Director of Public Prosecutions v Thomas, Jeffrey Allan

[2013] VCC 337

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-00133

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY ALLAN THOMAS

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 March 2013
CASE MAY BE CITED AS:	DPP v Thomas, Jeffrey Allan
MEDIUM NEUTRAL CITATION:	[2013] VCC 337

REASONS FOR SENTENCE
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Subject:intentionally causing injury  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Ching
For the Accused	Ms B. Coath

HER HONOUR:

1       Mr Thomas, I'll be addressing my remarks to you but you can stay seated until I tell you that you must stand.

2       Jeffrey Thomas, you have pleaded guilty before me to one charge of intentionally causing injury. 

3       The circumstances of that charge are detailed in the prosecution opening which was made an exhibit on your plea.  Your counsel agreed that the matters contained in that opening are accurate. 

4       Your offending occurred on 4 November 2010, well over two years ago.  At approximately 9.30 on that night you attended the Cubby House Lounge Bar in Moonee Ponds.  You had intended to meet up with friends but they did not arrive, leaving you alone at the bar.  You drank whisky and lemonade throughout the evening.  At about 1.50 in the morning you became involved in a verbal argument with one of the other patrons.  Soon afterwards there was some physical interaction between yourself and several other males in the bar which developed very quickly into a fight. 

5       One of the exhibits on the plea was a DVD of the security footage from that night.  I have watched that DVD.  It appears from that DVD that in the course of the fight you were initially the victim.  You were knocked to the ground by two males and punched and kicked by a group of men while you were on the ground.  It appears that there was a group of up to eight men, by some accounts, around you at that stage. 

6       There were three security guards at the bar.  The security guards intervened and pulled all of the men off you, holding them back from assaulting you further. 

7       Your victim in this offence was one of those security guards.  He had remained close to you as you got to your feet, clearly attempting to protect you.  However, when you stood up you looked at him and then punched him in the head with a closed fist. 

8       The incident appears to have virtually come to an end at this point.

9       However, almost immediately afterwards you went to the bar nearby, grabbed a glass from the bar, pushed your victim several times with your left hand and then swung the glass at your victim.  Initially you missed and your victim moved away through the crowd.  However, you pursued him, striking him several times to the head with the glass, causing the glass to break.  You did so as your victim was trying to protect himself by covering his head with his arm. 

10      After you had assaulted the victim in this way you walked towards the rear bar.  You took your shirt off and tied it around your waist.  You argued with some other patrons and smashed a bottle.  You then became involved in a physical altercation with some other patrons, arming yourself with the broken glass and waving it around.  One of the security guards later in his police statement described you as being on a rampage at that time. 

11      The police were called and confronted you.  You initially disregarded police requests to drop the glass but were eventually arrested with the aid of capsicum spray. 

12      As a result of your actions your victim sustained two deep lacerations to the right side of his head.  He also suffered a cut to the back of his head.  Thankfully those lacerations in his head appear to have been above the hairline.  He also received stitches to his head and hand and was discharged from hospital later that evening. 

13      You wear glasses to assist your vision.  Your explanation to the police for your behaviour was that when you were knocked to the ground you'd lost your glasses in the melee and were unable to see clearly.  You told police that you thought that your victim was one of the aggressors. 

14      This was a matter of dispute at the time the matter was listed for trial and some expert evidence was obtained for use at the trial regarding your eyesight.  I have not heard this evidence at all. 

15      Your plea of guilty to this charge of intentionally causing injury indicates your acceptance that you did intend to injure your victim, although I must say that I think it unlikely that you would have intended to inflict this injury in the circumstances as I have described it had you realised the identity of your victim, that is, that your victim was a security guard rather than one of the previous aggressors. 

16      Although it was not tested at trial, I am prepared to accept on this plea that you were disorientated as a result of having been knocked to the ground and kicked in the manner that I have outlined and that not having your glasses contributed in some way to your confusion. 

17      Although you originally contested this charge on the grounds of self‑defence, that is, that you mistakenly thought that your victim was one of the aggressors and that they would continue to punch you, it is clear from the security video that your attack on your victim occurred after an initial delay at a time when you were out of the threat of harm from any other person. 

