Director of Public Prosecutions v Thomas

[2023] VCC 2071

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02352

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS THOMAS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2023, 3 November 2023
DATE OF SENTENCE:	9 November 2023
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2023] VCC 2071

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Theft – Make threat to kill – Conduct endangering persons – Armed robbery – Dangerous driving while pursued by police – Aggravated offence of recklessly exposing an emergency worker to risk by driving

Legislation Cited:

Cases Cited:DPP v Lawrence-McGrath [2021] VCC 859, DPP v Matthews [2022] VCC 1588, McKay v The King (No 2) [2023] VSCA 8, DPP v Whitaker [2021] VCC 299 and Nelson v The Queen [2020] VSCA 219, Clark v The Queen [2021] VCC 299, DPP v Roberts [2020] VCC 1195

Sentence:                 3 years 3 months imprisonment with a 20 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr M. Sturges	James Dowsley & Associates

HIS HONOUR:

1Travis Thomas, you have pleaded guilty to a number of charges arising out of a series of incidents on 20 and 21 July 2022 in the Springvale area.

2Those charges are theft, making a threat to kill, conduct endangering persons, armed robbery, dangerous driving whilst pursued by police, and the aggravated offence of recklessly exposing an emergency worker to risk by driving, and two uplifted summary charges of unlicensed driving and possession of a prohibited weapon without excuse, being knuckledusters.

3The maximum penalties are set out in the prosecution opening, which I incorporate by reference.

Circumstances of the offending

4The circumstances of the offending were outlined in the prosecution opening which was read in open court on the sentence indication hearing and that is the factual basis upon which you are to be sentenced.

5You were driving a stolen motor car that had been stolen in Frankston a couple of weeks earlier. It was a grey Holden Captiva sedan with false numberplates. (Charge 1)

6The complainant, Mr Bhatti, was an Uber delivery driver minding his own business on Springvale Road shortly prior to midnight. He saw you driving erratically in front of him and you appeared to be seeking to ram other vehicles. As the two vehicles approached a set of lights at the corner of Springvale and Heatherton Roads your vehicle came to a stop. The complainant's vehicle was on your right-hand side and you pulled down your window and gestured to the complainant that you had a gun and 'I'll kill you', and made a finger gesture with your hand. He felt threatened by this and this gave rise to Charge 2, which is making a threat to kill.

7The lights then changed and both vehicles accelerated off.  The complainant then formed the view that you were trying to chase him with your car and he then sought to engage in evasive action. You were pulling in front of him slamming on your brakes. The complainant took evasive action by slamming on his own brakes to avoid a collision, causing his car to stop.

8After his vehicle stopped you got out of your car and pulled up a red ski mask over your face. You put your hands down your pants and appeared to be concealing something and sprinted towards his stationary vehicle.  He tried to reverse away, and you were yelling and screaming at him. 

9He sought to drive at you to scare you away, at which point you stopped running towards him. You returned to your car then pursued his vehicle again with your headlights off, swerving from left to right, and continued to follow him some eight or ten car lengths behind him.

10In an attempt to escape, Mr Bhatti attempted a U-turn in Springvale Road near the intersection of Spring Road. His vehicle activated its anti-lock braking, sending the car into a bus stop, causing extensive damage to the vehicle and the bus stop. This constitutes the offence of reckless conduct endangering persons, by forcing Mr Bhatti to do this evasive turn.

11He attempted to get out of his vehicle after this crash into the bus shelter but was unable to do so due to the damage to the car. You then approached him after pulling up your ski mask again and then pulled out a knife and demanded “give me everything you have. Give me your wallet.” Mr Bhatti took one of his phones out and said “Take my phone, I don’t keep a wallet, I swear.”

12You demanded the PIN code and you were threatened to stab him. There were other people in the vicinity, and they had called Triple 0.  You took his phone and his earbuds, as well as the blue bag that contained a food delivery that he was going to undertake. This constitutes the charge of armed robbery.

