Director of Public Prosecutions v Thorne
[2016] VCC 984
•27 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 16-00621
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JAMES WILLIAM THORNE |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 June 2016 | |
CASE MAY BE CITED AS: | DPP v Thorne | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 984 | |
REASONS FOR SENTENCE
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Subject: Attempted Armed Robbery
Catchwords: Attempted Armed Robbery – Milk Bar
Cases cited: Boulton v The Queen [2014] VSCA 342
Sentence: 19 days imprisonment with CCO for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Cameron | |
| For the Accused | Mr J. Williams |
HER HONOUR:
Offence
1 James William Thorne, you have pleaded guilty to one charge of attempted armed robbery, the maximum sentence for this offences is 20 years' imprisonment.
Circumstances of Offending
2
The circumstances of your offending were set out in the prosecution opening which will form part of the sentence. Your offence was committed on
14 November 2015 at approximately 9 pm when you attended a milk bar at 940 Station Street, Box Hill where you brandished a knife and asked for money.
3 The victim of your robbery, Tracy Zhang, refused your request for money and called out to her daughter to call the police. Meanwhile you went to the door and pushed on a piece of paper attached to the door with your left hand locking it. You then demanded that Ms Zhang open the door which she did when you agreed to drop the knife. In fact you handed the knife to her and she opened the door with a key. You then ran south from the store along Station Street towards Box Hill Central.
4 When you were apprehended and interviewed by the police you denied committing any offence. However further enquiries by the police revealed that shortly prior to the offending you had been wearing clothing which matched the description given of the offender's clothing by Ms Zhang. In addition, examination of the piece of paper seized from the shop door revealed a print of your left palm.
5 Your explanation for offending on this occasion was that you h ad used ice and consumed alcohol the night before and you needed money. Before moving on to your personal circumstances it is appropriate to note that although there was no victim impact statement in this case, it is not disputed that your actions would have been terrifying for Tracy Zhang and her daughter. Despite this, Ms Zhang showed great composure and courage in the way in which she dealt with the situation. Indeed if Ms Zhang had not acted in the way in which she had, you could be facing an even more serious charge than you are here today.
Personal circumstances
6
Your personal circumstances were outlined to the court by your counsel and further details were contained in a psychiatric report from Dr Kevin Ong and a letter to the court from your father, Chris Thorne. You were born on
23 November 1993 so you are 22 years old. Your parents separated when you were about four, you have two sisters and five stepsisters. You left school after completing Year 10 and completed an apprenticeship in metal fabrication.
7 Your father's letter reveals that you showed signs of manic depression in your teenage years and that you received treatment for short periods. You also suffered from symptoms of anxiety and depression from the age of 16, and you have a history of cannabis use between the ages of 15 and 16 and binge drinking from the age of 17. These factors are likely to have played a part in your prior offending.
8 You have appeared in court on three previous occasions. At the Ringwood Children's Court on 18 April 2012 for a charge of robbery. At the Dandenong Magistrates' Court on 12 December 2013 for careless driving. Then more recently, on 1 April 2015, again at the Dandenong Magistrates' Court for criminal damage.
9 On each occasion you were dealt with mercifully by the court. You received good behaviour bonds with no convictions and small fines. On the last occasion there was also a condition that you engage with the Step Up program.
Psychiatric Opinion
10 Dr Ong's diagnosis was that you have a history which is consistent with anxiety disorder characterised by panic attacks. Whether you receive a custodial sentence or a non-custodial sentence you would benefit from ongoing engagement with a psychologist experienced in the management of anxiety disorders. Given your panic disorder, you would find a term of imprisonment more onerous than a prisoner without such a condition.
Defence Sentencing Submissions
11 In his sentencing submissions your counsel urged the court to place you on a Community Corrections Order. In mitigation of your offending he relied on the following matters. You:
· had pleaded guilty at an early stage and you were remorseful for your offending;
· were 21 years old at the time of the offending and as such you were a youthful offender so that rehabilitation was a significant sentencing consideration; and,
· had limited priors.
12 Your counsel also relied on Dr Ong's opinion that due to your anxiety disorder you would find incarceration more onerous than a person in normal health. In addition to emphasised that since your incarceration you have made substantial efforts towards rehabilitation.
