Director of Public Prosecutions v Thomas

[2018] VCC 1600

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01090

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH THOMAS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2018
DATE OF SENTENCE:	27 September 2018
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2018] VCC 1600

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Aggravated burglary, criminal damage. 
Legislation Cited: Criminal Procedure Act 2009
Cases Cited:

Sentence:Total Effective Sentence is 4 year/s and 3 month/s imprisonment with a minimum term of 2 year/s and 9 month/s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson (Plea) Ms E. Carins (Sentence)	Director of Public Prosecutions
For the Accused	Ms N. Giorgianni	Giorgianni & Liang Lawyers

HIS HONOUR:

1Leigh Thomas, on 25 September 2018, you pleaded guilty to the following charges on indictment J10097327: 

Charge 1, aggravated burglary with an offensive weapon and with persons present.  This charge has a maximum penalty of 25 years' imprisonment.

Charge 2, criminal damage.  This has a maximum penalty of ten years' imprisonment. 

Charge 3, handling stolen goods.  This charge has a maximum penalty of 15 years' imprisonment.

2You consented to a related summary charge being transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009. You pleaded guilty to the charge of committing the indictable offence whilst you were on bail. This charge has a maximum penalty of three months' imprisonment.

3You also admitted an extensive prior criminal history involving a total of 44 separate court appearances between March of 1997 and July 2017.  Your criminal history runs to some 49 pages of a print out.  Neither your counsel nor the prosecutor could say how much of your 39 years you have spent in custody.  A quick analysis of your criminal history indicates you have spent years in custody.  The frequency and repetitive nature of your court appearances is indicative that you have become institutionalised and time and gaol is a normal time for you.

Circumstances of your offending

4The prosecution tendered the prosecution opening.  It was Exhibit “A”.  The prosecutor also tendered a group of photographs showing the locality of your offending and the damage to the door of the premises caused by your use of an axe to gain entry to the premises.  Those photographs are Exhibit “B”.

5The victim of your aggravated burglary and criminal damage charges is
Mary Carter.  You knew Ms Carter as you had attended high school together.  Your sister, Chinique Thomas, has previously shared a premises with
Ms Carter.  You did not know the owner of the motor vehicle which is the subject of Charge 3 on the indictment.  It is not suggested or part of the prosecution case that you had anything to do with the theft of Mr Henderson's car.

6On 28 November 2017, you entered an undertaking of bail to attend the Sunshine Magistrates' Court on 19 March 2018.  I understand from your counsel that the Sunshine Court matters are to be dealt with in October this year, 2018.

7At the time of these offences, you were on bail for dishonesty offences.  Between 5am and 6 am on 2 January 2018, Mr Henderson had parked his car which was a white Mazda Utility, registration EAR 509, in the driveway of his home address in Ballarat East.  Mr Henderson had started the vehicle to let his mobile phone charge up for a short time before retrieving his phone, going inside the house.  He left the vehicle running with the keys in the ignition.  A short time later, Mr Henderson has heard the sound of a vehicle skidding and losing traction in gravel.  He went outside and saw his vehicle was missing.  Mr Henderson then reported the theft of his vehicle to the Ballarat Police Station.

8In the early afternoon of 8 January 2018, you arrived at your friend, Sam Nang Thao's residence in Dandenong North.  You arrived at the address driving Mr Henderson's stolen Mazda Utility.  The Mazda Utility had been spray-painted blue and had a large amount of hard rubbish in the rear tray of it.  You also possessed Mr Henderson's driver's licence which was located in your wallet when you were arrested.  That is the charge of handling stolen goods which is
Charge 3 on the indictment.

9After a short time, you and Thao left Thao's residence.  You drove the stolen Mazda Utility and Thao drove his own vehicle, a gold Mazda Tribute.  At one point later in the afternoon, you parked the stolen utility and got into the passenger seat of Thao's vehicle.  The pair of you continued to drive, picking up a TV which had been left on the side of the road as hard rubbish and placing it in the boot of Thao's vehicle.  Eventually you requested Thao to take you to Unit 1, 28 Ronald Street in Dandenong.