18      To a certain extent the circumstances which I have outlined as to the commission of this offence take this matter out of the usual modus operandi for offences of this type.  The offence is clearly a glassing offence and I will come back to the characterisation of that offence later. 

19      At the time that you committed this offence you were on parole.  I will also deal with this issue later on in greater detail. 

20      However, I note at this stage that the offence that you committed was an offence of violence carrying a maximum penalty of ten years' imprisonment and that the prosecutor submitted to me that I should sentence you to an effective gaol term of between three to four years with a non‑parole period of 18 months to two years. 

21      The prosecutor did not file a victim impact statement.  I was given photos of the injuries of your victim and clearly he sustained a nasty series of cuts to his head as a result of your action and I don't think that I need a victim impact statement to form the conclusion that he must have been frightened as a result of the ordeal. 

22      Mr Thomas, you are a man with an extensive criminal history.  In order to clearly set out the submissions made by your counsel on your behalf I must refer to that criminal history in some detail. 

23      You are presently aged 47 years.  Your parents separated when you were about 13 years of age.  Your father established a new relationship, then tragically murdered his partner and then killed himself whilst you were still a young teenager.  Your mother also formed a new relationship but it was characterised by domestic violence.  Ultimately your mother's new partner shot her although, as I understand, it was not fatally.  The result for you was that you became a Ward of State at the age of 14 years. 

24      Initially you were put into Baltara, an institution which catered both for children who had committed crimes and children in need of protection.  You absconded regularly from that institution and became involved in petty crime and street offences.  You were then placed in a series of short‑term foster homes. 

25      As you became older your involvement in petty crime saw you detained in a series of Youth Training Centres such as Turana. 

26      The offences which you committed over this time of your teenage years appear to have become increasingly violent.  You were dealt with in the County Court in 1981 for burglary and theft and given probation.  You were dealt with during 1983 through to 1986 for various offences including assaulting police, assault by kicking, resisting arrest and behaving in an offensive manner in public.

27      You continued with this course of conduct.  You were convicted in 1987 of further offences of assaulting police and an offence of assault occasioning actual bodily harm.  For all of these offences you appear to have been given either suspended sentences or probation. 

28      However, your offending reached a new level in March of 1988 when you were convicted of murder.  The sentencing remarks in respect of this offence were provided to me.  The sentencing judge described your crime as horrendous.  In brief, you and a friend had consumed a large amount of beer both before and during your attendance at a disco.  The deceased man was also at the disco and as you left he appears to have been made some insulting and aggressive remarks to you.  He followed you and your friend.  There was an exchange between your friend and the deceased man after which your friend hit the deceased causing him to stumble and fall over.  Both you and your friend then proceeded to kick the man several times while he was on the ground.  Then you picked up a large rock and dropped it on his head.  You repeated this action several times while the man lay on the ground. 

29      The judge described you as obviously losing control of yourself.  You engaged in a most brutal killing by dropping the rock on the deceased man's head many times.  The judge described it as a pointless killing of a man you did not even know. 

30      At the time of sentencing you the sentencing judge pointed to the evidence of your past violence and uncontrolled behaviour, sometimes committed whilst under the influence of alcohol. 

31      At the time of that sentencing for the offence of murder, Mr Thomas, you were 22 years of age.  You had little education and almost no experience of being employed.  The judge accepted your tragic childhood but nonetheless sentenced you to be imprisoned for a term of 22 years with a minimum of 17 years fixed before you became eligible for parole. 

32      So, Mr Thomas, you have spent a great deal of your life from the time you were 22 years of age in prison.

33      I was told that your prison experience has been disastrous.  You were imprisoned in H Division, Pentridge.  Your counsel described that as a brutal experience.  Certainly you appear to have been brutalised by it.  You engaged in what your counsel described as a war of attrition between yourself and prison guards and the authorities.  You inflicted and suffered many assaults and injuries.  You were placed in solitary confinement for 12 months.  You received a broken jaw and fractures to both legs as a result of fights within Pentridge prison. 

34      At one stage within the prison you were charged with having taking part in a riot, although you were later acquitted of that charge. 

