Director of Public Prosecutions v Thompson
[2021] VCC 1679
•28 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-21-01099
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON THOMPSON |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2021 | |
DATE OF SENTENCE: | 28 October 2021 | |
CASE MAY BE CITED AS: | DPP v Thompson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1679 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – one charge aggravated burglary – one charge intentionally causing injury – 2 charges making threats to kill – one charge threatening to assault an emergency worker on duty – circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)
Cases Cited:DPP v Meyers [2014] VSCA 314; Evison v The Queen [2014] VSCA 132; Laa v The Queen [2020] VSCA 136; Veen v R No 2 164 CLR 465; Whiteford v The Queen [2016] VSCA 26; Filiz v The Queen [2014] VSCA 212, R v Verdins [2007] VSCA 62.
Sentence: Total Effective Sentence of 7 years and 8 months imprisonment with a non-parole period of 5 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker – Accredited Criminal Law Specialist |
HER HONOUR:
Introduction
Plea of guilty and maximum penalty
1Aaron Thompson, you have pleaded guilty to one charge of aggravated burglary.[1] The maximum penalty for this charge is 25 years’ imprisonment.
[1] On the basis that you entered, as a trespasser, the home of Ms Bailey with the intent to assault a person, while knowing, or being reckless as to, there being a person present.
2You have pleaded guilty to one charge of intentionally causing injury, the maximum penalty for which is 10 years’ imprisonment.
3You also pleaded guilty to two charges of making threats to kill. The maximum penalty for each of these charges is 10 years’ imprisonment.
4You have pleaded guilty to one charge of threatening to assault an emergency worker on duty, the maximum penalty for this charge is 5 years’ imprisonment.
5You also pleaded guilty to two related summary offences: contravening a family violence intervention order, the maximum penalty for this charge is 2 years’ imprisonment, and to committing an indictable offence while on bail the maximum penalty for which is three months’ imprisonment.
Circumstances of the offending
6The Prosecution Opening, dated 16 September 2020 sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A. It is attached to, and forms part of these reasons. I will summarise some of the facts giving rise to your offending here.
7You were in a relationship with Marie Bailey[2] for just over a year, it ended late in 2020. You had been violent to her in the course of that relationship.
[2] A pseudonym.
8On 27 August 2020 you were bailed by a Magistrate at the Heidelberg Magistrates’ Court for an unrelated matter.
9On 29 January 2021 a Magistrate granted Ms Bailey an Intervention Order; you were the respondent. The order was served on you on 4 February 2021 and included conditions that you not commit family violence in relation to Ms Bailey nor damage any property belonging to her.
10On the afternoon of 2 March 2021 you went to Ms Bailey’s house; she was asleep in bed. You banged loudly on her door; she got out of bed and heard you say ‘you know who it is.’ She saw you through her kitchen window.
11You then kicked the door in and charged towards the back door of Ms Bailey’s unit. This conduct forms the basis of Charge 1: Aggravated burglary. Later, you would use a weapon in the course of the assault that you did in fact commit, but it is not alleged you entered with that weapon.
12You then grabbed a coat from the rack and claimed it belonged to you, you asked ‘where is the red one?’.
13Ms Bailey returned to her bed and sat down. You followed her, stood over her, spat on her and repeatedly struck her, using a ‘combination of punches and back hand slaps’. You were wearing rings when you did this, which made it hurt more. You then told Ms Bailey ‘I’ll fucking kill ya.’ This forms part of the basis of Charge 3: make threat to kill and part of the basis of charge 2, intentionally causing injury.
14You then continued your assault of Ms Bailey. You headbutted her in the head and bruised her forehead. You headbutted her on the nose and broke it. You then stabbed Ms Bailey with a 30 cm long screwdriver: this forms part of the basis of Charge 2: intentionally causing injury.
15Ms Bailey put her arms up to protect herself; you struck her with the screwdriver with enough force to pierce her skin and push the flat tip of the screwdriver into the webbing of her hand.
16You continued to strike her with the screwdriver, landing a second blow on her left leg above her knee, piercing her skin again. Ms Bailey was still on the bed; you kept punching her and slapping her all over her body. These events continue the Charge 2: intentionally causing injury.
17Ms Bailey would later say:
‘I realised that I was in trouble. Fenton [Mr Thompson] has beaten me up before, I know he doesn’t stop. I was fearing for my life. I thought that if I couldn’t get out of this that I would die.’
