Director of Public Prosecutions v Thomason
[2020] VCC 578
•6 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01132
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM THOMASON |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2020 |
| DATE OF SENTENCE: | 6 May 2020 |
| CASE MAY BE CITED AS: | DPP v Thomason |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 578 |
REASONS FOR SENTENCE
---Subject: Home invasion, Recklessly Cause Injury, False Imprisonment
Sentence: 4 years imprisonment with a non parole period of 2 years 8 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Siggins | |
| For the Accused | Ms A Cannon |
HIS HONOUR:
1William Thomason, you have pleaded guilty to six charges contained in Indictment J13325501.2. In addition, you have pleaded guilty to two related summary charges and you have agreed to those summary charges being dealt with by me in this court.
2Dealing with the indictment charges first. Charge 1 is a charge of home invasion, which occurred when you entered the victim's home with others, as a trespasser and you entered it for the purpose of assaulting the victim, who was present in the home. The maximum penalty for this offence is imprisonment for 25 years.
3Charge 2 relates to offending by you once you were inside the victim's home. It is a charge of recklessly causing injury to the victim. The maximum penalty for his offence is imprisonment for five years.
4Charges 3 and 4 are each charges of false imprisonment. The maximum penalty for this offence is imprisonment for 10 years. These offences also occurred once you were inside the victim's home.
5Charges 1 to 4 inclusive each arose out of the same incident that occurred on 11 January 2018, when you invaded the home of the victim, accompanied by Evangelos Bayamis and Jason Everett.
6Charges 5 and 6 arise from different circumstances. When you were arrested sometime after the commission of the crimes in Charges 1 to 4, the police searched the place where you were living. They there found one cannabis plant, which gives rise to Charge 5 of possessing a drug of dependence. In the circumstances alleged here, the maximum penalty for this offence is imprisonment for one year or 30 penalty units.
7Police also found a firearm and this gives rise to Charge 6, being a prohibited person, you possessed a firearm, for which the maximum penalty is imprisonment for 10 years or 1,200 penalty units.
8At that time that you pleaded guilty, you also pleaded guilty to two related summary charges, namely committing an indictable offence, home invasion, whilst on bail, for which the maximum penalty is imprisonment for three months or 30 penalty units. This charge relates to the fact that when you committed Charge 1 on the indictment, you were in fact on bail, having been charged with other unrelated offending. This is an aggravating feature of your offending in Charge 1.
9The other summary charge is a charge of possession of ammunition without a licence, for which the maximum penalty is 40 penalty units.
10As you can see from the maximum penalties prescribed by the Parliament for each of these indictable offences that you have pleaded guilty to, the Parliament rightly regards offending of this kind most seriously. In sentencing for crimes of this kind, the court must appropriately have regard to deterrence, both general and specific, denunciation, just punishment and protection of the public. Applying these sentencing principles, the court must have regard to all of the circumstances of the case and to your prospects for rehabilitation.
11I heard your plea at the same time with the plea made on behalf of co-offender, Evangelos Bayamis. He was charged on a separate indictment with offences arising out of the same facts, in part, especially as they related to the charge of home invasion. I have dealt with him separately. In sentencing him, I said that I regarded him as the principal offender, although you joined with Bayamis and Everett in the invasion of the house with intent to assault. Once inside, your role was a lesser one, where you gave support to the offending of the others. Bayamis was not charged with any firearms offences.
12The circumstances surrounding your offending are summarised in a summary of prosecution opening, dated 14 April. That document was read in open court by the prosecutor, Mr Buckland, and your counsel, Ms Cannon, accepted that the prosecution opening was accurate and forms a proper basis upon which
I can proceed to pass sentence upon you. In those circumstances, it is not necessary for me to again set out in detail that which is already set out in the prosecution summary. I do so only in an abbreviated way.13The victim in this matter operated a cleaning business. Bayamis had previously performed work as a sub-contractor for the victim. Bayamis was in dispute with the victim about money and Bayamis believed that the victim owed him $2,300. Prior to the offending, Bayamis had visited the victim at his home, enquiring about payment. There had also been exchanges of emails about the alleged debt. You knew Bayamis, although not very well and Jason Everett, who was not then previously known to Bayamis.
