Director of Public Prosecutions v Thorpe
[2018] VCC 1353
•27 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00717
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| COLLEEN THORPE |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 16 August 2018 | |
DATE OF SENTENCE: | 27 August 2018 | |
CASE MAY BE CITED AS: | DPP v Thorpe | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1353 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Koori Court – pleaded guilty to one charge of armed robbery – one summary charge committing an indictable offence whilst on bail – co-accused involved – soft target -liquor department of supermarket – shop assistant stabbed with syringe – Victim Impact Statement revealed victim distressed about being infected from syringe - negative blood tests – unable to work – hypervigilant – emotionally and physically drained. Offender now 21 years of age – early removal from mother - neglect – early exposure to drug and alcohol - suffered severe violence from male partners – post traumatic disorder - 2 young children removed from her care – escalating earlier offending - imperative that she has treatment in a residential facility
Cases: Bugmy v R [2013] HCA 37
Sentence 12 months with new parole period resulting in an extra 5 months to be served on existing sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S Locke | OPP |
| For the Accused | Ms C Blakeney | Greg Thomas |
HER HONOUR:
1 Colleen Thorpe, you have pleaded guilty to one charge of armed robbery. This occurred on 29 November 2017. It is a very serious offence for which the maximum penalty is imprisonment for 25 years. You have also pleaded guilty to a summary offence of committing an indictable offence whilst on bail. The maximum penalty for that offence is three months imprisonment.
The Offending
2 On the evening of 29 November you went to Liquorland in Brunswick accompanied by a man pushing a trolley. The sales assistant, Dominic Goulding saw you go to the spirits section in the store and start loading 1 litre bottles of Jack Daniels whisky into the trolley. The number of bottles raised his suspicions and he approached you and picked up two bottles from the trolley, asking if you needed assistance. You yelled at him, "How dare you pick up the alcohol, you have no right."
3 Mr Goulding put back the bottles and walked away, still keeping an eye on the situation. You then dropped a bottle on the floor and yelled at another staff member that he should have picked it up for you instead of standing there doing nothing.
4 Mr Goulding was worried that the situation might escalate and told you that due to your behaviour, you would not be served. He took hold of the trolley, preventing you from leaving with it. You approached him and started hitting him on the wrists and arms.
5 Your companion left the store and gestured for you to go too, but by this time you were standing in front of Mr Goulding's face waving your fist at him. He tried to push you away and you said, "I'm going to get you." You continued to try and wrestle the trolley away from him so you could leave with the alcohol.
6 Mr Goulding noticed that you were holding something in your fist and shortly after that he realised it was a syringe. You were brandishing it like a weapon and he released the trolley.
7 You tried to leave with the trolley and Mr Goulding grabbed it again. You both continued to struggle over it. You then grabbed a bottle from the trolley and lunged at Mr Goulding as if to strike him with it.
8 This part of the offending was recorded on video footage taken by a customer in the store, Craig Campbell, who witnessed the first few moments of the incident, and your very aggressive behaviour can be clearly seen on it.
9 Mr Campbell also heard Mr Goulding shout that you had stabbed him.
Mr Campbell could see something in your hand but could not see what it was. He heard Mr Goulding shout, "Is that a syringe?" and he saw you ask your companion to grab the trolley but he walked out of the store without you.
10 Another witness, a Coles employee, heard the commotion and approached Liquorland and saw you and Mr Goulding arguing with each other with you holding an uncapped syringe. He told Mr Goulding to just let you go. You then left with the trolley of alcohol.
11 Mr Goulding realised his thumb was sore and he then noticed blood and two needle pricks near his thumb. He was distressed at the prospect of contracting an infection from the needle and he went to hospital that night for blood tests.
