Director of Public Prosecutions v Thomas
[2022] VCC 968
•22 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02712
CR-22-00641
CR-22-00642
CR-22-00643
CR-22-00644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN THOMAS |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2022 | |
DATE OF SENTENCE: | 22 June 2022 | |
CASE MAY BE CITED AS: | DPP v Thomas | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 968 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted Burglary; Theft; Burglary; Obtaining Property by Deception;
Attempt to Obtain Property by Deception; Possession of a Drug of
Dependence; Attempted Armed Robbery; Unlawful Assault; Commit an
Indictable Offence Whilst on Bail; Enter Private Place Without
Authorisation or Excuse; Behave in an Offensive Manner in a Public
Place; Deal with Property Suspected of Being the Proceeds of Crime;Contravene a Family Violence Intervention Order
Legislation Cited: Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169
Sentence: 350 days’ imprisonment
2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Raimondo | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms L. Bowden (Plea) Mr M. Dyason (Sentence) | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Hayden Thomas, you have pleaded guilty before me to one charge of attempted burglary, which carries a maximum penalty of five years' imprisonment; four charges of theft, which carries a maximum penalty of 10 years' imprisonment; one charge of burglary, which carries a maximum penalty of 10 year' imprisonment; three charges of obtaining property by deception, which carries a maximum penalty of 10 years’ imprisonment; one charge of attempt to obtain property by deception, which carries a maximum penalty of five years' imprisonment; one charge of possession of a drug of dependence, which, in the circumstances of your case, carries a maximum penalty of not more than five penalty units; and one charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment.
2
You have also pleaded guilty to eight related summary offences; one charge of unlawful assault, which carries a maximum penalty of 15 penalty units or three months' imprisonment; three charges of commit an indictable offence whilst on bail, which carries a maximum penalty of 3 months' imprisonment; one charge of enter private place without authorisation or excuse, which carries a maximum penalty of 25 penalty units or six months' imprisonment; one charge of behave in an offensive manner in a public place, which carries a maximum penalty of
10 penalty units or two months' imprisonment; one charge of deal with property suspected of being the proceeds of crime, which carries a maximum penalty of two years' imprisonment; and one charge of contravene a family violence intervention order, which carries a maximum penalty of two years' imprisonment.
3You have also admitted your criminal record.
Circumstances of the Offending
4The circumstances of your offending were set out in the amended summary of prosecution opening dated 17 May 2022, Exhibit 1 at your plea hearing. That document sets out the agreed factual basis for the offending in relation to which you now fall to be sentenced. Your offending can now be summarised.
5
The offending to which you have pleaded guilty covers a period commencing on
6 May 2019 and concluding on 26 July 2021.
6
On the evening of 6 May 2019, you, together with co-accused MOHAMED and ENDOZA, caught the train from Prahran to Mount Waverley to meet another co-accused, STEVENS. STEVENS said she would steal a car and drive the three of you home from the station. At around 10.58 pm, the four of you attended
a premises in Glen Waverley, the residential address of Mr Vestergaard. His white Audi was parked in the driveway. You walked into Mr Vestergaard's front porch, before prompting the security light to turn on, you then quickly walking away. You then went to the rear of the property and were captured on CCTV footage opening the security door at the rear laundry door, before attempting to open the laundry door.
7At the same time, your co-accused ENDOZA and MOHAMED knocked on the front door of Mr Vestergaard's premises, waking him and asking him for directions to the railway station in an effort to distract him from your endeavours at the rear of the house. You and STEVENS then met ENDOZA and Mohamed down the street. You were interviewed about this incident on 6 September 2019, but claimed you could not remember the incident. You were released pending summons. Your conduct in this regard forms the basis of Charge 1 on the indictment, attempted burglary.
8At about 5:00 pm on the afternoon of 19 December 2019, you entered the Woolworths supermarket located at 459 Toorak Road, Toorak. You were carrying a large black satchel, filling it with Christmas hams valued at $400. You left the store without paying for these items. You were then challenged by Woolworths staff, but did not stop. An off-duty police officer observed this and chased you. You then dropped the stolen hams and ran off. Your theft of these items forms the basis of Charge 2 on the indictment, theft.
9At about 10.25 am on 2 January 2020, you entered the Cheltenham Osteopathic Clinic at 24 Station Road, Cheltenham. You entered the staff kitchen area via the rear door, this conduct forming the basis of Charge 3 on the indictment, burglary.
10You stole a purse from within a handbag located on the table belonging to an employee of the clinic, Ms Sullivan, which contained Bendigo Bank Pay Wave cards. This incident was captured on CCTV footage. Your theft of these items forms the basis of Charge 4 on the indictment, theft.
