Director of Public Prosecutions v Thomas
[2012] VCC 1257
•19 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00734
CR-12-00735
| THE DIRECTOR OF PROSECUTIONS |
| V |
| DAMIAN BARRIE THOMAS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2012 | |
DATE OF SENTENCE: | 19 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Thomas | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1257 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Perry | OPP |
| For the Accused | Mr D. Langton | Patrick W. Dwyer |
HER HONOUR:
1 Damian Thomas, you have pleaded guilty to two charges of making a threat to inflict serious injury, one of armed robbery and one of robbery. The first three charges to which you have pleaded guilty relate to three separate, and very frightening, incidents, all occurring in just over an hour on the afternoon of 25 October last year.
2 At about 4.15 that afternoon, you were at the Flinders Street railway station. You approached a young man, Kyle Brodel, who was standing there with a 16‑year‑old female friend. You asked them for a cigarette. They told you they did not have any. You then produced a large knife and told Mr Brodel that if he was lying, you would come back and punch him full of holes. Mr Brodel said that he was scared for his life and he believed that he would be stabbed by you. You left and got on to a bus headed out towards Fitzroy.
3 At about 10 past 5 that afternoon, a young woman, a young mother, Claire Morgan, got onto the bus with her mother and her two‑year‑old child. You walked from the back of the bus, where you had been closer to where they were seated and sat down near them. They noticed that you were drinking from what appeared to be a vodka bottle and that you were mumbling. Your behaviour was obviously frightening. You appeared to reach out for Ms Morgan's mother's handbag and said to Ms Morgan: "If you move, bitch, I'll fucking stab you." A short time later you got off the bus at the corner of St Georges Road and Holden streets in Fitzroy. Ms Morgan was obviously afraid, not only for herself but also for her child and no doubt for her mother as well.
4 You walked towards Bennett Street in North Fitzroy and came across your third victim, Mr Ridgeway. He was sitting at the bus stop on the western side of Bennett Street. He heard some breaking glass and swearing and looked around to see you picking up a broken bottle, which you threw against a fence. You then approached Mr Ridgeway and asked him for a cigarette. Like your first victim that afternoon, Mr Ridgeway said he did not have one. You then produced a knife, which you had had concealed in your right sleeve, and demanded Mr Ridgeway's wallet. Mr Ridgeway offered you money, $20, but you demanded the wallet and said to him you wanted to know where he lived and that you would "get him" if he reported the matter to the police. You went very close to Mr Ridgeway and raised your arm, with the blade pointing at him and only about a foot away from his head. You made several threats to stab him before you took the wallet and ran off through the Bennett Street park. Mr Ridgeway's wallet was not retrieved. However, some of the contents of it, but not all of them, were found shortly afterwards under a footbridge not far from the place where you had accosted him. Mr Ridgeway too says that he was terrified during that incident.
5 Although there was CCTV footage of the incident at the railway station, and you were seen clearly on that, you were not at that stage identified or arrested, and so it was that on 29 January 2012 you committed the fourth offence that led to your arrest and your ultimate detection as the assailant in respect of those first three charges. That, too, happened in broad daylight, this time on a Sunday afternoon late in January of 2012.
6 Mr Zammit was walking through the All Nations Park near Dennis Street and Breavington Way in Northcote. He had stopped to rest on a park bench in that park. You walked up behind him and the first thing he knew was somebody poking him with something that felt to be a hard and sharp object in his upper back. He turned and got a very clear view of what you were wearing. One thing he particularly noticed was that you had a blue bandanna, that you had pulled up to cover half of your face. When Mr Zammit felt whatever it was that was poked into his back, he turned around and he tried to run away from you, but he was unable to do so, and I will explain to you shortly why he wasn't. He pulled out his wallet, opened it and gave you two $5 notes that he had in it and you then walked off.
7 Although he was unable to run away from you, Mr Zammit had the presence of mind to pull out his mobile phone and to photograph you as you fled. That was, sadly, in his circumstances, the most that he was able to do to seek to protect himself and perhaps to try and protect others from similar attack from you. Fortunately for him, there were other people nearby who had seen what happened and he and they went to the police station, which was just around the corner from where you had accosted and robbed Mr Zammit, and the police were very promptly in the park and arrested you. You were seen, as they approached, trying to dump the bandanna and hide it and you had the two $5 notes on you that you had taken from Mr Zammit.
