Director of Public Prosecutions v Thomas

[2017] VCC 1285

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-01470

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROXANN LUCY THOMAS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2017
DATE OF SENTENCE:	7 September 2017
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2017] VCC 1285

REASONS FOR SENTENCE
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Subject:  Criminal law - sentence
Catchwords:  Koori court - plea of guilty armed robbery, intentionally causing injury to bus passenger - 32 year old female offender - drug and alcohol addiction - mother of 3 children - intends to engage with Aboriginal community on release - good prospects for rehabilitation.
Sentence:  Four years' imprisonment with 22 months non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gillahan	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Chris McLennan & Associates

Pages 1 - 7

 

 

HER HONOUR: 

1Roxann Lucy Thomas, you have pleaded guilty to one charge of armed robbery and one charge of causing injury intentionally.  You committed these offences when travelling on a suburban bus on 28 February 2017.  You were seated opposite another passenger, Mr Yu Wei Hu and you asked him for some coins.  He said he did not have any but you persisted and pleaded for him to give you $10.  Mr Hu became concerned and decided to get off the bus several stops before his intended stop.

2He stood up and you also stood up and blocked his path, holding a glass wine bottle by the neck in a threatening way.  You hit him with the bottle twice on his face, then on the side of his head.  You said, "I will kill you.  Give me your wallet.  I want $100 and I want your wallet."  You continued to threaten him with the bottle and he opened his backpack.

3At this time, the bus driver yelled out to you and you yelled back at him.  While you were thus distracted, Mr Hu grabbed hold of you and the two of you began to wrestle.  You reached into Mr Hu's backpack and stole his wallet, which contained just over $200 and identification and banking cards.  Mr Hu succeeded in holding you down and he took the wine bottle from you.  The bus driver approached and Mr Hu handed the bottle to him.

4As Mr Hu let you go, you punched him with a closed fist to his right eye, causing him pain and disorientation and he fell to the ground.  You got off the bus and you were arrested almost two months later on 12 April.  You have been in custody since then.

5Until then, you had only ever served several short sentences but had appeared before the courts many times in your adult life, mostly for offences of dishonesty and street offences.  Community based sentences which have been imposed have contained conditions for drug and alcohol treatment, the most recent of those being two years ago in August 2014.  You breached that order resulting in a 28 day prison sentence.

6You pleaded guilty to these charges at the earliest possible opportunity and for that, you are entitled to a discount on your sentence for having avoided a trial and the need for Mr Hu and other witnesses to have to give evidence.  Such a plea is of assistance to the system of criminal justice and I also accept it as an indication of your remorse. 

7Your participation in the Koori Court hearing is also accepted in that way, in your willingness to meet with the Elders, and take part in a discussion about your offending.  It is acknowledged that this can be confronting and challenging and can therefore serve as an indication that you have been prepared to take on responsibility for your wrongdoing, express your regret for it, and address ways in which you might bring about positive changes in your life.  One such way might be to engage in a positive way with your Aboriginal community and you have indicated that you are interested in doing so, through being related on your father's side of the family to Auntie Helga Lechtinen.

8That brings me to your background, which is as a Yorta Yorta Gunai Kernai woman, who grew up in many parts of Victoria and South Australia, mainly with aunts and uncles who moved around, setting up churches in Aboriginal communities.  You are aged 32 and you have three children aged 14, 13 and 12, who are living with their aunt.  Your own mother was unable to look after you and your father was an alcoholic and has since died.  Sadly, your mother who was your main support, died several years ago as did your older brother not long afterwards.

9Your education was cut short because you did not cope well and you were placed in a special education class.  You have had some work, but not for extended periods.  You are keen to obtain some qualifications and to be employed and to be equipped to help children from broken homes to learn to avoid drugs and violence.

10You have had two partners, one being the father of your children but he was incarcerated for much of the relationship.  Your second relationship ended similarly due to frequent incarceration.

11It seems that you have learned and acquired some insight into the harmful effects of illicit drugs and alcohol.  You started using cannabis at the age of 13 after being beaten by an aunt's partner.  You became a regular user at age 16 and ceased that when you started using harder drugs such as heroin in your early 20s.  After that, you started using methylamphetamine, injecting daily, and now in custody you are administered methadone and prescribed an antidepressant.  You have abused alcohol in the past and you have survived two drug overdoses.

12Some years ago you were the victim of two beatings and suffered ongoing pain, which had to be managed with medication.  You have not been prescribed any pain medication in prison so you are in constant pain.  When you were assessed by the forensic psychologist, Dr Aaron Cunningham, recently, you described the emotional effects of trauma from the beatings and other trauma experienced during your childhood, from which he diagnosed
Post-Traumatic Stress Disorder.

13He listed a number of depressive symptoms you related to him including emotional disconnection from others and emotional numbing and anxiety symptoms in several forms, including outbursts of anger and reckless and self-destructive behaviour.  

