Director of Public Prosecutions v Thompson
[2020] VCC 411
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-19-00075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PELE THOMPSON |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 April 2020 |
| DATE OF SENTENCE: | 8 April 2020 |
| CASE MAY BE CITED AS: | DPP v Thompson |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 411 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence, theft, armed robbery, attempted armed robbery, common assault, youthful offender, rehabilitation, parity, plea of guilty.
Legislation Cited: s6AAA Sentencing Act
Cases Cited:
Sentence:15 month community corrections order
Section 6AAA declaration: 3 year youth justice order
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| APPEARANCES: For the Director of Public Prosecutions | Counsel Mr Mark Regan | Solicitors Office of Public Prosecutions |
| For the Accused | Mr Rohan Lawrence | Haines and Polites Lawyers |
HIS HONOUR:
Pele Thompson, you have pleaded guilty to charges of theft, armed robbery, attempted armed robbery and common assault. The maximum penalties for these offences are as follows: theft – 10 years; armed robbery – 25 years; attempted armed robbery – 20 years; common assault – five years.
The facts of this matter are set out in the prosecution opening which was read in open court by the prosecutor and tendered as Exhibit P1. This morning Mr Regan made an amendment to the opening in relation to the money that was taken in charge 1.
Mr Thompson, you were born on 17 June 1999, so you are now aged 20. You had just turned 19 the day before these offences took place. Your co-offender, Giuseppe Raciti was aged18; and a second co-offender, Aisea Kaifa, was 22 years old.
Incident one
On 18 June 2018, Aaron Juren and Jesse Hutchins went to the Water Gardens Shopping Centre in Melbourne. They met up with you and Giuseppe Raciti. Mr Raciti told Mr Juren that he needed to “have a chat” with him. You, Mr Raciti and the Mr Juren walked together to the rear of the Hoyts Cinemas. At the back of the cinema area, Mr Juren and Mr Raciti had a brief argument, after which you said to Mr Juren “you better not try to run” and “we don’t want to have to do this but give me your phone and your wallet”. He asked you if you were serious and you replied, “just give it”.
Mr Juren was trapped with his back to a wall, and you and Mr Raciti were blocking the steps that led away from the area. Mr Juren took his phone out of his pocket and you grabbed the wallet out of his hand. You asked him to unlock his phone. You searched through his wallet, took a photo of his driver’s licence, and removed all the money inside it. In accordance with Mr Regan’s addition this morning, I understand that the wallet contained about $700. You took all that money. You then returned the wallet to him and again asked him to unlock the phone. He tried to negotiate with you to keep his phone. You let him keep the sim card and the case for the phone, but you took the phone. Mr Juren was told to stay put and you and Mr Raciti walked away.
This incident gives rise to charge 1 on the indictment of theft.
Incident two
Meanwhile, Jessie Hutchins had realised that Mr Juren had been gone for some time and he walked around the area looking for him. When Hutchins approached the rear of the cinema Mr Raciti saw him and demanded he hand over his cap, which was a navy-blue coloured New York Yankees baseball cap. When Mr Raciti made this demand a male, described as being of Islander appearance, held a metal baton to the face of Mr Hutchins. This was Mr Kaifa.
Mr Hutchins, in fear of being struck with the baton, handed over his cap. Also, at the time of the demand, you lifted the top you were wearing to reveal to Mr Hutchins the handle of what appeared to be a black handgun tucked into the front of your pants. When Mr Raciti saw this, he told you to put it away. It is accepted by the prosecution that this item was not a real gun, rather it was an imitation firearm possibly a toy. This concession was described by the prosecutor Mr Regan as a significant matter in the plea resolution in this case.
After receiving the cap from Mr Hutchins, your group then made a further demand for his wallet which he handed over. A $10 note was taken from the wallet; the wallet was then returned to Mr Hutchins. Mr Hutchins walked away towards the Melton Highway while your group returned to an outdoor leisure area near the entrance of the Hoyts cinemas.
10.CCTV footage from the shopping centre showed the movements of you and your co-offenders and the victims. The footage supported their account. On the footage Mr Kaifa can be seen walking away carrying the baseball cap that had been taken from Mr Hutchins.
11.This incident is the basis of charge two on the indictment of armed robbery.
Incident three
12.On the same day at approximately 2:00PM Tyson Scarcella went to the Water Gardens Shopping Centre with a friend, Chad Mangat. Mr Scarcella knew Mr Raciti and he met him at the shopping centre that day; you and Mr Kaifa were also present.
13.Mr Raciti and Mr Scarcella had an argument over a female, after which the whole group moved to the back of the Hoyts Cinema. As the group walked to the back of the cinema, others followed. Mr Scarcella thought he was going there to have a one-on-one fight with Mr Raciti.
14.When you all arrived at the rear of the cinema an argument broke out between Mr Scarcella and Mr Raciti. You intervened in this argument by pushing Mr Scarcella up the steps onto a landing. You then punched him twice to the left side of his face and he grabbed your jacket to try and defend himself. You said, “let go or else I’ll shoot you”. When you said this, you lifted the front of your top revealing again what appeared to be a black handgun tucked into the front of your pants.