18Ms Bailey managed to get up and run for her front door. You yelled at her, chased her outside and knocked her to the ground on the concrete path at the front of her house. She pleaded for you to stop. She told you she felt dizzy. You kicked her leg, and yelled at her to go back inside and ‘clean up.’ You told her to be quiet and told her that if the police came you would kill her. (These events continue Charge 2: intentionally causing injury, and Charge 3: making threat to kill)
19You then produced what appeared to be an extendable lanyard and wrapped it around your hands and walked to Ms Bailey; you attempted to strangle her with this cord, she was able to quickly put her hands up and snap the cord. (Continuing Charge 2: intentionally causing injury)
20You then picked up a large concrete pot, lifted it over Ms Bailey’s head and dropped it on her. It hit her head and rolled off. (Continuing Charge 2: intentionally causing injury)
21A concerned neighbour saw what you were doing and called the police. Another neighbour also saw you drop the pot on Ms Bailey and saw her bleeding.
22Ms Bailey saw a neighbour in their kitchen and motioned at them to call the police. You then yelled and kicked the doors of the units around her home, yelling ‘if any of you rag on me, you’re in trouble.’
23Ms Bailey pleaded with you to stop, she was concerned she was going to have a seizure; she suffers from epilepsy.
24You continued to hit Ms Bailey as she shuffled towards a neighbour’s door, telling her to stop screaming as she was bringing attention.
25Another neighbour heard screaming; he saw you punch Ms Bailey and threaten her with a totem tennis pole. He called triple zero, and whilst on the phone he saw you throw a yellow tool bag at Ms Bailey’s head. He would later say the impact was heavy enough to cause Ms Bailey’s head to bounce backwards. (Continuing Charge 2: intentionally causing injury)
26Police arrived at the scene and saw Ms Bailey on the ground, she was taken to hospital. You called her a slut as she walked past you in her injured state.
27You told police you didn’t know how Ms Bailey got her injuries and that you had come to help her. You denied all involvement, saying you were her friend.
28You were arrested and became aggressive. You were taken to Preston Police Station. You punched a machine in the interview room and stood up, screaming at police officers to fight you.
29You threatened Police saying, ‘when you turn your back you’re done.’ Your aggression escalated and the police officers exited the room for their own safety. You stood aggressively and charged at the door where an officer was standing; she slammed the door shut to prevent you from hurting anybody.
30One of the police, First Constable Andrews then opened the door and asked you to come out, you told her she needed to make you leave. She said, ‘I don’t want to have to make you, so come out of the room.’ You then came towards her at a fast pace, your fists and jaw were clenched, you stood very close to her, bouncing on the balls of your feet; she thought you were going to punch her. (This constitutes Charge 5: threatening to assault an emergency worker on duty)
31You were then handcuffed. Your aggressive behaviour continued. You rammed your head on your cell door four or five times. Senior Constable Norman made a welfare check on you and you said, ‘I will fucken kill you.’ You pointed your finger at her as you said this; she feared for her safety. (This behaviour constitutes Charge 4: make threat to kill.)
32Ms Bailey was treated at the Austin Hospital and sustained the following injuries:
· left and right periorbital haematomas;
· swollen nose with a laceration in the nasal bridge;
· swelling, bruising, and abrasions of facial area;
· a wound to the web space between the thumb and index finger of the right hand;
· bruising to both arms; and
· a wound to her left shin.
33Dr Rose, the examining physician, stated that Ms Bailey ‘had injuries that have resulted from multiple applications of blunt and abrasive trauma …’
34Ms Bailey later underwent surgery for debridement of the injuries to her right hand and left leg. The surgeons also manipulated her fractured nose.
Chronology
35Your case was listed for filing hearing in the Magistrates’ Court on 3 March 2021 and a committal mention on 26 May 2021; by then your case resolved, and you were committed to this Court for a plea hearing.
Nature and gravity of the offending
36I have to assess the nature and gravity of your offending.
37The gravity of any particular aggravated burglary is to be assessed in accordance with the circumstances of the entry and the gravity of the offence which the offender intended to commit once inside.[3] The intent on entry is conceptually distinct from what actually takes place after that entry has been effected.[4]
[3] Filiz v The Queen [2014] VSCA 212 at 16
[4] Ibid.