13You then got back into your vehicle, did a three-point turn in Springvale Road, took a video of the complainant and his crashed vehicle, and then continued north on Springvale Road.  You then subsequently did a U-turn at the Dandenong by-pass and travelled south on Springvale Road.

14Just as you departed, a Police vehicle travelling south along Springvale Road stopped at the site of the robbery and officers spoke to the victim. They were able to get updates on your location, as the stolen phone had a tracking application activated.

15The Police Air Wing located your vehicle at around 12.45 am in Griffiths Court in Glen Waverley.  You moved off and a police officer unsuccessfully attempted to use a tyre deflation device on your vehicle.  Another officer was successfully able to deploy a device. You narrowly avoided hitting him before accelerating to approximately 100 kilometres an hour. 

16Thereafter there was a police pursuit along Ferntree Gully Road and Blackburn Road with you accelerating to at least 90 kilometres an hour, with pieces of tyre beginning to fly off one of the deflated tyres. 

17You turned into Wellington Road, cutting in front of a civilian vehicle.  You then went along a slip lane in the wrong direction off Wellington Road and travelled into another street, Arnott Street, and then made a three-point turn in a driveway, before driving along the service road just near Blackburn Road.

18The entire front passenger-side tyre separated from your vehicle and rolled onto the road. You continued to accelerate and were travelling at up to 125 kilometres an hour on the east-bound lane of the Princes Highway  towards the Springvale Road intersection.

19Multiple police vehicles were seeking to apprehend you and had activated their sirens and lights with the Police Air Wing overhead. 

20You travelled through the Springvale Road intersection against red traffic lights at approximately 60 kilometres an hour, and, heading east, accelerated again reaching speeds of 117 kilometres an hour. A police car with lights and sirens activated was ahead of you, also travelling east. This vehicle was travelling to an unrelated incident in Dandenong and was not involved in the pursuit. You turned your headlights off. This conduct is Charge 5 of dangerous driving while pursued by police.

21You were travelling at about 113 kilometres an hour when you swerved at the police vehicle, forcing the police vehicle to take evasive action. This gives rise to Charge 6 of the aggravated offence of recklessly exposing an emergency vehicle to risk by driving.  The two people exposed were the two police officers in the police car.

22You then continued east, narrowly avoiding a collision with a civilian vehicle. The pursuing police ground units disengaged from the pursuit while the Police Air Wing maintained its observation. Despite being no longer pursued, you accelerated to around 112 kilometres an hour, with no headlights.

23You turned right into Jones Road in Dandenong, then made your way through various side streets. Police attempted to intercept you in Joffre Street, but you avoided the tyre deflation device that had been deployed.

24Finally, you ended up in Chandler Road, Springvale, and stopped outside number 55. You attempted to open the driver’s door of a White Holden Commodore parked nearby, but were unable to as it was locked. That vehicle was later identified as belonging to your mother.

25You then ran to your residence, a unit at 53 Chandler Road.  The Police Air Wing observed you enter, and shortly Police attended at your address. You had got into the manhole in the roof cavity and ultimately, after multiple police members entered the property, they were able to restrain you and arrest you.  You were transported to the Dandenong police station, and you were unfit to be interviewed.

26You were unlicensed at the time and that gives rise to the summary offence of unlicensed driving.

27Police then searched the house, found that the vehicle that you had been driving was stolen from Frankston a couple of weeks earlier, and that gives rise to Charge 1, theft of a motor vehicle.

28In the car that you had been driving they also located the complainant’s phone and earbuds, and also knuckledusters, which gives rise to the summary charge of possession of a prohibited weapon. Mr Bhatti’s blue delivery bag was also later located in the car.

Seriousness of the offences

29The learned prosecutor in her sentencing submission highlighted the seriousness of the offences here.

30You were avoiding police apprehension from the start and they attempted to deploy tire deflation devices on a number of occasions and when they ultimately succeeded, you kept driving in any event.

