Director of Public Prosecutions v Thorrowgood
[2023] VCC 494
•30 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01951
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REWA THORROWGOOD |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2023 |
DATE OF SENTENCE: | 30 March 2023 |
CASE MAY BE CITED AS: | DPP v Thorrowgood |
MEDIUM NEUTRAL CITATION: | [2023] VCC 494 |
REASONS FOR SENTENCE
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Subject: Aggravated burglary, make threat to kill; unlawful assault and commit an indictable offence whilst on bail
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hando | Office of Public Prosecutions |
For the Accused | Ms Y. Geneva | Fitzroy Legal Service |
HER HONOUR:
1Rewa Thorrowgood, you have pleaded guilty to the following offences, aggravated burglary and make threat to kill. The maximum penalties for these offences are 25 years and 10 years respectively. You have also agreed to have dealt with by me, and pleaded guilty to the following related summary offences, unlawful assault and committing an indictable offence whilst on bail. The maximum penalty for those is three months.
2The circumstances of your offending are set out in the summary of prosecution opening on the plea, (Exhibit A) and can be summarised as follows.
3You were living at the same apartment complex (the complex) as Mr Phillips in St Kilda. On Saturday 30 April 2022, at approximately 11.30 pm, police were outside the complex and Mr Phillips allowed them access to it. After patrolling the complex, police went to your apartment at about 1.33 am, and left soon after they had spoken to you. Police then spoke to the duty manager who advised that he had earlier in the night seen you with two knives, and that you were behaving erratically. Police were told that he, the manager, was able to calm you down and took the knives from you. He gave them to police.
4At about 2.00 am, Mr Phillips heard a commotion outside his apartment and could hear yelling and abuse. He opened his unit door and observed you with no shirt on, and carrying industrial sized bolt cutters which were about a metre long. You challenged Mr Phillips that he had ratted on you to the police, which he denied.
Charge 1—Aggravated Burglary
5Moments later, you entered into Mr Phillips’ apartment by forcing open the unlocked front door. You made your way inside the unit with the bolt cutters in hand and closed the door. He asked you to leave and you refused. You asked him if the bike and laptop in the apartment belonged to him.
6Whilst inside the apartment, you again questioned whether he had ratted to police. You threatened him and said that you would kill him. Mr Phillips again asked you to leave. On your way out to exit, Mr Phillips said something to you which caused you to raise the bolt cutters in the air gesturing to strike him. You then pushed his right shoulder area. You were in the unit for a little over a minute. Soon after, Mr Phillips stepped out to the hallway and you then had a verbal altercation. You approached him again with the bolt cutters. He went to his unit, but was followed by you and you partially entered his unit for a second time.
7You then both went to the hallway and you stabbed at Mr Phillips with the bolt cutters, but fortunately, did not cause him any injury. At the incident’s conclusion, you returned to Mr Phillips’ front door and proceeded to shout at and punch at the door several times. At one stage, you returned to the door with a plate of food and smashed it on his door.
8At the time of this offending, you were on bail for unrelated matters. You were arrested and the forensic medical officer deemed you unfit for interview. Your apartment was searched where the bolt cutters were located. All of your offending was captured on CCTV from the complex.
Victim Impact Statement
9Your offending has had a significant impact on Mr Phillips who provided a victim impact statement which was read out in court by him. It was clear that your offending has had an adverse effect on him and the way he functions. In the immediate aftermath, he was required to take time off work and ultimately due to issues with his employer, regarding absences from work, he lost his job. He reverted back to gambling, an issue he had managed to control for a number of years prior to this offending. He has experienced financial issues and consequently homelessness. He remains scared, finds it difficult to trust others and has trouble sleeping.
10Police applied for and obtained a Personal Safety Order on behalf of Mr Phillips against you as a consequence of this offending.
Personal circumstances
11I received a report from Gina Cidoni, psychologist, dated 8 March 2023 (Exhibit 1). Also, the final report from the assessment and referral court dated
9 November 2020, (Exhibit 2), NDIS material dated 23 March 2021 (Exhibit 3) and a letter from Tanya Bennett Uniting undated, NDIS support co-ordinator since October 2022 (Exhibit 4).12You are currently 42. Your family moved to Australia from New Zealand when you were young. Your parents separated when you were six and you then lived with your mother. Unfortunately, she was killed soon thereafter in a car accident and you lived with your father and four siblings in the Inverloch/Wonthaggi area of Victoria. I was informed that you have never been in a long term relationship nor do you have any children.
13You completed Year 11 at high school then worked as a builder for one and half years when you were 18. You then had work as a concreter for about 18 months and have had sporadic employment as a gardener. You have been on a disability support pension since 2015 and have received NDIS support for the last few years.
14You have prior convictions dating back to 1998. Of most concern are those relating to violence. You have prior convictions for unlawful assault, reckless conduct endangering serious injury, recklessly causing serious injury, recklessly causing injury, intentionally causing injury, threatening to cause serious injury, assault with weapon and making a threat to kill.