11Later this day between 12:35 and 12:45 pm, you attended the Foot Locker store at Westfield Southland Shopping Centre, on Nepean Highway, Cheltenham. You used Ms Sullivan's stolen Bendigo Bank card to purchase a pair of Nike track pants valued at $59.95, and a Puma track jacket valued at $70. Your conduct in this regard forms the basis of Charges 5 and 6 on the indictment, obtaining property by deception.
12After leaving the Foot Locker store, you entered the Coles supermarket at the Westfield Southland Shopping Centre at 12.55 pm. You attempted to purchase a mobile phone valued at $59 using Ms Sullivan's stolen Bendigo Bank card, but the card had already been cancelled and had subsequently declined. Your conduct in this regard forms the basis of Charge 7 on the indictment, attempt to obtain property by deception.
13
You were interviewed on 16 June 2020 in relation to the alleged offending on
2 January 2020 to which you have now pleaded guilty. You stated you were under the influence of ice and alcohol at the time and could not remember the incidents, you were then released pending summons.
14
On 3 April 2020, whilst subject to a 12-month Family Violence Intervention Order imposed by the Dandenong Magistrates' Court on 20 September 2019, in which you were the subject of full conditions prohibiting any contact with
Ms Shima Mohamed, you breached this order by communicating with
Ms Shima Mohamed at the Dandenong railway station. You approached
Ms Mohamed, who then turned and walked away from you. You stated 'Hey, I got out recently. How you doing? Do you want to work things out'. Then further stating 'If you don't work things out with me, I will do it myself', prompting
Ms Mohamed to question what you meant by that comment. You replied saying, 'I know where you and your family live'.
15Ms Mohamed went home and reported the matter to police, who arrested and interviewed you in relation to this matter on 24 April 2020. Your recollection of events to police was that, 'She was walking, I walked up to her. I said, Hey, how you doing? You look good. You know, I miss you and stuff. Then I left.' When asked about your knowledge of the intervention order, you claimed, 'From my belief it was dropped at court. Maybe it might not be, I'm not sure.' You were released pending summons. Your conduct in this regard forms the basis of related summary offence 2, where the Informant is Bulleid, contravention of a Family Violence Intervention Order.
16
At about 1:00 pm on 16 June 2020, you were in Menzies Avenue,
Dandenong North, when two police officers, First Constables Hinton and Bajic, identified you as a possible person of interest for an unrelated indictable offence. The officers asked you to provide your name, and subsequently conducted a safety and evidence search of you, which revealed a grey 'Gab 55' women's handbag in its original packaging, in your possession, which the officers believed you had stolen. You stated a female friend had given you the bag, but you were unable to name this friend.
17
You were subsequently arrested and transported to the Dandenong police station for questioning, with a record of interview conducted. You denied the alleged offending, and were bailed to appear at the Melbourne Magistrates' Court on
18 September 2020. This summary offence was then uplifted to the Melbourne County Court on 26 April 2022. Your conduct in this regard forms the basis of related summary offence 2, where the Informant is Hinton, possession of property suspected of being the proceeds of crime.
18Between 15 and 16 January 2021, Mr Tandel reported to police the theft of money from a motor vehicle at his address in Alward Avenue, Clayton South. Crime scene officers attended at the address and conducted an examination of the vehicle, locating a fingerprint from an Armor All packet located inside the vehicle. This fingerprint was a match to yours. The theft of money in this regard forms the basis of Charge 8 on the indictment, theft.
19On 16 January 2021, Ms Ronnou reported to police the theft of a brown leather wallet, together with personal and banking cards, from her white 2011 Kia sedan, registration ending 6BQ, located in the car port of her residential address in Clayton South, some time between 15 and 16 January 2021. The theft of the wallet and cards in this regard forms the basis of Charge 9 on the indictment, theft. Early in the morning at about 1.57 am on the same day, 16 January 2021, you used Ms Ronnou's stolen Commonwealth Bank card at the McDonald's restaurant on Westall Road, Clayton South, to purchase food and drinks to the value of $46.70. Police reviewed the CCTV footage which captured this incident and depicted you in the store at the time of the offence wearing a black zip up Adidas jacket, with white 'Adidas' writing on the arms, and a pair of black Adidas track pants, with three white stripes down the sides.
20Police encountered you on the same morning at 3.18 am at the intersection of Rosebank Avenue and Westall Road in Clayton, wearing the same clothing depicted in the CCTV footage. The officers activated their body worn cameras and you subsequently provided your name and address. Your conduct in this regard forms the basis of Charge 10 on the indictment, obtaining property by deception. At the time of this offence, you were subject to a grant of bail in relation to the charges where the Informant was Hinton. Your conduct in committing this indictable offence whilst subject to a grant of bail forms the basis of related summary offence 4, where the Informant is Reed, committing an indictable offence whilst on bail. This summary offence was then uplifted to the Melbourne County Court on 26 April 2022.
