Director of Public Prosecutions v Thomson
[2016] VCC 1859
•1 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01337
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA ADJUL THOMSON |
---
| JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 1 December 2016 |
| CASE MAY BE CITED AS: | DPP v Thomson |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1859 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Flynn | |
| For the Accused | Ms C. Woodward |
Pages 1 - 13
HIS HONOUR:
1Joshua Thomson you are to be sentenced for five charges of burglary, six charges of theft, three charges of criminal damage and one charge of attempted armed robbery. The maximum sentence is ten years' imprisonment for burglary, theft and criminal damage, 20 years' imprisonment for attempted armed robbery.
2You pleaded guilty before me on 28 November. When interviewed by police on 25 May 2016 you made full admissions in accordance with your recollection of events. Committal went by hand-up brief and on 21 June you offered to plead guilty to this indictment.
3You receive the benefit of your plea of guilty and that high level of co-operation both from an early stage. You have facilitated the interests of justice and I find that you are genuinely remorseful. You are being sentenced only six months after your offences.
4At your plea hearing also on 28 November, Ms Flynn for the Crown tendered a written summary of prosecution opening, a booklet of photographs depicting the scenes and aftermath of your offending and the victim impact statement of Elizabeth Roydhouse. Ms Woodward for you tendered the psychiatric report of Dr Danny Sullivan dated 11 September 2016, the case closure report of Ballarat Youth Mental Health Service dated 12 July 2016 and your own letter to the court dated 15 September 2016. Ms Woodward also provided a written outline of plea submissions.
5The circumstances of your offending are comprehensively set out in the tendered Crown summary which is Exhibit A. My own summary may therefore be shorter. It includes matters put on your behalf, not challenged by the Crown.
6On 14 April of this year you were admitted as an involuntary inpatient at Ballarat Youth Mental Health Service. You had been living at Drug and Alcohol Youth Rehabilitation accommodation named Barnagen in Ballarat and were subject to a community corrections order imposed in late March. There were symptoms of depression and persistent suicide ideation. There was a pre-existing diagnosis of bipolar affective disorder. You were discharged as a voluntary patient on 28 April.
7Throughout May you became non-compliant with medication and you were drinking heavily. You left Barnagen, avoiding assessment for detoxification, went to Melbourne and then to Lorne. You state that you had good memories of staying there with your uncle as a child. You drank heavily there and over the period of 20 to 24 May committed these 15 offences.
8In short, you broke into a number of unoccupied premises or holiday homes, including your uncle's house. You did, so by smashing a glass door or window. Inside you usually stole by eating food and drinking alcohol and taking minor items. At a number of homes you badly damaged the interior including walls, furniture and other fixtures, electrical goods and glassware. Insurance quotations and damage put to me in respect of three properties range from $21,000 to $55,000. The damage was very substantial. On 22 May you went to a Lorne restaurant, ordered food and drink to the value of $20 and left without paying. On 24 May you went to the Foodworks supermarket in Lorne and stole mainly alcohol to the value of $33.
9Very soon after, at about 1 pm, you went to a nearby caravan park. It was there that you committed the offence of attempted armed robbery and another theft. You approached 17 year old Nick Korsmit who was at the front of his cabin. His mother and her partner, Frank Skender, were inside. You threatened him with a knife, demanding keys to Skender's nearby Mitsubishi utility. Korsmit hurried into the cabin. You banged on the door and sides with a broom. Skender brandished a large knife from inside; that is, through the cabin door. You left, taking Korsmit's cigarettes and lighter which must have been on the veranda. You were arrested at 2.40 pm walking along Polwarth Road, Lorne. After examination by a forensic medical officer, police interview was deferred overnight because of your intoxication.
10I have carefully read the tendered victim impact statement of Elizabeth Roydhouse. She is the owner of premises at Waverley Street, Lorne which you entered and badly damaged during the period of this offending. Her statement reflects not only the physical loss, the cost of repair and replacement. She also describes her distress and despair upon witnessing what you had done. Her description is of a wanton, senseless trashing of her home. This included items of personal meaning, books, paintings and (she noted), a very old barometer left to her husband by a fondly remembered grandfather. She feels more vulnerable and anxious. Approximately $21,700 damage will be met by the insurer.
11No other victim impact statements have been tendered. However I see it as safe to presume a similar impact upon other householders.
12You are a 22 year old young man presently awaiting this sentence in remand custody. You grew up in the Ballarat area and may return to live with your mother and stepfather there upon your release.
13Your parents separated when you were a baby. Both suffered mental health conditions and, in fact, met as inpatients in a Melbourne psychiatric facility. Your mother re-partnered when you were ten. You get on well with your step-father and step-sisters. Your immediate and extended family are supportive of you and several have attended the plea hearing. That includes your uncle. As stated, he was one of your victims. You have little contact with your father.