35      It was in prison that your last offence occurred.  It was an offence of intentionally causing serious injury.  It involved you stabbing a prison officer whilst in prison.  For that offence you were sentenced to eight years' imprisonment of which only two years was to be served concurrently with the sentence you were at that time undergoing.  This meant that you had a new non‑parole period of 21 years and an effective sentence of imprisonment of 28 years. 

36      Ultimately Pentridge was closed, the conditions in prison were reviewed and you were able to take advantage of a fresh approach by prison authorities towards the rehabilitation of prisoners.  Whereas your early years in prison were characterised by being all about survival and conflict, by 1997 you had started to engage in rehabilitation programs in prison and to think of the prospect of life outside prison. 

37      I was given a bundle of 14 certificates demonstrating the courses which you have undertaken in prison since 1997.  As well as completing those courses, you have studied at the Bendigo TAFE for four years whilst you were in prison.  I received a reference from one of your teachers at the TAFE who describes your achievements as being achievements that she did not often see in the prison environment.  She describes you as never shying away from the heavy workload involved in study.  She describes your attributes as being not often seen in the prison environment and commends you for your commitment. 

38      You were eventually paroled in early 2008, some five years ago.  At that time you were 43 years.  You had not lived in the community since you were 22.  You had never been employed.  You had no social supports from the time that you were paroled.  You had one son from a short relationship with whom you appear to have not had much  contact, although recently as I understand it you've been able to re‑establish contact with him and with a grandchild.  However, you were clearly completely ill‑equipped at the time of your release for life in the community and on any objective standard your prospects at that time for successful re‑integration into the community were very poor. 

39      However, despite this, I was told that you were able to obtain accommodation and employment. This was for virtually the first time in your life.  You lived successfully on your own for several years.  Most importantly you stayed out of trouble from that time until the time of the offence for which I am to sentence you today.  This is of itself a very significant achievement and a demonstration of your commitment to rehabilitate yourself and take your place in the community. 

40      However, your plea was not grounded just on the fact that you have not reoffended.  I heard an array of positive material presented on your plea which shows what you have done with your life since the time that you were paroled five years ago.  It is a tribute to your efforts over that time that there were many people at court to support you in your plea and there are several of them here today to hear your sentence. 

41      I will detail some of those persons and the references which they gave.  I received a written reference from your employer.  Your employer indicated that he was prepared to come to court and give evidence on your behalf but was unavailable to do so at the date of your plea.  He sent a representative of your employment along on his behalf.  In his reference your employer described you as a person of great integrity and honesty.  He described you as being of good character and very dependable.  He said that he had discussed your offending with you.  He vouches for your intense regret and embarrassment at having committed this crime. 

42      Also present was the prison chaplain who also wrote a reference on your behalf.  She has known you for ten years.  She said that whilst in prison during the last ten years of being in custody you have gained the respect of prison management.  She describes how your preparation for release was minimal.  She says that you have done a marvellous job of re‑integrating into the community. 

43      Also present in court was a lady by the name of Catherine Powell.  As I understand it, she was a childhood friend of yours.  She and her husband have taken you under their wing since you were released on parole.  She has had very close contact with you during that time and after you were apprehended for this offence they arranged for you to live with them at their house.  You have now lived with them for two years.  She also provided a very detailed, glowing and heartfelt reference on your behalf.  Her influence on your life cannot be overstated. 

44      As I have said, each of those persons in court indicated that they were willing to give sworn evidence on your behalf if requested.  The prosecution did not request that that be done and so I did not hear from them but I have taken into account the references which they provided. 

45      I also heard sworn evidence from a Community Corrections Officer.  She told me that during your parole you have had assessment and treatment for alcohol and psychological treatment and anger management.  She told me that in the five years you have been on parole you have only missed one appointment.  She told me that when you were apprehended for this offence for which I am to sentence you, the Parole Board met to determine whether your apprehension should trigger a breach of your parole.  The Board decided not to breach you, noting that you had done everything asked of you whilst on parole. 

46      The Board is still to make a final decision as to whether your parole should be breached and I understand will do so following my sentencing of you today. 

