Director of Public Prosecutions v Thornton
[2016] VCC 20
•25 January 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01736
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLE THORNTON |
---
| JUDGE: | HIS HONOUR JUDGE MEREDITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 January 2016 |
| DATE OF SENTENCE: | 25 January 2016 |
| CASE MAY BE CITED AS: | DPP v Thornton |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 20 |
REASONS FOR SENTENCE
---Subject: Armed Robbery and other offences
Catchwords: Theft of cash and approximately $8,800 in
cigarettes from a supermarket.
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Manning | |
| For the Accused | Mr R. Thyssen | Anne Valos Criminal Law |
HIS HONOUR:
1Cole Thornton, you have pleaded guilty to charges of armed robbery, theft, possessing drugs of dependence, namely cannabis and heroin and resisting an emergency worker whilst on duty. The maximum penalties for these offences respectively are 25 years' and ten years' imprisonment, a fine of five penalty units, imprisonment for one year and five years.
2Tendered on your plea is a summary of prosecution opening. Also, CCTV footage of both your armed robbery and the theft offence were also tendered. These were exhibited and will remain on the court file. They are available for later inspection. Having regard to this, I will only comparatively briefly summarise the circumstances of your offending.
3On Friday 19 June 2015, you drove a stolen grey Volkswagen Golf to the Warringa Crescent Shopping Centre. I make it plain that I am not sentencing you for the theft of motor vehicle. That is not an offence that is before me.
4You parked this vehicle in a rear carpark near an alley way. You left the vehicle facing diagonally towards Warringa Road with the headlights on and waited for the IGA to open at 7 am.
5At 7.24 am, you entered the store. You were wearing a hooded jumper, cap, one glove and had a blue and green handkerchief covering your face. You also were carrying a large red and white striped bag.
6At that time, your victim Therese Norman, was serving an elderly customer at her register. You jumped over the register counter and approached your victim. You stood over her and followed her as she retreated backwards. She saw a knife in your hand and estimated it to be approximately 30 cm long.
7You said, "This is an armed robbery" whilst pointing the knife at her stomach. You moved forward and yelled at her, "Open the fucking till". She complied and you moved in front of her to access the register. She had stepped back and was screaming whilst you proceeded to move cash and eventually the tray from the register.
8She fled with other staff to a cash office where they locked the door and activated the alarm. You were placing money and a register tray into your bag. You also grabbed a large number of cigarette cartons. Some of these were placed on a counter and some spilled to the floor. You collected the trays, you jumped back over the counter and ultimately left the store.
9You ran from the IGA with your bag and drove away in the waiting Golf vehicle. Police patrolling the area saw the Golf while you were driving. However you were able to evade them.
10In total, $854.25 was taken from the register and the value of the cigarette packets stolen by you was $8,729.16. There was an additional cost of replacing five cigarette trays to the value of $75.
11At the time of your offending, your victim told investigators that she felt shocked, scared and angry. That she feared for her life when she saw you with the knife.
12On Saturday 4 July 2015, at about 3 pm, you entered the Kensington Railway Station. At this time, your second victim, Ms Awando, was sitting alone and waiting for a train to arrive. You loitered near here for about 30 seconds before you took her phone and fled. You ran from the station, jumped the fence, back on to the train platform, crossed the tracks, climbed onto the opposite platform, jumped another fence and ultimately fled.
13On Thursday 16 July 2015, acting on information received, police attended at the Open Door facility in North Melbourne. You exited the front entrance of this facility and approached the front passenger door of a nearby taxi which was stopped in traffic.
14You entered the taxi saying, "Go, go". Two police officers quickly followed. They opened the taxi door and were yelling, "Police, police. Get out of the car". You were told you were under arrest.
15You pushed police members away and attempted to push the taxi driver out of his seat. Police attempted to drag you from the car as you were throwing punches and trying to kick them.
16You placed your feet on the taxi's windscreen and braced yourself against the police members who were trying to pull you out of the car. You were struggling with members and swearing whilst kicking at the windscreen.