38By your plea, you admit that you entered Ms Bailey’s home intending to assault her. This was her house; her place of refuge and privacy. She was entitled to be safe there. You destroyed the safety she ought to have been able to count on.
39
While categorisation is of limited assistance, I observe that this offending by you occupies its place in what has been called ‘intimate relationship aggravated burglary’, a subspecies of the ‘confrontational aggravated burglary’ category dealt with by the court in DPP v Myers.[5] Your counsel sensibly conceded that the objective gravity of this offending is serious. You quite viciously invaded
Ms Bailey’s private home. Moreover, you had, in the past been violent towards her. So, I take into account that when you entered her house that day, that history – your previous violence to her – would have caused her to experience greater fear. This was not an occasion where the entry to Ms Bailey’s house was less frightening because she knew you; it was in fact more frightening precisely because she did.
[5] DPP v Myers [2014] VSCA 314 at [37] and following.
40I take into account the following features of your offending. First, you attacked your victim both in her home and immediately outside it. You used degrading language towards a woman, who had recently been your intimate partner. About the intentionally causing injury charge I say this, this was a protracted assault within which you used a screwdriver, your fists, your head, your foot, a lanyard, a totem tennis pole, a tool bag and a concrete pot. This was a sustained attack. It was relentless. You ignored Ms Bailey’s pleas to stop. I find the charge of intentionally causing injury is, on a spectrum of similar offending to be towards the more grave end of the spectrum. I have had regard to the photographs taken of Ms Bailey at the scene[6], depicting her injured state soon after what you did, and to the medical report authored by Dr Rowse.[7] It is horrifying to see the result of what you did to her. I’m conscious of not allowing these images overwhelm the sentencing process though. Again, in a responsible submission, your counsel conceded that this is an example of intentionally causing injury at the higher end of the spectrum. There was, in addition to the invasion of privacy, a public aspect to what you did to her as well, taking place, as it did, partly outside her house, in front of her neighbours. Your moral culpability must be assessed as high.
[6] Exhibit E on the plea.
[7] Exhibit D on the plea.
41I am conscious of the need to not sentence you twice for the same offence; that is, in fixing the sentence on the injury charge I do not punish you again for the intent with which you entered the house. The aggravated burglary, which forms the base sentence, was complete at the time the assaults on Ms Bailey began and separate and serious crimes were then committed.
42Your threat to kill, and to assault an emergency worker on duty after you had been arrested was aggressive and menacing conduct directed at police whose job it is to protect the community.
43You were on bail when you committed these offences, though I note the background to the bail and observe it’s of a lower order than other examples. You were in breach of family violence intervention order. That order allowed you to go to Ms Bailey’s home but required you not to commit any family violence in relation to her. Your breach of that order is significant and will be reflected in the sentence on that charge, but I will treat that charge separately for the purposes of sentence, rather than as a feature of the aggravated burglary.[8]
[8] Woods v The Queen [2017] VSCA 34 at 23 and following, and contra to [10](e) of the Accused’s Submissions.
Prior Criminal History
44You have significant prior convictions for violent offending. I have read the previous sentences of both this court and of the Supreme Court. In 2016 you were sentenced for your part in a prison brawl where one prisoner was stabbed. You’ve been sentenced in the Magistrates’ Court previously for making a threat to kill and assaulting a police officer. You were convicted of intentionally causing injury in the Magistrates’ Court in 2010 and in 2001. That year, in 2001, you were also sentenced for the crime of manslaughter. There are also four previous convictions for reckless conduct endangering serious injury. Although the manslaughter sentence is now 20 years ago it is clear that your capacity for violence is well established.
Personal circumstances
45You were born on 26 January 1978 in Melbourne; you were 43 at the time of your offending and at sentence. You stayed with your mother after your parents’ separation; you had regular contact with your father. Your father died in 1999 and your mother in 2020. Your siblings are now all deceased. Your mother’s death, the most recent loss, was said to have a profound effect on you in the lead up to this offending.
46You moved out of your family home at 16 to live with your partner. You were first imprisoned at 18, and from then going back to live with your mother in between prison time. Your mother stayed in the family home – this was your only place in the world between sentences. You have been homeless since February 2020 as the result of your mother’s passing.
47You struggled at school with concentration and attention. You had issues with literacy and numeracy. You did not have close friends at school.