47      As well as these references to which I have referred, I understand that you have completed an anger management course with Relationships Australia and you have undertaken counselling courses with Dr Grech, a clinical psychologist.  A report from Dr Grech was presented on your plea.  You were referred to him in October of 2011.  You attended sessions with him throughout 2012.  He describes you in his report as co‑operating fully with him.  He undertook some psychometric testing and he made some favourable comments as to your prospect of rehabilitation in his report.  He describes you as having made significant progress by gaining control over your drinking and by means of frequent antidepressant medication.  He suggested that you may benefit from further cognitive behaviour therapy and additional practical support. 

48      You have now been transferred from him to another clinical psychologist, Bernard Healey, and have attended at least four sessions with him.  I also have a report from Bernard Healey which confirms your continuing progress. 

49      Since the Parole Board meeting you have also been attending Alcoholics Anonymous.  A representative from Alcoholics Anonymous was also in court to support you and he also supplied a reference.  In his reference he describes you as having achieved a lot over the last 12 months from the meetings which you have attended. 

50      I also received a reference from a young man who you've been able to help through mentoring.  I was told that you have performed the function of mentor for imprisoned and paroled offenders and for young persons at risk of going to prison. 

51      The consensus of all this material, Mr Thomas, is that you have made excellent progress on parole over the last five years.  You have exceeded all expectations.  As your counsel put it, when you take into account the position from where you started, the progress has been absolutely exceptional. 

52      It is a personal disaster for you that you now fall to be sentenced again.  Should you be sentenced to prison for this offence today, then a great deal of the work which you have done in obtaining employment and in obtaining stable accommodation and social supports will be destroyed. 

53      Notwithstanding that, the prosecutor has suggested that nothing other than a sentence of actual imprisonment is appropriate for the offending which you have committed. 

54      As I have indicated, you committed this offence whilst on parole.  This is a significant aggravating factor. 

55      Further, the courts have become increasingly concerned about offences of the type you committed on this night.  It's an offence commonly known as "glassing".  There are very substantial policy reasons why a custodial sentence should be imposed for such an offence. 

56      I have indicated that you will need to face the Parole Board again.  The Parole Board has not made a final determination as to whether your parole will be cancelled as a result of this offending.  I am not in a position to know what that determination will be and I note that I cannot take any matter concerning your obligation to the Parole Board into account in sentencing you today. 

57      I turn now to some specific mitigating factors.  I was told that you were originally summonsed to appear in the Magistrates' Court in relation to this incident.  The original charge was one of intentionally causing injury in the Magistrates' Court which is precisely the same charge for which I am to sentence you today.  However, a further charge was later presented of intentionally causing serious injury and this charge was uplifted into this court in February of 2012.  After negotiation at the committal the charge was again revised and you pleaded guilty to what you were originally charged with in the Magistrates' Court, that is the charge of intentionally causing injury. 

58      Given those circumstances I take your plea of guilty as having been made at the first available opportunity.  I note also that had this matter been dealt with in the Magistrates' Court the maximum prison sentence would have been two years and I note your counsel's submissions that the sentencing statistics reveal that less than a quarter of persons sentenced for this offence in the Magistrates' Court received a prison sentence and the median sentence was one year's imprisonment. 

59      There are also some mitigating aspects as to the offence itself.  Firstly, as I have outlined, immediately prior to the offence you were on the floor being kicked and punched.  You were alone at the time of the assault and were attacked by a group of several other males.  In the depositions one of the security guards described you as having put your hand out to calm the situation down.  He described you as looking as if you wanted to make peace, putting your hand out to the other protagonist to shake it. 

60      Your counsel submitted that given the progress that you have made towards rehabilitation and the clear interest of the community in the rehabilitation of long‑term prisoners, that your return to custody would be tragic, not only for yourself in that you again may be institutionalised, but for the community at large, because the community has an interest in the successful rehabilitation of long‑term prisoners. 

61      I note that your counsel presented a letter of apology which you have written to your victim.  Although I accept the prosecution's characterisation of that apology as being very late, I do accept it as some evidence of remorse. 

62      I also heard some detail about your medical conditions which will make time in custody more onerous for you.  You have some significant health problems.  You have significant back pain, migraines and vision problems.  I was told that these problems were caused in part by beatings which you had received in prison. 

