Director of Public Prosecutions v Thurgood
[2020] VCC 1921
•3 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM THURGOOD |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2020 & 3 December 2020 | |
DATE OF SENTENCE: | 3 December 2020 | |
CASE MAY BE CITED AS: | DPP v Thurgood | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1921 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery; Possess a drug of dependence; Early plea of guilty; Young offender; General deterrence; Rehabilitation; Offender suffering symptoms indicating severe vulnerability to developing serious mental illness; Substantial and compelling circumstances that are exceptional and rare established; Condition not amounting to impaired mental functioning but likely to subject offender to substantially and materially greater than the ordinary burden or risks of imprisonment.
Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Drugs, Poisons and
Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited: Boulton v The Queen (2014) 46 VR 308; R v Verdins, Buckley & Vo (2007) 16 VR 269.
Sentence:2 year CCO with supervision and 200 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Whalley | Director of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Cahill Lawyers |
HIS HONOUR:
Introduction
William Thurgood, you have pleaded guilty to one charge of armed robbery in that on 1 December 2019 you robbed LG of some headphones and at the time had with you knuckle dusters.
You have also pleaded guilty to one charge of possessing a drug of dependence being a small quantity of MDMA.
Ms Whalley, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the Court a summary of prosecution opening which detailed the circumstances of your offending.
Mr Thyssen, who appeared on your behalf, accepted that the summary accurately described your offending and could properly form the factual basis for sentence.
What follows is largely based on that summary.
Circumstances of offending
You were born in September 2001 and you were 18 years of age at the time of this offending.
At approximately 3:30am on 1 December 2019, LG, who was 14 years old at the time, was returning home by train after visiting a friend in Camberwell. When the train stopped at Hawthorn Station, you entered the carriage with your two
co-offenders, AG and ES, who were both aged 16 at that time. You each took a seat near LG before moving to a seat diagonally opposite. The victim noticed you were holding a gold knuckle duster in one of your hands.
You eventually asked him, ‘Do you have a wallet, do you have any money on you?’. The victim replied ‘No’ and you then struck him with one of your hands. ES told the victim, ‘Just say you’re my boyfriend and he will stop’. You then put your hand in the victim’s pocket and removed a pair of white Apple AirPod headphones. You said to the victim, ‘You lied to me’ and struck the victim a further two times. Throughout this time, ES continued to repeat, ‘Say you’re my boyfriend’. You struck him again. LG said, ‘Please stop’ at which point ES struck him.
Although the victim was not hit with the knuckle dusters, they were clearly visible throughout the assault and he was understandably fearful that you would use them to strike him.
You, your co-offenders and the victim each exited the train at Richmond Station. LG reported the incident to Protective Services Officers (PSOs) who were patrolling the station. He indicated that you and your co-offenders had walked past him a few seconds earlier. The entirety of the offending was captured on the train CCTV footage.
You, AG and ES were detained by the PSO’s. You were described as being intoxicated and aggressive when arrested.
The victim’s headphones were located in your possession and the knuckledusters were located in your left sock. A small amount of MDMA was located in your jacket pocket.
LG was later treated by a paramedic for pain to his head. His glasses were damaged as a result of being struck by you and ES, and his headphone case was also broken.
You were interviewed later at 11:30pm that evening, where you stated that:
·You had no memory of the incident because of alcohol, and that you had consumed about 12 bottles of Carlton Draught beer;
·You thought you had knuckledusters in your hand, and that you had planned to use the knuckle dusters to defend yourself if you needed to;
·That the male described by the victim as having a mullet style haircut and wearing a hat was in fact you;
·You couldn’t remember the demand for the victim’s wallet or striking him, but you probably robbed the victim; and
·You were in possession of ecstasy (MDMA) and thought you probably had a gram in the form of crystal powder and you had probably consumed two points of MDMA.
You were subsequently charged and released on bail.
Victim impact
In his victim impact statement, which was read to the court, LG described the physical and psychological impact of the offending on him. In terms of the physical impact, he suffered headaches and jaw pain for some time after the incident. With respect to the psychological effects, he felt scared to leave his home and very anxious about going to school. He has experienced some panic attacks and anxiety when going into public places, particularly when travelling by train. He has received some professional counselling to deal with these problems.
