of motor vehicle charges, and in relation to the criminal damage in respect of this incident.  You answered all questions put to you by the police.

18In relation to this matter, you gave the following version:  As you had been driving the vehicle, you thought you had better wash it.  You went to a car wash. 
The machine went down too far and got caught on something.  You wrote down the number for the car wash, and you were intending on calling them.  You rang the distress number to let them know that you were there, and you were outside their hours of operation.  There were lights on, and you believed there were people there.  Two people from the Carlton flats helped you out.  After you got the car out, you went with the people who were helping you.  There were signs at the car wash saying they were not liable for any damage to vehicles, so you thought:

'Fuck you.  I'm not liable for any damage to your car wash.' 

19You further said: you were still nice enough to take down their number to let them know you were there.  You said you had not called the car wash owner yet.  You said when the machine got stuck, you tried a couple of manoeuvres to get it out, but that did not work.  You said the machine was damaged before you moved forward or back.  You confirmed that it was you in the CCTV, and you said you wanted the car wash owner's contact details as you wanted to apologise.

20As a result of the damage you caused, the Expresso Car Wash was required to purchase a new automatic car wash machine as the damaged one was a write-off.  The total cost of removal, purchasing the new machine and installation was $279,548.80.

21The victim in this case, the Expresso Car Wash, was insured and the insurer has covered the cost of the replacement machine and compensated the victim for revenue lost as a result of the machine being inoperable for a period. 
This amount - that is, the damage plus the compensation for lost revenue -
is the subject of a compensation order in this proceeding.

22Mr Thadathil, you pleaded guilty at the committal mention of this matter, which was the earliest opportunity.  I give you full credit for the utilitarian value of your plea.  It has saved the community the time and cost of a trial and spared the witnesses the experience of giving evidence.  I also accept that your plea is indicative of remorse on your behalf.

23I turn to the gravity of this instance of criminal damage.  The offence of criminal damage can cover a wide array of circumstances, ranging from the relatively trivial to extremely serious instances of the offence.  This is significant offending conduct given the replacement bill in this case.  In assessing this offence, the quantum is the obvious feature which elevates the objective seriousness of the offending.  The repair bill was a very large amount of money indeed.

24However, this is an unusual case, in that it is rare to see damage of this value outside of arson cases where a building has been destroyed, or in situations, as Mr Harrison pointed out during the plea, where motor vehicles have been destroyed.

25Mr Taaffe has submitted that you could never have contemplated that your actions would cause the extent of the damage that they did, requiring the entire machine to be replaced.  I accept this.  The prosecutor, Mr Harrison, accepted that you would not have understood the value of the damage you were causing.  However, as the prosecutor submitted, this car wash machine was obviously a complicated piece of machinery, and it must have been clear to you that the monetary value of the damage was going to be significant.

26Mr Taaffe submitted that your motivation was to free the vehicle and trailer, which were trapped by the machinery.  He submitted that prior to causing the damage, you spent an extended period trying to free the vehicle by other means.  He submitted that your offending is far less serious than a situation where an offender contemplates and understands the damage will be valued at hundreds of thousands of dollars.

27I accept this characterisation of your conduct. Your offending was not premeditated or planned.

28After making the strange decision to wash this stolen car in the middle of the night, you found yourself in a situation you could not have anticipated.  You did try to disentangle the vehicle from the arm of the machine for some 30 minutes.  Ultimately, when you were unsuccessful at freeing the vehicle, you chose to accelerate the vehicle, intentionally damaging the machine.  This was a serious act, but your intention to damage the machine was reactive and formed only briefly prior to the actions that constitute the offence.

29In all the circumstances of this case, I assess your moral culpability for this offence of criminal damage involving some $279,000 in damage as at the lower end. 

30The fact that the victim was insured plainly reduces the direct impact on that victim, but the point made by the prosecutor, that the community bears the cost of increased premiums resulting from payouts such as occurred here as a result of your actions is a point well-made. 

31Leading up to this offending in April 2019, you were living with your parents.  They came to realise you had a serious drug problem.  They gave you an ultimatum:  agree to treatment for your addiction or leave home immediately and cease contact with your family.  You chose, unwisely, to leave the family home, and you continued using drugs.