31The offending was not of short duration commencing with the armed robbery on Mr Bhatti until you were finally apprehended nearly an hour and a half later. The complainant was an innocent motorist going about his business and you threatened him and stole his belongings. The offending occurred, as the learned prosecutor pointed out, in a populated residential area on main roads. You drove through red traffic lights on the wrong side of the road on multiple occasions at speeds well in excess of the speed limit. There was other traffic on the road. You were driving the vehicle at high speeds even though the tyres were disintegrating. You caused significant damage to the stolen vehicle as well as to the complainant's vehicle as a result of the crash, which gives rise to the original charge of conduct endangering persons. (Charge 3)

32You used a weapon when you sought to rob the complainant of his phone and his wallet.  He did not suffer any physical injuries and nor did the police officers engaged in the chase, but the police officers and indeed the complainant must have been shocked and upset by what you had done, although there was no victim impact statement.

33You placed the police officers in danger, although there was no collision between your vehicle and the police vehicles, which often occurs in these types of charges.

34By your plea of guilty to reckless endangerment, you foresaw that you were placing emergency workers, the police officers, in danger as a probable consequence of your action and that goes to your culpability.

35Your actions were aggravated by the fact that you were driving a stolen vehicle, you were unlicensed, you were serving a drug treatment order at the time and you were also under the influence of drugs.

36In a frank concession your counsel did not dispute the seriousness of the offending here.

37No real explanation for your conduct has been forthcoming. You had relapsed into the use of drugs on this drug treatment order following emotional issues associated with the dispute with your former partner and custody arrangements in relation to your young son. Due to your immaturity, you are not in a position to manage these life challenges. It was in that context that you recommenced using drugs as self-medication and then were involved in what appears to be a spontaneous armed robbery followed by seeking to evade police apprehension.

Prior convictions

38At the time of the offending, you were aged 22. You are now about to turn 24. You have admitted a significant criminal record. Your criminal record commences when you were aged 18 and your first entry in the criminal record is in fact a charge of driving in a manner dangerous on 11 October 2017, when you were convicted and placed on a 12 months' community corrections order.

39About four months later you were before the courts again for driving offences, including using an unregistered motor vehicle and possessing a controlled weapon.

40You were then dealt with on 27 April 2018 for theft from a shop and failing to answer bail. On the same date, you were dealt with on a number of charges including theft of a motor vehicle, attempted theft of a motor vehicle, possessing a prohibited weapon and committing an indictable offence on bail.  You were placed on a 12 month community corrections order.

41On 24 August 2018 you were dealt with for contravening that community corrections order, and on the same date you were also dealt with for contravening a family violence intervention order. You were placed on another community corrections order for 12 months.

42You contravened that order and that was dealt with on 25 November 2019; it was cancelled, and the breach was found proven. On that date you also received your first sentence of imprisonment which was 235 days' imprisonment on six charges of theft of a motor vehicle and theft as well as handle stolen goods, dishonestly receive stolen goods and possession amphetamine. The sentence of 235 days was imposed with that amount of days declared served and you were placed on a 12 month community corrections order to commence after your release from custody.

43You were before the court on 11 January 2020 on charges of possessing methylamphetamine and possessing a drug of addiction, and received a fine.

44You were before the courts again on 15 July 2020 on unlicensed driving and use of an unregistered vehicle, and you were fined and had your licence cancelled for five months.

45On 30 July 2020 you were before the Magistrate's Court at Dandenong where you again received a sentence of imprisonment of 120 days for attempted theft, intentionally damaging property, committing an indictable offence on bail, theft of a motor vehicle, possession of prohibited weapon, dealing with proceeds of crime.

46On the same day you were dealt with for breach of an earlier community corrections order, and you were found to have breached that and you were placed on a 15 month community corrections order on that date.

47Nearly 12 months later, on 4 August 2021, you were before the Dandenong Magistrate's Court on charges of recklessly causing injury, unlawful assault, theft, committing indictable offence on bail, driving whilst disqualified and dishonestly obtaining stolen goods and at that point you were sentenced to an 18-months imprisonment by way of a Drug and Alcohol Treatment Order.