10You and Theo arrived at that address 1/28 Ronald Street, Dandenong at around about 8.30 pm.  This address was the residence of Mary Carter and was known to you as the address of your sister, Chinique Thomas, who used to reside at that address.  The residence is a three bedroom brick unit with a small and closed entry way secured by a security door.  At the time of the offending, there was a small pile of hard rubbish in the driveway to the side of the entry way to the unit.

11At that time, the occupants of Unit 1, 28 Ronald Street were Mary Carter, her son, Douglas Carter-Taylor and her brothers, Shane and Daniel Hawkins.

12Whilst Thao stayed in his vehicle, you approached the residence.  You knocked on the front door and spoke to witness Shane Hawkins and then asked to speak to Ms Carter.  Ms Carter attended at the front door and you asked her where your sister was.  Ms Carter explained to you that your sister had not lived at the address for several months.

13You then asked Ms Carter to come to the car parked in her driveway to look at the TV inside the boot of the car, that you said you wanted to fix it at Carter's house.  Ms Carter refused your request and stated that she had nothing to fix it with.  You then stated you wanted a drink and Ms Carter provided you with some Coca Cola. 

14You then begun rifling through the hard rubbish pile which was to the side of the entry way of the unit and located items which belonged to your sister. 
Ms Carter explained that your sister had thrown the items out herself.  You demanded that Ms Carter sign over her Subaru vehicle which was parked in the backyard to you. Ms Carter refused to do so.

15You then became increasingly agitated and attempted to push pass Ms Carter through the interior wooden door of the unit.  Ms Carter blocked your entry and attempted to shut the interior wooden door.  You got a broom from the entry way and jammed it in the door, preventing the door from being closed.  The other occupants of the house, including Daniel Hawkins, Ms Carter's brother, came to her aid.  Eventually Ms Carter managed to break the broom that was holding the door open and the wooden interior door successfully closed and locked.

16You were heard to be yelling, "Give me the axe."  You then left the premises and retrieved an axe from an unknown location.  You then passed through the open security door of the entry way, approaching the closed interior wooden door of the unit.  You had with you a large orange handled axe in your hands.  That is the aggravated burglary and the summary offence of committing an offence whilst on bail.

17You then swung the axe four or five times at the interior front door, attempting to gain entry through the interior front door.  These swings of the axe left a series of gashes in the interior wooden front door.  These are shown in Exhibit “B” on the photographs.

18Whilst you were striking with the axe, Carter and Shane Hawkins, her brother, contacted 000.  Ms Carter then yelled out to you, "The cops are on their way."  Within approximately one minute of these words being yelled out to you by
Ms Carter, you have left the area in the gold Mazda Tribute which was driven by Thao.

19The police responded to the 000 call and attended at 1/28 Ronald Street in Dandenong.  Photographs were taken of the damaged door.  Both the top and bottom part of the broken broom handle was seized.

20At about 1.15 am on 9 January 2018, a further 000 call was made regarding the Mazda 4WD with three people inside it parked in a private car park at 44 Princes Highway, Dandenong.  This was Thao's car.  Upon arrival at the car park, you were observed standing in the door well of the front passenger seat of that vehicle.  You approached the police and stated, "I'm Leigh Thomas,  you guys should know me by now."  You were then arrested and conveyed to the Dandenong Police Station.

21You were placed in the Dandenong cells.  A record of interview was attempted, but because of your condition appearing to be drug affected, you were deemed not fit to be interviewed by the police.

22An axe with an orange handle was located behind the driver's seat of Thao's vehicle.  Also located in Thao's vehicle was a black wallet belonging to you.  In addition to many cards belonging to you in that wallet was the Victorian driver's licence of Lee Henderson.

23At approximately 12.30 am on 11 January 2018, Henderson's Mazda Utility was located in Wanke Crescent in Dandenong.  The vehicle had been parked there for several days and was full of hard rubbish.  A red “poker chip” tin was located in the glove box of that vehicle, which had three fingerprints belonging to you on it.  The vehicle was later returned to Mr Henderson along with his driver's licence.

