Director of Public Prosecutions v Thorp

[2020] VCC 1969

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00709

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAYD THORP

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 December 2020
CASE MAY BE CITED AS:	DPP v THORP
MEDIUM NEUTRAL CITATION:	[2020] VCC 1969

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Farrell	Office of Public Prosecutions
For the Accused	Mr N. Rolfe	Rolfe Criminal Law

HIS HONOUR: 

1Kayd Thorp, after a sentence indication hearing you have now pleaded guilty to a charge of attempted armed robbery, threat to kill, theft charges, being theft of motor vehicles, and possession of a drug of dependence and related summary offences.

2The offence of attempted armed robbery is what brings this matter into this court.  The circumstances of that crime are unusual.  So too is the fact that the entire event was captured on CCTV footage and I have watched that footage many times.  Commonly, in an armed robbery or attempted armed robbery the weapon is displayed and utilised as a central aspect of the display of force.  Here, you had a knife which fell out of your clothing when you, for some unknown reason, assaulted the victim in the back car park of the supermarket at which the victim was working and had just finished his evening shift. 

3The knife that fell was then put back into your pocket and was not again taken out.  The attempted armed robbery happened at a quite separate time in a relatively extensive and bizarre exchange between you and the victim at the victim's car in the car park area.  When you came to demand money from him, he was able to show you that his wallet was empty, so indeed no money was stolen.

4You did issue, or say, a very frightening threat to him as you left in order to stop him going to the police.  Thankfully, that did not matter in a sense that the victim did go to the police and the threat was ineffective.  The real point is that you issued that threat and committed the crime of threat to kill.  By committing that crime, given your prior criminal history, you become a violent offender for that offence.  That means I must consider the principal sentencing purpose becomes protection of the community and I must consider cumulation differently in respect of that offence if I impose imprisonment than other offences and I must apply the principles of cumulation and totality differently to you because you are a violent offender as defined.

5Having examined all the circumstances of this crime, together with the victim impact statement which was read out today, indicating just how frightening the events were and how it left its scar of post-traumatic stress disorder upon the victim, although that is thankfully abating. Taking into account all those matters I remain of the view, as I expressed in the sentence indication hearing, that this attempted armed robbery is not at the highest end of offending of this kind; it does remain serious.

6In respect to the prior matters, because you have a prior conviction for threat to kill back in 2012  you become a violent offender and protection of the community becomes a primary sentencing purpose.  But you also, Mr Thorp, have a concerning criminal history and you were on a community corrections order at the time that you had only just begun a couple of months before.  You have other prior matters that have seen you imprisoned in Queensland and in Victoria.  There is an unusual aspect to that, in the sense that you commenced your offending a little later, that is while still young but a little later than many others with a history like yours, that is at 24.  Up to that point you appeared to be a law-abiding working man in a solid relationship.

7You and your family were the victims of a home invasion that ended tragically in one of the perpetrators being killed.  You were charged with murder but that matter resolved to recklessly cause serious injury and a charge of perjury.  You spent 273 days in custody for that offending and ultimately received a suspended gaol term.  The home invasion episode in your incarceration was said to be the beginning of your fall into drug use and offending.  Both drug use and offending have been a pattern since that time, that is since you were 24 years old. 

8After the home invasion you headed to Queensland. You committed offences there, including attempted armed robbery, as I said, which attracted gaol terms with non-parole periods.  You were on the community corrections order as noted.

9Your prior convictions are concerning.  They elevate the need for the protection of the community from you and elevate the need for weight to be given to deterrence to you.  What really that means, Mr Thorp, is this is the time to stop.  The attempted armed robbery occurred in August of 2019.  You have now done 461 days in custody that are attributable to this offending.  The circumstances of prison through that 461 days or a significant part of it since March this year are much more onerous than might otherwise have been the case in the past due to the restrictions imposed as a response to the COVID-19 pandemic.

10It was submitted at the sentence indication hearing and again by adoption of those submissions that the time you spent in gaol, either alone or with the community corrections order, would meet all the sentencing purposes.  The prosecution have always contended that although a sentence indication hearing was consented to, that a gaol term with a non-parole period was the proper sentence given the assessment of the seriousness of the offending that the Crown made.

