Director of Public Prosecutions v Thomson

[2022] VCC 1586

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

AT Melbourne

CRIMINAL DIVISION

CR-21-01233

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLIE THOMSON

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2022
DATE OF SENTENCE:	15 September 2022
CASE MAY BE CITED AS:	DPP v Thomson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1586

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – one charge common assault

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:---

Sentence:Fine of $600, with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr A. Dickenson	Stary Norton Halphen

HER HONOUR:

Plea and Maximum Penalties

1Kylie Thomson, you have pleaded guilty to one charge of common assault, the maximum penalty for which is five years' imprisonment.

Circumstances of Offending

2The prosecution opening dated 5 September 2022 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 just some of the facts giving rise to your offending here.

3

You and Ms Zoe Esperance, the victim of your offending, had been living at

Ms Esperance's home in Balaclava for about a month before your offending. You,

Ms Thomson, were 40 years old at the time and Ms Esperance 39. You are now 43. Your co-accused, Ms Chloe Turner, was 19 on the date of these events, and I sentenced her previously for her role in this case and note that she ended up pleading guilty to a different charge, being aggravated burglary.

4

You and Ms Esperance had had a falling out over who was responsible for an electricity bill. I understand that part of this dispute was a claim by you that

Ms Esperance had fraudulently used your identification documents to connect an electricity account for use at her property. Ultimately, and as a result of this disharmony, on 7 December 2019 Ms Esperance asked you to leave the home. She, that is, Ms Esperance, sent you a text message asking you to remove all your belongings by the time she returned home later that day.

5At about midday, Ms Esperance returned to the property and saw you still removing some of your things from the unit. Ms Esperance entered her home and locked the door. There were still bags of your things inside. Ms Esperance was angry about that, and she placed the remained bags in the hallway near the entrance.

6

Around 20 minutes later, you returned to the property with your co-accused

Ms Turner. The three of you argued through the locked flyscreen door with

Ms Esperance for some minutes. Ms Esperance states you were both being abusive and threatening. There is a video of part of that interaction taken on

Ms Esperance's phone. You can be seen cursing and speaking to Ms Esperance through a screen door. Ms Esperance claims that you were egging Ms Turner on and becoming increasingly aggressive.

7I previously viewed the CCTV footage which shows part of the interaction. Part of it shows you asking Ms Esperance for proof that she cancelled the electricity bill. She replies, 'I cancelled it at the Chrysler Centre.' You and Ms Turner moved away from the door for a short time. Ms Esperance picked up one of your bags and opened the door. When she did this, you and Ms Turner entered the apartment. Some of these events were filmed by Ms Esperance on her phone. In the footage you can hear Ms Esperance yell, 'Fuck off and get out of my house.' We also hear Ms Turner yell, 'Yeah, cunt,' a struggle is heard and we hear Ms Esperance yelling out.

8After you entered the apartment, Ms Turner pushed Ms Esperance's head onto the door handle a number of times. The prosecution opening describes your role, Ms Thomson, as egging on the assault by Ms Turner on Ms Esperance. The prosecution opening clearly states, however, that you did not touch Ms Esperance at any time. Eventually, you told Ms Turner to stop assaulting Ms Esperance and you left the property together.

9

A short time later, police arrived and observed fresh bruises on the complainant's left leg, a bump on her forearm, and an egg-shaped bump on her forehead.

Ms Esperance was taken by ambulance to hospital. Ambulance officers described her injuries as minimal, noting very mild bruising to her left eye and bruises on her arm.  At the hospital Ms Esperance presented with a headache, facial pain, nausea and vomiting, and difficulty breathing. The treating doctors concluded that she was not suffering from any acute traumatic injury, and she was discharged at 8:20pm, and asked to self-monitor her condition.

10On 2 January 2020, you attended the Melbourne West police station voluntarily for an unrelated matter. You were then arrested in relation to this incident. You exercised your right to silence in interview. You were charged and bailed to attend the Magistrates' Court on 7 April 2020.

Nature and Gravity of Offending

11Turning to the nature and gravity of your offending. Your assault of Ms Esperance occurred in her home, which you had only recently shared with her. She is a person with her own vulnerabilities, and you seriously transgressed her right to live safely in her residence. There was, I note, a claim by you that Ms Esperance had used your identification fraudulently to start an electricity account; but even if true, this does not entitle you to do anything of this kind to Ms Esperance.

12

I note that your liability for the offending is secondary to that of your co-accused in that you are said to have been complicit in the act of violence metered out by

Ms Turner. Although, it does also seem that you were keen and a consistent encourager of Ms Turner until your change in approach towards the end of this event, whereupon you called Ms Turner away from any further harm.

13

It appears to me that you encouraged another younger woman to offend in the context of a dispute that yours. The genesis of this confrontation was a breakdown of the living arrangements between Ms Esperance and you. You brought

Ms Turner to assist you with the moving of the bags, and Ms Turner and

Ms Esperance then engaged verbally.

14The prosecution on the plea accepted that, to some degree, your role is lesser but that you did egg Ms Turner on, although, it was not put that you returned to the property with a planned purpose to engage in this offending. I acknowledge that, while you did not directly touch the complainant, you did egg Ms Turner on but, eventually, told her to stop her assault of Ms Esperance.

Personal Circumstances

15Turning to your personal circumstances. You were born in Hornsby, New South Wales in 1979 and moved to Melbourne when you were about five years old. Your mother cared for the home and your father worked in finance. You had close relationship with him until his passing in July 2019 from lung cancer. Your parents separated when you were approximately 18 or 19 years old. Second of four siblings and none of the rest of your family have had difficulty with the law.  Overall, you describe your childhood as a good one. You received a reasonable education, you did reasonably well in your education at primary school in Kew and high school in Balwyn High School before moving to Box Hill Secondary College. 