21
On the evening of 17 February 2021, at about 10:30 pm, you were approached by three Protective Services Officers (PSOs) - Burr, Kiely and Skoupas - at the
Noble Park railway station when you exited and then, upon noticing them, re-boarded a Pakenham bound train. The officers spoke with you and you provided your details. A name check in the LEAP system showed you had an outstanding bench warrant, that you were wanted for interview in relation to two indictable offences, namely theft and obtain property by deception, and that you were on bail from the Dandenong Magistrates' Court. You were arrested by Officer Skoupas and cautioned. The police were called and First Constable Lovelock and Constable Pratt attended the scene. A safety and evidence search was conducted which revealed a strong cannabis odour, despite nothing being found on you.
22You were then transported to the Dandenong police station for questioning. A Senior Sergeant at the police station authorised a full search under the Drugs, Poisons and Controlled Substances Act 1981. Prior to this search being conducted, you admitted that you had cannabis in your underwear, you then producing approximately three grams of cannabis from your underwear which was then seized and photographed by police. You were interviewed and made full admissions, subsequently being charged and bailed to appear at the Dandenong Magistrates' Court on 13 July 2021. Your conduct in possessing cannabis forms the basis of Charge 11 on the indictment, possession of a drug of dependence. At the time, you were subject to a grant of bail in relation to the charges where the Informant was Hinton. Your conduct in committing this indictable offence whilst subject to a grant of bail forms the basis of related summary offence 2, where the Informant is Lovelock, committing an indictable offence whilst on bail. This summary offence was then uplifted to the Melbourne County Court on 26 April 2022.
23On the morning of 20 June 2021, at about 2:00 am, you attempted to open the driver's door of a vehicle located in the driveway at a residential premises on Downward Street, Dandenong North. However, the door was locked. You then kicked the driver's door panel and subsequently approached the front door of the house, kicking the glass door repeatedly. The occupants of the house, Mr and Mrs Donaldson, were both awoken to your screaming and banging at the front door. Mr Donaldson went to the front door and told you to 'Fuck off', you then running off. Mr and Mrs McDonald reported to police their belief that you were trying to enter their home, and that they had seen you around the property for a few days. This incident was captured on CCTV and provided to police, who viewed the footage and identified you as a person of interest. Your conduct in this regard forms the basis of related summary offence 10, where the informant is Edwards, enter a private place without lawful authority or excuse.
24At about 6.50 pm on 26 July 2021, you were at the Dandenong railway station wearing a red jumper with a black hooded jumper underneath, black pants, and black runners. You approached Mr McDonald at the bus terminal asking for a cigarette. Mr McDonald replied 'No, I don’t give them out.' You then pulled out a large kitchen knife from your waist belt, holding it in your right hand, pointing it towards Mr McDonald stating, 'Give me a cigarette or you're getting slashed', and then swinging the knife towards Mr McDonald twice, he taking a step back and walking away to prevent being assaulted. Mr McDonald's girlfriend, Ms Bales, was nearby and observed you threaten Mr McDonald with the knife. Your conduct in this regard forms the basis of Charge 12 on the indictment, attempted armed robbery. At the time of this offence, you were subject to a grant of bail in relation to separate charges where the Informants were Hinton and Lovelock. Your conduct in committing this indictable offence whilst subject to a grant of bail, forms the basis of related summary offence 6, where the informant is Edwards, committing an indictable offence whilst on bail.
25At a nearby bus terminal on the other side of the road, Mr Allen observed this incident. He noticed you to be angry. You crossed the road and approached him, asking him 'What the fuck are you looking at cunt? Mr Allen replied saying he was waiting for a bus, to which you replied, 'Don't fuck with me cunt', pulling out a knife, swinging it towards Mr Allen and saying 'You want to go'. Mr Allen later told police he was 'shit scared' and thought you were going to stab him with the 30 cm long kitchen knife that you were holding. He then waved a full bottle of wine in your direction to protect himself and with an aim to scare you off, prompting you to throw the knife at him, which did not make contact. This knife was later recovered by police. You then ran away towards Foster Street in Dandenong. Your conduct in this regard forms the basis of related summary offence 5, where the informant is Edwards, unlawful assault.
26
At about 7:00 pm on this evening, 26 July 2021, Mr Kushuah was sitting in his vehicle outside the Department of Health and Human Services (DHHS) building at 165 Thomas Street, Dandenong, waiting for his wife to finish work. When
Mr Kushuah's wife got in the front passenger seat, you approached the side passenger of the vehicle, banging on the window with your fist telling the couple to open the window. You ran around to the front of the vehicle, kicking it and spitting on it, then approached the driver's side, kicking the door and yelling at
Mr Kushuah to open the door, saying 'I won't hurt you'. Mr Kushuah quickly drove off, calling 000. This incident was filmed on CCTV, with your conduct forming the basis of related summary offence 11, where the informant is Edwards, behaving in an offensive manner in a public place.