14Shortly prior to the offending, Bayamis recruited you and Jason Everett to accompany him to the victim's home late at night to assault the victim and put him in fear, in order to have the victim pay Bayamis the money he alleged he was owed. Together with Bayamis and Jason Everett, you travelled to the victim's home in Wollert at about 10.30 pm.
15The victim and another man who was also at home heard knocking on the front door. The victim went to the front door, where he saw and spoke to Bayamis, whilst you and Everett remained out of sight. Bayamis and the victim began to speak about the money which Bayamis said he was owed. Bayamis asked the victim to open the front door, so that the two could talk face-to-face. As the victim opened the front door, Bayamis was heard to say, 'Boys', whereupon you and Everett suddenly appeared. The victim tried to close the door, but was prevented from doing so by you, because you were already entering the home with your left arm through the door and your right arm on the door. Also
Mr Everett forced the door, as you and your two co-offenders entered the house forcefully and without permission.16In summary, you and your co-offenders overpowered the victim by weight of number and forced your way into the home. Everett was armed with a torch/laser-type device and a knife. It is not alleged by the prosecution that either you or Bayamis had knowledge of this fact. The victim began to scream for help. Bayamis yelled to you and Everett, as co-offenders, 'Make him shut the fuck up.' Everett punched the victim, knocking him to the floor and then hit him on the back of the head with the torch/laser object, causing a large gash to his head, which is depicted in a vivid Photo 7 at p.196 of the deposition material. The victim was then dragged into the kitchen, where he was assaulted further. He was hit several times by Everett with the torch/laser object, receiving a number of injuries depicted in the photographs.
17The other person in the house at the time that you entered was in the garage. He came into the house and observed what was happening and was threatened by Everett and told to sit down and not move and he would not be hurt. Other than that, he was not threatened or injured.
18You held the victim whilst he was being hit by Bayamis and Everett and he suffered blows all over his body. Bayamis threatened the victim saying, 'If you scream one more time, the boys will fuck you up without thinking.' Bayamis repeatedly demanded money whilst making these threats. He demanded that the victim show him how much money was in his bank account. The victim showed Bayamis the balance in his bank account on his phone and told Bayamis he could have it all and to just leave him alone.
19The victim was then sat on a chair by Everett, where he was not allowed to move. He unsuccessfully tried to transfer money to Bayamis from his bank account via his mobile phone. He then gave Bayamis his ATM card and PIN number. Bayamis demanded his wallet and phone and told the victim that he would get them back when Bayamis received the money that he asserted he was owed. Bayamis threatened that if the victim's PIN did not work, he would chop the victim's legs and put him in the fridge alive. Bayamis told him he would not be allowed to leave until he had received his money.
20Everett left the house, taking with him the victim's car and other objects. It is not alleged that you or Bayamis were complicit in this offending. Bayamis left the house, leaving the victim and his associate being guarded by you. Bayamis drove to the Commonwealth Bank at Epping plaza and at about 11.14 pm, and using the victim's ATM card and PIN number, withdrew $2,000 from the victim's account. He then drove back to the house and returned to the bank after midnight to withdraw a further $300 from the victim's account. After the second withdrawal, Bayamis returned to the house and handed back the victim's phone and watch and ATM card, before leaving the house accompanied by you.
21The victim was soon after taken to the Northern hospital, where he was treated for a large laceration to the back of his head and the laceration above his eye depicted in Photo 12 at Depositions 298. He was initially too afraid to report the matter to the police and he initially told the hospital staff that his injuries were the result of having fallen off a ladder. The victim's family later that day reported the incident to the police.
22The victim, on medical examination, was found to have a Y-shaped laceration to the right eyebrow, requiring stitches and an occipital laceration to the back of the head which was glued, as well as an abrasion and tenderness on his right elbow. He was also noted to have bruises and a number of patterned injuries to his torso.