11Your plea of guilty in the circumstances is a matter that attracts significant mitigatory value.  As I said earlier and restate, proving a nexus between the weapon and the robbery would have been a difficulty for the prosecution, but also the plea of guilty in these days of suspended jury trials is also deserving of significant mitigation.

12Mr Thorp, your rehabilitation is not forlorn but I am very guarded as to whether you can entirely rehabilitate.  You will need help and supervision when you are released.  I am told that you have a friend that you are in a relationship with who is law-abiding and lives in Geelong.  That will act as a protective factor to you.  She is not interested in drugs or crime, she does not come from Bendigo and you will be separated from associates that you mixed with at the time of this offending and earlier that you say means that you would find it difficult to break from the patterns that I described.

13It seems to me that your reform can occur at the same time as further punishment by being on a community corrections order.  I have answered the question posed in the matter of Boulton[1] as to whether the sentencing purposes could not be properly be satisfied or met by a community corrections order and could only be met by further gaol. 

[1]Boulton [2014] VSCA 342

14My view of that matter was expressed in the sentence indication hearing that the term of imprisonment that you would serve, together with a community corrections order, could serve all sentencing purposes, including the added punishment of being on a community corrections order in the community requiring you to do programs and be under supervision, together with a rehabilitative capacity that such an order will have.  But as to whether you do reform and stay out of trouble and keep this community corrections order, it is entirely up to you.

15If you falter and do not deal with your problem with drugs or with your mental health problems or your ABI, the chances are you will breach this order, you will come back before me, and be assured that the merciful outcome that has resulted here in you being released will not be repeated.

16As I say, you were assessed by the Office of Corrections and notwithstanding your past history, including your past poor history on community corrections orders, there was a cautious indication that you were suitable for a community corrections order.  You have it seems developed a better understanding of your needs for appropriate medication.  You will, and I emphasise again, require help to ensure there is no relapse into drug use.  You should take up assessment and treatment for drug addiction.  Overall, the community will be best served if you are under supervision and do the programs to address your offending.

17I propose to impose all the conditions on a community corrections order that were recommended by the community corrections assessment, including judicial monitoring.  Doing the best I can in respect of all these offences, for the crime of attempted armed robbery – just bear with me for a moment, please.  I just want to do this in a proper order and I have left the indictment – apologies.

18While that is occurring, there must be a licence disqualification period, Ms Farrell.  Does the licence disqualification operate from the announcement of the order or can it be backdated to the time that he went into custody?

19MS FARRELL:  I can't recall the question as to backdating it but I believe it can be, but there is a minimum of 12 months for the drug driving, but there is also a mandatory disqualification upon conviction for stealing the vehicles.

20HIS HONOUR:  The car, yes.  All right, thank you. 

21MS FARRELL:  He also had a significant history in relation to driving matters.

22HIS HONOUR:  Yes, I understand.  Thank you.  In respect to Charge 1, the attempted armed robbery, you are convicted and sentenced to 12 months' imprisonment.  In respect to Charge 2, the threat to kill, you are sentenced to six months' imprisonment.  In respect to Charge 3, you are sentenced to six months' imprisonment; Charge 4, six months' imprisonment; and Charge 5 and Charge 6, an aggregate sentence of one month imprisonment.

23On the unlawful assault on the victim, Mr Greene, you are sentenced to one month imprisonment.  In respect of the remaining summary offences, twice drive while disqualified, careless driving, possession of poisons, dealing with the proceeds of crime, drug driving, they will all be punished by a community corrections order which I will refer to in a minute. 

24The sentences on indictment and the unlawful assault have attracted prison sentences.  The 12 months imposed on the attempted armed robbery will be the base sentence.  Two months of Charge 2, the threat to kill, and one month of Charge 3, the theft of the ute, will be cumulative upon each other and upon the attempted armed robbery, which is a sentence of 15 months. In addition, all other gaol sentences are concurrent.

25In addition, on all those charges, Charges 1 to 5 and the summary offence of unlawful assault, together with the other summary offences, are all punished by a 12-month community corrections order.  It has the following program conditions.  You are to undergo assessment and treatment for drug addiction, assessment and treatment for your mental health problems.  You are to do offender behaviour programs as directed by the Office of Corrections to deal with your risk of reoffending.  You are to be under the supervision of the Office of Corrections and you are to submit for judicial monitoring.  The date will be Monday 3 May 2021 at 9.30 am.