27
Police commenced their investigation into your offending on the evening of
26 July 2021 and you were observed at the Dandenong Plaza at 7.20 pm. You tried to evade police detection, but were subsequently arrested, cautioned and conveyed to the Dandenong police station for questioning, becoming quite aggressive throughout this process. Your clothing was seized and photographed at the police station, it matching the clothing worn by the person depicted in the CCTV footage from the Dandenong railway station. Police deemed you to be too intoxicated to be interviewed and you were subsequently remanded in custody overnight. A record of interview was conducted the next day on 27 July 2021, you making a 'no comment' interview before being remanded in custody.
Victim Impact
28
Your victim in relation to Charge 1 on the indictment, attempted burglary,
Mr Vestergaard, completed a Victim Impact Statement on 8 May 2022, tendered at your plea hearing and marked Exhibit 2. At the request of
Mr Vestergaard, this statement was not read aloud at your plea hearing and, in the interests of protecting Mr Vestergaard's privacy, I will not now detail its contents, save to say that he has understandably endured fears and anxieties with regard to safety and security as a result of your offending on this occasion, and he has endured a considerable financial cost, taking remedial action following the incident.
29Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the often long-term adverse effects of offending upon them. In formulating an appropriate sentence in your case, I have taken into consideration the Victim Impact Statement of Mr Vestergaard.
Nature and Seriousness of the Offending and Level of Responsibility for it
30The gravity of your offending conduct is, of course, reflected in the relevant maximum penalties indicating the seriousness of your conduct, particularly in relation to the attempted armed robbery, Charge 12 on the indictment. The sheer number of offences committed by you, together with the extended period of offending between May 2019 and July 2021, also highlights the seriousness of your misconduct. Further enhancing the seriousness of your misconduct, at the time you committed the later indictable offences, such as the attempted armed robbery, you were subject to two sets of bail. Your reoffending in breach of your bail requirements is a matter of considerable concern.
31Save for the offences that I am about to refer to, much of your offending that involved theft, obtain property by deception and possession of cannabis, was spontaneous and opportunistic, and at the lower end of seriousness for these types of offending. I regard the offence of attempted burglary on 6 May 2019, where Mr Vestergaard was then asleep, as representing a serious example of this offence. The prosecution submitted that due to the circumstances of this offence, together with the impact of your offending on your victim, this represents a mid to high level example of this type of offence. This was an attempted burglary on a residential property, in the night, when your victim was understandably asleep. He was entitled to feel safe in his home and that you would offend in the manner outlined, in company with others, is very concerning. It represents in my view, at least a mid level example of the crime of attempted burglary.
32With regards to the contravene Family Violence Intervention Order charge, where the informant is Bulleid, whilst any instance of family violence in breach of a court order is serious, your offending on this occasion, limited to verbal comments, represents a comparatively low level example of this crime, though your comment to your ex-partner, that you know where she and her family lives, obviously has an ominous flavour to it, and is concerning.
33
Clearly, your most serious offending took place on 26 July 2021. The gravity of the crime of attempted armed robbery is reflected in the significant maximum penalty of 20 years' imprisonment. On this occasion, you were armed with and produced a bladed implement, a large kitchen knife, and brandished it towards your victim. Your demand for a cigarette was accompanied by a threat that your victim would be 'getting slashed'. This was not a passive attempted armed robbery. You swung the knife towards your victim not once but twice, causing
Mr McDonald to have to step back to prevent being assaulted. However, it was in my view a fairly spontaneous act on your part. It does not appear to have been planned and was of a short duration. Therefore in my view, it sits towards the lower end of seriousness of this type of offending.
34Shortly after this incident, you came upon your next victim, Mr Allen, who was sitting at the bus terminal at Dandenong railway station, having observed the attempted armed robbery. You crossed the road and approached him before abusing and threatening him, and again brandishing the bladed implement and swinging it towards Mr Allen, before you threw the knife at him, causing Mr Allen to move away so that the knife did not hit him. Again, this was not a passive incident on your part. Your threatening and ultimately violent demeanour caused Mr Allen to be 'shit scared', using his words, and in the overall context of you just having attempted an armed robbery on a separate victim, your conduct with regards to Mr Allen must be seen, in my view, as a serious example of the crime of assault with a weapon.
35Your subsequent conduct with regards to further victims, Mr and Mrs Kushuah, at about 7 pm outside the DHHS offices in Dandenong, where you approached the vehicle containing Mr Kushuah and his wife banging on the window, kicking the front of the vehicle and spitting on it, and then kicking the driver's side door, in addition to representing serious conduct which no doubt frightened the occupants of the vehicle, highlights, in my view, the degree to which you were quite simply out of control on this evening of 26 July 2021.