23Everett was arrested at about 1.30 pm on 15 January 2018, when police raided a house where you were also located. You were with Everett, but escaped when police arrived. You were not arrested until 21 December 2018, when police went to an address in Reservoir where you were living with your girlfriend, Christina Christie. When you were arrested, you told police voluntarily that there was a gun in the kitchen and maybe some drugs. Police returned to the residence later and executed a search warrant. They found one cannabis plant, which as I said earlier, is the basis of Charge 5. There is no suggestion that you possessed this plant other than for self-use. In the kitchen the police located a double-barrelled shotgun. At the time you were a prohibited person in possession of the shotgun and this accounts for Charge 6. They also found three cartons of shotgun shells, 750 shells in total, underneath the main bed. This gives rise to the summary charge of possession of ammunition without a licence. You were a prohibited person from possessing a firearm because of the existence of an intervention order.
24Your offending in Charges 1 to 4 on the indictment is clearly very serious. In sentencing Bayamis, I said that I regarded the offending by the three of you invading the victim's home as being about mid-range for this kind of offending. That assessment also applies in the sentencing of you on Charge 1. You knew that the purpose of going to the victim's home was to put him in fear because of the number of men entering the home late at night and because of the assault that was intended to be carried out.
25Although you did not come up with the idea and there is no evidence that you stood to gain, the offence could not have occurred without Bayamis recruiting you and Everett. Once inside the victim's home, you held the victim whilst he was assaulted by the other two and this accounts for Charge 2, recklessly causing injury.
26Your role was then to keep watch over the victim and the other person present to make sure they did not leave the home whilst Bayamis went to the bank to get his money. This accounts for Charges 3 and 4. You were clearly a willing participant in all of this offending. You agreed to do it and you gave it your full support.
27I regard the offence in Charge 5 of possession of a drug of dependence as a relatively minor matter in the scheme of things. For this you will be convicted and discharged.
28The firearms offence in Charge 6 and the ammunition offence in the summary charge are also serious examples of these offences. You could not have had any need to possessed a double-barrelled shotgun whilst living in Reservoir. Further, you cannot have had any need to possess the amount of ammunition that you did. Firearms offences are very serious and the sentence imposed must deter others from offending in like manner. There is no evidence of you having used the firearm in any criminal activity and there is no plausible evidence as to why you possessed it.
29When you pleaded guilty, you also admitted a prior criminal history. Between 2004 and 2015, you had nine court appearances. By far the majority of those appearance related to driving offences. You were dealt with on a charge of unlawful assault in 2005, where you received an adjourned undertaking disposition without conviction. In 2009 you were convicted of recklessly causing injury and unlawful assault, for which you were sentenced to two months' imprisonment. You have no prior convictions for weapons or firearms offences.
30You have pleaded guilty to the charges and that is to your credit. By your plea of guilty, you have acknowledged responsibility for your offending and you have advanced the administration of justice. Because you pleaded guilty to these charges, you have saved the time and cost of a trial and you've saved the victim especially from having to give evidence about these matters and be
cross-examined by your counsel.31As I said earlier, you were arrested and interviewed and remanded in custody on 21 December 2018. I was told and accept that when interviewed, you cooperated with the police and made a number of admissions.
32On 30 March 2019 you were sentenced to four months' imprisonment for unrelated summary charges, being theft of a motor vehicle and recklessly causing injury. Ninety-seven days were declared as pre-sentence detention and the sentence imposed in the Magistrates' Court lapsed on or about 21 April of 2019, so that at the time of your plea on 29 April of this year, it was agreed that you had accrued 374 days' pre-sentence detention.
33You made an application for bail on 4 March 2009 and that application was refused because you failed to establish exceptional circumstances.
34There was a contested committal on 6 June 2019, after which you were committed for trial on 16 September 2019. The trial settled whilst listed in the reserve list. You were arraigned and pleaded guilty to the charges on the indictment on 28 October 2019. Although you did not indicate that you would plead guilty at the earliest possible opportunity, I nevertheless treat you, for the purposes of sentencing, as having pleaded guilty at the time early enough to avoid a trial. Because you pleaded guilty before trial, you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass. I also treat your pleas of guilty as an indication of your remorse.