13 With respect to these efforts towards rehabilitation, your counsel tendered a number of reports concerning your progress on the CISP program. These reports reveal that while you have been on the CISP program you have not re-offended, you have engaged in treatment and counselling. You have been working full time for the last six months doing metal fabrication and you have established a serious and stable relationship with Paige Abbot who is pregnant with your child. The child being due in December this year.
14 In his letter to the court your father confirmed that you had been making efforts to change. He had spoken to you at length about your offending and what you needed to do to ensure it did not happen again. Most importantly he said that you have shown remorse for your actions and expressed your desire on numerous occasions to apologise to the victims.
15 Ms Abbot also provided a reference for you in which she confirmed that you had expressed regret and remorse for your actions. She believed that you had grown from your experience and that you had now realised that there was more to life than “drugs, alcohol abuse and breaking the law”.
16 You wrote a letter to the court and gave evidence. The substance of your evidence was that you:
· had been doing all you could in the last six months to turn your life around;
· were well aware of the serious nature of your offence;
· had been going through a difficult period in your life at the time you committed the offence, and that you are remorseful for your offending. You also gave evidence that you were working hard to keep in regular contact with your family and you no longer associated with your drug taking peers.
17 One of the most significant aspects of your evidence was that during the 19 days you had spent in custody, you had observed other offenders who had “been in and out of custody for years”. Basically you had come to the conclusion that this was not a path you wished to follow. You described it as “not being me at all”.
Prosecution
18 The prosecution position with respect to sentencing was that given the serious nature of your offence and the relatively short time you spent in custody, you should spend a further period in custody followed by a Community Corrections Order.
Sentencing Remarks
19 However I accept that the period of time you spent in custody has had a profound effect on you and that it has significantly influenced your efforts at rehabilitation. You are a relatively young offender and while I have taken into account the importance of general deterrence for crimes such as this, I consider that it is in the interests of this community that you continue your rehabilitation in the community.
20 In the guideline judgment of Boulton,[1] the Court of Appeal noted that a Community Corrections Order is intrinsically punitive depending on the length of the order and the nature and the extent of the conditions. It is capable of being highly punitive. They also point out that a Community Corrections Order can provide substantial deterrence on account of these punitive effects.
[1] [2014] VSCA 342.
21 Taking into account your plea of guilty for which you are entitled to a discount, together with all the mitigating circumstances referred to by your counsel, I have determined that a period of imprisonment of 19 days which you have already served, together with a Community Corrections Order for a period of two years is an appropriate sentencing disposition. I had you assessed for a Community Corrections Order and you were found to be suitable. There will be conditions including work conditions on that order.
22 On the charge of attempted armed robbery you are sentenced to 19 days' imprisonment to be released on a Community Corrections Order for two years. The Community Corrections Order will contain the following special conditions. Supervision, unpaid community work of 200 hours, drug and alcohol assessment and treatment, mental health treatment, and offending behaviour programs. I mark on the court record that the 19 days is to be reckoned as time served.
23 Now in relation to 6AAA, I would have sentenced you to a period of 12 months' imprisonment followed by a two year Community Corrections Order.
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HER HONOUR: Now you have been given a number of chances by the court system. This order is not like the good behaviour bond where you were ordered to attend the Step Up Program and you did not attend it and nothing much happened. If you do not comply with the Community Corrections Order, and if you do not comply with the conditions and commit another offence or do not do your community work or any other of the matters that are set out in that order, it is highly likely that you would be re-sentenced at this court to a term of imprisonment. Do you understand that?
OFFENDER: I understand Your Honour.
HER HONOUR: It is basically called a last chance, do you understand that.
OFFENDER: Yes I do, yes.
HER HONOUR: All right you can sit down. I might have mentioned burglary at some stage, I meant to say attempted armed robbery. I actually am sitting in a burglary trial at the moment, I am about to give a charge in that trial. So I am afraid the slip of the tongue was very much down to that factor. There was a disposal order was there sought by the Crown?
MS CAMERON: Yes Your Honour, just in relation to the knife.
HER HONOUR: I have signed that order, that was in relation to the knife I presume.
MS CAMERON: Yes Your Honour.
HER HONOUR: I did include - mental health treatment was included as well. Your counsel will take the document to you and if you could sign it if you agree to be placed on that Community Corrections Order.
MR WILLIAMS: That's been signed Your Honour.
HER HONOUR: Thank you. Thank you Mr Abbey.
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