Director of Public Prosecutions v Thomson

[2013] VCC 1806

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAXWELL THOMSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	21 November 2013
CASE MAY BE CITED AS:	DPP v Thomson
MEDIUM NEUTRAL CITATION:	[2013] VCC 1806

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Shwartz
For the Accused	Mr L. Docherty

HER HONOUR:

1Maxwell Thompson, you have pleaded guilty before me to two charges of criminal damage and one charge of aggravated burglary.  The facts underlying this offending are as follows.

2This offending occurred on 1 October 2011 in the early hours of that morning.  The previous evening, you were at home with your co-accused Tracey Saunders, with whose daughter you were in a relationship.  You were then 18.  Ms Saunders had been in a relationship with the victim Ronald Welsh for 18 years and three children were born of the relationship.  You had apparently gone to live with Ms Saunders about two months previously, by which time she had separated acrimoniously, it would seem, from Mr Welsh.

3On that evening, Ms Saunders decided to go around to see Mr Welsh at the house he was looking after and you accompanied Ms Saunders, according to the prosecution opening, at her behest.  First, you and Ms Saunders visited Mr Welsh's home in Bright Street, California Gully, where you assisted Ms Saunders to carry out some of her belongings from the house.  Due to the animosity it appears was being expressed in some way, you fly kicked the letterbox, damaging the top and bending the pole, those actions underlying Charge 1 on the indictment, criminal damage.

4You all then left the house at Bright Street and went to the house at Carl Street in White Hills, where Mr Welsh was house sitting.  You and Rachel Welsh, the victim's daughter, went through the driveway and lifted the roller door.  At this time, you told police you heard bickering in the house and went to the front door, Tracey Saunders having already gone inside.  Mr Welsh by this stage had locked himself in the bathroom.

5When you arrived at the front door, you could see inside and that Ms Tracey Saunders was banging on the bathroom door.  She asked you to go and grab something.  You went and got a saucepan or a pot from the car and returned, giving it to Saunders, who was still at the bathroom door.  Mr Welsh then came out of the bathroom and Ms Saunders threw a can of Jim Beam at him, and it appears some struggle between Mr Welsh and Ms Saunders then took place.  You said to Mr Welsh, according to what you told police, "you better pull up or I'm coming in" and Mr Welsh then gave you what you described as a death stare.

6Apparently Ms Saunders was screaming and ripping at Mr Welsh's shirt and then picked up a glass fronted picture frame and threw it so it hit the wall.  You then,  apparently at some urging from you, left the house.  Your actions in entering the house underlie Charge 2, aggravated burglary.

7As you left the house, you threw a can of drink through a window of the house, breaking it and causing $258 worth of damage.  These actions underlie Charge 3 on the indictment.

8I now turn to your personal circumstances.  You are now 20 years of age and have had a very difficult personal history.  You are one of two children born to your mother, who then went on to have two further children with another partner.  By the age of ten, for reasons you still do not understand, you had been handed over by your mother to the care of Department of Human Services and thereafter were placed in foster homes.

9Over about four and a half years, you were sent to between five and ten placements ranging from Melbourne to Bendigo.  For a period of several months just before this offending, you had been homeless and in that time had tried to mend your relationship with your mother, staying with her for four to five weeks but clashing with her and then leaving again.

10You had been living with Ms Saunders for about two months, having formed a relationship with her daughter Jessica.  It would appear you started living in Ms Saunders' home almost as soon as the relationship with Jessica began and you came to view her in some ways, and rather understandably, as a mother figure.  It was on that basis that you became involved in this offending.  I should make the point that despite this very difficult childhood, you had at the time that you engaged in this offending, no previous convictions.

11Following this offending, you continued to live with Ms Saunders, then you left the house for a time for about six to seven months, at which stage you evaded apprehension by police, staying with a family friend in Bendigo.  You then returned to the Saunders household for a couple of months after you were arrested in February 2012.  You then had a dispute with Mr Saunders and went to Melbourne, then returned again, at which time you and Jessica had a baby daughter.