12 Mr Goulding's blood tests fortunately revealed that he had not contracted any infection or disease from the needle.
13 Another witness saw you and your companion pushing a trolley, “filled with a lot of bottles," as he put it, quickly through the car park. Because they were not in bags he became suspicious and he followed you in his car. He watched as you approached a silver sedan parked in a residential driveway and he tried to note down the registration number, but most of it was obscured by a person standing in front of the car. You picked up a bottle and threatened to throw it at the witness's car. He drove to Liquorland and told staff what he had seen.
Post-Offence Matters
14 You were interviewed about the offending at the Dame Phyllis Frost centre on 29 December 2017 and you made partial admissions. By this time you had been remanded in custody for other unrelated offending and you have remained in custody since then.
15 On 23 July this year you were sentenced at the Melbourne Magistrate's Koori Court to 18 months imprisonment with a non-parole period of 10 months for a consolidation for several sets of charges including the other offending which had led to your arrest on 17 December.
16 Pre-sentence detention of 317 days was reckoned as already served and I'm told that your earliest possible release date for that matter will be on 11 March 2019.
Personal Background
17 You are a young woman who has experienced a sad background marked by removal from your mother at an early age, followed by multiple foster placements, exposure to neglect and abuse and very early exposure to drugs and alcohol and to family violence.
18 Your early adult life has been dominated by drug use, severe violence at the hands of male partners, with gradually escalating levels of offending and resulting prison experience.
19 Despite this history of deprivation there are indications that you could respond well to long term drug treatment and change your life for the better.
20 You are a Barkindji woman, now aged 21, born in Mildura and raised in various parts of Victoria. Your mother had difficulties with alcohol abuse and you were taken from her aged about three and placed in a number of foster care and residential care placements. You have good relationships with your mother and your siblings, but your mother was at the time of the plea hearing also in custody serving a sentence.
21 You began using cannabis and alcohol at the age of 11 and by 14 you were using ice. At 16 you took part in a drug rehabilitation program but did not find it helpful. By then you had given birth to your first son when you were 15. The father of the baby was a much older man and was violent towards you.
22 Your second son was born two years ago when you were in custody. His father was a very violent man and the baby was taken from you at the age of two weeks. You had lost track of your elder son until last year when DHHS had been poised to introduce him to you at the time of your stay at Bunjilwarra, a rehabilitation service for young Aboriginal people.
23 You are still very keen to have your children returned to you, and this is now a strong motivation for you to be successfully rehabilitated.
24 Your schooling effectively ended at Grade 5 although you made some further attempts to engage at primary school. However, early drug use and then your pregnancy at the age of 14 ended that opportunity.
25 Alongside the unstable life of your adolescent years, there was a series of episodes of offending, seeing you in the Children's Court from the age of 14 facing numerous charges including robbery, car theft, causing serious injury and other violent offences. That pattern of similar offending continued on more than one occasion and eventually, in the adult court, in 2016 you were sentenced to time served imprisonment in combination with a Community Correction Order, to be repeated six months later for a new set of dishonesty offences.
26 As Ms Locke, who was prosecuting, pointed out the current offences represent an escalation in the seriousness of your offending and you have now been in custody for about eight months, which is your longest experience of imprisonment.
27 A contributing factor to this continued offending has been that each of your intimate partners over the years has subjected you to violence and your most recent partner is currently in prison.
28 When you were released from prison in January 2017 you reported to Corrections as required by the Community Correction Order which had been imposed, but almost immediately after that you were badly assaulted by your partner. He stabbed you with a knife and hit you with a cricket bat and a golf club and subjected you to other assaults as well.
29 You told a counsellor at Jesuit Social Services that he prevented you from attending appointments and from answering phone calls, and he kept you locked inside the house for days at a time. The assaults were serious enough for you to be treated in hospital. When you were discharged, you moved out of your home into temporary safe housing. All of which you found very traumatic and distressing. Several agencies supported you at this time and you kept sporadic contact with them. You tried to engage in counselling, but the demands of dealing with these extremely severe family violence issues prevented it.