48Your criminal record indicates you were dealt with for further offending on 3 May 2022 where sentences of seven days' imprisonment and eight days' imprisonment were imposed on you for further offending and the Drug Treatment Order was continued. The offending included possession of methylamphetamine, fraudulently using number plates, and dealing with property proceeds of crime.

49The Drug Treatment Order imposed on 4 August 2021 was still extant when you committed these offences in July 2022. While you were still effectively serving the sentence of imprisonment, you committed this offending.

50Your criminal record shows you have been involved in drug-related offending, driving offending, theft, and you have one prior conviction for dangerous driving type offending, but this if the first time you have been dealt with for making a threat and for armed robbery, and also for the offence of recklessly exposing an emergency worker. Further, this is the first time you have been before a higher court.

51A significant feature of your prior criminal record is that in the past six years you have spent considerable periods in custody including being required, subsequent to this offending, to serve the balance of the Drug Treatment Order. On 2 August 2022 you were sentenced for contravention of the Drug Treatment Order to serve the balance of the order of 304 days.  That sentence was completed on 16 May 2023. You have been in custody on that sentence and on pre-trial detention in this matter since 21 July 2022 and 190 days of that is attributable to this offending.

52As discussed in the course of this plea hearing with your counsel, you are a young person. You have spent considerable periods in custody and thus a significant matter as I consider the appropriate sentence for you is that there is a risk that you will be institutionalised due to your significant periods in custody and that is a matter that I have taken into account.

Matters in mitigation

53I turn now to matters that were put in a comprehensive plea on your behalf by your counsel.

54You were born in Melbourne. Your parents separated when you were aged two and you resided at that point predominantly with your mother. Whilst living with her you were exposed to drug use and family violence with her subsequent partner, and there was welfare involvement.

55You resided briefly with your father when you were aged 12 before being placed into foster care for a period of two years and then you were returned to reside with your mother.

56You have an older sister and two younger half siblings from your father's new relationship.

57You thus had a disrupted upbringing and attended six primary schools and three high schools due to constantly moving address. You repeated Years 4 and 9 as a result of non‑attendance at school and then stopped attending school fully in Year 10.

58You then commenced, after your father arranged it, a diesel mechanic apprenticeship in 2017 but you did not complete this. You have worked casually with your father in a Tyre Mart in the recent past but effectively you have never had serious employment. 

59Unsurprisingly given your disrupted upbringing which is canvassed in the two psychological reports that were put before me, you began smoking cannabis at age 15 and then commenced using MDMA and began using ice when you were aged 20. You are also a regular user of GHB. At the time of the offending, you had been using ice and as I have indicated, you were attempting to complete - unsuccessfully - the Drug Treatment Order that had been imposed in the Magistrate's Court.

Psychological reports

60On the plea your counsel tendered two psychological reports from Ms Cokorilo and Ms Stipis.

61Both reports were not tendered to seek a reduction in your moral culpability but to seek to explain your offending. Both reports indicate the long-term impact on a person of a dysfunctional childhood that continues to manifest itself to this day, including in PTSD, major depressive disorder and stimulant use disorder.

62Ms Cokorilo indicates at paragraph 91 of her report that diagnoses indicated are  'Post Traumatic Stress Disorder, Major Depressive Disorder, Cannabis Use Disorder, Stimulant Use Disorder [and] Adjustment Disorder' but she does note that you have nil evidence of entrenched personality disorder.

63Ms Cokorilo’s also states (in an opinion endorsed  by Ms Stipis at paragraph 89 of her report) at paragraph 96:

‘Mr Thomas presents as a very immature young man of low intelligence Further assessment may be warranted to rule out intellectual disability'.

64At paragraph 101 of her report Ms Stips notes:

Mr Thomas' early disengagement from further education contributed to his pervasive pattern of maladjustment.  Meaningful engagement in education offers routine structure, positive role modelling and ability to establish and maintain positive relationships and opportunity for engagement with pro-social peers'.