8 You were interviewed immediately after that in respect of that matter and told a patently untrue story about how you came to have the money, what Mr Zammit had been doing and why you had noticed him. You were released on bail but rearrested a couple of days later, when, no doubt, the circumstances of your attack on Mr Zammit had led to some connection being made between that and the offences of 25 October the previous year. When you were interviewed in early February in respect of those matters from October last year, again you gave, in effect, denials of the conduct of the three incidents that led to those charges, denied in fact even being in the areas where the offences had occurred.
9 It is clear that these are serious offences. Armed robbery, the one that carries the highest maximum penalty, carries a penalty of 25 years, robbery, a penalty of a maximum of 15 years' imprisonment, and the threats to inflict serious injury, a maximum of five years' imprisonment.
10 The effect on each of your victims has been significant. Each of them, in their police statements, made shortly after the event, spoke of the fear that your conduct had induced in them at the time that you were threatening them and stealing, or trying to steal, property from them. The fear was caused not just by the conduct itself, the threats, in some cases, the use or production of weapons, the demands for money or cigarettes, or the actual stealing of their goods. Their fears were no doubt compounded by the fact that you were so obviously substance impaired and so irrational and unpredictable in your behaviour and their fears were also no doubt compounded by the fact that they could be threatened with stabbing over such trivial demands ‑ for a cigarette and for meagre amounts of cash. No doubt also their fears were compounded by the fact that each of them was accosted by you in broad daylight in public places ‑ a train platform, on a bus, at a bus stop and on a park bench.
11 As the victim impact statements from the three who made victim impact statements, Mr Ridgeway, Mr Zammit and Ms Morgan, make clear, the fear remains long after you have fled. All of them spoke of that sense of violation of their sense of personal safety in going about ordinary, every‑day activities. All of them speak of reliving the events and of the fear that when they are going about their daily activities. They are reminded of what happened and are afraid that it could happen again. They fear the what ifs, what else could have happened, given that you were so obviously affected by substances.
12 You have heard already in court what Ms Morgan said in her victim impact statement. I want to also tell you something of what Mr Ridgeway and Mr Zammit said. Mr Ridgeway said: "Immediately after the crime, I felt agorophobic. I was unable to leave the house for days without someone else with me and even when I did, I was constantly in a state of high alert and anxiety. This feeling of hyperawareness of my surroundings, and the sense of distrust of people when walking alone, stayed with me for months after the crime. I still get an involuntary response of a knotted stomach and pangs of anxiety when I see people with shaved heads and tattoos. I suffered from insomnia for months after the crime. Often the incident would replay in my head and I would rethink how I could have done things differently and these scenarios would run through my mind. It was like going down a spiralling rabbit hole and I would find I would almost have to shake myself out of it and I would rethink how I could have done things differently and these scenarios would run through my head."
13 He spoke of going to see a psychologist, who helped him put his emotional responses into perspective, and it helped him to talk about it rationally, but he said it was the irrational things that persisted with him. It meant, he said, that he really struggled to enjoy simple things. "I would go for walks and would find my mind thinking about it, rather than just enjoying the sunshine on my face."
14 What Mr Zammit says in his statement is profoundly moving and it should stand as a stark reminder to you, and to others who think that they can act like this, that there are often people much more vulnerable than those who are committing the offences and for whom the effect of what you do is so much more profound because of the state that they are in. He is a man who has clearly struggled to come to terms with a profound and life‑changing experience for him and has, it would appear, struggled to do so with great success in learning to accept the limitations on his life as a result of the profound life‑changing experience and who suffered a really serious and significant setback because of that.
15 He says that he suffered severe injuries in a collision with a dangerous driver about a year before you attacked him. He is now partially disabled, unable to defend himself and unable to run; that was why he couldn't escape you when you accosted him on that bench. He had done, obviously working hard to assist his rehabilitation, he had gone for a walk, taking himself to the limit that he was able to walk in comfort and without pain, but he had had to stop for a rest. It was when he had stopped for a rest, because he was unable to walk further without that, that he was accosted by you.
16 He had not initially been afraid when he saw you because it was a sunny Sunday afternoon in a park, where he expected there would be people, and so the shock of that confrontation by an assailant in such a public place in daylight and when he was resting in the course of trying to have his walk, the limited walk that he could do since the accident, that his sense of safety and security and optimism about life was so badly violated. He speaks of the paralysing feeling of despair he had when he couldn't run away because of the disabilities that he now suffers and the understanding of the difference between the person he was before his accident and the person he was after that, how easily he would have been able to escape you before then. He spoke of how completely vulnerable he felt to you, a person he did not know and who was threatening him.