17At one stage, you put the car into drive and reached for the steering wheel to try to get the vehicle to move. Further police officers approached the vehicle and pulled you out of it and onto the road. You continued to struggle before eventually you were handcuffed and cautioned.
18When you were searched, police located a Ziploc bag containing 28 grams of cannabis and a piece of foil containing 2 grams of heroin and $1,660 in cash. Also in a backpack were 14 packets of cigarettes. A further search of you revealed that in your underwear, two broken syringes were kept which were wrapped in Glad Foil. When interviewed by police, you gave a no comment interview.
19So far as the drugs that were found in your possession, namely the cannabis and heroin, the prosecution accepted these were for your own personal use as do I. You have now served since your arrest on 16 July 2015, 193 days by way of pre-sentence detention and I will make this declaration.
20A victim impact statement was read at the plea from Therese Norman. In it, she speaks of the upset and anxiety that your offending has caused her.
21Your armed robbery was accompanied by a degree of planning. You were disguised, wore one glove and carried a large bag to facilitate your removing of items. You had left your vehicle in a manner that would assist in your getaway. You used a knife, pointed this weapon at the stomach region of your victim and cigarettes to a total value of around $8500 were taken. The combined effect of these factors underpin the seriousness of your offending.
22Your resistance to arresting police was ongoing and violent. You were throwing punches and trying to kick them. Deterrence of you and others who would seek to offend in the same manner as you need to be adequately emphasised in my sentencing of you.
23To your credit, you indicated at an early stage that you would plead guilty to your offending and I will reduce your sentence appropriately as a result of this. Your plea of guilty has facilitated the course of justice and does indicate some remorse on your behalf.
24You have an extensive prior criminal history for offences of dishonesty, drug use and other matters. These however have all been dealt with in the Magistrates' Court and you have only received one penalty previously in this Court which was for comparatively minor offending. You do not appear to have a prior history which involves offences of violence to any large degree.
25The offending on which I must sentence you, namely the armed robbery, appears to be a concerning escalation. Previously the longest sentence which has been imposed on you was in the vicinity of 16 months imprisonment.
26So far as your personal circumstances are concerned, you are now 30 years of age. Much of your background appears in two psychological reports which were tendered on your plea.
27In summary, your father now lives in Williams Landing, having retired. He previously worked as a painter and garbage collector. He is now on a pension and experiences some difficulty with his hands. Your mother lives in Wallan and is a cleaner in a nursing home.
28Your parents separated when you were approximately three years of age and you were raised by your mother until you were 16 or 17. You had an older brother who tragically died as a result of a drug overdose in about 2007.
29You have a Year 10 level education at Buckley Park Secondary School but found academic study difficult. You have had employment as a car detailer, worked in a car wash, worked as a hand at the Royal Melbourne Show and have done some fruit picking.
30More recently, you worked with your mother's partner, undertaking fencing work and I am told this is the longest job that you have held. This was however now, some time ago.
31You have an entrenched history of drug use. You started using cannabis when you were about 13, ecstasy from about 15, stimulant type drugs from around 16, heroin from around 16 and were drinking alcohol at around 14.
32Your motivation for this offending was to secure funds related to your stimulant drug use which was significant at the time.
33A previous assessment undertaken in 2012 of you by Mr Jackson, a psychologist, speaks of past diagnoses of paranoid schizophrenia, bipolar disorder and depression.
34Sensibly on your plea however, it was conceded that a sufficient link between these conditions and your offending conduct cannot however be established for the purposes of Verdins' case.
35Also you are described as having a borderline intellectual level of functioning. Mr Jackson, at his report, in regard to this says,
"Whilst Mr Thornton does have significant cognitive deficits, they are not in the areas of attention or executive functioning. Therefore it is unlikely that they would have a major primary impact in terms of offending behaviour such as poor impulse control, poor decision making, et cetera. Although they would have a secondary impact."
36Again sensibly, it is not contended that a sufficient link exists between your level of functioning and your offending for the purposes of Verdins' case.
37Whilst these factors may provide some explanation for your offending and I have had regard to them in a general way, your drug use in particular does not mitigate your offending behaviour.