14You completed Year 12 at Ballarat Secondary College. Since school you have been sometimes employed in labouring jobs. You have not worked since 2014. You developed mental health symptoms at about 17 when you were referred to the Youth Mental Health Service, Headspace. You have used alcohol since 14 and cannabis, for a time, from 17. Alcohol persists as your main substance abuse problem. You are described as a binge drinker.
15Dr Sullivan supports the existing psychiatric diagnosis of bipolar affective disorder. This condition was broadly active leading to and at the time of offending. However, the evidence does not satisfactorily establish a connection such that the primary limbs of R v Verdins are relevant. Moral culpability is not significantly reduced. This is consistent with doctor Sullivan's opinion. Dr Sullivan also raises the desirability of further investigation of possible personality disorder.
16Under Verdins I do find that imprisonment has and will be more difficult for you because of symptoms of depression associated with your psychiatric condition. There is some risk of deterioration of your condition. I was told by Ms Woodward that you have isolated yourself, likely as a protective mechanism in custody. You do not presently take medication.
17In a more general way, I also find that your mental health is a relevant and important part of the personal context for your sentence. You should receive some leniency because of it. Dr Sullivan states as follows towards the end of his report.
"Mr Thomson may well experience incarceration as more burdensome due to depression. He is strongly recommended to seek psychiatric review and to recommence medication. If psychological input is available this may also help him to manage the duration of any terms of imprisonment, although he may not be seen as a priority for limited psychological resources and does not appear to assert his needs effectively.
In returning to the community, Mr Thomson requires a management plan with a low threshold for involuntary treatment if he fails to comply with medication. This is to reduce the risk of significant self-harm. Medication including an anti-depressant and a mood stabiliser appears clinically indicated and he will require this for long term treatment. He will also likely benefit from psychologically informed case management.
Abstinence from alcohol use may be enhanced by the prescription of Naltrexone and can be enhanced through ongoing substance use intervention from a specialised service. In custody he will require assessment and re-introduction of medication and linkage to the community will be an important part of discharge planning."
Dr Sullivan goes on:
"For the duration of any sentence to the community I would recommend that mental health and drug and alcohol treatment be mandated. In the event of a community corrections order Mr Thomson would benefit from a treatment and rehabilitation condition and possibly an alcohol exclusion condition. Furthermore, a supervision condition or alternatively judicial monitoring will enhance the likelihood of compliance. He impresses as essentially pro-social in orientation and clear boundaries to his return to the community are likely to assist him in reintegrating to the community."
18Your criminal record filed with the indictment states one prior court appearance on 29 March 2016. The Magistrates' Court at Ballarat imposed without conviction a 12 month community correction order for offences of criminal damage and unlawful assault. Ms Woodward told me that you were affected by alcohol and that the offences arose out of an argument with your mother. There is an intervention order but your mother has varied that to allow you to live with her.
19This was serious and disturbing offending. Over these four days you committed a large number of serious offences and caused great harm and damage. No doubt the victims of your attempt at armed robbery were very frightened indeed. That you were throughout, it seems, drinking very heavily is not significant mitigation. Dr Sullivan also diagnoses alcohol dependence.
20You have limited but relevant prior offending. That you committed these offences while subject to a community correction order is an adverse aspect of the offending. The circumstances of your case make relevant such sentencing considerations as deterrence, particularly general deterrence, moral culpability, denunciation of the offending and the need for proportionate punishment.
21There are also relevant mitigating and/or moderating factors. They include the following.
22(1) Your plea of guilty and remorse, your personal history and circumstances at the time of offending. This includes your mental health condition in the way I have explained.
23(2) You are still young, have a limited criminal history, family support and your psychiatric condition is capable of treatment. Your letter to the court expresses a desire to co-operate in that. Accordingly your prospects for rehabilitation should be seen as genuine.
24I have decided that the proper sentence is that of imprisonment to a total term beyond what you have served but combined with a community correction order of appropriate duration and with appropriate punitive and rehabilitative conditions. Such a combination of course reduces the length of the prison sentence imposed upon individual sentences and also the extent of cumulation between sentences.
25Upon reflection, I have decided that the suitable sentencing structure is that of an aggregate sentence under s.9 of the Sentencing Act in respect of all charges. That is also consistent with the connected circumstances and duration of offending. The total term should reflect appropriate individual sentences and appropriate partial cumulation and concurrency which would have been ordered if sentencing in the usual way. For example, using Charge 14 as a base sentence there would be partial cumulation in respect of the serious offences of criminal damage. The aggregate sentence should also reflect the principle of totality. I feel that in this case to impose individual sentences reduced and with lesser cumulation, as I have said, because of the combined punishment of the community corrections order would be a somewhat artificial exercise.