36This aspect is further highlighted by virtue of the fact that about 20 minutes later, when police observed you at the Dandenong Plaza, you tried to evade police, and upon being arrested, you became quite aggressive before being restrained and conveyed to the Dandenong police station for questioning. At the police station, you were deemed too intoxicated to be interviewed. Your intoxication provides no excuse for your concerning behaviour, as I have described it. Your counsel did not submit that your moral culpability for the offending on this day, or any of the offending days, was reduced by virtue of any impaired mental functioning pursuant to the Verdins[1] principles. In all the circumstances, I regard your moral culpability and level of responsibility for your offending to be high. In particular, with regards to the attempted armed robbery charge, I note that this occurred just 13 days after your last court appearance. This factor very much enhances your level of culpability for the offending on 26 July 2021.
[1] R v Verdins & Ors (2007) 16 VR 269.
Personal Circumstances
37You are now just 22 years of age. You were aged between 19 and 21 during the offending and clearly fall to be sentenced as a young offender.
38
As indicated by Clinical Psychologist, Carla Lechner, in her report dated
30 November 2021, Exhibit B at your plea hearing, you emanate from a dysfunctional family, you have been exposed to domestic violence, and you have no real sense of identity and belonging. In the context of your disadvantaged upbringing, you have gravitated towards peer networks to provide a sense of family, which has left you vulnerable to group influence, including illicit substance abuse issues and involvement in offending behaviour, in your desire for acceptance and approval.[2]
[2]Psychological Report of Carla Lechner dated 30 November 2021, pg. 1.
39You are the youngest of four children born to your mother, Meagan. You have never met your father. You were born opiate-dependent due to your mother's drug issues. She abandoned you at birth. Child Protection were apparently involved after your birth and you were subsequently raised by your maternal grandmother, Marilyn, in the Dandenong North area. During your upbringing, you have experienced and witnessed physical abuse at the hands of your uncle, who also had substance addiction issues.
40As you entered adolescence, your challenging and at times aggressive behaviour, led to intervention orders between yourself and your grandmother, and at the age of 12, your grandmother effectively relinquished your care to DHHS. You remained subject to DHHS intervention for the following six years.
41You met your mother for the first time when you were approximately 14 years old, moving in with her, your brother Jordy, your sister Briony, and her young son Tyler. A year later, in 2016 when you were approximately 15 years old, there was a house fire at your mother's address which sadly took the life of Tyler at the age of four. According to Ms Lechner, this has had a profound impact upon you.
42Your relationship with your mother has apparently been problematic, and there is currently an Intervention Order in place prohibiting contact with her.
43You completed your primary schooling at Lyndale Greens Primary School before moving to Oakwood Secondary College, where you remained until Year 9 before disengaging. You subsequently briefly commenced a pre-apprenticeship in mechanical plumbing at a TAFE which you one day hope to resume. You have previously worked casually in the areas of hospitality, tiling and labouring.
44You have a problematic drug and alcohol history. You commenced smoking cannabis at the age of 13, telling Ms Lechner that this was to 'take away pain, sorrow, over-thinking'.[3] You first used methylamphetamine in 2019, which increased to a regular habit in 2020. Your escalation with regards to methylamphetamine use apparently occurred in the context of the breakdown of a significant romantic relationship, and a friend's death due to drowning.
[3]Ibid at pg. 3.
45You have a relevant and concerning criminal history which dates from 2012, when you were 12 years of age, in the Children's Court jurisdiction. You have prior convictions or findings of guilt with regards to contravening a Family Violence Intervention Order, assault, threatening to inflict serious injury or to kill, attempted robbery, offending on bail, and dishonesty offending. In the Dandenong Children's Court on 3 November 2017, you received a without conviction probation order for offending which included robbery and affray. Your criminal history in the adult jurisdiction commences on 1 November 2019, after the commencement of the offending period for which you now fall to be sentenced.
46You have had four appearances in the Magistrates' Court, none of which have resulted in therapeutic interventions. In the main, they appear to have involved short sentences of imprisonment incorporating time served. According to your counsel, there appears to be a pattern between your criminal offending history and its escalation during periods of instability in your life.
47
You were remanded in custody on 26 July 2021, following the attempted armed robbery, assault with a weapon, and behaving in an offensive manner. You have remained in adult custody since this time, a period of 331 days. I accept that this has been a significant period of time in adult custody for you, some 11 months. Prior to this period, you had only spent short periods of time in custody. I understand that you have been housed either at Ravenhall or Marngoneet. A number of certificates were tendered at your plea hearing and marked
Exhibit D, documenting your positive progress whilst in custody.
48You have apparently maintained employment whilst in custody, either welding or in the laundry, and you have consistently returned negative drug screening results. You have spent the entirety of your remand period to date in the context of the COVID‑19 pandemic, and it is well accepted that this has made the custodial setting more onerous. Particularly given your youth and underlying vulnerability, I accept that this has no doubt been a very difficult time for you, with limited freedom of movement within the prisons, no access to contact visits with family, limited video contact with family and friends, and limited access to therapeutic activities. Further exacerbating your time in custody, I understand your grandmother, a person who played a significant role in your upbringing, died in December last year, whilst you were in prison.