38In custody, I am told that you maintain phone contact with your father and ultimately hope to live with him on your release. Further for reasons unrelated to this offending, you are a protection prisoner and I have taken this into account.
39Tendered on your plea was a psychological assessment of Ms Elizabeth Warren. Amongst other things she states,
"At the time of the offending, Mr Thornton was suffering from an active drug dependency. The drugs of dependence were both heroin and ice and he regards the ice as having the most detrimental effect as it lead to psychosis. He described the psychosis as auditory hallucinations and thinking that he was a target of a conspiracy with many people plotting to harm him. He thought further that those plotters could read his thoughts which enabled them to predict his movements. This made him hypervigilant, paranoid and over reactive. Other effects of the active drug dependency were that he felt unable to resist the compulsive cravings. So he would almost do anything to try and obtain funds to buy the drug, although he did not think he would ever progress from threat to actual use of a weapon such as a knife".
40As I have earlier stated, whilst your drug abuse and addiction may go some way to explain your offending, they do not in these circumstances mitigate it.
41Further in the report, Ms Warren states,
Mr Thornton has a high risk of reoffending until he has successfully rehabilitated from his drug dependencies. In the short term, his prospects for successful rehabilitation are low, given the chronicity of his relapsing and associated reoffending. The longest drug free period post-release has been one month. He acknowledged that he often relapses on the same day he leaves prison, notwithstanding pre-release confidence and determination that he will not. This examiner considers the regime most likely to offer any chance of success would be for him to be released to residential rehabilitation where he can practice graded release into the community".
42Further Ms Warren states,
"You impress as a man who will need staged or institutionalised assistance into the foreseeable future, unless there is an unanticipated and almost inexplicable but possible recovery. It would be inexplicable based on his history and the extent and number of conditions under which he labours. He ponders the reason that he can remain relatively drug free in prison compared with in the community and he agrees that residential post-release program has most potential to help".
43I am of the view that your rehabilitative prospects are linked to your abstinence from drugs, in particular stimulant drugs and at this stage of your life, I am guarded about the prospects of your successful rehabilitation.
44Whilst there is hope, to date you do not appear to have been ready to commit to abstinence from drugs and this appears to be critical in you living appropriately within the community.
45You express a desire to enter a residential drug treatment program on completion of your sentence and I urge you to do this.
46Balancing all matters then as best I can, I sentence you as follows. On Charge 1, three years. Charge 2, three months. Charge 3, a fine of $100. Charge 4, a fine of $200 and Charge 5, nine months.
47Charge 1 of three years will be the base sentence and I cumulate one month of Charge 2 and there months of Charge 5 on the base sentence and on each other. This makes a total effective sentence of three years and four months' imprisonment and I fix a non-parole period of two years and six months.
48I indicate that but for your plea of guilty, I would have imposed a sentence of four years and two months and required you to serve a term of three years prior to you being eligible for release.
49Is there any issue with making the disposal and compensation orders,
Mr Thyssen?50MR THYSSEN: No, Your Honour.
51HIS HONOUR: I will make those orders then. I will declare the pre-sentence of detention which was announced earlier in the reasons ‑ ‑ ‑
52MR MANNING: One hundred and ninety three days, Your Honour.
53HIS HONOUR: Thank you for that. Are there any further orders required?
54MR MANNING: No, Your Honour.
55MR THYSSEN: No, Your Honour.
56HIS HONOUR: Thank you. Do you wish to speak to your client at this stage?
57MR THYSSEN: If I could have a quick word?
58HIS HONOUR: Thank you. Have a seat, Mr Thornton. I will let Mr Thyssen have a word with you.
59MR MANNING: Your Honour, I have those ancillary orders to hand up, if it would assist.
60HIS HONOUR: Yes, thank you.
61MR THYSSEN: Thank you, Your Honour.
62HIS HONOUR: Thank you, if there is nothing further then, Mr Thornton can be taken into custody. Thank you. All right, those orders are done. If there is nothing further then, we will adjourn until 10.30 tomorrow. Thank you both for your assistance.
63MR THYSSEN: Thank you, Your Honour.
64MR MANNING: As the Court pleases.
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