17 He also speaks of the effect on his mind. He has had brain injury, as well as physical injury, from the terrible road accident that he suffered and it makes it more difficult for him to process emotions and to deal with his memories. In one way he said it does not hurt as much because his memory is not as good, so he does not suffer the replaying that he understands he would have before the accident and before he had suffered the brain trauma. But it is troubling because he cannot process it in the way he would have been able to before and in the way, as he says it, a normal person would. But he made notes and his notes recount vividly how affected he was in the days and weeks and months immediately afterwards and how, even now, when the memory for him has faded a little, he still has a much more instinctive fear, which means he is unable to walk by himself in the dark. Even if he is walking with his girlfriend he is worried because he fears that he is going to be unable to protect the two of them if something happens. He has feelings that he knows are irrational, fears of being attacked in his own home, in different places, not just in the park, and he says this: "I am hoping these jitters lessen with time, but one thing that I know will stay with me is knowledge that horrible situations like this can happen, and when they do, I cannot defend myself, nor run away from them."
18 I hope that makes you feel profoundly ashamed of what you did on that day and I hope that memory lasts with you for the rest of your life so that if you are ever tempted to assault and attack an innocent and hapless person again, you will have some memory of shame at what you did to this poor young man and that that will have some effect much greater than any punishment that this court can impose on you in making you moderate your behaviour from now on.
19 The fact that you were intoxicated by alcohol, and possibly drugs as well, is no mitigator. You are an adult and you were, by the time you committed these offences, well aware of the effects of alcohol on you. You had, not long before that, sought help, but you had not followed through on any of the help that you had sought, or you had chosen not to.
20 Your past history demonstrates that although you have abused drugs and alcohol since you were young, you have also shown that you have the capacity to control your drinking and drug‑taking and live a contributing life. As the report from Mr Jeffrey Cummins, the psychologist, makes clear, your comments at interview show that you are capable from distinguishing right from wrong and that you know that you did the wrong thing. It is clear, therefore, that denunciation, deterrence and just punishment all must be given considerable weight. People are entitled to use public transport, to walk in parks safely, free from threats of stabbing or other violence and demands that they hand over things like cigarettes or money from drunk and drug‑affected strangers.
21 As Mr Ridgeway, the man whose wallet you stole, the third incident on that October day last year, said: "The thing that sticks with me most is the futility of this crime. How could anyone think it is acceptable to do such a thing to someone?" The sentence must clearly therefore mark condemnation of your total lack of regard for these most basic of human rights of these other people, the respect for the human dignity of other people to go about their daily activities feeling safe and enjoying their right to be free from threats of violence, threats of theft and feeling that their rights will be respected by their fellow citizens.
22 Mr Ridgeway also said in his victim impact statement: "What caused this person to be like this? What was he thinking? Should I feel sorry for him?" Well, you are now 32 years of age. You are intelligent enough, probably on the low side of average intelligence, Mr Cummins estimated. You were educated to Year 10 and you have had since then a reasonable history of engaging in unskilled employment. You grew up in Melbourne and you were brought up mainly by your mother. Your father left home when you were four and you had no contact with him until your late teens. Your mother has been a member of the Salvation Army since you were about six. She clearly is a non‑drinker and there is no alcohol in the home. From what I am told, your father was a drinker and it would appear possibly a problem drinker. Your history since your teenage years has included use and abuse of alcohol and various drugs, but not at a level of use or impairment as was evidenced by your behaviour at the time of the commission of these offences.
23 One significant event in your early adult life, and probably the most significant event in your early adult life, on the history given to me, was the murder of your father just after you had turned 21. It would appear from Mr Cummins's report, and from the evidence given by your mother on the plea before me, that although you had formed a relationship with him only in your late teens, that that had been an important relationship for you and his death had had a significant effect on you. The death of a parent in any circumstances would be likely to have a significant effect, but his death by murder and by a family member must have been even more so. And, from what Mr Cummins says, part of the effect of that on you was that you became adrift.