Sentencing Factors
49The Sentencing Act 1991 requires me to consider various factors, principles and purposes in formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and seriousness of your offending and your level of responsibility for it, and your previous character.
50I have taken into consideration current sentencing practices for the offences to which you have pleaded guilty, noting that this is just one of the relevant factors in the sentencing exercise. In appropriate cases, significant sentences have been imposed in particular for the offence of attempted armed robbery.
51Pursuant to the well-known Bugmy[4] principles, I accept that your moral culpability for your offending, is reduced due to your history of childhood disadvantage, deprivation and trauma.
[4] Bugmy v R (2013) 249 CLR 571.
52As accepted by the prosecution, your plea of guilty was entered early in the proceedings, entitling you to a sentencing discount for the early plea. In particular, the attempted armed robbery matter resolved at the committal mention stage. Furthermore, of your own volition, you had the outstanding summary matters uplifted to the County Court to be finalised together. In all the circumstances, you are entitled, in my view, to a significant sentencing discount for your plea of guilty, which evidences your acceptance of responsibility and willingness to facilitate the course of justice. The utilitarian value of your plea of guilty is enhanced by virtue of it being entered in the context of the COVID‑19 pandemic, and its associated challenges to the administration of criminal justice, given the extraordinary backlogs and delays being experienced by the courts. A further sentencing discount is warranted in accordance with the decision of Worboyes.[5]
[5] Worboyes v R [2021] VSCA 169.
53
I am satisfied that a further mitigatory allowance is warranted by virtue of your remorse. You have pleaded guilty early, as I have said. You have voluntarily uplifted relevant summary matters so that they can be dealt with at the same time. According to Psychologist, Carla Lechner,[6] you expressed regret for your actions. According to your older sister, Briony, in her character reference dated
17 May 2022, Exhibit C at your plea hearing, you have shown a great deal of remorse and sadness for your criminal offending and have repeatedly emphasised your sorrow and understanding of what you have done, and how wrong you were for committing your crimes.
[6]Psychological Report of Carla Lechner, pg. 4.
54
You apparently repeatedly expressed remorse for your offending behaviour during the course of your extended pre-sentence assessment for the purposes of suitability for a Community Correction Order, as evidenced by the report dated
30 May 2022. Notwithstanding that, the author of this report noted that you were not able to demonstrate empathy for your victims, other than apologising. Psychologist, Carla Lechner, opines that you are cognitively, socially and emotionally immature, with a limited capacity to engage in reflective and consequential thinking.[7] In those circumstances, while your level of empathy and insight may be somewhat superficial, I am satisfied in all the circumstances that you are remorseful for your conduct, warranting a sentencing discount.
[7]Ibid, pg. 6.
55As I have said, I am satisfied that your time in custody has been more onerous due to the COVID‑19 pandemic and its impacts on the custodial setting. This is particularly so for you given your youth, difficult background and overall psychological vulnerability. In that regard, I note that Ms Lechner diagnoses you with clinical depression in the mild range. According to Ms Lechner, you are currently reporting symptoms of mild psychological distress and depression, partly reactive to being in custody and partly in response to feeling as though your life is off track. Your longstanding feelings of depression appear to emanate from experiences of early abandonment and rejection.
56According to Ms Lechner, you are finding adult custody difficult on account of your small size, and you feel particularly vulnerable, thus raising your level of anxiety. According to Ms Lechner, a lengthy period of incarceration is likely to have a detrimental impact on your mental health and renders you more vulnerable to being stood over and/or manipulated by more seasoned inmates. As conceded by the prosecution, a further mitigatory allowance is warranted by virtue of Verdins principles 5 and 6; that is, your psychological condition could mean that any given sentence would weigh more heavily on you than it would on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health.
57
You are now aged 22. At the time of your offending, you were aged between
19 and 21. Notwithstanding the nature and gravity of your offending, and your concerning criminal history, your youth remains an important mitigatory factor in sentencing. Accordingly, there must be a focus on your rehabilitation, and any sentence I impose should, to the extent appropriate, facilitate your rehabilitation. In that regard, I note Ms Lechner's opinion that you 'need stability, structure and hope for a better future, in addition to counselling supports to break [your] cycle of drug use and offending.'[8]
[8]Ibid, pg. 5.
58You have now spent a considerable period of time in adult remand, 331 days. This has necessarily created somewhat of a circuit breaker with regards to your anti-social and problematic behaviour. As evidenced from the extended pre-sentence assessment report dated 30 May 2022 from Corrections, you appear to have used the time to reflect upon your life trajectory and your future plans. As evidenced from the character reference from your sister Briony, you retain the love and support of some members of your family at least. At your plea hearing before me on 18 May 2022, you indicated that you had been having remote Zoom visits with siblings and an aunt whilst in custody, and that you had reflected that your time in custody had represented a hard lesson for you to learn. You were able to articulate the connection between your illicit substance use and your anti-social behaviour, and it seemed to me that you were motivated to rehabilitate upon your release from prison and embark on therapeutic activities and pursue employment.