15You have been sentenced to community orders approximately fourteen times and have only managed to successfully complete one of them. You have had periods of imprisonment, most significantly, you were convicted in relation to serious violent offending in October 2009 and sentenced to four years imprisonment with a non-parole period of two years.
16Since 2014, you have been sentenced to five separate terms of imprisonment. As is apparent from that history, you have spent a number of years in prison. I was informed that when released, you would be homeless or reside at a caravan park in the La Trobe Valley. In 2017, you moved to Melbourne and resided in a boarding house from 2017 to 2020. You then resided in a unit in Collingwood for two years before you were evicted in early 2022.
17Much of your offending has related to both your mental health and substance abuse issues. You were diagnosed with Bipolar Disorder in 2007. When you were 36, you were involved in an accident whilst skateboarding. You were admitted to hospital and sustained a brain bleed and skull fracture, this being the likely cause of an acquired brain injury.
18You have long standing issues with alcohol and drugs. I was informed that you commenced binge drinking every weekend from the age of 13. You also used heroin up until you secured housing in Collingwood in 2020. You have used methamphetamines since the age of 21.
19You were engaged with assessment and referral court (ARC) list between
29 October 2019 and 12 November 2020, (Exhibit 2) This court aims to help address underlying factors that contribute to your offending behaviour. You were referred as a person with Bipolar Disorder, Borderline Personality Disorder and an Acquired Brain injury. It would appear that during that period, you were able to find stable accommodation and utilise supports, including from your family. Further, that you were adherent on methadone and abstinent from substance use. You had engaged well with your NDIS co-ordinator and positive reports were provided to the court, in November 2020. Your case manager described you as doing extremely well with your 'efforts to foster and maintain stability and finding ways to live your life with meaning and a sense of fulfilment'. Clearly, you made progress whilst under orders made by ARC.20Unfortunately, your situation deteriorated after April 2022. You had lived in the accommodation in Collingwood for about two years. You were evicted from the property after commencing methylamphetamine use again.
21I was informed on the night of the offending, you had consumed alcohol for the first time in three years and you had resumed methylamphetamine use, using 1-3 grams daily. You were not taking your medication and suffering high levels of stress associated with the loss of your home. The accommodation at the complex where this offending occurred was short term. Your use of substances and mental health issues were such as to exacerbate your anger and resulted in this violent offending. Ms Cidoni opined that it was likely that you had suffered a major manic episode in the offending period.
·After relevant assessment, Ms Cidoni provided the following clinical diagnosis:
·Stimulant Use Disorder (early remission);
·Alcohol Use Disorder (relapse, early remission);
·Bipolar Disorder.
22It was submitted that your moral culpability for the offending was reduced given your mental illness, that your ability to think about the consequences of your actions and lack of self-control were as a result of your mental illness. That this in turn impacted your moral culpability where erratic, impulsive acts and clouded judgment occurred. I accept that is true to a limited extent, however, your conduct was inextricably connected to your substance use and failure to adhere to your medication regime.
23I accept that as a result of your mental health, a custodial sentence weighs more heavily on you than it would on a person with unimpaired mental health. Ms Cidoni’s report states:
'Bipolar disorder is a severe and prevalent psychiatric illness. Poor outcomes include a high frequency of criminal acts, imprisonment and repeat offending. Bipolar disorder can complicate coping in a prison setting. During manic episodes, elevated mood may lead to conflicts. Behavioural disinhibition may also lead to overfamiliar behaviours that often result in sanctions. As impulsive personality traits are associated with bipolar disorder, there is an increased risk of conflict with other inmates, and/or victimisation. These experiences would make it more onerous on you'.
24I take those matters into account.
25You are currently receiving Haloperidol, an (antipsychotic) medication and Methadone 80 mls. You have the support of your sister who has been in court with you. I was informed that you were waiting for confirmation from Magpies Nest, or the accommodation service where you previously resided in Collingwood, that you are able to return to live with your sister.
26I was informed this morning that arrangements have been made with the Salvation Army for you to meet with them, that a plan has been developed and before accommodation can be available, you need to agree to that plan. I understand in the meantime, that upon your release, you were able to reside with your father.
27It was submitted that the loss of your mother at a young age, your alcohol and drug use in your teens and your homelessness, was such that the principles of Bugmy applied. Ultimately, your counsel conceded that your childhood or disadvantaged background should be given some, as opposed to full weight, in the sentencing exercise and I take that into account.
Plea of Guilty
28I take into account your plea of guilty. It was entered at an early opportunity and no witnesses were required to give evidence. Mr Phillips himself was not required to relive the traumatic experience. The community is saved the cost and inconvenience of a trial. The utilitarian value of your plea is enhanced given the backlog of cases due to COVID in the administration of criminal justice in this state. Your plea reflects that you have taken responsibility for your crimes and are willing to facilitate the course of justice.
29I also take into account that custody has been more burdensome because of COVID. More restrictions are in place in the custodial environment as a consequence of the pandemic, although that situation is less strict than it was previously.