24 Nonetheless, in the four or five years before the commission of that first spate of offending in October of last year, your life seemed to have been marked by considerable stability. You had been living in the one place with the same people and working full‑time in the same job for four to five years and it would appear that a combination of losing that job, not through any fault of your own but when the business closed down, and losing that accommodation when your co‑tenants moved out and you were unable to replace them and so stay on, had resulted in you quickly drifting into an aimless life of unemployment, abuse of alcohol and abuse of drugs, particularly Xanax. According to Mr Cummins, from the way you described your life at the time, you had, in effect, given up on life. That is no excuse for what you did on these occasions, but it does place the offending in context.
25 You have been in custody for most of the time since you were interviewed on 3 February. You spent about a month in custody before being released on bail. Your bail conditions included living with your mother and abstaining from alcohol. Within three days she had reported you to the police for breach of your bail condition by abusing alcohol and you were returned to custody, where you have remained ever since. It is your first real time in custody. You have got a history of previous appearances before the Magistrates' Court but, as Mr Langton correctly pointed out, they have been for relatively minor offences and not for offences of violence. Only one of them resulted in a very short term of imprisonment and that was a short term of imprisonment which was ultimately imposed as a result of your breaching earlier more rehabilitative focused dispositions that had been imposed on you.
26 In your time in custody since March of this year, you have used your time well. You have obtained employment as a billet in your unit, you have undertaken a number of courses available to prisoners on remand and you have submitted to urine testing and shown clean samples on each occasion. All of these are voluntary activities or engagements for prisoners on remand and therefore it is not only notable that you have used your time usefully, but you have done so voluntarily and it appears that the time in custody, although it does involve deprivation of liberty, has been beneficial, in the sense that it has forced you to abstain from alcohol and has given you the time and opportunity to take stock of your life. It would appear too that you have responded well to the routine that custody has imposed upon you.
27 Your mother, in her evidence, said that upon your release, she will assist you with accommodation. She advised that she had imposed one condition on you, and that is no alcohol, and you told Mr Cummins that she had imposed another condition on you, and that is that you find work. It is clear that your aim is to do both of those, to abstain from alcohol and to obtain employment. Clearly, staying alcohol and drug free will be much harder for you upon your release than it is within the constraints imposed by custody and it is clear, therefore, that the sentence that I impose must also reflect the need to deter you specifically from offending. There is a clear need also to ensure that the sentence achieves its end of protection of the community from the risk that you will reoffend in like manner on release if you abuse drugs and alcohol again, if you are in unstable accommodation, and if you are unemployed. Your conduct in custody shows a desire to obtain employment, to remain free from alcohol and to return at least to the level of stability that you had in your life in the years before you lost your job and your accommodation some time in 2011.
28 The way you have conducted yourself in custody and the way you have articulated your aims for your future on release indicate, as Mr Langton said, that although your prospects for rehabilitation must be seen as guarded, that that guardedness is on the favourable, rather than on the unfavourable, side. The sentences to be imposed, therefore, should encourage those guarded prospects for rehabilitation whilst working to serve those needs of deterring you and, through that also, to protecting the community.
29 Other matters that I take into account in your favour are your early plea of guilty. Although your conduct when interviewed by the police was to deny the offending, you pleaded guilty at the earliest opportunity and that, in part, explains why your plea has come before this court so soon after your interviews and charging. The fact that you had, from that very early stage, indicated your intention to plead guilty is not only a matter that is taken into account for its utilitarian benefits in saving the time and costs of trial, but also for the significant benefits it provides to the victims. From that very early stage, they would have been aware that you were not contesting the charges, that they did not have to anticipate a long delay before the matter was before the court and disposed of and that, whilst they had to deal with their own memories of the offences, they did not have to deal with the ordeal of facing giving evidence and having to relive the offending as they recounted it step by step in a court before strangers. Those matters count considerably in your favour, the sparing of the victims of that ordeal and the sparing of them of the affront of being told they were wrong or that you weren't the person who had done it when they had identified you as that.
30 It is accepted on your behalf and I understand, from what you told Mr Cummins, it was accepted when you spoke to him, that you understood that you were facing a term of imprisonment and that it would be a term that would require you to spend longer in custody than you have already on remand. I agree, as Mr Langton submitted and as Mr Cummins recommended, that the sentence should be structured so as to allow a considerable gap between the head sentence and the non‑parole period to allow for the possibility, should the Parole Board see fit to release you on parole, that with the structures or the assistance that they can provide, assistance in obtaining accommodation, assistance in obtaining employment and the coercive powers that they can exercise over you in relation to drug and alcohol use and supervision and monitoring of you, mean that your prospects of following your aims to remain substance free and offence free on your release can be best encouraged, and that is what I propose to do.