Submissions
59Your counsel submitted that a combination sentence involving a sentence of imprisonment not exceeding time served, together with a suitably crafted Community Correction Order would be an appropriate disposition. Likewise, the prosecution submitted that a combination sentence involving a term of imprisonment with a Community Correction Order would be within range, but that time served did not adequately reflect the nature and gravity of the offending and, accordingly, that an additional period of imprisonment should be served before you commence a Community Correction Order.
60On 18 May 2022, I ordered that you be assessed for your suitability with regards to a Community Correction Order. A detailed report by Jennifer Tiv and Oliver Reed from Dandenong Corrections was provided, dated 30 May 2022. Noting that at the age of 22 you have had no previous contact with Community Correctional Services, you were assessed as being suitable for a Community Correction Order, with various conditions recommended.
Conclusion
61
As I have stated, you engaged in a raft of serious offences over a protracted period of time, with the most serious offence being the attempted armed robbery in
July 2021. There is a need for any penalty to appropriately denounce your offending. Given the nature of the offending, general deterrence is a significant sentencing purpose. Given your criminal history, specific deterrence also remains significant, albeit reduced in application somewhat by virtue of your plea of guilty and remorse. As I have stated, given your youth in particular, rehabilitation remains a significant sentencing purpose.
62In all the circumstances, having carefully considered all the material and submissions, I have determined that a combination sentence involving a sentence of imprisonment and an appropriately constructed Community Correction Order is appropriate. Having regard to the lengthy period of time on remand to date, I have concluded that your imminent release from prison on a Community Correction Order is appropriate. A Community Correction Order can of itself be punitive, through the imposition of community work and, in general, by virtue of the restrictions with regards to your freedom of movement.
Sentence to be Imposed
63In relation to all charges, save for related summary offence 11, possession of cannabis, you are convicted and sentenced to a term of imprisonment of 350 days. Given the nature and circumstances of your offending, again excluding the possession of cannabis charge, and my view that your offending essentially represents a series of offences of a similar character, this is essentially an aggregate sentence. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 331 days' pre-sentence detention has been served and I order that this period be administratively deducted.
64Furthermore, in relation to all of the charges, save for related summary offence 11, possession of cannabis, I order you to undergo and complete a Community Correction Order. The Order will commence upon your release from prison and operate for a period of two years.
65The mandatory terms attaching to all Community Correction Orders are:
· You must not commit another offence for which you could be imprisoned during the time that the Order is in force;
· You must comply with any relevant obligations or requirement;
· You must report to, and receive visits from, the Secretary or an approved delegate;
· You must report to the Community Corrections Centre within two clear working days of the Order commencing, in your case that will be Dandenong Community Correctional services;
· You must let a community corrections officer know within two clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so; and
· You must obey all lawful instructions from and directions.
66In addition to the mandatory terms attaching to all Community Correction Orders, you will be subject to the following conditions:
· You must perform 150 hours of unpaid community work over the two year period of the Order;
· Pursuant to s48CA of the Sentencing Act 1991, I declare that 50 hours with regards to treatment and rehabilitation conditions, may be credited towards the unpaid community work condition;
· You must be under the supervision of a Community Corrections Officer for the duration of the Order;
· You must undergo assessment and treatment including testing for drug abuse or dependency, as directed by the regional manager;
· You must undergo assessment and treatment including testing for treatment for alcohol abuse or dependency, as directed by the regional manager;
· You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager; and
· You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
67In relation to the related summary offence of possess cannabis, you are convicted and fined the sum of $150.
68Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, in relation to all charges except the possession of cannabis related summary offence, I would have imposed a total effective sentence of two years and six months' imprisonment with a non-parole period of one year and eight months.
69I will make the Disposal Order sought by the prosecution with regards to the cannabis, and the Forfeiture Order sought by the prosecution with regards to the knife, the making of these Orders not being opposed by you.
70HIS HONOUR: Firstly, starting with you Mr Raimondo, any ambiguities with regard to the sentence or has anything been missed?
71MR RAMONDO: No, Your Honour, nothing missed.
72HIS HONOUR: Thank you. Mr Dyason, any ambiguities or anything missed?
73MR DYASON: No, Your Honour.
74HIS HONOUR: All right, thank you. Mr Thomas, can you see and hear me all right?
75OFFENDER: Yep.
76HIS HONOUR: All right, now with regards to the Community Correction Order, I can only impose the Order if you agree to undertake the Order.