26It has been reckoned that you have done 461 days on remand for these offences.  That figure having been reckoned, I declare that it is part of the sentence that I have just imposed, indeed it is each and every day of the prison terms that I have just imposed.  I will ensure this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have done the gaol term that I have just imposed, that is 461 days you have done is the 15 months that is required.

27Further, on Charge 2 you are declared a violent offender and I will enter that declaration into the records of the court.  Taking a licence from someone who is attempting to reform by getting further work which might settle him down is a big step, but it has to happen in your case.  What I propose to do is impose a licence disqualification period of 15 months that starts from the day that you were taken into custody.  That will allow you to be eligible to apply to get a licence once you are released.  I think there is some value in you being able to secure a licence and therefore lawfully drive and therefore be able to secure employment and the like in the current environment.  But again, that is lenient.  If you do not get a licence and drive and are caught, you will breach this order and you will come back and you will go back to gaol.

28The prosecution have applied for forfeiture and disposal of various items.  I intend to make those orders.

29With that, does that cover everything as far as the prosecution is concerned, Ms Farrell?

30MS FARRELL:  Yes, Your Honour.  Just the s.6AAA.

31HIS HONOUR:  Yes, thank you very much.  Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a term of three years and eight months and a minimum term of two years and two months.

32MS FARRELL:  As Your Honour pleases.

33HIS HONOUR:  Thank you.  Mr Rolfe, anything required?

34MR ROLFE:  No, Your Honour.

35HIS HONOUR:  Thank you very much.  Mr Thorp, what would normally happen is that we give you a bit of paper down the end of where you were in the back of the court, you would sign that.  It is a community corrections order.  You have signed them before, not that that has made you keep the community corrections order but this one better.  Do you understand?  I am going to go through what conditions are on each and every community corrections order and the ones that apply especially to you.  Do you understand?

36OFFENDER:  Yes, Your Honour.

37HIS HONOUR:  The conditions that are mandatory are, and most importantly, you are not to commit a further offence within the time that this order is operative, that is 12 months.  Do you understand?

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  It is important that you cooperate with the Office of Corrections from here on.  It is mainly going to be by phone and the like but you have to cooperate.  Now that includes if they need to take photographs to identify you or the like, but you cooperate with that and anything else under the sentencing regulations.  You must let them know if you change your address or your place of work. You cannot leave Victoria without getting permission to do so. You have to receive visits from them and you have to obey all lawful directions from them.  Do you understand all that?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  Normally I would say you have to report to the Office of Corrections within two days, that is down at Geelong, personally, but that cannot occur, but you have to report to them within 24 hours of your release on a telephone number that they have provided that I am going to provide you and you will get time with your lawyer to make sure you have got it in your head: 5215 8500.  He has got that written down on the form and you will need to know what it is.  The minute you get to Geelong tomorrow you ring them. Do you understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  The conditions that apply to you especially are those that I went over.  You have to be assessed and treated for your drug problems.  You have to be assessed and treated for your mental health problems.  Go and see the GP, get a mental health plan, and do it.  You have to do programs that might assist you with your offending behaviours, help break that cycle, that the Office of Corrections will direct.  You have to be under supervision so they will need to check with you, probably weekly at minimum, maybe more.  You just have to be on the end of the phone or go and see them if that all lightens up with the restrictions being removed. 

44Finally, you have to come back to court on 3 May 2021 and I will see how you are going.  I do not want to hear anything other than you have turned the corner.  Do you understand?

45OFFENDER:  Yes, Your Honour.

46HIS HONOUR:  As I say, you would normally sign that.  What needs to happen is for you to say that you consent to that order being made, so do you consent?

47OFFENDER:  Yes, I do.

48HIS HONOUR:  Thank you.  I will sign that order and note that Mr Thorp consented, and hopefully things can be sorted out reasonably quickly and you are not just dumped on the side of the road outside the prison, at the MRC, but something is sorted out. We will end this link so that those sorts of things can happen.  I am going to head away, Mr Rolfe, but I will give you a moment, or my staff will, to talk to Mr Thorp directly.

49MR ROLFE:  Thank you, Your Honour.

50OFFENDER:  Thank you, Your Honour.

51HIS HONOUR:  Thank you for your assistance, Ms Farrell.  Thank you very much for your considerable assistance throughout this matter.

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