26After considering and balancing what I see to be the relevant matters I sentence you as follows, stand up please, Mr Thomson.
27On all charges, Charges 1 to 15 you are convicted and sentenced to an aggregate term of 12 months' imprisonment. I declare under s.18, 191 days pre-sentence detention already served.
28In addition, on all 15 charges, I impose a community corrections order of two years' duration. I impose the usual terms and also the following additional conditions. That you perform 350 hours of unpaid community work, that there be a condition of treatment and rehabilitation for drug abuse, that there be a condition for treatment and rehabilitation for alcohol abuse, that there be a condition of treatment and rehabilitation in respect of mental health. that there be supervision, that there be a condition of so called alcohol exclusion, that there be a condition of judicial monitoring by me. All right, now. Take a seat now.
29I will deal with the other matters when the orders have been produced. Just judicial monitoring dates should be in March of next year. So, there are three judicial monitorings already listed on a day in March. We will list them on that day.
30MS WOODWARD: I'm not sure he would be released by that time, Your Honour.
31HIS HONOUR: I am sorry, yes, yes. He will be released in about five or five and-a-half months.
32MS WOODWARD: Yes, it's about ‑ ‑ ‑
33HIS HONOUR: When is that?
34MS WOODWARD: About April. May, April. Yeah, mid-April, I think, Your Honour, would be the ‑ ‑ ‑
35HIS HONOUR: Mid-April. Well, I think I should see him a month after he is released. So I will list it - it will have to be before May 17. I will list it on the Friday before 17 May. Yes, thank you. What is happening down there?
36ASSOCIATE: It's the 12th.
37HIS HONOUR: The 12th. Now, I need to declare what he would have received under s.6AAA; do I not? Yes. If you had not pleaded guilty I would have imposed a sentence of three and-a-half years with a minimum term of two years. Twice what you have to serve. Is there a forensic sample?
38MS FLYNN: Yes, Your Honour, there is and I will hand up copies of that order.
39HIS HONOUR: Is that opposed?
40MS FLYNN: No, Your Honour.
41HIS HONOUR: No, indeed, I think this is a case in which, in fact, it was discussed the other day.
42MS FLYNN: Yes, Your Honour.
43HIS HONOUR: Now the reasons why I will make this order that you provide a sample of saliva were discussed the other day. It is the seriousness of the offences and there are aspects of the offences that show the community need for such an order. For example, you left blood on the - in at least two properties, I think, and also there were fingerprints. So, these - so what will happen is you will supply a sample of saliva by using a cotton swab inside your mouth. If that is done satisfactorily that is the end of it. If it is not, if you do not co-operate a sample of blood may be taken by injection and therefore force used. I will sign that order now.
44Can either of you direct us to the particular section? Yes, it is s.48J. So the system may bring up alcohol exclusion in addition by that means.
45ASSOCIATE: Does it mean he is not to enter or ‑ ‑ ‑
46HIS HONOUR: Sorry?
47ASSOCIATE: Does it mean he is not to enter?
48HIS HONOUR: Not to enter?
49ASSOCIATE: A liquor place.
50HIS HONOUR: What does it say?
51MS FLYNN: There's different restrictions in sub-s.(2), Your Honour about licenced premises. I think what Your Honour was referring to would be an alcoholic exclusion ‑ ‑ ‑
52HIS HONOUR: Must not consume ‑ ‑ ‑
53MS FLYNN: An alcohol exclusion, must not consume. There does not appear to be a specific ‑ ‑ ‑
54HIS HONOUR: But I can impose that condition, I think; can I not? I can impose any condition that I think appropriate, I think. Could I have the report back please Fran? We might try and get the right one in first. There should be a condition that Mr Thomson does not consume alcohol for the duration of the order.
55MS FLYNN: Yes.
56HIS HONOUR: It can simply be that and I note that he will be breathalysed randomly under the order. So ‑ ‑ ‑
57MS FLYNN: Sorry, Your Honour. Sub-s.(4) might cover it. "The court may attach an alcohol exclusion condition to address the role of alcohol in the offending behaviour." So, I think that covers it. It just makes it complicated in sub-s.(2) for some reason but sub-s.(4) will allow it.
58HIS HODNOUR: The order, the condition should be that the - that Mr Thomson does, may not consume alcohol for the duration of the community corrections order.
59MS FLYNN: Yes, Your Honour. Maybe must not as opposed to may not, Your Honour, might be ‑ ‑ ‑
60HIS HONOUR: Must not. Yes, thank you. Is the judicial monitoring in there?