15.On seeing this, Mr Scarcella immediately let go of you and held up his hands in submission. You pushed him further back onto the landing and said, “give me all your stuff, you got five seconds or else I’m gonna shoot you”.
Mr Scarcella threw a one-dollar coin onto the ground and you said, “Na everything”. You pointed towards his mobile phone in his pocket. Mr Raciti intervened saying “just let him go, who cares”. Again, CCTV was obtained which supported the account of the victim in this matter.
16.This incident is the basis of charges 3 and 4 on the indictment, attempted armed robbery and common assault.
Objective gravity
17.Mr Thompson, your offending in this case was serious. Armed robbery is always a serious offence, reflected in the maximum penalty of 25 years. Attempted armed robbery is only marginally less so, attracting a maximum penalty of 20 years. Ordinarily, general deterrence is the most important sentencing objective in a case such as this.
18.Your behaviour, and that of your co-offenders, was thuggish and intimidating. An aggravating feature of these offences is that you offended in company, no doubt increasing level of intimidation and the fear felt by the victims. In my view this offending was to an extent premeditated.
19.You had the major role in these incidents. Your conduct took these incidents to a higher level of seriousness. You were the person who delivered the physical violence in the third incident; and you were the person who drew to the attention of the victims the imitation firearm tucked into the front of your pants in incidents two and three. Mr Raciti drew the line at the production of this weapon, and told you to put it away, when you produced it during the second incident. Mr Raciti also deescalated your behaviour during incident three when he told you to let Mr Scarcella go.
20.You behaved as though you were a gangster or a stand-over man. I have no difficulty in imagining the fear that your conduct and that of your co-offenders would have engendered in the victims in this matter.
21.Overall, whilst I regard this offending as serious, I agree with the submissions of Mr Lawrence that this is offending involved young men acting collectively in the context of peer pressure and doing things they would not do as individuals. The circumstances of the offending, including its location, and the type of property demanded, also bear the hallmarks youthful offending. Although your conduct was quite deliberate, your age, the surrounding circumstances, and the absence of previous offences, lead me to the view that you perhaps did not appreciate the gravity of what you were doing in the way an older, more experienced offender would have; this allows for some reduction in the assessment of your moral culpability.
Victim impact
22.Only Mr Scarcella has provided a Victim Impact Statement but obviously this offending would have caused all the victims considerable fear.
23.Mr Scarcella in his Victim Impact Statement said that the offending against him had affected him physically as he sustained a swollen ear. He said he felt embarrassed that he did not fight back. He said that the offending had affected him socially, as he could not catch public transport on his own anymore, and every time he went to the shopping centre, he became nervous and anxious, feeling very paranoid. He said also that he felt that the impact of the incident had also affected other members of his family in ways that he explained in his Victim Impact Statement.
Guilty plea
24.This matter was listed for trial to commence on Monday 16 March 2020. The matter would not have been able to proceed on that day as a trial due to the decision to shut down jury trials as a result of the COVID-19 virus.
25.However, when the matter came on before me on what was to be the first day of the trial the parties indicated that there was a prospect of resolution in this matter and I was asked whether I would deal with this matter by way of sentence indication.
26.On first of April 2020, I heard this matter as a sentence indication, after which a plea indictment was filed, and you were arraigned and pleaded guilty to the charges on the indictment.
27.Yours is not an early plea but it does have significant utilitarian value, particularly in the context of the shutdown of jury trials in this state. When jury trials resume there will undoubtedly be a very significant backlog of trials to be heard and delays will no doubt have increased. Against that background, it seems to me, the resolution of any trial has heightened utilitarian value.
28.I am prepared to accept also that the guilty plea came partly as a result of a factual concession made by the prosecution in relation to the firearm.
29.I accept that your plea is an indication of some level of remorse, albeit belated.
Personal Circumstances
30.Mr Thompson you are the second oldest child of Joseph and Puni Thompson. You are one of 10 children. You have seven brothers and two sisters. Your oldest sibling is aged 21 and the youngest is just eight months old. Your father is a painter and your mother cares for the younger children at home. Your parents were present in court during the plea in this matter with your youngest sibling. Your father has written a reference on your behalf which I have read, and which speaks of your positive qualities, including that, at times, you have provided financially for your family.
31.By nationality, your family background is Samoan. You were born in New Zealand and your family migrated to Australia in 2000. The family firstly lived in Brisbane and moved to Melbourne when you were in Year 8. You are a permanent resident of Australia but not a citizen.
32.You struggled at school. I’m told that you were bullied by other students and you performed poorly academically. You dropped out of school in Year 10 and you ran away from home and lived on the streets for a couple of months. You moved back home when your family, who were understandably worried about you, managed to find you and get you to come home. After a family discussion you moved to Brisbane to live with other relatives up there and return to school. You ultimately completed Year 12 in Brisbane in 2017.
Rehabilitation
33.After your arrest in relation to these charges you spent 51 days in custody. In custody you did some short vocational courses and you worked as a billet in your unit doing metalwork. Since your release on bail you have lived at home with your family. You managed to find employment at Pacific Meats, and you have maintained that employment. I have been provided with a letter from Pacific Meats dated 20 March 2020, which confirmed your employment, and that you work Monday to Friday. I have been told you have been there now for approximately nine months.