65She indicates that you have got \complex PTSD, as well as a major depression.  And then she notes at 105 that:

Mr Thomas has a history of abusing substances as a means to self-medicate his mental health conditions and use them as a coping mechanism.  Self-medication with substances can also impede normal processing of emotions which may contribute to long-term emotional regulation problems, including difficulties tolerating stress, as well as high emotional states that motivate continued substance abuse in the absence of more adaptive and functional coping mechanisms.

66In her report, Ms Stipis recommends you require long-term support by way of mental health support, as well as specialist counselling in relation to your substance abuse and that you may also benefit from a period in a residential treatment facility.  She recommends that your current medication be adjusted and titrated and that you may require further psychological support.

Prospects of rehabilitation

67On the plea your prospects of rehabilitation were considered.  An important element of the plea was that you remain a relatively young man and that it is in the community interest that you be rehabilitated into the community. Thus, your prospects of rehabilitation are an important consideration.

68As I have noted, Ms Stipis said she did not find 'evidence of entrenched personality disorder or severe intellectual impairment'.

69You have failed to complete community corrections orders and you failed the Drug Treatment Order, but your offending can be attributed to drug use and negative peers. Your lack of a serious occupational history while in the community is a factor that makes your prospects of rehabilitation problematic.

70Against this you are continuing to mature with age, as well as the positive approach to your rehabilitation that you have shown whilst in custody.

71While ultimately your prospects of rehabilitation are related to your ability to overcome drug use and to overcome negative associations, the significant period in custody does break those associations.

72Your counsel emphasised the support of your mother and also your father, and your father has provided support with employment in the past.

73Ultimately, I would regard your prospects of rehabilitation as guarded but not without hope.

74Your counsel on the plea emphasised the actions that you been taking whilst in custody including engagement with the Salvation Army. You have undertaken a number of courses and are on a waitlist for a further drug course. You have also been involved in full-time education and I note a number of certificates that have been filed. I commend you for the actions that you have taken already. You are in an educational deficit given the age you left school, so a period in custody gives you that opportunity to further your education and you are taking that opportunity.

75When you are a sentenced prisoner you will be able to access further drug treatment courses, and I have noted that you are on antidepressant medication and on a methadone program.

Other matters in mitigation

76In his plea submission your counsel emphasised your plea of guilty. There was a committal in this matter but following the committal there was an indication to plead guilty and a sentence indication was held.

77I regard your plea of guilty as some evidence of remorse. The plea was entered whilst the criminal justice system was facing the COVID‑related backlogs and thus you are entitled to a perceptible amelioration in sentence.  You can consider yourself fortunate that you entered the plea at the time you did, as really the COVID sentencing amelioration is probably now well past its use-by date.

78In sentencing you I have taken into account the period that you have been on remand for this offending. As I indicated in the course of discussions with counsel on the plea, programs available to remand prisoners are more limited than sentenced offenders, and during 2022 have been more restricted

79Thus the period that you have been on remand is more onerous than had you been a sentenced prisoner.

80A further matter raised on the plea in relation to your period in custody on remand is that an uncle that you were very close to passed away in February this year. You were able to attend the funeral but your ability to grieve is restricted.

81Your mother has also had health problems while you have been in custody and thus it clearly impacts on you as a young person separated from your family for a considerable period due to your custodial environment.

Basic purposes of sentencing 

82The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

83Sentencing for this spate of offending is difficult. Your conduct in driving a stolen motor vehicle, then proceeding to engage in an act of armed robbery on an innocent motorist is to be utterly condemned. Your conduct in seeking to chase him using your vehicle, causing him to crash, is also to be utterly condemned.

84Thereafter seeking to evade the police when they sought to apprehend you, driving through red lights at high speed, forcing a police vehicle into evasive action, and exposing those police officers to further risk is further to be condemned.

85Sentencing considerations for this offending calls for general deterrence as well as specific deterrence.

86A countervailing consideration is your rehabilitation given your relative youth and immaturity. It is clearly in the community interest for a young offender to be reintegrated into society. It is further in the community interest for long-term psychological issues such as PTSD and depression that you have been self‑medicating using drugs be addressed.

