Director of Public Prosecutions v Thomas

[2023] VCC 1503

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR 22-01448

CR-23-00329

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARYL THOMAS

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2023, 15 June 2023, 14 July 2023
DATE OF SENTENCE:	25 August 2023
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2023] VCC 1503

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:             Koori Court jurisdiction – Armed robbery – Theft from shop – Attempt to pervert the course of justice – Persistent contravention of a family violence intervention order – Make threat to kill – Plea of guilty – Application of Bugmy principles – Application of Verdins principles – Remorse

Cases Cited:Akoka v The Queen [2017] VSCA 214; Bugmy v The Queen  (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; Verdins v The Queen (2007) 16 VR 269

Sentence:Total effective sentence of 16 months’ imprisonment in combination with an 18-month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr J. Moore	Victorian Aboriginal Legal Service

HIS HONOUR:

1Daryl Thomas, you have pleaded guilty before me in the Koori Court jurisdiction on Indictment C2215068 to one charge of armed robbery (maximum penalty 25 years' imprisonment).

2I am also sentencing you today in respect of a second indictment – Indictment no. N12051528.  That indictment contains a charge of attempting to pervert the course of justice, which was the rolled-up charge relating to events over 10 and 11 February 2022.  That has a maximum penalty of 25 years' imprisonment.

3Three charges of persistent contravention of a family violence order, which each have a maximum penalty of 5 years' imprisonment, and a charge of making a threat to kill, which has a maximum penalty of 10 years' imprisonment.

4You were arraigned and pleas were heard in respect of each indictment across two separate hearings – 10 days apart – the first in the Koori Court jurisdiction and the second before me in the General List.  The reason for not hearing both matters in one sitting was due to offences appearing on the second indictment which were ineligible for Koori Court.

Criminal record

5You have admitted a criminal record.  It discloses several Latrobe Valley Children Court matters for damaging property, and threats and other offences.  You have received without conviction dispositions, involving Youth Supervision Orders, Probation and adjourned undertakings.

6I was told that you have a subsequent conviction in May this year for contravening an intervention order, wilful damage and using a carriage service to harass and that you were sentenced to two months' imprisonment.  You have been in custody since your arrest on the armed robbery before me, which is 478 days plus the two months sentence.

7Prior to your arrest you had never received a custodial sentence, either youth detention or adult incarceration.  This is a significant factor in your case.

8You have recently turned 23 years of age.  You were 21 at the time of the offending across both indictments.  You have an intellectual disability.  A statement of disability was provided to the Court dating from 2015.

9The detailed neuropsychological report and addendum from Laura Scott affirms intellectual disability.  Your youth, antecedence and disability are each important considerations in the sentencing exercise.

10The events the subject of the second indictment took place whilst you were on remand for the conduct the subject of the first indictment.

Indictment C2215068

Circumstances of offending

11The Circumstances are set out in Exhibit A in relation to that matter, and that is the Summary of Prosecution Opening which forms part of these Reasons for Sentence.

12In brief, you were in company with your co-offender, Stewart Walker, in and around Richmond at the time of the offence.  He was 24 and you were 21.  On 26 December 2021 you and Walker attended the vicinity of the Coles Express service station in Hoddle Street East Melbourne.  Walker entered the premises and you stayed in the car some distance away.  Walker approached the counter and produced an imitation firearm, pointing it at the attendant and saying, 'Give all the cash. Give me the cash.'

13Approximately $150 to $200 was given to Walker.  Walker then demanded tobacco and cigarette boxes and packs.  He made away with around 30 x 30 packs, and 20 cigarette boxes.  The armed robbery took about a minute.  Walker ran from the scene, quite a distance actually to where you were, until he arrived in York Street where you were parked, and you then drove off.

14You were arrested in Fitzroy North on 13 January 2022.  You made some limited admissions, distancing yourself from the offending whilst implicating Walker.  You also made a statement to police – again implicating Walker but not yourself.  Whilst you were not entirely full and frank about your own involvement – your implication of Walker – and willingness to make a statement to that effect – is a matter of mitigation in your case.

