Director of Public Prosecutions v Thorpe-Young
[2023] VCC 2473
•2 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
AP 23-0657
AP 23-0655
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND THORPE-YOUNG |
---
JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2023 | |
DATE OF SENTENCE: | 2 October 2023 | |
CASE MAY BE CITED AS: | DPP v Thorpe-Young | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2473 | |
REASONS FOR SENTENCE
---
Catchwords: Appeal against 42 month sentence with 27 month NPP from Magistrates Koori Court – RCSI, Assault police, Burglary and dishonesty offences, Contravene CCO – ACJR – History of trauma and intergenerational trauma – Appeal allowed –
Sentence: 15 months imprisonment in combination with 18 month CCO - reside at Wulgunggo Ngalu - PSD 406 days
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E. Yates | Victorian Aboriginal Legal Service |
| For the Respondent | Ms J. Malobabic | Office of Public Prosecutions |
HIS HONOUR:
Raymond Thorpe-Young, you have appeared in the Koori Court in its appellate jurisdiction in respect of your appeal from the sentence imposed by the Magistrate on 29 May this year at Melbourne. There are, in fact, two appeals. AP-23-0655 relates to the contravention of a CCO imposed on 19 August 2021 and the resentencing on the original charges. The net result of that matter is that you were sentenced to 10 months' imprisonment, 184 days declared as PSD, and the sentence was to be served cumulatively on other sentences imposed that day.
AP-23-0657 relates to matters where a total effective sentence of two years and eight months, cumulative upon the 10 months, making a total effective sentence of three and a half years' imprisonment, was imposed. A non‑parole period of 27 months was set. Pre‑sentence detention was 280 days on that matter.
The matters relating to AP-23-0657 involve burglary and other dishonesty offences, along with the most serious matter before me which involves assault of a police officer and the discharge of the officer's firearm, which underpins the charge of reckless conduct endangering serious injury.
I will note for sentencing purposes, I accept that of the 200 hours ordered to be completed pursuant to the community corrections order you completed 85.
You have a serious criminal history, albeit one that commenced in your mid‑20s. Your history is reflective of your vulnerability to substance abuse, mental health infirmities, and their connection to you acting erratically and outrageously when affected by substances. I accept that there is a nexus between all of the matters before me and your history of trauma, drug misuse and psychological ill‑health.
There were a number of summaries filed across both appeals that adequately set out the relevant facts of the matters. I do not propose to summarise the facts herein. I was also assisted by the respondent's submissions dated 15 August and the respondent's outline of prosecution Submissions on Sentence, as well as the defence Outline of Submissions.
In terms of gravity of offending, prosecution and defence submissions both focused on the reckless conduct charge, as was appropriate. It is a very serious matter, deserving of a gaol term, and to that proposition you make no complaint, as I understand it, and you have been serving a gaol term for over one year.
There are a number of matters in relation to the reckless conduct endangering serious injury and related charges that I accept in mitigation.
I accept a causal link between your post-traumatic stress disorder and other mental infirmities and the manner in which you responded when intercepted by police.
I also accept that you were subject to profound childhood trauma and dysfunction that has shaped your responses throughout life and specifically on the occasion in question. I also accept that this profound childhood disadvantage and trauma led to early exposure to illicit substance abuse and you were significantly intoxicated at the time of the offending.
In relation to drug use, based on your early exposure and the relationship between early childhood trauma and your subsequent self-described drug addiction, I accept that moral culpability in relation to intoxication is reduced in the sense described in the R v Brooks and McKee.[1]
[1][2003] VSCA 16 at [13].
You are not to be sentenced for the effect on the dynamics of what unfolded at the time of the discharge of the weapon, by the intervention of others and the presence of a dog that became agitated. The combined effect of these factors operating on you, together with the circumstances at the time, reduces the moral culpability to be attached to what would otherwise be considered extremely grave offending.