87As I have indicated, your risk of institutionalisation is a relevant consideration.

88Considerations of totality are also relevant. For a person of your age, who has now been in custody now for 16 months and faces a further sentence, there is a danger that you will lose hope.

89The sentence of the court however must signal to persons minded to drive stolen vehicles and then seek to evade the police that they will be met with heavy penalties. Your conduct on that occasion, as I have indicated, was absolutely unacceptable and must be denounced. But for your relative youth and the lack of any injuries to those involved the sentences would have been significantly greater.

90I have had regard to a number of factors to illuminate current sentencing practices.  Each of the cases that I have considered have got their own particular facts, but cases such as DPP v Lawrence-McGrath [2021] VCC 859, DPP v Matthews [2022] VCC 1588, McKay v The King (No 2) [2023] VSCA 8, DPP v Whitaker [2021] VCC 299 and Nelson v The Queen [2020] VSCA 219 and Clark v The Queen [2021] VCC 299, as well as DPP v Roberts [2020] VCC 1195 are all cases that have dealt with this type of offending, and I have broadly considered them in order to consider individual sentences in dealing with this matter.

91While I have regard to all the matters put on your behalf, it was a course of conduct although individual sentences are required.

92Please stand.

93On Charge 1 of theft you are sentenced to 6 months' imprisonment.

94On Charge 2, making a threat to kill, you are sentenced to 6 months' imprisonment.

95On Charge 3, conduct endangering persons, you are sentenced to 1 year imprisonment.

96On Charge 4 of armed robbery, you are sentenced to 2 years' imprisonment.  That is the base sentence.

97On Charge 5 of dangerous driving while being pursued by police, you are sentenced to 1 year imprisonment.

98On Charge 6, aggravated offence of recklessly expose emergency worker to risk by driving, you are sentenced to 2 years' imprisonment.

99On the summary charge of unlicensed driving, you are sentenced to 3 months' imprisonment.

100And on the summary charge of possessing a prohibited weapon without excuse, you are sentenced to 14 days' imprisonment.

101On Charge 5, dangerous driving whilst being pursued by police, I order that 6 months of that sentence be served cumulatively on the base sentence.

102I order that 9 months of the sentence of the aggravated offence of recklessly exposing an emergency worker be served cumulatively on the cumulation on Charge 5 and on the base sentence, making a total effective sentence of 3 years and 3 months.

103I order that you serve a period of 20 months before being eligible for parole.  All other sentences are concurrent.

104I declare that you have served 190 days pre‑sentence detention.

105I declare that had you not pleaded guilty I would have imposed a total effective sentence of 4 years and 8 months with a non-parole period of 3 years and 2 months.

106I order that on Charge 3 all licenses are cancelled and are disqualified for 12 months.  On Charge 5, a similar order.  On Charge 6, a similar order of 24 months cancellation, disqualification.  Those orders are all concurrent.  So your licence is cancelled and you are disqualified for 24 months from this day.

107To indicate finally to you, Mr Thomas, I have taken into account all the submissions.  Because it is a course of conduct, I have allowed significant concurrency between the various sentences that I have imposed in order to reach total effective sentence.  And I have taken into consideration of totality, given that you had to serve the Drug Court Order as well.  I have taken into account your period of custody in setting a non-parole period, but also taking into account the seriousness of the offence. 

108You are now disqualified from driving for 24 months from this day.  You have got such a criminal record that if you come back before a court for any form of serious offending, you will be doing more and more periods of imprisonment.

109I am going to arrange for the two psychological reports to be provided to the prison authorities so that your mental health can be considered appropriately.  I commend you for the actions you have taken so far and I have exercised as much leniency as I possibly can in fixing this sentence.

110I will make a disposal order in relation to the knuckledusters and the licence plates that were found. And Mr Thomas, it is clear that your offending is both related to the use of drugs and bad company, so when you do get back home, go back into the arms of your family, not back into bad company in the Frankston south-eastern suburbs area.

111I thank counsel for their assistance on this plea.

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