35Ms Cannon relied upon a written outline of submissions which she filed with the court. She told me and I accept that there was no diagnosed psychological or psychiatric illness that was relied upon in mitigation relating to your offending.
36You are aged 35. You are one of seven children and you have five older sisters and a brother. There is apparently a 20 year gap between the oldest and the youngest child of the family. I was told that you are regarded by your mother as the unwanted child No.7 and accordingly, you did not have a close relationship with her. I was told and accept that your mother was an alcoholic who did not treat you kindly. She is now in poor health and I was told and accept that you want to make your peace with her before her passing. You always had a close relationship with your father.
37Ms Cannon conceded that the offending for which I must sentence you is regarded by the court and the community as being serious in nature, calling for appropriate weight to be given to general deterrence, denunciation and just punishment. Ms Cannon submitted that your offending can be distinguished from that of Bayamis. I have referred to this above.
38I received into evidence a number of references that were filed on your behalf. I received a reference, dated 29 April 2020 from your sister, Ann-Marie Turner. She has visited you in prison from time to time. In her reference, she says that you have expressed your remorse and shame for your role in this offending. As I said earlier, I accept that you are now remorseful.
39You have two sons from an earlier relationship and you have lost custody and visitation rights to those children. Your sister said that this occurred during the first half of 2010. Your sister told me in her reference that the break-up of the relationship which resulted in you not seeing your sons caused you to spiral into depression.
40Soon after your father passed away. I was told and accept that you had an exceptionally close relationship with him. Your mother asked you to leave the family home and you became homeless, which I was told and accept led you to a path of offending.
41After this offending you formed a new relationship with Christina Prestie, with whom you have a child, born on 20 March 2019. Your sister refers to this relationship and the fact of a child being produced from it, as being settling events in your life. She says, amongst other things, 'I believe he has finally found a sense of peace within himself, as he has now been given the second chance of having the family he always wanted and deserves.'
42I also received a reference from Ms Rosemary McDonald, who said that she has known you all of your life. She too gives evidence of your remorse and shame at your actions in committing these offences. She also gives evidence of having visited you in prison and she says she has seen a marked turnaround in you. She puts this down to your new relationship and your recently born daughter.
43I also received a reference, dated 29 April 2020 from your partner. She too speaks of your remorse and your regret and of the hope that your relationship with her will continue. She told me and I accept that your mother is not keeping good health. She told me of the difficulties that she has had visiting you with your daughter because of the restrictions on visitors to gaols imposed because of the fear of the Coronavirus.
44I accept that in sentencing you, I must have regard to the fact that for the last three months or thereabouts you have been incarcerated, you have had limited visitation rights and exercise rights because of the Coronavirus and this has made your time in prison more burdensome than it ought in normal circumstances to have been.
45Ms Cannon submitted that on the evidence, because of your new relationship and the child of that relationship and some new direction in your life, that
I should find that you are now highly motivated to stop doing stupid things and stay out of gaol. She told me and I accept that your are a person easily led. This offending is a good example of that, because you had nothing whatsoever to gain from it. You have good family support and your new partner has no criminal history whatsoever and the same can be said of your siblings.46Ms Cannon asked me to take into account the effect of the Coronavirus on the operation of prisons and the fact that any sentence you have served and will serve will be more burdensome for you. As I have said above, I have taken this into account in arriving at an appropriate sentence.
47You have served time on remand at Ravenhall, where you have been employed as a laundry billet. You have had limited courses available to you, but you have done as many courses as you possibly could. You are apparently classed as a 'protection prisoner', but no reason can be given for this classification. Nevertheless, it means that your rights within the prison are restricted.
48I was told and accept that you are hopeful of re-establishing your relationship with your two older sons.
49Because you have the support of your partner and family and because you have expressed appropriate remorse and shame for your offending and because of your fairly limited criminal history, I assess your prospects for rehabilitation as being reasonable.