Objective Gravity

15This was a mid-level armed robbery on a soft target involving an imitation firearm.  I accept that your role in the offending is significantly less than that of your co-offender, Mr Walker.  In my view your intellectual functioning and cognitive limitations reduce your subjective culpability significantly – were it otherwise the overall gravity of the offending would be high, given the maximum penalty for armed robbery.

Personal Circumstances and Intellectual Functioning

16You are a proud Yorta Yorta and Guna Kurnai man.  You are 22 years of age, born in June 2000 in Gippsland and you have grown up on Guna Kurnai country.  There is a lot of sadness in your life.  You have experienced a high degree of disadvantage and trauma in your childhood.

17Your father, a Yorta Yorta man, passed when you were eight.  He died of a heroin overdose I was told.  He had experienced considerable periods of incarceration over his lifetime I was told.  You had strong affection for your father, although you had limited contact with him throughout your life.  You had not seen him for some time prior to his death, although you were planning to do so at the time.

18Your mother is Rachel Walker, a Guna Kurnai woman – your mother and father separated when you were young.  Your mother has five other children.  She has experienced drug and alcohol issues, family violence, homelessness and poverty throughout your childhood.

19The Department of Human Services has been involved in your life since infancy. The Department has also been involved in all of your siblings.  You, along with all other siblings, were removed from your mother’s care at several stages of your life.

20The profound disadvantage you suffered is summarised with reference to the documented contemporaneous accounts of DHS workers in Exhibit 1, Defence Outline of Submissions, at paragraphs 17-23.  It makes harrowing and heartbreaking reading.

21I accept all of those matters.  I further accept that you are entitled to the full mitigatory effect of the Bugmy v The Queen (“Bugmy”) principle.[1]  You have been around drugs your entire life.  You started taking drugs on a regular basis from a very young age.  One example of the repeat trauma and devastation on your sense of self and security was the separation of you and your younger brother, Kieran, with whom you were close and very protective of when you were 14.  You had been through a lot together, you and he – and your ejection from the foster home in which you were both placed was deeply traumatic and harmful to you.

[1]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571

22I was told that you stopped going to school around the time you entered a residential care facility (around Year 8).  Prior to leaving school you were at East Gippsland Specialist School at an ungraded level.  You also had time at Sale Specialist School and Baringa Specialist School.

23You had no literacy after leaving school but you have worked to improve this in custody.  You have a limited work history.  Your most significant relationship is with the victim of the second indictment.  You had been in a relationship with her since you were 15.  She is older than you and has children to whom you have been a stepfather figure.

24You were psychologically assessed at age 11.  It was noted that childhood abuse and neglect may have impacted your development and behaviour.  It was concluded that the gap between you and your peers was widening and you would have ongoing learning difficulties.

25You were formally assessed as experiencing an intellectual disability in 2015.  Historic reports also note mental health risks, including high self-harm risk throughout your later teenage years.  Your intellectual disability and cognitive functioning has great significance in the sentencing exercise.  In combination with other personal factors in your life it explains your life trajectory and your offending.

26Whilst there was a formal diagnosis in 2015, you were identified as having an intellectual disability from as young as six.  Not surprisingly school was difficult.  DHHS files from the time reflect a child who was frustrated and prone to losing his temper and lashing out.  Again – not surprising given the cognitive functioning and personal features and circumstances.

27Your disability means you are prone to being easily led, impulsive, have rigid and inflexible thinking, easily overwhelmed with detailed or complex information, and inefficient with planning and organising.

28Ms Scott opines that your capacity to exercise appropriate judgement or make calm and rational choices is affected.  You are easily overwhelmed and struggle to weigh up options.  You have difficulty stopping and thinking in the moment about longer-term consequences of actions.

29Ms Scott also opines that you are at risk of victimisation in the prison system.  Your intellectual functioning and deprived and traumatic childhood are relevant to a proper assessment of moral culpability in relation to the second indictment also.