77OFFENDER: Yes, I - - -
78HIS HONOUR: And the only way you can do that, is if you understand what the Order is all about and what happens if you breach it.
79OFFENDER: Yeah, I know, that's all right.
80HIS HONOUR: So, I'll give you some time if you want to speak with Mr Dyason to confirm all of this, but do you understand the conditions that I've outlined to you?
81OFFENDER: Yeah, I understand, hundred per cent.
82HIS HONOUR: If you breach this Order, that is if you fail to comply without reasonable excuse you can be prosecuted for breaching the Community Correction Order.
83OFFENDER: M'hmm.
84HIS HONOUR: In all likelihood, you will come back before me.
85OFFENDER: Yep.
86HIS HONOUR: The maximum penalty for breaching the Community Correction Order is three months' imprisonment.
87OFFENDER: Yeah.
88HIS HONOUR: But more importantly for you, I have the power under the Sentencing Act 1991 on a breach hearing to cancel the Order amongst other things and resentence you in relation to the original offending, and as you know, the maximum penalties for the offending are pretty significant.
89OFFENDER: Yeah.
90HIS HONOUR: Do you understand what's involved if you breach this Order, which can be through committing an offence punishable by jail.
91OFFENDER: Yeah, yeah, I understand.
92HIS HONOUR: Or not complying with any of these conditions.
93OFFENDER: Yes, I do Your Honour. It is I will get three months, um, I - you do, you three months and when I come back before you, you have the power to um, cancel my CCO and resentence me and I have to do all the time again, basically.
94HIS HONOUR: That's right.
95OFFENDER: Right.
96HIS HONOUR: Knowing all of that, do you agree to comply with this Community Correction Order?
97OFFENDER: Yes, 100 per cent, I'm very grateful Your Honour.
98HIS HONOUR: All right, well I don't want to hear if there are any problems and if you do breach it, I don't want to hear next time, you didn't quite understand all of the conditions. If you have any concerns or queries, now is the time to raise it.
99OFFENDER: No, next time I come back before you, I'll have my job, I'll have my life in check, you'll hear good news.
100HIS HONOUR: All right. Well hopefully, you won't have to come back before me because you won't be breaching this Order. You'll only see me if there's a problem essentially.
101OFFENDER: Oh, oh good.
102HIS HONOUR: All right, Mr Dyason are you content that your client understands what's involved in the Order and that he's providing informed consent to it?
103MR DYASON: I am Your Honour, yes.
104HIS HONOUR: Yes. All right, Mr Thomas the documentation will make its way through to you today for signing.
105OFFENDER: Thanks, Your Honour.
106
HIS HONOUR: Then I'll sign the Order and then the Order will take effect. It's a matter for you, and I will give you a few minutes after this hearing to speak with
Mr Dyason. It's entirely a matter for you in terms of whether you have any emergency management day allowance. I'm aware that sometimes prisoners get time deducted for lockdowns and things of that nature. But, as things currently stand, you have 350 days jail, less 331 days jail. All right?
107OFFENDER: Yeah.
108HIS HONOUR: 19 days which could be reduced through any lockdown allowances or matters of that nature. But, my expectation is that fairly soon, within a matter of days, or at least a week or so, you're going to be released from prison and you'll be subject to this Community Correction Order. I understand you're planning to live with your brother and his family?
109OFFENDER: Yeah, oh, yeah.
110HIS HONOUR: One of the things that stood out to me, I must say from the Corrections report, was your disappointment that your so-called friends hadn't reached out to you, hadn't made contact with you since you've been in prison, which is a long time 11 months.
111OFFENDER: Yeah.
112HIS HONOUR: Yeah?
113OFFENDER: Yeah.
114HIS HONOUR: You should regard that as a pretty significant message, and that is that these friends, aren't friends of yours, because they haven't stuck by you. Can I give you some strong advice when you get out, make some new friends.
115OFFENDER: Yep.
116HIS HONOUR: Stay away from people that have been causing you to engage in anti-social behaviour. Stick with your family, turn a corner, and try and put this behind you, because if you fall in with the same people you were hanging around with before, you're just going to end up back in Marngoneet, and I don't need to tell you how hard it is.
117OFFENDER: Yeah.
118HIS HONOUR: You're only 22, you don't want to spend the rest of your life in jail, do you?
119OFFENDER: No, no Your Honour.
120HIS HONOUR: Make this time that you've spent in custody count. Do something with your life, all right?
121OFFENDER: Yeah, yes.
122HIS HONOUR: All right, thank you Mr Raimondo, anything else from the prosecution?
123MR RAIMONDO: No, Your Honour, thank you.
124HIS HONOUR: My Dyason, I'm going to give you some time on the video link after I leave, just so that you can speak with your client and make sure he understands everything that I've just said.
125MR DYASON: Thank you, Your Honour, I much appreciate it.
126HIS HONOUR: Thank you, adjourn the court.
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