61ASSOCIATE: Yes.
62(Discussion between His Honour and Associate re printing.)
63MS FLYNN: Your Honour, I think I have led you into error in terms of the release date. It seems to be 12 months from 24 May which is when the accused was remanded. I think his release date would be 23 May which is after that judicial monitoring date.
64HIS HONOUR: I will be, I will be on leave. We will make it early in - 24 May, we will make it early in July.
65MS FLYNN: That will, of course, give Mr Thomson a chance to show some progress.
66HIS HONOUR: I might even make it mid-July. I am just trying to think of my dates. We will make it - we will make it around about 17 July - the date closest to that and it says Geelong County Court here. Mr Thomson will be living in Ballarat; will he not?
67MS WOODWARD: Yes, Your Honour he will. More appropriate Melbourne.
68HIS HONOUR: Well, I would permit him, what should happen is that I will get a report from the community corrections people a week or so before the date and I will probably get him to meet his judicial monitoring obligation by going to the office at Ballarat ‑ ‑ ‑
69MS WOODWARD: The Office of Corrections.
70HIS HONOUR: And we will arrange it by video link but you will be told what is necessary when the time comes.
71MS WOODWARD: As Your Honour pleases.
72HIS HONOUR: So, we will keep it, we will keep it as at the Geelong County Court.
73ASSOCIATE: I just changed it. Ballarat or not?
74HIS HONOUR: What did you change it to? I do not think it matters. What have you changed it to?
75ASSOCIATE: Ballarat.
76HIS HONOUR: No, it will have to be Geelong or Melbourne but he can go to the - he can go to the Ballarat office. So we will make it the Melbourne County Court, I think. Mair Street, is that right, M-a-i-r. That runs off Sturt Street; does it? Maybe near where the court is. What have we got there? Stand up please, Mr Thomson.
77There is just one other matter I need to deal with. I omitted to say that I have received in my sentencing reasons that a report has been received by Veronica Walsh of Community Corrections and that report states Mr Thomson to be suitable for a Community Corrections Order. Now, I need to tell you some more about the Community Corrections Order. You will - it will last for two years and it commences upon your release from prison.
78You must attend the Ballarat Community Corrections Office at Mair Street, Ballarat within two working days of release.
79The usual terms are that you must not commit another offence for which you could be imprisoned during the time of the order; if you did you would come back before me.
80You must comply with a regulation that prohibits you attending any appointment or program or work site affected by alcohol or drugs or in possession of any illegal drugs. You must report to and receive visits from Community Corrections. You must let Community Corrections know within two days of changing an address or job. You must not leave Victoria without getting their permission to do so. You must obey all lawful instructions by them. The additional conditions are that you perform 350 hours of unpaid work over that two year period as you are directed by Community Corrections. That you be under the supervision of a community corrections officer, that you undergo assessment and treatment for drug abuse, that you undergo assessment and treatment including testing for alcohol abuse, that you undergo mental health assessment and treatment as directed. That will, I am sure, require you to resume treatment at Ballarat Youth Mental Health Service and, of course, comply with medication.
81Now, you must come back, you must come back to court and see me on 24 July 2017 for me to assess your progress. I will likely get you to go to the office at Ballarat and they will deal with it on video link. You must not consume alcohol for the duration of the order. Now, do you understand all of that?
82OFFENDER: Yes, Your Honour.
83HIS HONOUR: Do you agree to it?
84OFFENDER: Yes, Your Honour.
85HIS HONOUR: All right, well, I will get my staff, both of them to take the order down to you; do you want that? And get you to sign it and I will sign it. Has to be signed front and back. Has he signed both sides? Thank you. These offences required a good deal more imprisonment than what you have got. Now, I have read that letter and you seem to be thinking about things in the right way but the test will be, the test will be when you leave prison and the test will be about not drinking and about complying with your treatment.
86OFFENDER: Yes, Your Honour.
87HIS HONOUR: I think you should be all right if you did that but if you do not, well I fear what would happen.
88OFFENDER: Yes, Your Honour, I understand.
89HIS HONOUR: Good. All right, well, good luck with it. Now, people have come to support you, is that, again today, they may speak to you for a brief time before you are taken back into custody. It must be brief though. I will remain here whilst that happens.
90OFFENDER: Thank you, Your Honour.
91HIS HONOUR: You can supervise it, Ms Woodward.
92MS WOODWARD: Thank you, Your Honour.
93HIS HONOUR: You can speak to him briefly. Right, good. It must be short, I am afraid. He needs to be taken into custody now. Good, thank you.
‑ ‑ ‑
0
0
0