It is important that you understand, Mr Thurgood, that the impact your offending has had on the victim is a particularly influential consideration to be taken into account in formulating sentence.
Procedural history
You indicated an intention to plead guilty to these two charges at a committal mention hearing on 27 March 2020. The matter proceeded by way of a straight hand-up brief and was listed for a plea hearing in this Court on 17 August 2020.
On that date, I raised some concerns as to whether armed robbery was the appropriate charge. On the material presented it was not clear whether the knuckle dusters were used for the purposes of the robbery or indeed whether that was intended. The matter was adjourned in order for both parties to consider the issues raised and written submissions were filed. The matter returned for mention on 21 September 2020 where it was referred for Emergency Case Management to facilitate resolution discussions.
A sentencing indication hearing proceeded before me on 13 November 2020. At the conclusion of that hearing, I gave an indication pursuant to s 207 of the Criminal Procedure Act 2009 that if you pleaded guilty to the charge of armed robbery, the court would not be likely to impose a sentence of imprisonment that would commence immediately. In order to arrive at that position, it was necessary to consider the implications of s 5(2H) of the Sentencing Act 1991 (‘the Act’).
Section 5(2H) of the Sentencing Act
The offence of armed robbery is a category 2 offence, if:
…
(b) the victim of the offence suffers an injury as a direct result of the offence; or,
(c) the offence was committed by the offender in company with one or more other persons.[1]
[1]Crimes Act 1958, s 75A.
Mr Thyssen conceded on the sentencing indication hearing that the factual circumstances of this case placed the charge into category 2 on at least one, if not both, of the bases set out above. What follows is that the Court must make an order under Division 2 of Part 3 of the Act, that is, a term of immediate imprisonment without a Community Correction Order (CCO), unless the accused establishes one of the exceptions in s 5(2H). It is best to set out that provision and the related provisions in full.
(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(c) the offender proves on the balance of probabilities that—
(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
(2HA) Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self-induced intoxication.
(2HB) In subsections (2GA), (2GC), (2H) and (2HA)—
“impaired mental functioning” has the same meaning as in section 10A;
“self-induced intoxication” has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.
(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
Oral evidence was called from Mr Patrick Newton, clinical and forensic psychologist, and your father, Geoffrey Thurgood. The purpose in doing so was to provide the factual foundation for the submission that your situation was not caught by the provision and that in all the circumstances you should not be placed in custody. I will return to the issue of s 5(2H) shortly.
However, as to the timing of your plea of guilty, your counsel submitted, and the prosecution accept, that you indicated your intention to enter a plea of guilty at an early stage in the proceedings and you are therefore entitled to a substantial reduction in the sentence that would otherwise be imposed.
Personal history
As I indicated, you were born in September 2001. You were 18 years at the time of the offending. You are now 19.
You live at home in Bentleigh with your parents Geoffrey and Eugenia Thurgood and have three siblings. You have recently completed your year 12 studies at McKinnon Secondary College, which included a VCAL component. Prior to the interruptions caused by the pandemic, this involved work experience as a groundskeeper at a golf course.
You have also recently been employed as a part-time weekend labourer on the Monash Freeway Upgrade Project.
A number of written references supportive of you were provided by Kevin Coster, the general foreman at your current workplace on the Monash Freeway Upgrade, Sean Condon, project manager at Chadoak Plumbing where you completed VCAL work experience, and Darren Seymour, senior leading firefighter at Fire Rescue Victoria who knows you through the local football club. They all spoke highly of your work ethic, honesty and the respect you have earnt from your colleagues and teammates.
The principal of your school, Ms Pitsa Binnion, also wrote a supportive reference in which she detailed your participation in school sports and fundraising for charities, and your exemplary behaviour. She described you as actively participating and engaged at school. She also expressed the view you were very remorseful and that the offending was not reflective of the young man she knew.
In his written report, Mr Newton indicated you were experiencing mild symptoms of both anxiety and depression. He detailed your sustained and problematic use of cannabis, alcohol and MDMA, at a level sufficiently severe to meet the diagnosis of a moderate substance-use disorder.