I take into account the duration of the incident and the chaotic circumstances, largely driven by yourself, but yourself being under the influence of substances and subject to those other personal factors which I have touched upon, in particular psychological functioning. I accept that you were in the grip of addiction at the time of the commission of the offences and your life was unravelling psychologically, again impacted by early and lifelong trauma.
I will turn now to your personal circumstances and I do not propose to summarise those circumstances in fine detail. There is an Aboriginal Community Justice Report (ACJR) filed in the matter which does go into great detail. There is also a psychological report of Ms Cidoni which also goes into detail. I accept the personal matters set out in both those documents. These matters were also summarised helpfully in Ms Mildenhall's defence Outline of Submissions dated 11 August 2023.
I will touch on some aspects personal to you. You are the youngest of three children, and your father was described by you as an incredibly violent person and this was borne out during the Sentencing Conversation, and also with reference to the ACJR.
You are the youngest of three children. You have a brother Stephen Thorpe, or Stevie, who also participated in the Sentencing Conversation and is a positive public figure in the Aboriginal community, working in particular at Dardi Munwurro, I think it was, and your sister Loretta who lives in 24-hour home care. An acquired brain injury and other issues affecting your sister were expanded upon in the reports and during the plea.
I don’t propose to go into difficult personal matters and matters that have caused trauma and pain in your life to any greater extent than is necessary for these sentencing reasons. Your mother Anne also participated in the Sentencing Conversation and you have a close relationship with her. I was told that your mother has had her difficulties in her life and has also been a victim of violence and it is, in your case Mr Thorpe-Young, difficult to separate early childhood trauma from what is also described as intergenerational trauma, that has no doubt impacted both your parents and your wider community over generations.
You described going into care at the age of five as putting a ‘big full stop’ into your life and you articulated bravely some aspects that were referred to in the Community Justice Report at the Sentencing Conversation, which was obviously a very difficult exercise for you and for other family members present.
I accept those matters; the abuse, physical and sexual abuse suffered by you whilst in care. I accept that you were exposed to family violence, principally at the hands of your father, but also successive stepfathers, and the impact upon you, significant impact upon you, of events you witnessed in relation to your sister. I also accept your exposure to significant drug abuse in the family home as a child.
Despite these disadvantages and disruptions, and despite an education which involved attendance at several primary schools due to a dysfunctional family environment, you have done well academically. You completed a Certificate III in Vehicle Servicing and a Certificate IV in Nursing through RMIT. You were inspired to get into the healthcare system due to your sister's struggles. You commenced a Bachelor of Nursing through Deakin University in 2011. You dropped out due to the passing of your grandmother in 2012 and drug use escalated thereafter. You have been very open about your descent into drug use and the criminal milieu associated with that usage.
You have had years of employment. In 2010 you worked at VAHS, Victorian Aboriginal Health Service, in Fitzroy. You worked there for 12 to 18 months as an Aboriginal health worker, program manager. You also worked in men's mental health where you remained for six months. You then accepted a job at VACCHO in Collingwood. That position became redundant in 2012. More recently you have worked as a scaffolder and this was due to the positive intervention of Mr Haggar in your life. Unfortunately, due to escalating drug use you were unable to maintain that most recent employment.
The effects of trauma throughout your life has been evidenced by your experience of depression and anxiety. You have a history of suicidal ideation and suicide attempts. Ms Cidoni has diagnosed you with post‑traumatic stress disorder, depression and borderline personality disorder, along with stimulant use disorder. She described your drug use as having a self‑medicating function. It is a dysfunctional response to excessive anxiety and emotional pain stemming from the deep psychological trauma of your experiences.
A brief summary of your life's achievements would be lacking without mention of your contribution to Aboriginal art. I was told that during your period of remand you completed hundreds of artworks. You have sold art through The Torch program and you have a well-regarded and recognisable profile through that program. You stated in the ACJR that you express your culture through your paintings. Examples of your works were provided during the hearing. It is of a very high standard.