30 This was the background to the offending you committed in February and March 2017 and again in April and June which saw you remanded in custody in June until September that year when you were released on bail. You then spent just over two months at Bunjilwarra and left there on 28 November.
31 It was intended that you spend six months there, but you found it a struggle for various reasons including bullying that occurred and the fact that you were one of the older residents and you found it hard to fit in.
32 The current offending occurred the next day and on 17 December you were remanded in custody.
33 You have been using your time in custody well, working in the prison laundry in a responsible position five mornings a week and attending courses in the afternoons. Other mitigating factors include your early plea of guilty which has avoided the need for a trial and has brought the matter to finalisation relatively quickly. I also accept that it is an indication of remorse which was also apparent from the way you engaged in the process of the Koori Court during your plea hearing. For that you are entitled to a discount on your sentence.
34 You are still a youthful offender and so your prospects for rehabilitation are to be given added importance even though the crime you committed was a serious one. You have a long life ahead of you and two children whom you would like to be able to care for yourself. This seems to be your main reason for wishing to cease drug use, according to what you told Dr Tang, the neuropsychologist who assessed you just over a year ago.
35 Dr Tang performed a number of tests and concluded that your intellectual functioning is in the low average range with some weaknesses including poor verbal comprehension, disorganisation and poor memory. Dr Tang explained that her findings were consistent with test results of people who have suffered from domestic violence and trauma and she does not think there is any acquired brain injury.
36 These findings are useful because they may help those supporting you in any services provided to assist in your rehabilitation. This might include psychological counselling as well.
37 Ms Cidoni who is a psychologist saw you soon after Dr Tang's assessment and she observed a number of very concerning problems which she summarised as unstable mood, anti-social traits, schizoid and paranoid function, anxiety and post-traumatic stress disorder. This led Ms Cidoni to conclude, and here I am quoting from her report:
38“Her only hope is treatment in a residential facility where her multiple needs can be addressed in a stable environment. She says she wants to stay off drugs and alcohol and be with her children, but she is immature, impressionable and vulnerable to negative influences”.
39 As I said that was a year ago, and you have spent quite a long time in custody since then. You have had time to settle down and cease using substances and to be safe from the violence of male partners. You have taken on responsible work.
40 Even before your present period in custody you had spent time in custody or detention starting when you were only 15. At the time of the plea hearing several of your family were in Dame Phyllis Frost too, and you say this makes you feel less lonely.
41 Apart from this time in detention you have also spent some time, although not extended periods, in residential rehabilitation without success and as a result it seems that you have little confidence in this process. This seems to arise partly from your belief that because you are now free of drug use such treatment is not necessary. It may be that if you can develop more insight into the reasons for your offending and for your previous drug use you might be better placed to engage in treatment.
42 You elected to appear before the Koori Court in this case and to take on the challenge of that experience. This involved being called upon to engage with the respected elders who questioned you about your actions and from your reaction it would seem that that process was not easy for you. I observed that you did engage in the process and you did not try to evade an obligation to take part. Rather, you demonstrated you have accepted responsibility for what you did and are sorry for it.
43 Your counsel, Ms Blakeney submitted that an appropriate sentence would be a combination prison term and Community Correction Order, largely on the basis of your youth and the importance of your rehabilitation. She also submitted, and I agree, that your moral culpability for the crime can be considered as reduced because of your deprived background.
44 Authority for that proposition is to be found in the decision of the High Court in the case of Bugmy[1] at paragraphs 43 and 44 of that decision.
[1] Bugmy v R [2013] HCA 37
45 The prosecution submission was that a combination sentence of this type was not within range because of the seriousness of the offending against a background of previous offending and drug use as I have already described. I note that the offending and breach of the CCO in early 2017 occurred against a background of severe violence at the hands of your then partner and the consequent traumatic and distressing repercussions of that violence.
