Director of Public Prosecutions v Thompson
[2012] VCC 770
•31 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREN JANINE THOMPSON KYLIE REBECCA MOSS |
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JUDGE: | His Honour Judge Leckie | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 14 May 2012; 31 May 2012 | |
DATE OF SENTENCE: | 31 May 2012 | |
CASE MAY BE CITED AS: | DPP v Thompson & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 770 | |
REASONS FOR SENTENCE
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Catchwords: Plea – aggravated burglary; common assault.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A J Moore | OPP |
| For the Both Accused | Mr G Clancy | Kerry Clancy Solicitors |
HIS HONOUR:
1 Kylie Moss, you have pleaded guilty to one count of aggravated burglary and two counts of common assault.
2 Janine Thompson you have pleaded guilty to one count of common assault.
3 The maximum penalty for aggravated burglary is 25 years imprisonment whilst the maximum for common law assault is five years imprisonment.
4 The circumstances of your offending was set out in the prosecution opening. I will briefly recite it. On 14 January 2011 you Ms Moss had a domestic argument with your partner Jacob Norton. As a result, he left taking his possessions and went to the house of Andrew Dudley. Also present at that house was Patricia Shopsis and her young daughter. The owner of the house, Mr Dudley had gone to bed and Ms Shopsis and Mr Norton were on the couch watching TV.
5 You Ms Moss believing Mr Norton was in a romantic situation with Ms Shopsis, barged into the house. Although told there was nothing going on, you were enraged with jealousy and slapped and manhandled Ms Shopsis which is Count 1 common assault. You then left but shortly after you returned and barged in again although being on this occasion aware that you were not welcome, and then further assaulted Ms Shopsis. That is, Counts 2 and 3 which are the aggravated burglary and the common assault.
6 You Ms Thompson also entered the house shortly after and joined the attack on Ms Shopsis which is Count 3 to which you pleaded guilty.
7 The attack was relatively short and consisted of slapping, scratching, and pulling of hair, and at the same time obscenities were being yelled at the victim. You both then left the premises.
8 You Mrs Thompson to your credit returned a little later and apologised to the victim.
9 When interviewed by police, you Ms Moss admitted going to the house twice but denied the assault and the unlawful entry. You Mrs Thompson told police you had been woken by your daughter who said she had found Norton and Shopsis naked together. You admitted going to the house but denied the assault but you did however agree that you did apologise to the victim after.
10 The conduct of both of you on this occasion was quite unacceptable particularly of you Ms Moss. However, I accept that it occurred in an atmosphere of the final breakdown of a longstanding relationship that you had had with Mr Norton and you were angry and upset because you believed the victim was involved sexually with your ex-partner.
11 You Mrs Thompson I accept had been misinformed by your daughter about the situation and acted on the spur of the moment in some misguided sense of loyalty to your emotionally upset daughter.
12 The offence of aggravated burglary is of course very serious as the learned prosecutor stated but he very fairly conceded that this particular example was towards the lowest end of offending of this type. He made similar concessions about the offences of assault to which you both pleaded guilty.
13 It is noteworthy and no serious injuries resulted and the victim has chosen not to submit a victim impact statement but no doubt it was a frightening and painful experience for her.
14 In mitigation, your counsel has pointed out that you have both pleaded guilty and I take that into account in your favour in each case. As pointed out, you saved the community considerable time and expense and of course the victim will not have to give evidence at a trial. I am prepared to accept that you both have remorse for your conduct and it is noteworthy that you Mrs Thompson have returned the same evening to apologise.
15 The personal circumstances of your Ms Moss are that you are now 25 years of age. You live in Shepparton in rented accommodation with your two children ages eight and two years. You work at the Target store part time and also receive parenting payments. You left school at 15 years after Year 9 but you then went on and enrolled in TAFE and completed Year 10. Since then you have undertaken further training in hospitality. You have worked at various jobs over the years including fruit picking and a service station attendant. I accept your counsel's submission that you have always been prepared to involve yourself in the community in employment.
16 You have admitted before me to a prior conviction which involves a matter on 22 February 2010 for cultivate and possess cannabis. You were sentenced to one month which was wholly suspended for 12 months. You also have a number of other court appearances for possession and cultivate cannabis but no convictions were recorded on those matters. You have also had some dishonesty and behavioural matters before the court several years ago but again no convictions were recorded in those matters. None of your appearances before the courts over the years have previously involved any violence. I have also been informed that you have been in no further trouble since this offending.
17 Your record reveals in my opinion a problem with cannabis abuse for which so far you have had no treatment or offered any help. Your relationship with Mr Norton appears to be over and you apparently have moved on and most importantly there is no further incidents involving a victim who you do occasionally encounter in your community. In these circumstances I am prepared to accept that you still have reasonable prospects of rehabilitation particularly if you can be offered some help particularly in relation to your problems with cannabis.
18 Mrs Thompson or Ms Thompson, you are now 45 years of age, your background being set out in the summary which was tendered in Exhibit KT1. Currently you are living in your own home in Euroa which you and your partner of 27 years built and paid for. You have brought up three children and have three grandchildren. You have also studied and worked in nursing for many years and in 2011 you completed a Certificate IV in Training and Assessment. This qualification enables you to educate nurses and assess their competency in the workplace and also assist in the education of undergraduates. You work at Euroa Health, working as charge nurse on weekends and in administration on weekdays. Cleary you have a strong commitment to your community and provide valuable services to your community which sadly are dwindling in rural communities these days.