You have used your experience and connections to community and your understanding of history and culture to the advantage of others whilst in custody. You established an Aboriginal Advisory Board at Fulham Correctional Centre, instigating regular meetings with the First Nations population. You are very interested in advocacy and you clearly have the ability to engage in positive advocacy for First Nations people, and particularly people who have experienced custody.
You facilitated the 2023 NAIDOC Week activities, including organising a broadcast on 3CR. I was told that that particular program on 3CR has offered you some work when released from custody and, as I have already noted, and as was evident during the Sentencing Conversation, you have some real skills in that area of communication.
I do not propose to go into any greater detail into your personal circumstances. The Aboriginal Community Justice Report was detailed and thorough and I have made mention of the report of Ms Cidoni also, and it makes harrowing reading; not just your life experiences, but the experiences of your family and community, and my acceptance of those matters without stating those details in these sentencing reasons in no way diminishes the importance of those matters in the sentencing exercise.
Koori Court Sentencing Conversation
Turning to your participation in the Koori Court hearing. You engaged extremely well in difficult circumstances. The Sentencing Conversation was conducted by Gunditjmara Elders and respected persons, Uncle Trevor Gallagher and Aunty Thelma Austin. Uncle Trevor commenced the conversation by endorsing the ACJR which was filed in your matter. Uncle Trevor stated that, 'If you didn't know Ray before, you know him now', making reference to the report.
It is a very useful document. It contained a lot of very sensitive material that was extremely difficult for you to convey to the report writers. It was even harder for you to revisit those traumas during the Sentencing Conversation, but this you did in front of your mother, your brother and a courtroom of strangers. It was very difficult for you and you get credit for your participation, and I also accept that it shows genuine insight on your part as to the pathway out of drug addiction and relapse.
You said, 'I can only heal the past by healing myself. I've reflected on that myself and hung on to it like a piece of string'. You told us that you have not got a junior record and the significance of that was you carried trauma through your teenage years, and you explained how it affected you and continued to affect you. It precipitated descent into drug use when significant figures in your life passed.
Uncle Trevor reflected on your early life, and your father. He said he knew your father and he said that you had no chance in life, but, of course, you have many achievements to your credit. As I have noted you are a fine artist and a hardworking artist, and you have also shown a capacity for work and a capacity for education in the past. You are a Gunditjmara-Gunai man, with connections to Yorta Yorta and Palawa mobs also.
The Sentencing Conversation complemented the ACJR and vice versa. Each informed the other. Both were cathartic and therapeutic experiences for you. Traumatic, dealing with raw emotions and pain, but also steps on the path to healing. There is also remorse evidenced in the Sentencing Conversation and I accept remorse from those references in Ms Cidoni's report that have been referred to.
One area of submission related to the application of Verdins limbs 1 to 4 and the reduction of moral culpability. There were submissions made in relation to the application of Bugmy and these were not disputed, but in relation to limbs 1 to 4 of Verdins some analysis needs to be engaged in. In Ms Mildenhall's outline of submissions on your behalf, paragraphs 45 and also 49 - 45 in relation to Bugmy - Ms Mildenhall relied on these passages from Ms Cidoni's report:
'He has had significant adversity during his life where his childhood was disrupted by family violence between his parents and his eventual uplift and placement into out-of-home care. These events had a profound impact on his wellbeing and interrupted normal psychosocial development. In residential care he commenced heavy drug abuse. He also endured sexual abuse as a child and he was exposed to crime where these experiences changed his life trajectory. These are linked to maladaptive coping in adulthood and chronic daily problems.
'The effects of this experience include low self-esteem, fear, distrust, shame, anger, withholding emotions from others, high vulnerability, distress, trouble controlling and expressing emotions and having inappropriate reactions to situations. His low self-worth, shame, guilt, self-esteem and self-image contributed to feelings of powerlessness to change his circumstances. Known impacts result in adult mental illness like PTSD, substance abuse disorders, risk taking, impulsivity, absconding, self-harming behaviours, poor educational outcomes and poor adaptive behaviour.'