14It is accepted that the impact of deprivation and traumatic experience during a person's early years does not diminish over time and that reoffending is common until such time as differing circumstances and increased maturity might enable an offender to change.  You told Dr Cunningham that at the time of your offending, you were intoxicated with alcohol and had been using methylamphetamine, which had occurred in the context of the anniversary of the deaths your mother and brother.  You told him that you had struggled to identify the reasons for your offending, which I note represents an escalation of your previous offending and that your auntie had told you that Aboriginal people were the owners of the land and that that justified taking things from shops.  You thought you might have been influenced by that opinion.

15Dr Cunningham thought that your best protective factor was the fact that you have or had stable accommodation provided by public housing.  While you have been able to maintain that housing until now, it will be forfeited soon and on your release, you will have to start again which is of course a considerable disadvantage.  Dr Cunningham placed emphasis on your need for intense case management as part of your rehabilitation once you are released from prison to address accommodation, treatment and employment.  He said weekly counselling would not be enough.

16Whilst in prison, you have been using your time effectively, attending AA and NA meetings and doing various courses because you are hoping to be able to get a job.  You saw your children for the first time in prison only recently and it is clear that your separation from them has been a cause of grief for you.  You are concerned that their aunt may not be able to continue to look after them and you are keen to be able to help guide them away from the influences that have caused your criminality.  That anguish for you is a matter that I take into account in determining the length of your sentence and, in particular, the period that you must serve before being eligible for parole which should be of a shorter rather than a longer duration.

17A conversation which took place in court on 28 August resulted in your agreement with the Elders that your only hope for rehabilitation is to cease using drugs because they are the immediate cause of your offending.  You agree that you have the capacity to improve your life by making a fresh start and becoming a better person for the sake of your children and to avoid bringing shame to the Aboriginal community.  You agreed with the Elders that it is important for you and your children to connect with your family, to help them identify with and belong to their culture.  You promised the Elders that you would not be coming back to court and you acknowledged to them your appreciation for the things they had said to you.  Clearly, you are very remorseful and ashamed and that is an indication that you have good prospects for rehabilitation. 

18Whilst taking into account all these mitigating factors, I also must consider the fact that this offending was very serious and that the maximum penalty for armed robbery is 25 years' imprisonment and for causing injury intentionally, ten years. 

19There is no victim impact statement from the victim, but clearly it was a terrifying incident from which he tried to escape by trying to leave the bus before his stop.  It happened on public transport in full view of members of the public, some of whom made statements as to the fear they saw on the face of the young man you assaulted.

20Punishment can have a deterrent effect, that is to say others in the community might be deterred from offending in this way knowing that a prison sentence will be a result.  That applies in this case and there is also a need for you, yourself, to be deterred from doing anything like this again.  The community is entitled to protection from such offending but that protection may be achieved by means other than long terms of imprisonment.  I am able to apply some leniency because of the mitigating factors I have mentioned and this leniency in the context of your ability to seize the positive influences in your life, might promote community protection through your rehabilitation.

21I sentence you to three years and nine months' imprisonment for the charge of armed robbery and six months for the charge of causing injury intentionally.  Three months of that latter sentence will be served in cumulation upon the sentence for Charge 1, resulting in a total effective sentence of four years. 
I order that you serve a minimum period of 22 months before being eligible for parole.

22If you had pleaded not guilty to these charges I would have sentenced you to five years' imprisonment with a non-parole period of three years.  You have been in custody by way of pre-sentence detention now for these matters for 87 days not including today.  That time is to be reckoned as already served and will be noted on the court record.

23The prosecution seeks a disposal order in relation to the glass bottle and an order for a forensic sample of saliva to be obtained.  Through your counsel, you have consented and I make those orders.  I must advise you that the police have the power to use reasonable force to obtain the sample of saliva, but I trust that will not be necessary.

24I will just see if there are any other matters.

25MR BACKWELL:  There was a disposal order, I am not sure if Your Honour made that on that last occasion.

26HER HONOUR:  I have signed it today.  Is there anything else I have neglected or omitted?

27MS GILLAHAN:  No, Your Honour.

28HER HONOUR:  Mr Backwell, do you think your client might be assisted by having a copy of the sentencing remarks?

29MR BACKWELL:  I intend to go downstairs and go through it with her.

30HER HONOUR:  From time to time, I think it is a good idea to have it made available.

31MR BACKWELL:  Yes, Your Honour.  In these circumstances, it might well be, yes.  Thank you, Your Honour.

32HER HONOUR:  All right, thank you.  Thank you for your assistance throughout.  It was Mr Henderson here who I think was prosecuting.  So I thank both members of the profession.

33MR BACKWELL:  If Your Honour please.

34HER HONOUR:  Good luck, Ms Thomas.

35OFFENDER:  Thank you, Your Honour.

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