Of very real concern was the fact that on the night you were arrested, you made an attempt on your life while in police cells. You made a further attempt on your life shortly after your release and you were admitted to hospital overnight. You are now engaged in treatment on a weekly basis with a psychologist and have been prescribed antidepressant medication.
Defence submissions
Mr Thyssen submitted that the appropriate penalty was a CCO.
It was contended that you fell within either one of two exceptions in s 5(2H). The first was s 5(2H)(c)(ii). He submitted that you had impaired mental functioning which would result in you being subject to substantially and materially greater burden than the ordinary burden or risks of imprisonment. Alternatively, s 5(2H)(e) was engaged; that there were substantial and compelling circumstances that were exceptional and rare which would justify not imprisoning you immediately.
Prosecution submissions
Ms Whalley, who provided considerable assistance in resolving the difficulties thrown up by this case, submitted that your condition could not be characterised as impaired mental functioning having regard to the definition of that expression in s 10A of the Act. There, ‘impaired mental functioning’ means –
(a) a mental illness within the meaning of the Mental Health Act 2014; or
(b) an intellectual disability within the meaning of the Disability Act 2006; or
(c) an acquired brain injury; or
(d) an autism spectrum disorder; or
(e) a neurological impairment, including but not limited to dementia.
Accordingly, the only path to relief from the provision lay in demonstrating that there were substantial and compelling circumstances that were exceptional and rare. She submitted that very high bar had not been overcome.
The prosecution therefore submitted that a custodial sentence must be imposed.
Consideration
Mr Newton, in his oral evidence and in his report of 6 August 2020, identified what he described as a cluster of symptoms suggestive of the onset of serious mental illness. There were some particularly unusual features of those symptoms.
Mr Newton said:
Of some concern, however, a detailed review of Mr Thurgood’s social reasoning suggests that he is cynical about others and that he experiences a level of wariness about their motives that verges on being overtly paranoid about their intentions. Moreover, Mr Thurgood reported a range of difficulties with the clarity of his thought processes. In particular, he indicated that he had experienced a range of unusual sensory experiences and he endorsed a range of eccentric beliefs that are usually correlated with problems in reality testing and social judgement. While these symptoms do not present at a severe level, the combination of eccentric mentation and increased interpersonal wariness is highly concerning in a man of his age. This cluster of symptoms is frequently seen in young people who later progress to develop major mental illnesses (such as schizophrenia).[2]
[2] Psychological report of Patrick Newton dated 6 August 2020, at para [36].
The cause of the collection of these symptoms is controversial. Again, as Mr Newton states:
In the context of (at least) recent heavy use of substances with a strong potential to induce psychosis, it is not possible to be clear about the precise causal factors at work in Mr Thurgood’s mental state. It can be said with certainty that these symptoms point to severe vulnerability in Mr Thurgood’s mental state. There is a clear need for him to participate in ongoing attendance with an appropriate mental-health professional. In this regard, the services offered by Headspace would seem especially relevant.[3]
[3] Ibid, at para [37].
In oral evidence, Mr Newton expanded on what he saw as your ‘severe vulnerability’. The pattern of symptoms he noted is commonly seen in the development of schizophrenia. The suicidal gestures and lack of clarity in thought processes were indicators of the severity of symptoms that are often seen as precursors to serious mental illness. These symptoms would likely get worse if you were placed in custody and increase your vulnerability.
In essence, your mental health, as I gauged Mr Newton’s evidence, is extremely precarious. Given the severity of the symptoms, it is imperative that you receive intensive treatment in a drug free environment. Your father’s evidence persuades me that you would be amenable to such treatment.
I accept Ms Whalley’s submission that s 5(2H)(c)(ii) is not engaged. It seems to me that you do not have impaired mental functioning as that expression is defined in s 10A. For the reasons that follow I have determined however that your circumstances can be characterised as substantial and compelling which are exceptional and rare such as to engage s 5(2H)(e.