In relation to limbs 1 to 4 of Verdins, Ms Mildenhall in written submissions submitted that moral culpability should be reduced due to a connection between diagnosis and offending and again referred to Ms Cidoni:
'His personality dysfunction is associated with problems related to thinking, with dramatic overly emotional and unpredictable cognitions and behaviours. He feels frequently overwhelmed and he struggles to manage day-to-day living. This can also contribute to over-reactivity in certain situations and his tendency to self-medicate with drugs. He is currently in drug remission whilst abstinent in custody. While intoxicated symptoms are worsened which is a major risk factor in the offending.
'These factors collectively present a causal link and would have reduced his ability to control and understand the wrongfulness of his actions, to think clearly or make calm reasoned decisions and judgments.'
Ms Cidoni went on:
'His results were indicative of major problems with emotional regulation. He indicated that he tends to have a negative secondary or non‑accepting reaction in times of distress. He also has difficulty concentrating and/or accomplishing tasks when experiencing negative emotions. He has difficulty controlling his behaviour when experiencing negative emotions. He also lacks awareness of his emotional responses and struggles to regulate himself when upset. He also endorsed a lack of emotional clarity.'
In the prosecution's submission the application of Verdins in relation to moral culpability was not accepted and in written submissions the prosecution point to one of the same passages -at paragraphs 11 and 22 of the respondent's submissions dated 15 August that same passage was referred to. Just for clarity I will repeat it. The prosecution noted that Ms Cidoni diagnoses Mr Thorpe-Young with PTSD, depression, borderline personality disorder and stimulant use disorder:
'Mr Thorpe-Young has major problems with emotional regulation, difficulty controlling his behaviour when experiencing negative emotions, lacks awareness of his emotional responses and struggles to regulate himself when upset. The impact of Mr Thorpe-Young's diagnosis [and this is the prosecution's submission]. The impact of Mr Thorpe-Young's diagnosis on the commission of the offending is complicated by his drug use. The extent to which moral culpability will be reduced is a matter of degree, taking into account that Mr Thorpe-Young was disinhibited by his intoxication on methylamphetamine and Ms Cedoni finds that he's currently in drug remission whilst abstinent in custody.
'While intoxicated symptoms are worsened which is a major risk factor in the offending. These factors collectively present a causal link and have reduced his ability to control and understand the wrongfulness of his actions to think clearly or make calm reasonable decisions and to judgments.'
That is the same passage that was referred to by Ms Mildenhall. Before I come back to this point of Verdins I will note that the prosecution also accepted that your strong practice and connection to culture whilst on remand, including having completed over 200 paintings, establishing the Aboriginal Advisory Board at Fulham, facilitating NAIDOC Week activities and spreading cultural awareness out of a strong sense of cultural obligation, are all matters in your favour and to your credit. The prosecution submit these achievements also militate against findings in relation to Verdins limbs 5 and 6 and I accept that as a general proposition, both of those aspects. Much to your credit, but also it does not provide a lot of support for Verdins limb 5.
But getting back to limbs 1 to 4 and the prosecution point about drug use. It is difficult to unravel the contribution of mental impairment toward offending and the combination of intoxication, particularly where each of these factors interacts with each other and other relevant factors. There is a relationship between psychological function and intoxication that runs in both directions. The impact of childhood trauma and early exposure to drug use and violence is also related to these factors. So too is intergenerational trauma.
I find that the combined effect of all of these factors provides a strong causal nexus with the offending the subject of AP-23-0657. The combination of these factors provides significant mitigation of moral culpability. The combined effect of the whole is greater than the sum of its parts and this is due to the relationship between these factors. By that I mean the effect they have upon your life in combination. The effect of these factors upon each other (for example Ms Cidoni’s observations that drug use exacerbates mental dysfunction; the connection between drug use and early trauma and it being used as a coping mechanism in relation to depression and anxiety).