16You had academic competence but did not engage with your schooling much beyond the age of 15. You left formally halfway through year 11 to start work in a nursing home.

17You commenced using cannabis at about 12 years old and formed an addiction to heroin between the ages of 15 and 21, and although your family remained supportive and you were able to hold down full employment, this was a problem for you has impacted your life ever since. In the period before this offending, you had commenced the use of methamphetamine after your father's passing in 2019 and after the breakdown in your relationship with the father of your two youngest children and it was in that context of that methylamphetamine use and the regular usage for about three weeks leading up to this offending that these events unfolded.

18You have a relatively good employment history, given your other difficulty. You have generally found employment during your adulthood but have struggled to do so since these events unfolded. You have worked variously in a bookstore, as a disability support worker and for an IT company.

19You have three children, one now aged 20, and two others aged 13 and 9, and, as a result of these current charges, you have had an intervention order taken out against you and have not seen your children for some time. You plan to instigate family law proceedings but have had to put these off in the context of the current uncertainty in relation to this charge.

Impact on Victim

20Turning to the impact on your victim. I am obliged to take into account the impact of your offending on Ms Esperance, and on your plea a Victim Impact Statement was tendered, and I have read it and I have taken its admissible parts into account. Ms Esperance, it must be said, ought never have been attacked in her home in the way that she was and the consequences for her still flow and I take them into account.

Criminal History

21I have had regard to your prior criminal history. You were last in court in the Magistrates' Court in Ringwood in 2010 for a shop stealing offence and failing to answer bail. I understand there was one minor outstanding matter that does not form part of your prior history in relation to a shop stealing offence. Your criminal history, as I apprehend it, is both remote and relatively minor and it is attended by the hallmarks of low-level dishonesty offending, commonly running parallel to an addiction to heroin. It contains no history of violence against a person.

Matters in Mitigation

22I note in terms of matters of mitigation that your plea of guilty is an important feature of this sentence, although, in the beginning you faced more serious charges. There was a committal process that unfolded, and it was submitted that this was required to arrive ultimately at this resolution. Although you plea came after the cross-examination of witnesses at committal and therefore is not to be regarded of the earliest kind, it is still valuable and important and at any time your plea of guilty would warrant significant reduction in the sentence you must serve, but at the moment it is particularly valuable in the context of the COVID-19 pandemic and the measures taken in the administration of justice and how difficult it has been to deal with cases. Your sentence in these circumstances, I make clear, is lower than it would otherwise be in normal times.

23I accept that your plea contains within it an aspect of remorse and your acceptance of responsibility for what you did. It was submitted on the plea that your offending represents an escalation in your offending. I am more prepared to classify it as aberration in the context of your current age and the fact that you have never been in trouble for any violence against anyone before.

24You have had this matter hanging over your life quite some time and I understand that it has impeded your ability to return to work and to return to access with your children.

25I was asked to consider ordering a non-conviction penalty in your case. Given the objective gravity and your relatively minor role and that, it was submitted, that your return to work will be made more difficult by a conviction of this nature, I have carefully considered the matters in s 8 of the Sentencing Act and balancing them all together and in the context of that you do have some other prior history over some years, I am not convinced that a non-conviction penalty in this case is warranted so I will be recording a conviction in your case.

Sentencing Principles

26I have had regard to current sentencing practices for the charge of common assault and the practices involved engage a wide range of behaviour, much of which is fact dependent, but I have taken it into account. I must apply the proper sentencing principles in your case. This sentence should deter you from behaving this way again and, as I have said, in the context of your lack of prior history for similar offending, I think the role for specific deterrence is perhaps minimal.

27Your sentence should also deter other people by way of example and your conduct in relation to Ms Esperance has to be denounced by this sentence. What you did was both shameful and unacceptable. There must be an aspect of punishment, but I must also try to support your rehabilitation so that, in the end, the community is better protected.

28I have had regard to the principle of parity. I note that your co-accused Ms Turner was sentenced to Community Corrections Order of 24 months for much more serious charge of aggravated burglary. I note that Ms Turner had other more powerful matters in mitigation in terms of her personal circumstances, her age being just one amongst them. And while there is a relationship between you with the co-accused, there are significant matters pulling away from a proper comparison in all circumstances.

29Counsel for the prosecution called for the imposition of a Community Corrections Order in order to address your long-standing personal difficulties and, to some degree, I was attracted to that submission. However, while I appreciate there may still be difficulties that you undergo, I cannot, by reference to the objective gravity of the offending and your role in it, find that that disposition is called for in all the circumstances.

Disposition

30

Having regard to all the matters before me on the plea, I will, with conviction, fine you a total of $600 and I do that in the context of my assessment of the gravity of your role, your prior history and lack of it and my inability to find that a

Community Corrections Order is the only sentence warranted in all the circumstances.

31Thank you, that completes my sentence. Ms Paganis, have I neglected any formal orders?

32MS PAGANIS:  No, you haven't, Your Honour, thank you. 

33HER HONOUR:  All right, thank you. 

34MR DICKENSON:  Perhaps the 6AAA is required.

35HER HONOUR:  I haven't imposed imprisonment so I'm not required to.

36MR DICKENSON:  Yes, thank you, Your Honour. 

37HER HONOUR:  All right, thank you, counsel for your assistance.  We'll rise, thank you. 

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