48You began using daily cannabis at 15 and alcohol socially at 16.
49Between 2008 and 2010 you used methamphetamine, stating you consumed ‘as much as you could get.’ Prior to this term of imprisonment you reported using benzodiazepines weekly for two years.
50You left school permanently in year nine, and went to work as a labourer. You remained employed until your first prison sentence at 18. You have not worked, or not worked consistently, since then.
51You have spent most of your adult life in custody. Fourteen of the 20 years between the ages of 18 and 38 were spent in gaol. The sentence in 2016 then flowed.
52It was submitted that the most recent offending occurred in the context of your unresolved grief after your mother’s death in February 2020. I accept this loss of your sole supporter and place of retreat must have been difficult. She was your only support and only remaining family member. This loss was followed by homelessness, further drug use and mental health difficulties.
53
On your plea, your barrister tendered a psychological report of Ms Cidoni, prepared for the 2016 proceedings, and the report of Ms Sandra Cokorilo, dated
1 September 2021. The more recent of these in particular has been helpful in understanding your personal circumstances; no particular Verdins limbs were said to be engaged. It was not argued that the affective states, described in the report of Ms Cokorilo, bore upon your behaviour in such a way as to reduce the moral culpability of your offending, however, in sentencing you I take into account the matters in the reports in a more general way. So I note, and accept, that you are currently exhibiting severe symptoms of anxiety and depression, exacerbated by the prolonged solitary confinement that you endure in custody. I accept that imprisonment will weigh more heavily upon you in this circumstance.
Impact on victims
54
I am obliged to take into account the impact of your offending on your victims.
Ms Bailey filed a victim impact statement. I have taken the relevant portions into account. Ms Bailey says:
“The crimes have changed me as a person, and I will never be the same. I will never feel safe in the community knowing there are people like this around. I will live in fear for the rest of my life.”
55It’s sufficient to say that Ms Bailey has been profoundly harmed by what you did to her, and I will take that into account in sentencing you.
Matters in mitigation
Plea of guilty
56You entered an early plea of guilty to these matters, which, noting the dates of offending and resolution, was done exceptionally quickly. This conveys a significant utilitarian benefit, and within it, your acknowledgement of your offending. Importantly, you did not ever cross-examine Ms Bailey. You spared her that ordeal. At any time, this entitles you to a meaningful discount on your sentence, but at the moment, when there are so many cases awaiting trial in this jurisdiction, the courts have been clear that pleading guilty at this time is of even greater weight and should attract ‘a more pronounced amelioration of sentence’ than a plea entered at another time. I make it clear that were it not for this factor, I would have imposed a sentence of more severity.
Remorse
57While your plea contains an aspect of remorse, I am not able to go further and make more substantive findings that you are positively remorseful for what you did. No such findings available to me.[9] I make it clear this is not a finding against you but rather that prevents me from counting a potential matter in your favour.
[9] See for example Report of Ms Cokorilo at [40].
Institutionalisation
58Your counsel submitted, and I accept, that you have become institutionalised, having spent the majority of your adult life in custody. The result has been that you have very few, if any, meaningful personal connections in the community, and with this comes the increased likelihood that you might become overwhelmed and behave in dysfunctional ways when not incarcerated.[10] At the time of the offending you had lost the only person in the world who provided you with meaningful support outside the prison environment. I take that into account, balanced however, as it must be, with the other features of your offending.
[10] Ibid at [62].
59Your counsel conceded this (your institutionalisation) is a ‘double-edged sword’, weighing simultaneously in favour of more emphasis on your rehabilitation but also upon the need to protect the community from you. There is a tension in your plea between these two sentencing principles in particular and it is not one that is easy to resolve.
Prospects of rehabilitation
60I am obliged to have regard to your prospects for rehabilitation. Your counsel argued that a disposition, which is fundamentally directed at your rehabilitation should be contemplated. You have been a methamphetamine user when in the community and at the time of this offending you were abusing benzodiazepines. I have already dealt with your institutionalisation. It is difficult to be optimistic about your prospects for rehabilitation though I do not conclude the situation is without hope. Efforts to create the conditions where you can live safely in the community ought not be abandoned. A meaningful period supervised in the community is warranted.
Current sentencing practices
61Helpfully I was referred to what was said to be some comparable cases on the plea.[11] I have had regard to them and to others. No case is particularly like yours, but I’ve had regard to those cases and sentence you in that landscape.