12On 26 January of this year, you were engaged in further very serious offending involving a dispute with another woman with whom you had been friends and her friend, you understanding that they had issued threats against your baby daughter.  According to the police summary which is handed up to me during the plea, you engaged in violent, threatening behaviour, stabbed tyres of her car, went around to her house, sent her threatening messages and were ultimately charged with threatening to kill, unlawful assault, criminal damage, threats to inflict serious injury, using a carriageway to harass, possessing a knife and possessing other prohibited material.

13You were arrested on 29 January and spent a month in remand.  When you were bailed, you returned to live with Ms Saunders.  Ultimately you were sentenced by a Magistrates' Court on 10 September this year to a 15 month community-based order with conditions that you attend for assessment and treatment for drug and alcohol issues, mental health issues and to undertake an anger management program.  You have not offended since.

14Ms Saunders was also dealt with for this offending and was ultimately sentenced by His Honour Judge Pilgrim to an effective term of three months' imprisonment and placed on a community-based order.  It appears that she was released on parole but has since re-offended and is now back in gaol.

15You, in the meantime, have separated from Jessica, or it appears Jessica has removed herself from her mother, taking your daughter with her, you not having seen her for some months now, she being unhappy with her mother's behaviour and also telling you that she wanted no further contact with you until you had straightened yourself out.

16It appears that you continued in education until partway through Year 10, but on leaving school have undertaken a number of labouring, storeman and baking work, but are now unemployed.  You informed me in court that you love work and that you would prefer to be back in employment.  You have not been in any further trouble.  You are residing at Ms Saunders' house with her son and appear to be running the household there.

17The offending that you engaged in that has brought you here before this court is extremely serious. Aggravated burglary is an extremely serious offence, as can be seen from the maximum penalty of 25 years that attaches to it. That is one of the highest maximum terms attached to any criminal offences under the Crimes Act.

18Ordinarily a person who engages in barging into someone's house where there are aggravating circumstances such as an assault taking place or another person is present, can only expect to be dealt with by imprisonment, immediate imprisonment, and indeed this was the course that was urged upon me by the learned prosecutor for very understandable reasons.

19However, you are still a young offender for the purposes of the legislation and prospects and aspects of rehabilitation have a larger part to play in the sentencing exercise before me than if you were older.  This is not a factor that is always going to be there for you, Mr Thomson.  The older you get, the less sympathy the courts are going to have.  I am impressed by the fact that you had managed to remain crime free despite the difficulties in your personal life up to the time that you offended in the way that I have described.

20I have also material in front of me which indicates that you have had some mental health issues along the way and indeed shortly before moving into Ms Saunders' house, it appears you were being attended to at a psychiatric ward in the local hospital and have attended on several occasions upon mental services.  There was also an indication that you had been engaging in cannabis use, which you reported as making you feel paranoid.

21If cannabis use at this stage is making you feel paranoid, Mr Thomson, let me inform you that is a very dangerous sign.  It means that if you continue to use cannabis, you are likely to develop a psychiatric illness, all right?  The cannabis around today is extremely strong.  Most of it comes from hydroponic crops.  The THC content is incredibly high and the courts are seeing more and young people coming before it plagued with psychiatric illnesses such as schizophrenia which, it appears, have been unleashed by their use of a drug such as cannabis even though it is a regarded as a drug that is fairly low down the scale of seriousness.  For many people, particularly young people, it is not a mild drug at all, it is an extremely dangerous drug and if you are having mental health issues following use of cannabis, that is a very clear sign you should not be using it or you are going to end up with a long term, really difficult and very difficult to treat psychiatric illness.