There is also a relationship between these factors that goes to the extent each of them were operating upon you at the time of the offending. For this reason, due to this relationship between factors and the effect one factor has upon another, the combined effect being greater than the sum of its parts, it is not possible to tease out each factor as a sentencing consideration, to tease out drug use, mental impairment, Bugmy factors, intergenerational trauma, and attribute specific weight to each factor.
By way of further illustration, when one has regard to Bugmy mitigation, and I am having regard to the case of Roosevelt Newton, which is a pseudonym, wherein the authority of Sabbatucci is referred to and at paragraph 37 an extract from Sabbatucci reads as follows:
'Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.'
Sabbatucci went on, as does Roosevelt Newton, referring to Bugmy and also Terrick, and citing the passage:
'An offender's background may explain the offending conduct, though whether it provides an excuse is a separate question. Background circumstances may affect the assessment of moral culpability and in addition, or in the alternative, may require some moderation of general or specific deterrence or the need for denunciation or may bear upon prospects of rehabilitation.'
Now, there is a nexus between those propositions and drug use and that is borne out by those references through the ACJR and Ms Cidoni's report about experience in out-of-home care and in juvenile facilities where
you were exposed to drug use and you were introduced to drug use. There is also a relationship between the effects of those matters, that trauma and disadvantage, and the psychological functioning. It is not of much assistance to consider the Bugmy factor in isolation of other related factors.
I have also referred to intergenerational trauma. Uncle Trevor noted during the Sentencing Conversation, with reference to himself, that it was not easy growing up as an Aboriginal boy in Victoria. He then related his experience in relation to people in authority, particularly people in the courts and people wearing uniforms, such as the police. I took this experience to be in part a product of intergenerational trauma, as well as the ongoing impacts of colonialism, including racism, whether it be insidious or direct or institutionalised or enshrined in legislation.
For Aboriginal people of this jurisdiction there is a shared experience and it is an experience of dispossession, of massacres, some of which were referred to in the ACJR as having specific relevance to you and your community and family, of cultural destruction and the mission experiences, which involved governmental control of Aboriginal lives through generations right up until the late 60s. It is a unique experience.
You have direct experience of these traumas and I will not go into great detail from the Aboriginal Community Justice Report orally now, but in my revised reasons there will be reference to those intergenerational traumas, whether it be accounts of massacres passed on through the generations or the mission experience.
Historic Record
The ACJR related a brief summary of relevant Gunditjmara and Gunai-Kurnai history.
You are descended from strong Aboriginal men and women from both nations, many of whom have been significant activists for rights and workers in the community over generations. Your grandmother Aunty Alma Thorpe helped to establish the Victorian Aboriginal Health Service (VAHS) in 1973 and the Aboriginal Tent Embassy in 1972.
You are strongly connected to your lineage and many of your artworks reflect the Gunditjmara experience, and the Gunai- Kurnai experience. You have strong connections to Lake Condah Mission and Lake Tyers Mission.
Your grandparents and great grandparents lived under a constellation of discriminatory controls enshrined under the various iterations of the Aborigines Protection Act.
Such derogatory and discriminatory control has been part of your experience. The experience of being treated as ‘sub-human’ in the words of your mother, or lesser, other, second-class, was known to you and passed on within your family and community.
There are numerous documented massacres which impacted the Gunai-Kurnai and Gunditjmara nations, which touched your family , the traumas of which are passed down trans-generationally.
In Gippsland over three hundred people were killed as a result of four massacres between 1840 and 1843.
A significant massacre site was at Tambo Crossing where at least 70 Brabralung people were killed. You belong to the Brabralung tribe of the Gunai-Kurnai.
Your great-great-great grandfather, William Thorpe, survived this massacre as a baby , having been placed in the log of a tree.
In 1843 at Warrigal Creek 150 Gunai-Kurnai were murdered by firearms over several days.