Indictment N12051528

Circumstances of offending

30The circumstances of your offending in relation to the second indictment are also set out in Exhibit A on that plea, which is the prosecution opening and it involves the rolled up charge in relation to attempting to pervert the course of justice, but also the three very serious persistent breach of family violence order charges and equally serious threat to kill, standalone charge.

31I am not going to read out the utterances that constitute the charges or the series of utterances and recordings.  I accept and agree with the prosecution's characterisation of them as obscene and threatening, controlling language, deeply concerning it is, the repetitive and persistent nature of it directed towards the affected family member of an intervention order, your former partner.

Gravity of offending

32It is a lengthy and disturbing series, a very disturbing example of not only the pervert course of justice, which is an offence which strikes at the heart of justice, and is always a serious offence, but there is certainly a connection between the conduct in relation to that charge, and the persistent breaches and continual threats and attempts to standover your former partner, terrorise her, and control her.

33This was done over a period of time via the telephone, when you were on remand.  Objectively it is extremely serious conduct, vile and threatening language is used on a persistent basis over the period.

34It involves repeated efforts to have your victim withdraw a police statement against you.  As I say, the offence strikes at the heart of justice and is very serious.  The gravity of the offending – and your moral responsibility for it - needs to be assessed in light of your circumstances, however.

35You have cognitive limitations and disadvantages – the circumstances of you being in custody is also relevant.  You were frustrated, and I have noted since early childhood the reports of your response to frustration in the context of cognitive limitation.

36I have listened to the telephone calls, the recorded calls, that form the basis of the charges.  I find that listening to the calls provides a better basis for assessing the objective gravity of your conduct than reading the words you uttered on the page.

37Had those words been uttered by an individual in different circumstances than yours – that is, by someone in the community rather than in prison, someone without your intellectual and cognitive challenges, who experienced a stable, loving and supportive childhood - the moral culpability for the offending would be considerably graver, and the appropriate disposition and punishment graver still.

38Laura Scott notes that you are at significant risk of saying and doing impulsive things at times of conflict or when heightened.  This has been the case since childhood and adolescence.  She notes you also have 'perseverative tendencies'. Ms Scott writes:

'That is the tendency to become stuck on a given thought pattern or action.  This could lead to (for example) repetitive telephone calls or communication, especially at times of heightened emotionality.  His thinking is highly rigid and fixed which means he can become stuck on a given idea (e.g. that his ex- partner is responsible for his life and actions).'

39My assessment of your conduct, having listened to the calls, is that this sort of fixation was at play.  Your counsel relies upon a number of matters in mitigation, and I do not to go into these in great detail.  For the most part they are accepted by the prosecution.

Factors in Mitigation

40I have noted the Bugmy principle and I indicate this applies with full effect, given the depth and extent of childhood trauma and exposure to negative influences.

41There is the Akoka time of 29 days at the Bunjilwarra program.[2]  Muldrock principles apply and that is not disputed.[3]  I do find that limbs 1,3,4 and 5 of Verdins apply, and I am grateful to the prosecution's submissions in relation to sentencing submissions and concessions made appropriately in relation to those matters.[4]

[2]Akoka v The Queen [2017] VSCA 214.

[3]Muldrock v The Queen (2011) 244 CLR 120.

[4]Verdins v The Queen (2007) 16 VR 269.

42Hardship in custody during pandemic is a matter I have had regard to.  I have had regard to the pleas of guilty, notwithstanding the different stages of pleas of guilty.

43In relation to the first indictment, I have regard to the participation in the sentencing conversation.  You participated fully in that sentencing conversation with Uncle David, and  Respected Person, Michelle Winters.  You displayed considerable insight during that sentencing conversation.  You also displayed appropriate remorse and contrition.

44You showed insight into impact on the victim of the armed robbery offence.  I accept that your remorse and expressed insight and intention to address your difficulties were all genuine, and that participation, as I say, has mitigatory effect.

45I have had regard to parity in respect of the first indictment with the sentence I recently imposed on Mr Walker.  I had you assessed for a detailed community corrections order, and a pre-sentence report and extended assessment, and I received that in July.  It is a useful assessment.