24You have been in custody since the day of your arrest, which is now 261 days of pre-sentence detention.  You have indicated your intention to plead to these charges at an early stage.

Your Personal Circumstances

25You are now 38 years old, soon to be 39.  You have had a difficult upbringing as a child.  Your parents separated when you were four years old.  You lived with your mother and your step-father until you were approximately eight years old.  At that stage, the Department of Human Services became involved in your life.  You had periods in care units, including Parkville as I understand it and also foster care placements. At home, you were subjected to physical abuse from your step-father. 

26Both your natural parents were drug addicts and both of them spent various times in gaol.  Your relationship with your father was good, but interrupted by your father's terms of imprisonment.  Your father passed away when you were 16 years old.

27Your mother was not a good model to your behaviour.  She introduced you to the use of cannabis at the age of 13.  By the age of 15, you had progressed to intravenous drug use, using amphetamines to begin with and then graduating to the use of heroin.  You were a long term user of heroin. In the last couple of years, you have used methylamphetamines up to your most recent incarceration.  In the period of 2006 to 2016, you were abstinent from the use of heroin whilst you were on a methadone program.

28Your life has been dominated by drug use and the accompanied criminal lifestyle resulting in a number of incarcerations.  Your criminal history is extensive.  Your offending covers the full range of offences to do with dishonesty, violence, driving offending and drug use and possession.  You have 49 pages of prior criminal history which records, as I said before, 44 separate court appearances.  Your offending is prolific. An example is that you have 56 prior convictions for theft of a motor vehicle.  You have a prior conviction for aggravated burglary in 1999.  In 2001, you were sentenced for an armed robbery.  You have numerous prior convictions for reckless conduct endangering life or serious injury.  You also have prior convictions for damage to property.

29Undoubtedly, your family background is partly an explanation for your criminal history.  The other explanation is the diagnosis by Dr David Ball, forensic psychologist, that you have an anti-social personality disorder which is severe in nature.  Your counsel submitted that you were very happy when you finally obtained a home of your own from the Ministry of Housing in March 2017.  You furnished it and you were proud of your home.  Your offending here has caused you to lose that home.

30I note in the report of Dr Ball that you expressed a wish to reconnect with your 13 year old daughter.  That desire on your part is understandable.  It sounds like a repeat of your own experiences as a child with your relationship with your own parents.  Drugs, gaol and personal dysfunction are the dominant features.

31Your education was limited due to your family setting and a need to move around.  You give a history of attending school to Year 9, but state you never really passed any one year and you were just put up to the next level.

32You have a limited work history and have now lived on a disability pension for many years.  Your future does not look promising, but you are the only person who can do anything to improve your life.

Sentencing Considerations

33The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

34In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances and those of your victims.  I am required to balance the interest of the community in denouncing your criminal conduct with the interest of the community, seeking to ensure that as far as possible, you as an offender are rehabilitated and reintegrated into society.

35You have pleaded guilty at an early stage in these proceedings.  The plea was finalised very early.  Your plea has the utilitarian value of allowing orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

36You have, by your plea, relieved your victims, Ms Carter and Mr Henderson, from giving evidence against you and facilitates some closure for them as victims of your offending.  Your plea is also a clear acknowledgement by you that you accept a responsibility for your criminal behaviour in these cases.  Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept your plea of guilty to these charges indicates and demonstrates some remorse on your part.

37I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.  Current sentencing practices though is but one factor I have to take into account.

38You have an extensive and relevant prior criminal history.  You have prior convictions for each of the charges that you are now to be sentenced for.  I have previously summarised your criminal history and will not repeat it here again.

39The seriousness of this instance of aggravated burglary is informed by the following considerations: 

(a) At the time of your offending, you were intent at the point of entry to the house was to cause damage at the premises;

(b) You attempted to force the door of the premises open against the existence of known occupants;

(c) You were carrying and used an axe to break into the premises;

(d) You committed this crime at 8.30 pm which would have been about sunset at that time of the year;

(e) You knew there were people inside the premises at the time of your offence and you knew Ms Carter; 

(f) Due to your irrational behaviour, Ms Carter was frightened of you and rang 000 immediately; and

(g) you offended whilst on bail.