32From 19 April 2019 through to 22 April 2019, after the parental ultimatum, you were homeless, and drug affected.  You committed this criminal damage and other offences in this period. 

33I turn to your personal circumstances.  You were born in Malaysia and arrived in Australia in 1995 as an infant.  Your primary schooling, I am told, was difficult and lonely, involving bullying from peers and perceived mistreatment from your teachers.  These problems continued in secondary school, and you struggled to form proper friendships until you got past Year 10.

34However, your academic performance was good, and you were able to commence a degree of Applied Science at RMIT in 2013. 
You completed this degree with honours in 2016.  You majored in Project Management. 

35Whilst you were doing this degree you started using methylamphetamine with friends in around 2013.  Over time, your drug use got worse and it interfered with your life.  You say it became habitual and problematic after you finished university.  I note you have a prior conviction for trafficking in 2015, which involved trafficking methylamphetamine and trafficking ecstasy, which suggests to me that your involvement with problematic drug use goes back several years.

36You had several jobs from the age of 17 onwards, and you worked in a casual role while studying.  After completing university, you worked as a contract administrator/project manager for a company called Landsky, but you lost this job when you were remanded in custody.

37Mr Taaffe has submitted that the principles relating to the sentencing of youthful offenders are applicable to you.  I accept that those principles have some application in this case.  You were 24 years of age at the time of the offending, and you are now aged 25.  You are still a youthful offender, albeit at the outer edges of the age range where those principles are applicable.

38The circumstances at the time of the offending were that you were still living with your parents.  It seems to me that they were still in a position of parental supervision over your behaviour, given you were living with them and given the ultimatum they gave you about seeking drug treatment.  Although you were aged 24 at the time, your level of maturity and independence from your parents was more akin to that of a younger offender. 

39Following the period you spent in prison on remand, on 30 May 2019, you were bailed into residential rehabilitation at the Hader Clinic.  The Hader Clinic residential rehabilitation treatment program is a full supervised residential living program consisting of individual counselling sessions, psychiatric review, therapeutic and educational groups, cognitive behaviour therapy, and daily self-help meetings such as Narcotics Anonymous and Alcoholics Anonymous. 

40You had individual development assignments, rostered work assignments, and you were subject to random urine drug screens.  You spent 56 days in the primary care program at Geelong, and then a further period in the secondary care program in Essendon.  You left the program on 27 August 2019.

41Apart from a couple of lapses that relate to cannabis and alcohol, as disclosed by you to the assessing officer for the community correction order, and as explained this morning by Mr Taaffe, you have demonstrated the ability to stay free of drugs and out of trouble over what is now a significant period. 
Your relapse, I am told, related to two separate days and involved alcohol and cannabis.  Otherwise, you have made important steps towards rehabilitation, which you will need to continue.

42Your mother and father remain supportive of you.  They organised the residential rehabilitation placement with the Hader Clinic, and they lent you the money required for that.

43You have been seeing a psychologist, Mr Clive Smee, for assistance. 
I was provided with a letter from Mr Smee which I have read, and I have had regard to in formulating the sentence in this matter.  You are seeing Mr Smee monthly, fortnightly or weekly, depending on your needs and on your financial position.

44The other matter of significance is that on 31 October 2019, you were dealt with at the Broadmeadows Magistrates' Court for the following charges:  burglary, theft of the trailer, theft of the Hilux, another burglary, a wilful damage, theft from a motor vehicle, a threat to kill, an unlawful assault, and commit indictable offence whilst on bail. 

45For these offences, you were placed on a 12-month community correction order with 120 hours of unpaid community work.  According to the community correction assessment report, you have 39 hours remaining.  Community work was suspended by Corrections in late April 2020 in response to the COVID-19 virus. 

46Overall, I accept you are a younger offender without a significant criminal history.  It is clear you have made significant process in your rehabilitation.  In my view, it is in the interests of justice, as well as in your interests, for your rehabilitation to be supported.

47Mr Taaffe submitted that I should impose a further community correction order.  To that end, I had you assessed and you have been assessed as suitable for such an order with a range of conditions of community work, and I will return to the specifics of the order at the end.