[11] Whiteford v The Queen [2016] VSCA 26; Laa v The Queen [2020] VSCA 136; Evison v The Queen [2014] VSCA 132.
Covid-19 pandemic circumstances
62As I deliver this sentence Victoria is emerging, somewhat tentatively, from many months of lockdown. But the anxieties and uncertainty of this time persist. Case numbers are high, balanced only by the optimism of widespread vaccination. It is clear that for some time prisoners in Victoria, you among them, have suffered the anxiety of not knowing if, or when, the virus will enter the prison system. Access to visits and programs has been significantly curtailed. So far, you have served your sentence in that more severe and uncertain climate and I take that into account, and I also take into account that there will likely still be restrictions imposed on prisoners in the next period in the pandemic.
Other burdens of imprisonment
63Although it is not precisely known why, perhaps your role in earlier offending while in gaol, you have spent a substantial portion of your incarceration so far in management units; this has meant you’re often spending 22 hours a day in your cell. Your conditions have been described and I accept that they are extremely onerous and oppressive; you have quite severely limited access to programs, exercise, staff and even to other inmates. I accept that these matters make your experience of imprisonment substantially more burdensome than would otherwise be and take that into account.
64Added to this burden is the fact that when your nephew died in a car accident this year, you missed his funeral.
Sentencing principles
65I must apply these properly in your case. The authorities are very clear that general deterrence for offending against partners or former partners demands a significant emphasis in sentencing. Through me and through this sentence the community denounces cruelty, violence and degrading conduct directed at partners or former partners. I must impose just punishment for what you did and also impose a sentence that takes into account the protection of the community. Further, there is a role for specific deterrence in this case particularly in the light of what seems to be a failure of insight about the wrongfulness of what you did. I reiterate my earlier statement about not finding an absence of remorse aggravating, but your lack of insight does bear upon the purposes of this sentence.
66The threat to kill charges, in combination with the term of imprisonment you served earlier for manslaughter, mean that you fall to be sentenced as a serious violent offender (Schedule 1 of the Sentencing Act 1991). This section generally requires me to regard the protection of the community as the principal purpose for which the sentence is imposed, however the prosecution did not argue for a disproportionate sentence in your case. My obligation therefore is to simply to note on the record that you fall to be sentenced in this category.
67While I have taken your past history into account I’m careful not to repunish you for offending you have already been punished for.[12]
[12] Veen v R No 2 164 CLR 465.
68I have considered the principle of totality and reduced the sentences, and more particularly, the orders for cumulation accordingly. Your counsel submitted I must also have regard to the principle that, where possible, a crushing sentence that is, a sentence that extinguishes all hope for the future, be avoided. I bear that in mind.
Disposition
69On Charge 1: aggravated burglary, you are convicted and sentenced to 5 years’ imprisonment. This is the base sentence.
70On Charge 2: causing injury intentionally, you are convicted and sentenced to 5 years’ imprisonment.
71
On Charges 3 and 4: making a threat to kill, you are convicted and sentenced to
2 years’ imprisonment on each charge.
72On Charge 5: threatening to assault an emergency worker on duty, you are convicted and sentenced to 6 months’ imprisonment.
73On the Related Summary Charge 7: contravening a family violence intervention order, you are convicted and sentenced to 6 months’ imprisonment.
74On the related Summary Charge 9: committing an indictable offence while on bail, you are convicted and sentenced to one month imprisonment.
75The orders for cumulation are as follows. Two years and four months on the sentence on Charge 2, two months of the sentence on Charge 5, and two months on the sentence on the Related Summary Charge 7: contravention of the family violence intervention order, will be served cumulatively upon each other and upon the sentence on Charge 1, resulting in a total effective sentence of seven years and eight months imprisonment. I direct that you must serve a minimum of five years and four months before becoming eligible for parole.
76
I declare that pursuant to s 18 of the Sentencing Act, you have already served
240 days pre-sentence detention to be deducted from your sentence administratively.
77
Pursuant to s 6 AAA of the Sentencing Act, I declare that had you been found guilty after trial I would have imposed sentence of 10 years and four months with a minimum of six years and eight months before becoming eligible for
parole.
78I make the order for disposal as sought and note the application of the serious violent offender provision.
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