46I am not going to summarise it herein, but it notes a number of relevant matters in relation to you, including your participation in the torch program and your interest in continuing that.

47I further had you referred, or your legal representatives referred you for a possible admission as part of the Corrections order to Wulgunggo Ngalu Healing Place.  Unfortunately you are ineligible for Wulgunggo Ngalu due to still being on the Suboxone program.  If in the future you are reduced on that program that may be a suitable option that is available to you under your own instigation.

48I also received a justice plan dated 17 July, and a disability overview report dated 11 July, both of which are detailed and useful documents.  All of these assessments and reports, the extended pre-sentence assessment outcome report, the justice plan and the disability overview report support my findings in relation to your offending and where you are at in your life at present, given a relatively limited history.

49Those reports, in combination, have led me to the view that an appropriate sentence in your case involving both indictments is a sentence that sees you released from custody onto a community corrections order.

50You have now been in custody very close to 18 months, given the two months sentence that you served in custody.  In relation to pre-sentence detention there is 478 days available to you.  I have given careful consideration to the prosecution's submissions in relation to head sentence and non-parole period.

51I have formed the view that the second indictment involving the attempt to pervert and the persistent breaches give rise to more concerns and involves more serious criminal conduct in my view than your relatively passive role in the armed robbery where the older person connected to you took the lead.

52There are concerns in relation to what I have referred to as the fixation and your inability to control impulses at times.  I have further formed a view that the best way of addressing this is through a comprehensive corrections order.

53So accordingly, considering general deterrence, appropriately moderated in your case, denunciation, just punishment and the other matters I must consider, prospects of rehabilitation, I intend to sentence you as follows.

Sentence

54On what I will refer to as the first indictment, the indictment containing the armed robbery charge, you will be sentenced to 12 months' imprisonment on that charge. 

55At one stage there was a summary offence for commit an indictable offence on bail, but that was struck out and I do not think another one was laid, so I will not take any action in relation to that.

56On the second indictment, which I will just refer to as indictment 2, they are separate serious offences, but for the purposes of sentencing I am viewing them as a series of connected offences, notwithstanding the attempt to pervert of course which carries a maximum penalty of 25 years' imprisonment and is the most serious offence on that indictment.

57There is a connection between the charges on the indictment and I do intend to impose an aggregate sentence in respect of that indictment.  The sentence in respect to that indictment is 12 months' imprisonment, plus an 18 month community corrections order.

58Four months of this aggregate sentence is cumulative on the sentence imposed on the first indictment, which makes an effective total sentence of 16 months' imprisonment, to be followed by an 18 month community corrections order.

59The conditions of that community corrections order are that you abide by a justice plan, that you attend for drug assessment and treatment, alcohol assessment and treatment, mental health assessment and treatment, offending behaviour programs as directed and supervision.

60Pre-sentence detention in relation to the matter is 478 days.  I declare that as time served.

61Pursuant to s6AAA were it not for your pleas of guilty across both indictments, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of two and a half years.

62Are there any other orders required?

63MS PILLAI:  No, Your Honour.

64HIS HONOUR:  Mr Thomas, what that effectively means is you will be entering a community corrections order either today or tomorrow or the next day, today I would expect. Do you consent to a community corrections order?  I can see you nodding and I will accept that as consent to the community corrections order.  That order will be prepared and it will be sent to the prison for your signature and I will sign it.

65Mr Thomas, it is important for you to understand that the order you are being placed on is in combination with a gaol sentence which you have served 478 days of that gaol sentence, so the prison authorities will calculate whether that means you are released today or tomorrow or the next day.

66When you are released you will be on a community corrections order, so it will be explained to you where you have got to report.  There is a lot of conditions to that community corrections order, a lot of very important conditions, that you have got to keep all your appointments.

67If you do not go to appointments and you do not keep in touch with the corrections officer I will hear about it and I will have to bring you back here for re-sentence, so if it looks to me like you are not doing your corrections order and you cannot do it, more gaol is going to be the next option.

68I am sure you understand that.  If there is nothing else we will adjourn the court.

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