40The offence of criminal damage is intricately entwined in the aggravated burglary offence and the sentence for that charge will be appropriately served concurrently.

41The offence of handling stolen goods involves a motor vehicle.  Whilst you are not charged with the theft of the motor vehicle in this case and the prosecution expressly disavow any suggestion that you did steal Mr Henderson's motor vehicle, you have very relevant criminal history.  On the record, it is shown that you have 56 prior convictions for theft of a motor vehicle.  You know full well the combination of dishonesty and another person's motor vehicle.  This offence is completely separate and independent of your offending to Charges 1 and 2.

42I have expressed the conclusion that the fact that you have offended whilst on bail is a factor in assessing the seriousness of aggravated burglary charge.  I find that to accumulate any of the sentence for the commission of the indictable offence whilst on bail would amount to double punishment.

43Your counsel appropriately conceded that Verdins principles had no application to your sentencing considerations in this case.  The report of Dr Ball dated
6 June 2018, which was Exhibit “3” on the plea, sets out your diagnosis of anti-social personality disorder and persistent depressive disorders.  Mr Ball notes that you have an acquired brain injury, an ABI and that you suffer from epilepsy.  His report also refers to your multiple hospitalisations for drug overdoses.

44On this period of remand, you have worked as a billet in a protection unit.  You have taken part in a number of courses conducted by Caraniche to assist in your reoffending reduction.  You have trained in traffic management at Box Hill Institute courses this year on remand.

45At the centre of your criminal activity is your inability to control your addiction to drugs, be it amphetamine, heroin or methamphetamine.  At the time of your arrest for these offences, you were considered too intoxicated for record of interview to be conducted by the police.  Consequently, your prospects of rehabilitation I assess to be guarded, particularly taking into account your criminal history and all the failed community-based sentencing options previously imposed on you.

46Nevertheless, no person is without hope of rehabilitation.  Your counsel urge me to impose a straight sentence meaning a non-parole period.  Your counsel submitted you were never granted parole and have to serve all of the head sentences in the past.  I consider that your best chance of rehabilitation is that if you earn the privilege of parole, the Adult Parole Board is best placed to totally control your re-entry to society and assist you to progress to a law-abiding life.

47Your offending is serious and the only proper disposition is a term of imprisonment with a non-parole period.  The principles of general and specific deterrence combined with just punishment dictate a term of imprisonment is the only appropriate sentence.

48Would you stand please, Mr Thomas?

49On the charge of aggravated burglary, you are convicted and sentenced to

42 months' imprisonment.  That is the base sentence.

50On the charge of criminal damage, you are convicted and sentenced to nine months' imprisonment.

51On the charge of handling stolen goods, you are convicted and sentenced to 18 months' imprisonment.

52I order that the sentence in Charge 3, that nine months of that sentence be served cumulatively on the base sentence of 42 months' for the aggravated burglary.

53On the related summary charge of offending whilst on bail, you are convicted and sentenced to two months' imprisonment.

54That is a total effective sentence of four years and three months.  I fix a non-parole period of two years and nine months.

55But for your plea of guilty, I would have sentenced you to six and a half years with a non-parole period of four years and I declare that you have served 261 days pre-sentence detention.  Is that a correct calculation?

56MS GIORGIANNI:  That's correct, Your Honour.

57MS CAIRNS:  Yes, Your Honour.

58HIS HONOUR:  Yes, 261 days of pre-sentence detention and I will sign the disposal order which I think is the only order sought.

59MS CAIRNS:  Yes, Your Honour.

60HIS HONOUR:  Mr Thomas, I have sentenced you four years and three months with a non-parole period of two years and nine months.  Yours is a sad life.  Unfortunately you are the only one who can change it.  Please try when you get out.  Thanks.

61Thank you both for your assistance.

62MS GIORGIANNI:  As Your Honour pleases.

63MS CAIRNS:  Thank you, Your Honour.

64HIS HONOUR:  Just before I go, those sentences add up?

65MS CAIRNS:  Yes.

66HIS HONOUR:  Yes.

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