48Just finally, in terms of your overall circumstances, I should indicate that since losing your employment, you have been attending Narcotics Anonymous and Alcoholics Anonymous daily over the internet, as I understand it.  You have been looking for employment.  You have then completed a certificate in building, and you have an intention to study further in building, which is a degree that would complement your skills and experience.  You are presently relying on Centrelink payments, and you are currently living with your parents who assist you with your living expenses.

49I would say this:  apparently, you owe a substantial sum of some $37,000 for your stay at the Hader Clinic and for your legal fees.  You do need to understand that your future would be bleak without the support that they have given you during this period of your life. 

50As to sentencing purposes, I accept, given your limited history and your demonstrated rehabilitation, the significance of specific deterrence is considerably reduced, and the importance of community protection is negligible.

51Just punishment, general deterrence and rehabilitation are all relevant, but in my opinion, given your age, the absence of a significant criminal record and your efforts to rehabilitate, a combination of time served, and a community correction order best reconciles the various relevant sentencing principles. 
The prosecutor Mr Harrison's submission was that such an order was open on the facts of this matter.

52If you could stand now, Mr Thadathil?

53On the charge of criminal damage, I sentence you to a period of imprisonment of 35 days.

54I also sentence you to a community correction order for a period of two years.

55I order that you perform 200 hours of community work. 

56I will put in place the following special conditions:  treatment and rehabilitation for your drug problems, treatment and rehabilitation related to your mental health, and supervision on top of the community work that I have ordered.

57I will order that 40 hours of time performed on the various rehabilitative programs can be deducted from the 200 hours of community work that I have ordered.

58Do you consent to such an order, Mr Thadathil?  Do you consent?  Do you agree to perform such an order?

59OFFENDER:  Yes, Judge Doyle. 

60HIS HONOUR:  All right, thank you.  I will indicate before I get you to sign this document, in this case, I will declare, pursuant to s.18, 35 days of the pre-sentence detention to be deducted from the sentence that I have imposed. 
That means that you have served your sentence and that you will be therefore on a community correction order.

61I will make the compensation order sought in the sum of $339,845.80.  That is a debt that you owe, a judgment debt against you.  You clearly do not have the means to pay it now, but it can be enforced as a judgment debt in the future, Mr Thadathil.

62What I will do now is hand down this document for you to sign, but before I do, I will just indicate to you the mandatory terms of the order are that you cannot commit another offence during the period of the order - that is punishable by imprisonment.  That is the first mandatory condition.  You have got to comply with sentencing, any obligations, or requirements under the sentencing regulations.  You must report and receive visits as directed from Corrections.  You must go to Corrections within two working days of this order starting, and the Corrections office in this case is the Coolaroo Community Correction Services.  They are in 5/1640 Pascoe Vale Road.  So, you have got to go there within two days.  Do you understand?

63OFFENDER:  Yes, Your Honour. 

64HIS HONOUR:  Yes.  If you change your address or your job, you must let Corrections know within two days.  You cannot leave Victoria without letting Corrections know, and you must obey all lawful instructions of Corrections.

65So those are the mandatory conditions that exist on this order, and then there are the specific special conditions that I have outlined of supervision, treatment and rehabilitation, and the community work, the unpaid community work. 
So that is the order.  I will hand that down now.

66But for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a period of imprisonment of 14 months with a non-parole period of eight months. 

67MR TAAFFE:  May I approach?

68HIS HONOUR:  Yes, thank you, Mr Taaffe.  All right.  The other thing about these orders, Mr Thadathil, is if you breach them - so that means if you do not do the things that I have just explained to you - then that is a breach, and that is a separate charge.  But the other aspect of it is, you are then required to come back before me, and one of the options is to cancel the order and resentence you.  So it starts all over again.  Do you understand?  So if you do not do what you are required to or you reoffend by committing an offence punishable by imprisonment - well, that is a breach of the order.  All right?

69OFFENDER:  Yes, Your Honour. 

70HIS HONOUR:  But if you get through the order, then it is all over.  So, they are the orders that I make.  Any other orders required in this matter?  Were there any disposal orders or ancillary orders?  I do not think there is.

71MR HARRISON:  Only the compensation order, Your Honour, and Your Honour's dealt with that.

72HIS HONOUR:  Nothing else, Mr Taaffe?

73MR TAAFFE:  No, Your Honour. 

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