63      You also suffer from depression and an obsessive compulsive disorder. 

64      Further, your counsel submitted that there has been a significant delay of two years in this case.  Over this time the matter has been held over your head.  This has been a particular difficulty for you, given that what is at stake for you is not just the prospect of gaol, but the prospect that your parole may be breached as a result of this offending.  Your counsel pressed this as a very powerful factor in mitigation. 

65      Finally, your counsel characterised your offending as being spur of the moment offending and I accept that this was the case. 

66      The prosecutor submitted to me that the protection of the community is paramount in sentencing you today.  She pointed out that your previous offence of murder occurred in similar circumstances in that it commenced in a nightclub when you had been drinking and was also fuelled by alcohol.  Further, your 1994 offence was also an offence of violence.  Given that this is a glassing offence, she submitted that the issue of general deterrence is paramount and given that you are not a young offender with no criminal history, as is often the case, that this was a very important factor for me to take into account. 

67      She referred me in particular to the principles set out in Winch v. R.  Although that decision involved a case of recklessly causing serious injury, a more serious crime than for what I am to sentence you today, that case stands as authority for the proposition that in glassing cases the court must take into account the fact that the conduct engaged in is inherently dangerous, that is there is an obvious danger in using a glass to strike a blow to the face or head of another person.  This is what you did in this case.  That case is authority for the proposition that the serious nature of such an offence will ordinarily call for an immediate custodial sentence and that a fully suspended sentence would not ordinarily be an available sentencing option.

68      You are not young, Mr Thomas.  Your criminal history shows you to have been a seasoned criminal offender.  However, although I accept the force of the prosecution's submissions and accept that your offending warrants a term of imprisonment, in my view it's appropriate in your case to suspend the sentence of imprisonment which I will impose today.  I do so taking into account the circumstances under which the offence occurred, the extremely persuasive material put on your plea as to your rehabilitation and all of the matters as to your health and circumstances which I have outlined.  In my view, it is in the community's interests that you continue with your rehabilitation and this rehabilitation would be completely interrupted if I was to sentence you to a period of actual imprisonment today. 

69      I take into account that you have achieved so much given the dreadful background that I have outlined.  This offending for which I am to sentence you appears to be the only backward step that you have taken since you were released from prison five years ago.  I take this course in order to enable your integration into the community to continue.  I accept that this is a very merciful disposition.  In my view, as I have said, it is warranted by the strength of the mitigatory matters which I have identified in these sentencing remarks. 

70      Mr Thomas, can you stand up please. 

71      Mr Thomas, on the charge of intentionally causing injury you are convicted and sentenced to be imprisoned for three years.  I will fully suspend that sentence for a period of three years.  So the position is this, Mr Thomas.  I have imposed a period of imprisonment of three years but I'm not requiring you to serve any part of it in prison.  Under a power given to me I am wholly suspending that sentence which means you do not have to immediately serve any part of it.  If you remain law‑abiding you will never have to serve any part of this sentence in prison.  The period during which you must not commit an offence to avoid being dealt with by me again is three years. 

72      I am required to inform you that if you do commit an offence punishable by imprisonment you will be brought back before me.  It doesn't matter whether you commit that offence in Victoria or in any other State.  And you will almost certainly be made to serve the sentence. 

73      Do you understand what I have just said? 

74      PRISONER:  Yes. 

75      HER HONOUR:  The Crown has also sought a disposal order and I will make a disposal order in the terms that have been provided to me. 

76 I declare under s.6AAA of the Sentencing Act that had you not pleaded guilty I would have sentenced you to an effective term of imprisonment of four years with a non‑parole period of two and a half years.  I order that that be noted in the records of the court. 

77      Are there any further matters? 

78      MS CHING:  No, Your Honour.

79      MS COATH:  No, Your Honour.

80      HER HONOUR:  Thank you.  You can take a seat, Mr Thomas, and the order can be printed and I'll sign the order. 

81      MS COATH:  As Your Honour pleases. 

82      HER HONOUR:  Yes, thank you Mr Tipstaff, I will adjourn the court until 11 o'clock. 

83  ‑‑‑