You grew up knowing this history and having been told stories of these events that were passed down. Similalry the experience of massacres on Gunditjmara country, and the later humiliations, subjugation and injustices brought to the Gunditjmara via the Aborigines Protection Act and Lake Condah Mission have been passed on to you – orally through stories, but in other ways in which trauma echoes down through generations.
On Gunditjmara country known and recorded massacres began in 1834 at the Convincing Ground at Portland where around 60 members of the Kilcarer gundidg[2] clan were slaughtered during a confrontation over a beached whale whilst exercising their traditional rights of ownership.
[2]It was reported in the early 1840s that only two members of the clan survived; Aboriginal Victorians, Richard Broome (Allen and Unwin).
In the 1840s records reveal that significant numbers of Gunditjmara people were killed by settlers and at least 10 by the Native Police, including 15 people killed by poisoning after eating damper made from flour laced with arsenic.
In 1850 at least six Gunditjmara people were murdered by settlers at a place now known as ‘Murderers Flat.’ This place and what happened there is something passed on and talked about within your extended family over generations.
Killings continued throughout the 1850s.
In 1860 Lake Condah Mission was established not far from Murderer’s Flat.
The Mission came under the control of the Aboriginal Protection Act 1869.
Lake Tyers Mission in Gippsland, a place you are connected to through several family lines, was also under the control of the Act and the associated Aboriginal Protection Board. Your maternal great grandmother grew up on Lake Tyers, which operated from 1861 until 1971.
The Act gave the Aboriginal Protection Board powers to forcibly relocate Gunai-Kurnai and Gunditjmara people, to remove their children from their families and to control their marriages, places of employment, working conditions and wages. Language and the practice of culture were forbidden on pain of being deprived of rations, the removal of one’s children, or being shipped across the State to another mission on different country. Harsh management was authorised by the Act and upheld by the Courts. Corporal punishment and deprivation of rations were a reality.
The removal of children pursuant to the policies underpinning the legislation has impacted your community significantly over 160 years or so, including you personally.
The Act was revised in 1910, and again in 1929. Through each re-enactment the controls on Aboriginal people were tightened. Elders have described life on the missions as being ‘prisoners on their own land.’ Your forbears were involved in resisting the draconian conditions through strikes and petitioning the Aboriginal Protection Board.
Several well-known Gunditjmara relatives of yours fought in the First World War and the Second World War. Four Lovett brothers fought in both wars. Despite applying for soldier settlement blocks they were ineligible due to their Aboriginality. Parts of Lake Condah Mission, their homeplace were carved up for solider settlement farms for their comrades.
When you were removed from your family as a child you were living on the Lake Condah site.
Your connection to this history, which these brief remarks cannot do justice to, and the effect on your family due to this history, is what I mean when I refer to inter-generational trauma.
The National Report of the Royal Commission Into Aboriginal Deaths in Custody (1991) records that ‘Aboriginal People have a unique history of being, ordered, controlled and monitored by the State.’[3]
[3]Paragraph 1.2.11 p.4.
As I have noted, it is a shared experience for Aboriginal people in this State, whether it be through generations experiencing the control and dehumanisation of being second-class citizens effectively on their own land, being subject to the Aboriginal Protection Act and every aspect of their lives being controlled, or for those who were either removed from the missions or left of their own accord and had to grapple with living between cultures, or in two worlds, without having access to family, culture and country unless allowed by those controlling the missions.
They are experiences which are touched on in the ACJR. That brief summary I have just touched upon, in no way does justice to the extent of the trauma experienced. The trauma referred to as the Stolen Generations is also wrapped up with those experiences and the effects of the Aboriginal Protection Acts and its various enactments, whether it be 1869, 1910 or again in the 1920s where it was further amended to increase not decrease the control of Aboriginal people living on missions.
The multitude of influences and experiences embraced by the umbrella term ‘intergenerational trauma’ in combination with Bugmy and Verdins factors, reduce your moral culpability for the offending on the second appeal in my assessment. These factors contributed to your responses and reactions when you were intercepted by the police.