Prospects for rehabilitation
30Given your criminal history, your rehabilitation prospects are guarded.
Ms Cidoni stated:'His risk of reoffending is linked to his substance use, his priors, past breaches and his mental illness. If he continues to abstain and take medication regularly, it is expected his symptoms will stabilise. He has significant support in the form of the NDIS and his siblings. He expressed a desire to improve his situation and reported a positive attitude towards help-seeking behaviour, which does work to mitigate his risk'.
31This sounds promising, though is clearly dependent on you complying with your medication and remaining drug free. You have shown that you are capable of doing so, but your conduct on this occasion reveals the consequences if you fail to do so. I note that you also have matters outstanding that are to return to ARC in June this year. That offending occurred days before this offending and related to your possession of drugs and weapons and also significant damage to your accommodation in Collingwood.
Objective gravity
32In relation to this offending, it occurred in Mr Phillips' home where he is entitled to feel safe. You were armed and threatening. It occurred in the early hours of the morning. Although it was only a short incident, you did return on a number of occasions to the unit. The impact on Mr Phillips' has been significant.
33I accept as I indicated that your moral culpability is somewhat reduced because of your mental illness and that less weight should be given to general and specific deterrence, despite your prior history.
34Given this offending and your prior matters, you are a serious violent offender under the Sentencing Act and protection of the community is the principal purpose for which the sentence is imposed. It was not submitted by the prosecution that a disproportionate sentence was required.
35Clearly, the sentencing dilemma between protection of the community and your personal issues including your mental health, coupled with substance abuse, are at the forefront. Your presentation and conduct this night was violent and frightening for Mr Phillips and staff at the complex.
36The prosecution submitted that a combination sentence of imprisonment and a community corrections order was within range. Your counsel submitted I should impose such a disposition. I had you assessed for a community corrections order and you were deemed unsuitable, assessing you as a high risk of re-offending and less than optimistic that you would engage with supports over an extended period, given it would be the fifteenth community based order of which you had been subject. In addition, I received an assessment from Mental Health Advice and Response Service, who recommended a mental health condition, if I was minded to place you on a community corrections order.
37I understand the recommendation of Corrections, however, many of those orders were made at the time when you were untreated and/or not linked to proper services. I do propose to place you on a community corrections order for a period of three years and I will have that as the combined sentence, with a term of imprisonment of twelve months. What that means Mr Thorrowgood is that you will be on an order or under the supervision of Corrections for the next three years.
38I am concerned that you will find this very difficult to comply over this significant period of time, however, it is necessary for you to remain supervised, given the potential, if you do not comply with your medication or revert back to drug use. You are fortunate to have the support of your family and it would seem that the Salvation Army are prepared to support you again. You also have NDIS support and I encourage you to make full use of that because otherwise you are going to find yourself back in custody again.
39In respect of Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of twelve months. In respect of Charge 2, making a threat to kill, you are convicted and sentenced to a term of imprisonment of nine months. In respect of each of the summary offences, you are convicted and sentenced to a term of imprisonment of one month. In respect of Charges 1 and 2, at the completion of the sentence which is at the end of twelve months, you will be placed on a community corrections order for a period of three years.
40The relevant conditions relate to substance abuse, mental health. I am going to put a judicial monitoring condition on the order. That will not be for a period of three years because I want to ensure that you are continuing to comply with the order. So I will have a judicial monitoring, come back to me in approximately three months' time. It may be that that has to be a little bit earlier on this occasion, given my circuit and leave requirements, but I will get the date from my associate. In respect of Charges 1 and 2, he is a serious violent offender?
41MS HANDO: Yes, Your Honour.
42HER HONOUR: Yes. I note on the records of the court, in respect of Charges 1 and 2, that you are a serious violent offender.
Section 6AAA
43Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a term of imprisonment of four and a half years, with a non-parole period of three. What is the pre-sentence detention please?
44MS GENEVA: Three hundred and thirty-three days, Your Honour.
45HER HONOUR: Three hundred and thirty-three?
46MS GENEVA: Yes.
47HER HONOUR: All right. Well I think that given days and whatever in prison, emergency days, that he will almost be due for release immediately, but I really want to ensure that the accommodation situation is sorted because I think that it is setting him up for failure completely if that ‑ ‑ ‑
48MS GENEVA: Yes, Your Honour.
49HER HONOUR: ‑ ‑ ‑ sort of stuff is not organised.
50MS GENEVA: Yes.
51ASSOCIATE: Do you want a date for the judicial monitoring, Your Honour?
52HER HONOUR: Yes please.
53ASSOCIATE: On Wednesday 17 May.
54HER HONOUR: Yes that would be great. No, that won't be great, that's the first day of the conference, Tuesday the 16th.
55ASSOCIATE: On Tuesday the 16th?
56HER HONOUR: Yes, Tuesday 16 May. There's nothing else?
57MS HANDO: Not from me, Your Honour.
58HER HONOUR: Very well, thank you.
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