It is noteworthy that the former provision appears to define impaired mental functioning more narrowly than that expression is used in the context of that the application of the principles in Verdins[4] case. Be that as it may, I regard myself as bound by the confines of the statute. Although it comes close, Mr Newton’s opinion does not go so far as to diagnose a condition of the type required by that provision.
[4]R v Verdins, Buckley & Vo (2007) 16 VR 269.
Nevertheless, Mr Newton’s findings describe your vulnerability to developing mental illness as severe. It seems to me that to place you in custody in that state would exacerbate your symptoms and place you at greater risk of a debilitating mental illness. I should say that I found Mr Newton’s evidence impressive and highly persuasive in its description of your psychological vulnerability.
Indeed, although you do not have impaired mental functioning as defined, I am well satisfied that your precarious mental condition is such that you would be subject to substantially and materially greater than the ordinary burden or risks of imprisonment. That is sufficient in my view to make out a substantial and compelling circumstance which is exceptional and rare as is required by s 5(2H)(e).
To be clear, whilst your case does not within the letter of s 5(2H)(c)(ii), I am satisfied that the criteria required by s 5(2H)(e) has been met. In coming to that conclusion, I have taken into account the matters that I must have regard to, and the matters I must not have regard to, as provided by ss 5(2HC) and 5(2I).
That finding, or the sentence it permits, should not obscure the fact that this is a nasty example of a serious offence that had a significant impact on the victim. Despite your age, general deterrence still has a significant role to play.
However, because you were only 18 when you committed this offence, indicated an early plea, have no prior convictions, have the considerable support of your family as your father made clear in his evidence, you have complied with bail, worked hard and have indicated your willingness to apply yourself to treatment, I have concluded that you should be given one opportunity to avoid a custodial sentence by undertaking an onerous CCO.
In reaching that conclusion, I have had particular regard to what was said by the five member bench in the Court of Appeal decision in Boulton v The Queen[5] as to the appropriateness of imposing CCO’s on youthful offenders involving serious offenders:
…the CCO can be used to rehabilitate and punish simultaneously. This significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders. No longer will the court be placed in the position of having to give less weight to denunciation, or specific or general deterrence, in order to promote the young offender’s rehabilitation. Rather, the court will be able to fashion a community correction order which adequately achieves all of those purposes.[6]
[5] [2014] VSCA 342.
[6] Ibid, at [186].
For the purpose of determining your suitability to undertake such an order, you were assessed by the Office of Corrections and the report provided was favourable.
The report recommends that you be placed on a CCO with the following special conditions attached to that order. That you be subject to the supervision of the Office of Corrections, that you undertake assessment and treatment with respect to alcohol and drug abuse, that you undertake assessment and treatment with respect to your mental health, that you undertake an offending behaviour program directed to managing your anger and that you be subjected to judicial monitoring. I propose to adopt the recommendations of the report.
However, after hearing further submissions from the prosecution and defence, I have determined that it is appropriate to add one further condition which was not recommended in the report. It was submitted that the more punitive sentencing purposes requiring emphasis in this case would be better achieved if you were required to perform community work in addition to the conditions I have already referred to. Accordingly, you will also be required to perform 200 hours of community work over the period of the order, 50 hours of which may be credited from time spent undertaking rehabilitation.
Sentence
Taking all relevant matters into account you will be sentenced as follows.
On charge 1, armed robbery, and charge 2, possession of a drug of dependence, you will be convicted and sentenced to undertake with your consent a Community Correction Order for a period of two years with special conditions that you be subject to the supervision of the Office of Corrections, that you perform 200 hours of unpaid community work, that you undertake assessment and treatment with respect to alcohol and drug abuse, that you undertake assessment and treatment with respect to your mental health, that you undertake an offending behaviour program directed to managing your anger and that you be required to attend this Court for the purposes of a Judicial Monitoring hearing at 9:30 am on Thursday, 2 December 2021. I will further order that 50 hours of time spent undertaking rehabilitation may be credited towards your community work condition.
I will also declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty, I would have sentenced you to be detained in a Youth Justice Centre for a period of 15 months.
I will make the orders for disposal of the knuckle dusters and the MDMA sought by the prosecution.
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