50I accept that you do not have a drug addiction and you have never been a significant drug user.
51Ms Cannon submitted that you should receive a lesser sentence than Bayamis for the offending on 11 January 2018. I accept that submission, but note you have the added firearms offences to be sentenced in relation to.
52Ms Cannon also acknowledged that having regard to the seriousness of your offending, I must impose a term of imprisonment for this offending. However, she submitted that I should impose a total effective sentence of imprisonment equating approximately to time served and make a community corrections order with conditions.
53The prosecution submitted that in all the circumstances, your offending was so serious that I should impose a term of imprisonment and fix a non-parole period.
54The prosecution relies upon the sentencing principle referred to by the Court of Appeal in Hogarth v The Queen [2012] 37 VR 658. That was a decision where the principal offence was that of aggravated burglary. The prosecution submits the offending in this case has similar features. Both the decision in Hogarth and the decision of the Court of Appeal in O'Brien v The Queen [2019] VSCA 254 have emphasised the need for stern sentences in offending of this kind to deter others who might seek to offend in a similar way.
55Having given the matter considerable thought, both prior to the plea and during the course of the plea and at the conclusion of it, I expressed the view that the imposition of a term of imprisonment equivalent to time served and the making of a community corrections order in combination would not serve to properly meet the purposes of sentencing in all of the circumstances of this case.
I remain of that view.56I am of the opinion that you have reasonable prospects for rehabilitation, however the level of seriousness of your offending with others, in the context of the prescribed maximum penalties for the offences involved, means that you must serve further time in prison for this offending before being eligible for release on parole. This is especially so in your case because of the firearms offence.
57In the decisions of Berichon v The Queen [2013] 40 VR and Basic v DPP [2017] VSCA 376, the Court of Appeal has emphasised the importance of general deterrence in sentencing for crimes relating to possession of firearms.
58On Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of three years.
59On Charge 2, recklessly causing injury, you are convicted and sentenced to a term of imprisonment of one year.
60On Charge 3, false imprisonment, you are convicted and sentenced to a term of imprisonment of six months.
61On Charge 4, false imprisonment, you are convicted and sentenced to a term of imprisonment of six months.
62On Charge 5, possess a drug of dependence, you are convicted and discharged.
63On Charge 6, prohibited person possess a firearm, you are convicted and sentenced to a term of imprisonment of one year.
64On Summary Charge 14, commit an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one months.
65On Summary Charge 18, possession of ammunition without a licence, you are convicted and fined $1,000.
66I direct that six months of the sentences imposed on each of Charges 2 and 6 accumulated upon the sentence imposed on Charge 1, making a total effective sentence of four years' imprisonment.
67I direct that you serve a minimum term of two years and eight months' imprisonment before being eligible for release on parole.
68I declare that there has been 381 days pre-sentence detention related to the sentences passed this day and I direct that 381 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.
69For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven and a half years' imprisonment and I would have directed that you serve a minimum of five years' imprisonment before being eligible for release on parole.
70I have been asked to sign, I think, a disposal order. Just pardon me for a moment. I understood that to be unopposed and I have signed it.
71Are there any questions arising out of that?
72MS TURNBULL: No, Your Honour.
73HIS HONOUR: Is Ms Cannon there?
74ASSOCIATE: No, Your Honour.
75
76MS TURNBULL: Your Honour, Ms Turnbull here, I'm appearing on behalf of
Mr Thomason today.77HIS HONOUR: Thank you, Ms Turnbull. Is Mr Buckland there or someone there from the DPP?
78ASSOCIATE: No, Your Honour.
79HIS HONOUR: Very well.
80MR SIGGINS: Your Honour, it's Siggins appearing on behalf of Mr Buckland and the OPP.
81HIS HONOUR: Yes, Mr Siggins. Are there any - do you have any matters arising out of that?
82MR SIGGINS: No matters arising, thank you, Your Honour.
83HIS HONOUR: Thank you. Thank you, I am going to terminate the transmission.
‑ ‑ ‑
0