There are other matters in the Sentencing Conversation which were covered which are very important in your case. I will summarise them briefly. First, the role that Phil Haggar has played in your life in more recent years in a positive sense. His presence here today and during that sentencing conversation would indicate that he is going to continue to be a positive influence that can help you to fulfil your potential, which is considerable, as is the support of your brother and others.
You have very solid goals and you also now have insight into the underlying issues which have driven your drug abuse which is inextricably linked with your offending. You have been to Wulgunggo Ngalu before. That was not an entirely successful experience, but you have indicated a desire to engage in culturally appropriate rehabilitation, healing, to put it another way, and I accept that you are very genuine about your intention to participate in the Wulgunggo Ngalu program pursuant to a Community Corrections Order.
I had you assessed for a CCO. That assessment included a referral to Wulgunggo Ngalu. You were accepted into the Wulgunggo Ngalu program. You were also assessed as suitable for a Community Corrections Order.
There is also the MHAS, Mental Health Area Service, assessment which I have had regard to. I take into account your pleas of guilty. I have taken into account the principle of totality. I have also taken into account parity, such as it is relevant. It has some relevance in relation to the assault charge. I have taken into account all the matters I must, including general deterrence and denunciation and community protection. I have determined to allow both appeals.
Community protection is still important in your case, as is specific deterrence, because, as Ms Cidoni noted, in times of stress and anxiety, if you resort to drug use, you have difficulty regulating your emotions. That is something you need to work on and with the support of Wulgunggo Ngalu, and other services that Corrections can provide by way of offending behaviour programs, and with the support of people like Mr Haggar and your brother Stevie, and by having resort to your significant reservoirs of talent and inspiration, your prospects of rehabilitation are good if you can harness supports and positive influences and deal with those underlying issues.
In relation to Appeal 23-0655 I find the contravention proven and I take no further action on the contravention. I cancel the order and take no further action in relation to the corrections order.
In relation to Appeal 23-0657, the offences where Roberts is the informant, theft of a motor vehicle, Reid is an informant, burglary, attempted theft, dealing with property suspected of being proceeds of crime, the Martin matters, burglary, theft from shop, attempted theft from motor vehicle, recklessly dealing with proceeds of crime, the Roberts matter of failing to answer bail; and the most serious matters of Yvari, reckless conduct endangering serious injury, assault police officer, possess dangerous article in public place, possession/use cocaine, possess a drug of dependence, and without authorisation enter a private place, and the final matter of Flannery, negligently dealing with the proceeds of crime, I impose an aggregate sentence. That sentence being a combination sentence of 15 months' imprisonment, in combination with an 18‑month community corrections order.
The special conditions of that community corrections order are supervision, drug and alcohol assessment and treatment, mental health assessment and treatment, offending behaviour programs as directed, and that you reside at Wulgunggo Ngalu Healing Place.
I declare that you have served 406 days of that sentence as pre‑sentence detention.
Pursuant to s6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three and a half years' imprisonment with a non‑parole period of two and a half years' imprisonment.
Do you consent to that Community Corrections Order, Mr Thorpe-Young?
OFFENDER: Yes.
HIS HONOUR: Thank you. Well, that will be sent to custody and sent to your instructors as well. When you go on to the CCO you can sign it. You can probably sign it at Corrections when you're released.
What I said to your Counsel at the outset was that I don't know what administrative days may be deducted from your sentence due to emergency management days. I sentence on what's in front of me and so I don't know whether you're going to be released in one month or today or in two weeks. That will be up to Corrections but your instructor should be able to ascertain that. You'll probably know at some stage today and then arrangements can be made for you to get to Wulgunggo Ngalu and you'll commence the CCO there.
OFFENDER: Thank you, sir.
HIS HONOUR: I'll also make the disposal and forfeiture orders that were sought. I've got the - - -
MS YATES: Your Honour, may I address you on one of those orders if that's okay?
HIS HONOUR: Yes, just in a moment.