22Your counsel has informed me that since your arrest in January of this year, you have not used cannabis and it appears you have been progressing well on the order.  That means that you are now 20 years old, you have appeared before the courts twice.  You appear to have made progress, even though you engaged in subsequent offending.  I note it is my view and it appears to be conceded by the prosecution that the dominant player in this whole offending exercise was Ms Saunders.  You were accompanied in court by friends who were supportive of you and appeared, when I was speaking to you during the plea hearing about the inadvisability of you keeping too much contact with Tracey Saunders, to be in complete agreement with that.

23You are obviously a young man with some promise.  You have managed to stay out of trouble.  You have dealt with homelessness.  You have not developed a major drug problem.  You like work.  You have got a good future in front of you as long as you stay out of trouble.  You are already on a community corrections order but it seems to me in the circumstances, given the fact that you were very open with police in your record of interview, that you entered a plea of guilty at committal stage, that you are remorseful for your offending, that you are still young and in all the circumstances the best way I should deal with you is by placing you on a community corrections order and I have had you assessed for suitability for such an order.  The report has indicated you are suitable and that indeed according to the testing carried out by the community corrections assessing officer, you are at low risk of re-offending.  I therefore propose placing you on a community-based order in relation to each of these offences.

24Now, this order will run concurrently.  It will start from today.  It will run for a period of 18 months.  I need to explain to you what the conditions are.  During that 18 months, you must not commit another offence punishable by imprisonment.  If you do, you will be brought back in front of me.  Mr Thomson, I will have my sentencing remarks at hand, I will remember exactly what I have said to you and the chance that you were given.  If you breach the order, I will re-sentence you on this very sentence offending and you will probably be looking at gaol.  Do you understand that?

25You must report to the Office of Corrections within two working days of receiving this order.  That is, by Tuesday next week.  You must report to and receive visits from the community corrections office.  You must notify the community corrections office of any change of address or employment within 48 hours.  You may not leave Victoria without permission of the community corrections officer.  You must obey all lawful instructions of the community corrections office.  Do you understand?

26In addition, I am going to order that you perform 200 hours of unpaid community work.  You are to be supervised.  You are to receive assessment of and treatment for drug use and you are to undertake programs designed to reduce re-offending.  That is, programs that will help you stop offending.  Hopefully, there will be some attention paid to the fact that you need assistance with reading and writing, which you told me about in court today, and that there is some attention paid to assisting you to gain employment.  If you love working, that is tremendous benefit and a tremendous quality to have and it is something you should be doing.  Apart from anything else - I hate to talk to you as if you are six years old - it will keep you out of trouble, all right?  You do not need to keep offending in this way.

27I will not order anything such as an anger management program.  It seems not to have been a feature of this particular offending, but I have to say Mr Thomson the way you behaved in January of this year, just as an aside, I hope you are attending to the anger management problem.  That sort of outburst will not be tolerated by the courts and if you engage in that again while you are still on this order from me, you can expect all sorts of trouble, do you understand?

28I am going to order that you appear before me at 12 month intervals.  So I will be keeping an eye on you, young man, do you understand?  Yes, are you prepared to enter this order?  Yes, thank you.  We will just get the order drawn up.

29Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a period of detention in a Youth Justice Centre for a period of 18 months.  I should also make the comment that I am satisfied, given that you have good prospects of rehabilitation, that the best interests of the community are served by you remaining out of gaol at this stage, attending to the various problems that contributed to this offending and keep you on the path of rehabilitation.  Thank you.

30MR SHWARTZ:  And the 464ZF.

31HER HONOUR:  I will grant it.

32MR DOCHERTY:  It's not opposed, Your Honour.

33HER HONOUR:  I have ordered that police take a forensic sample from you.  That will be a swab from your mouth and I need to tell you, Mr Thomson, that if you resist police in taking this, they may use reasonable force in obtaining the sample.  You will get a document telling you where to go for that.  Thank you.  Is there anything else that I need to attend to?

34MR DOCHERTY:  No, Your Honour.

35HER HONOUR:  That is it?  Yes, thank you very much.  We will adjourn to 10 o'clock tomorrow morning.  Thank you, I thank counsel for their assistance in this matter.

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