19 I also accept that you are a very family-orientated person and you continue to maintain contact and provide support to your children as they embark upon their various ventures in life.
20 Although you admitted before me to some prior convictions, they were for drug abuse in 1992 and 1993 for which you were fined and appear to involve cannabis. I observe that those matters are some 19 years old and I do not regard them as particularly relevant to this matter before me today. You have no court appearances for violence and you have not been in any trouble since this incident.
21 A number of references were also tendered in support of your plea which are Exhibit KT2. They speak very highly of you in your chosen profession as a nurse and also generally as a member of the community in which you lived. In the circumstances I am prepared to accept that your prospects of rehabilitation are excellent. Indeed I would be most surprised to see you before the courts again.
22 However I must also take into account deterrence and consider the protection of members of the community and with you Ms Moss, the possibility of you re-offending. I am required to manifest the community's denunciation of this sort of conduct which I do, but generally impose a just punishment.
23 In your case Ms Moss, your counsel submitted that I should consider a community corrections order. This submission was not opposed by the prosecutor. Normally as he stated quite properly, aggravated burglary would attract an immediate term of imprisonment. It is a most serious offence. But because of the unusual circumstances that I have outlined and the fact that you have no prior convictions for violence, I determined to have you assessed for a community corrections order. You have now been assessed as suitable for such a disposition and if you consent, I propose to release you on such an order.
24 Could you stand up please. You can sit down Mrs Thompson.
25 So that you will better understand what I am proposing, I will read some of the material to you. The community corrections order that I propose will be for 12 months. Every community corrections order has a number of conditions which have probably been explained to you but I have an obligation to explain it to you as well in open court. You must attend the Shepparton Community Corrections Services which address is set out in the order within two clear working days which will be from today. The mandatory terms that apply are that you must not commit another offence for which you could be imprisoned during the time the order is in force. You must report to and receive visits from a community corrections officer. You must report to the community corrections centre within two clear working days of the order. You must let a community corrections officer know within two clear working days of your changing your address or job. You must not leave Victoria without first getting permission. To do so from a community corrections officer and you must obey all lawful instructions from and directions of the community corrections officer. I have also set out in this order that you be under the supervision of the community corrections officer for 12 months.
26 And I have also set some conditions for treatment and rehabilitation, that you must undergo assessment and treatment which will include testing for drug abuse or dependency as directed by the regional manager. You must undergo programs or courses aimed at addressing factors relating to offending as directed by the regional manager.
27 Do you understand that?
28 PRISONER MOSS: Yes.
29 HIS HONOUR: Those conditions, particularly those latter two, I put in, in the hope that that will assist you to try to address your difficulties although it is not clear to me on this case that your drug abuse with cannabis had anything to do with this particular offending, it does seem to be a problem in your life in the sense that you have been on a suspended sentence for cannabis and you are at grave risk of ending up in gaol. I am hopeful that if you take up the assistance that will be offered to you here to try to address that problem, it may help you remain clear of any further offending. It appears to me that if you breach this order, I will not have much option but to send you to gaol and you are in danger of course of the breach of the suspended sentence. I am hopeful that the sentence that I am passing here will have some influence on the Magistrate if you are breached on that matter and you will be able to remain in the community looking after your children which is one of the reasons that I have taken or one of the matters that I have taken into account in deciding to give this opportunity and hopefully provide some help and support for you over the coming 12 months.
30 Do you understand?
31 PRISONER MOSS: Yes I understand that.
32 HIS HONOUR: Are you prepared to enter into such an undertaking and obey such an order? Yes all right.
33 The order of the court is, you are convicted on Count 1 assault, Count 2 aggravated burglary and Count 3 assault.
34 I order that you be released on the community corrections order for 12 months in the terms and conditions I have just been through. I will sign that order and it will be brought down to you for signature. Three of them.
35 (Orders signed and acknowledged.)
36 HIS HONOUR: You can sit down.
37 In your case Mrs Thompson or Ms Thompson, your counsel submitted that I should consider an adjourned undertaking without conviction. Again the prosecution did not oppose such a sentencing disposition.
38 In my view your conduct on this night was an aberration and it is highly unlikely to ever happen again in light of the material I have read about your life over the more recent years with your husband or partner and the fact that you have brought up children and you are a registered nurse. Your conduct was quite extraordinary, I do not know what got into your head on that particular night. Instead of being a mother of calming influence, you may have been pursuing your daughter to either control her and then got swept into it. It is not clear but I am sure it was a spur of the moment decision which has caused you a great deal of upset and embarrassment.
39 Section 8 of the Sentencing Act provides a discretion to the court to impose or not impose a conviction and I am required to take into account a number of matters under that section which I have done. As your offending was in the lower order of offending and you have in my view a very good character and history, and the fact that a conviction may well impact upon your social wellbeing and your employment prospects, I propose to accede to the submission by your barrister and not record a conviction. What I am proposing in its place is an adjourned undertaking for a period of 12 months without conviction and you must be of good behaviour during that period. Do you understand?
40 PRISONER THOMPSON: Yes.
41 HIS HONOUR: I will sign the document and have it brought down to you so you will sign the undertaking.
42 (Order signed and acknowledged.)
43 HIS HONOUR: Are there any other matters counsel wish to raise with me?
44 MR CLANCY: No, Your Honour.
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