MS YATES: Thank you.
HIS HONOUR: Take a seat. So, Mr Thorpe-Young, you should understand that that corrections order, particularly in relation to residing at Wulgunggo Ngalu, part of the reason I imposed the sentence, part of the reason for a 15‑month sentence rather than something longer, is that I acknowledge that the corrections order when you're actually residing at Wulgunggo Ngalu, engaging in the program there, is a - it's a residential program and I've - that's been part of my assessment in arriving at the sentence.
So if you breach the order, if you breach the corrections order, I'll have to resentence you and you know what that - you know what that's all about because you've just experienced it in the Magistrates' Court.
OFFENDER: Yes.
HIS HONOUR: All right. Now, I have before me a disposal order which relates to the drugs. I make that order. It's a syringe. The forfeiture order for
the - what is it, a backpack?
MS YATES: Yes, Your Honour, but the one that I was wanting to raise, that was not subject to any of the charges. There was no allegation that it was proceeds of crime or stolen. It was in relation to a Volkswagen Tiguan only in that charge. So we would oppose it for that reason.
HIS HONOUR: So hang on. All right. So the other forfeiture order I've got is the black Taser, the screwdriver and the wooden stick with metal blade.
MS YATES: That's consented to, Your Honour.
100 HIS HONOUR: It's consented to. So there were charges of theft of a motor vehicle. So the Lamborghini backpack it says Schedule 1 offence, namely, negligently deal with proceeds of crime, Charge 25.
101 MS MALOBABIC: The backpack, Your Honour, I can address, was found in the vehicle with an ice pipe in it, and then forensic material was obtained from the backpack, but if - - -
102 HIS HONOUR: In the vehicle. So that's in the vehicle. That was the theft from the vehicle.
103 MS MALOBABIC: Yes, Your Honour, but if - - -
104 HIS HONOUR: Sorry.
105 MS MALOBABIC: Mr Thorpe-Young wants his backpack back
106 HIS HONOUR: Sorry, which vehicle was it? I'm just trying to find this.
107 MS YATES: Volkswagen Tiguan.
108 MS MALOBABIC: Yes.
109 HIS HONOUR: And what's the Volkswagen Tiguan?
110 MS YATES: That was the deal with proceeds of crime, negligently deal with proceeds of crime. The car was the subject of the charge not the backpack.
111 HIS HONOUR: What's in the backpack, anything or - - -
112 MS YATES: We would consent to the forfeiture of the - a pipe located in the backpack. The backpack itself we'd be asking for him to retain.
113 HIS HONOUR: It's his, is it, the backpack?
114 MS YATES: Yes, Your Honour.
115 HIS HONOUR: All right. I won't make that forfeiture order then. I will forfeit the pipe. If necessary I'll amend the order for the pipe.
116 MS MALOBABIC: That will be great.
117 HIS HONOUR: We'll sign that order and the pipe can be taken. I'll accept for the purposes of this appeal that the backpack is Mr Thorpe-Young's and I won't forfeit it. All right. Anything else?
118 MS YATES: Nothing further, Your Honour.
119 HIS HONOUR: Well, I'll sign that corrections order and then it will - we'll send it to the parties. Corrections will get it. We'll send it to Mr Thorpe-Young as well, but, yes, when you are released and you got to Corrections or you're at Wulgunggo Ngalu you'll probably be asked to sign it then, Mr Thorpe-Young.
120 OFFENDER: Yes, absolutely.
121 HIS HONOUR: Very well. All right. Well, good luck. I think at Wulgunggo Ngalu you'll have plenty of opportunity to pursue your artwork as well. More importantly work on yourself.
122 OFFENDER: 100 per cent, yes.
123 HIS HONOUR: Get ready to - you know, with the supports of Mr Haggar and your brother and others, get ready to get out there and fulfil your potential, which is, as I said, considerable.
124 OFFENDER: Yes.
125 HIS HONOUR: So try and cling onto that. All right.
- - -
0