46 Another factor contributing to the seriousness of the offence involves the effects of the crime on the victim. Mr Goulding provided a victim impact statement which he signed in May just short of six months since the crime. He stated:
“Every day, the thought that I might be infected with a life altering disease entraps my mind”.
47 Fortunately, he was not infected, as I said earlier, and he would have had that confirmed, I expect, soon after he signed that statement. He said his moods were all over the place, he had difficulty leaving the house and spent most of his time in bed or staring at the computer. When he does go out he feels anxious and he decided to take a break from working as he felt uncomfortable there. He had to move back in with his parents as he had no income and could not pay rent and bills. He avoids his friends because of his anxiety and is hypervigilant. He feels emotionally and physically drained.
48 Your actions amounted to a serious attack on this man and he has suffered from it for many months. As a member of the public he is entitled to protection from such crime and that is an important matter for me to consider in sentencing you.
49 The principle of totality is also an important consideration in the case of a young person. The sentence I impose today should be served part concurrently so that your time until your eventual release is not crushing.
50 A prison term will protect the public from the risk of further offending by you for the duration of your sentence but for the longer term public protection must be achieved by some other means as well.
51 In your case, residential drug treatment is essential for your rehabilitation as indicated by Ms Cidoni and indeed by every other aspect of your circumstances. That would be the best way of achieving public protection but it cannot be put in place now and will have to be considered further at a later time.
52 At present it can only be said that your prospects for rehabilitation are quite guarded but the motivation to be with your children is a strong one as I said earlier and because you are still a young woman you have many years ahead of you when you could be caring for them or at least helping to do so.
53 I understand that you have some scepticism as to the efficacy of residential treatment because of past experience, but perhaps with more maturity, after serving a sentence that attitude will change. Because of your youth I place additional weight on the importance of your rehabilitation, hopefully by means of the residential treatments that I've talked about after your release.
54 Will you stand now please, Ms Thorpe.
55 I sentence you to 18 months imprisonment for the charge of armed robbery and one month for the summary charge to be served concurrently with the sentence for Charge 1.
56 I fix a new non-parole period of 12 months. By my calculation that means you will serve about five months beyond your expected release date on 11 March 2019 in relation to the sentence imposed by the Magistrate's Court in July.
57 When you are eligible to apply for parole, you could also instigate an assessment to see whether you are suitable to go to Odyssey House subject to a place being available there. That will be up to you and those assisting you at that time.
58 The prosecution has applied for a forensic sample of saliva to be obtained pursuant to s.464ZF of the Crimes Act.
59 MS BLAKENEY: An order has been made in that regard in the Magistrate's Court. I've provided a copy of that order to my friend.
60 HER HONOUR: I see. Is that application withdrawn then?
61 MS LOCKE: It is, Your Honour.
62 HER HONOUR: All right, thank you.
63 The last thing I need to say, Ms Thorpe, is that if you had pleaded not guilty I would have sentenced you to imprisonment for two years and six months with a non-parole period of 18 months.
64 HER HONOUR: Are there any other matters, Ms Locke, that I've neglected or omitted?
65 MS LOCKE: No, Your Honour.
66 HER HONOUR: Ms Blakeney?
67 MS BLAKENEY: No, Your Honour
68 HER HONOUR: Thank you. Just take a seat thank you for the moment, Ms Thorpe. Ms Blakeney, could you tell me who's in court to support Ms Thorpe today?
69 MS BLAKENEY: Ms Thorpe's mother, Bronwyn Thorpe is supporting her.
70 HER HONOUR: All right, I'll wait in court. Perhaps she would like to approach her daughter and have a word with her, before she's taken away. I'll wait here while that's done.
71 MS BLAKENEY: Thank you, Your Honour. If I might be excused from the Bar table.
72 HER HONOUR: Yes, certainly. Time to go now, Ms Thorpe. Thank you. Thank you officer, you may take Ms Thorpe now.
73 MS BLAKENEY: Thank Your Honour.
74 HER HONOUR: Adjourn the court now please.
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