34.Also, you have been supervised by Trish Alexander from Youth Justice. I have been provided with an email from her to your counsel, Mr Lawrence, dated 27 March 2020, which indicated you have attended 56 appointments with Youth Justice and you have always presented as “polite and cooperative; open and engaging”. In this period, you have also engaged in personal counselling with a psychologist, Michael Bylik. I have been provided with a letter from Mr Bylik, dated 21 March 2020, indicating that you were referred to him by Trish Alexander, and that you attended 10 consultations with him, and that you participated in cognitive behavioural therapy. You disclosed to Mr Byllik a history of being taunted by your peers during adolescence and social alienation. He writes that you resorted to aggression to compensate for feelings of inadequacy. You acknowledged to him “gravitating towards antisocial associates”. He indicated that you would benefit from “ongoing involvement in defence-related problem-solving approaches including impulse control and conflict resolution.”
35.After you were released on bail you met your partner Susan Malio. On 20 July 2019, you had a son together and named Rayzan. You do not live with your partner, but you are still in a relationship. She and your son live with her parents. You spend time with them every Friday and Saturday. Your father drives you to see them. You get on well with your partner’s family. I understand that you provide some support to them financially.
36.You have no prior convictions, which is somewhat surprising, given the problems you had in adolescence. You have not been any trouble since you were released on bail. These matters, together with all of the things that you have done since you were released on bail, including that you are in a stable relationship with a young child to support, lead me to the view that your prospects of rehabilitation are extremely good.
37.It seems to me that you have started to leave behind the problems of your adolescence. You are still young man with your whole life ahead of you. Notwithstanding the seriousness of these offences to which you have pleaded guilty, rehabilitation is a very significant sentencing objective for a young person who has demonstrated an ability to settle down and live a stable life. Apart from the positive things that you have done since your release on bail, I suspect the 51 days that you spent in gaol, has very clearly brought home to you the end result for you of the sort of serious criminal behaviour you perpetrated at the Water Gardens Shopping Centre.
Parity
38.Parity is a relevant consideration in this case.
39.Mr Kaifa pleaded guilty to two charges, robbery and handling stolen goods, at the conclusion of the committal hearing on 16 January 2019. He successfully applied for a summary jurisdiction and was convicted and sentenced to time served in relation to the robbery, being 147 days, and he was fined $1,000 in relation to the second charge.
40.Mr Raciti was sentenced in this court, by her Honour Judge Cannon, on 5 September 2019. He pleaded guilty to theft, armed robbery, common assault and robbery. I have read her Honour’s sentencing remarks in that matter and his charges involved an additional incident of robbery relating to Mr Hutchins, which occurred the day after your offending. He was also sentenced for offences arising out of the same three incidents that I am dealing with. He was aged 18 years and two months at the time of the offences.
41.In my view, you were the major offender in these three incidents. This is reflected in the charges. You have pleaded guilty to attempted armed robbery in relation to the third incident whereas Mr Raciti pleaded guilty to common assault in respect of that incident. On the other hand, he pleaded guilty to a charge arising out of the further incident the following day and he had spent no time in custody.
Sentencing principles
42.Mr Lawrence has conceded in his submissions that general deterrence and denunciation are relevant for offending of this type are but submitted that they must be given less weight than rehabilitation in this case. Mr Lawrence also submitted that because you have no prior convictions and no subsequent matters specific deterrence is of less weight. In this context he also emphasised the risk of deportation for you should you continue to offend given you are not a citizen.
43.For reasons which I think I have already outlined, I accept that your rehabilitation is the most important of the sentencing principles in this case. I have come to this view because of your age, your lack of prior or subsequent offending, your exemplary behaviour since being released on bail, your overall prospects of rehabilitation, and because you have already served 51 days in an adult prison. In my view that period that you served is relevant to the weight that I need to give to general and specific deterrence relative to rehabilitation.
44.Mr Lawrence submitted that a community correction order was the appropriate sentence in this case. Mr Regan submitted that a community correction order was open on the facts of this case. You have been assessed by corrections as suitable with a recommendation for supervision and programs for mental health and community work.
45.I intend to impose a community correction order. This is the disposition which Mr Raciti received, and, in my view, parity is important in this case. It will not be a combination order, but in reaching the decision to impose a community correction order I have had regard to the period you spent in prison.
46.The community correction order that I intend to impose is similar to that of Mr Raciti. It will include a condition in relation to your mental health. You will be on the order for 15 months. It will include supervision and 100 hours of unpaid community work. It is with conviction. In this case Sunshine Community Corrections will be the centre you report to and your first report is required within the next 48 hours.
47.If you breach the Order you are at risk of imprisonment.
48.I make the compensation order sought in favour of Mr Aaron Juren in the amount of $700 and I order that the payment be made by 5 October 2020.
49.The s 6AAA declaration is 3 years on a Youth Justice Order.
50.HH: Is there anything further?
51.No, your Honour.
52.I will stand down until midday.
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