31 In structuring the sentences, it is clear that the sentences for the first three offences are part of what is a continuing course of conduct on that day but they are three separate offences involving three separate victims and so there must be some modest degree of cumulation between the sentences for those three offences.
32 So far as the sentence for the fourth offence is concerned, it is a separate offence on a separate occasion some time after. You should have had the opportunity to reflect upon your conduct back in October and to realise you should not have acted again as you did on that day. Therefore, although in order to ensure that the principle of totality is not offended, I must make sure that the sentences for all offences reflect the overall wrongdoing on those two separate days, there is a greater degree of cumulation that I am imposing in respect of the sentence for charge 4 than I am for the sentences in respect of the offences on that first day. Could you now please stand.
33 Damian Thomas, on the four charges to which you have pleaded guilty, you are convicted. On charge 1, of threatening to inflict serious injury, you are sentenced to be imprisoned for a period of eight months and I direct that two months of that be served cumulatively upon the sentence on charge 3, which I will make the base sentence, and the other partial cumulation orders I am about to pronounce. On charge 2, of threatening to inflict serious injury on Ms Morgan, you are sentenced to be imprisoned for a period of 12 months and I direct that three months of that sentence be served cumulatively upon the base sentence and the other partial cumulation orders. On charge 3, of armed robbery, you are sentenced to be imprisoned for a period of two years and six months and on charge 4, of robbery, you are sentenced to be imprisoned for a period of two years and I direct that nine months of that sentence be served cumulatively upon the base sentence and the other partial cumulation orders. That makes a total effective sentence of three years and eight months and I direct that you serve a period of one year and six months before being eligible for parole.
34 I declare that you have spent 165 days in presentence detection and direct that that be counted and reckoned as part of the sentence already served.
35 I declare that, pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to 12 months' imprisonment on charge 1, 18 months on charge 2, three years and nine months on charge 3, and three years on charge 4. That, with partial cumulation orders following the same pattern, would have resulted in a total effective sentence of six years and I would have fixed a period of four years as the time you would have had to have served before being eligible for parole.
36 I have also been asked to make an order for the provision of a forensic sample and I propose to do that, having regard to the number and nature of the offences.
37 MR PERRY: I do apologise for interrupting, Your Honour, but the inquiry has borne fruit. It is a retention order after all that, rather than ‑ ‑ ‑
38 HER HONOUR: Thank you, Mr Perry. I propose, therefore, to make an order for the retention of the forensic sample that was taken from you at the time of questioning. I do so having regard to the number and seriousness of the offences to which you have pleaded guilty and which I have now convicted you.
39 Are there any other ancillary orders, Mr Perry?
40 MR PERRY: No, Your Honour. The form of order, with Your Honour's leave, will be prepared and forwarded to Your Honour for signature.
41 HER HONOUR: Yes, thank you. And do the sentences I pronounce reflect what I said I intended to do?
42 MR PERRY: Admirably.
43 HER HONOUR: Is the arithmetic correct?
44 MR PERRY: Yes, Your Honour, although I do say maths was the worst product of the high school in question.
45 HER HONOUR: Check the arithmetic.
46 MR PERRY: Unity is strength, Your Honour.
47 HER HONOUR: Charge 1, eight months, two months cumulative. Charge 2, 12 months, three months cumulative. Charge 3, two years, six months, base sentence and charge 4, two years, nine months cumulative. So on my arithmetic that is three years, eight months.
48 MR PERRY: Your Honour, the Crown is in warm agreement with you.
49 HER HONOUR: Mr Langton?
50 MR LANGTON: Yes, I agree with that, Your Honour, and an 18‑month non‑parole period.
51 HER HONOUR: That's right.
52 MR LANGTON: And Your Honour did make that declaration as to time served, I think.
53 HER HONOUR: Yes, 165 days.
54 MR PERRY: Thank you, Your Honour.
55 HER HONOUR: Thank you. Mr Zammit, I hope this hasn't destroyed your optimism in life and I hope that you continue in the progress you have obviously made since that serious accident and that you continue with your positive and optimistic approach to life. I wish you well in your future.
56 MR ZAMMIT: Thank you, Your Honour.
57 HER HONOUR: You can remove Mr Thomas, please.
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