Director of Public Prosecutions v Thurgood (a pseudonym)
[2024] VCC 1346
•28 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWAYNE THURGOOD (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2024 & 9 August 2024 |
| DATE OF SENTENCE: | 28 August 2024 |
| CASE MAY BE CITED AS: | DPP v Thurgood (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1346 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – possess drug of dependence -
guilty plea – Drug and Alcohol Treatment Court
Legislation Cited: Sentencing Act 1991 (Vic) ss 6AAA and 18(4)
Sentence: Drug and Alcohol Treatment Order, custodial part of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Kambouropoulos | Office of Public Prosecutions |
| For the Accused | Mr G. Traczyk |
HIS HONOUR:
1Dwayne Thurgood,[1] you have pleaded guilty to:
(i)1 charge of armed robbery (charge 1) for which the maximum penalty is 25 years imprisonment;
(ii)2 charges of possession of a drug of dependence (charges 2 and 3) for which the maximum penalty is 1 year imprisonment.
[1] A pseudonym.
2You have also pleaded guilty to a summary charge of unlawful assault (summary charge 1) for which the maximum penalty is 3 months imprisonment.
3Tendered as exhibit 1 on your Determination Hearing was a Summary of Prosecution Opening which set out the agreed facts of your offending. In brief the circumstances of your offending were as follows.
4On 14 October 2023 at approximately 9:45 PM your victim, Daniel Finch[2] was walking home along The Grove, Coburg when you approached him. You appeared drug affected at the time. You asked your victim for $10 and Mr Finch told you that he did not have any money on him. You subsequently offered to sell him drugs, Mr Finch declined and backed away from you.
[2] A pseudonym.
5You placed your phone and clothing on the ground and said to Mr Finch ‘we can do this the easy way or the hard way.’ You then threatened to bash him. Mr Finch ran away and you pursued him, saying ‘I’m going to stab you’. Mr Finch saw an approaching vehicle and got the attention of the driver. The vehicle stopped, Mr Finch got in and the vehicle drove away. Mr Finch called 000 whilst in the vehicle.
6On the same night and on the same street, at approximately 10:00 PM your second victim, Simon Muscat,[3] observed you attempting to gain entry to a locked vehicle. You approached Mr Muscat holding a hammer and asked for $20.00. You told your victim not to ignore you: Mr Muscat stated that he did not have any money. You put the hammer on the ground and told Mr Muscat ‘I’m not going to hit you with the hammer, I’m not going to hurt you’. Your victim proceeded toward a nearby residential address, and you followed. You asked your victim if he had a phone as Mr Muscat tried to distance himself from you. You said, ‘don’t make me hurt you, I’ll smash you’. You then grabbed your victim by the vest. Mr Muscat became fearful and pleaded with you to not hurt him. You repeated ‘don’t make me hurt you, I’ll smash you. Give me your phone’. Mr Muscat gave you his phone before running home and calling the police.
[3] A pseudonym.
7Later that evening you attended the home address of an acquaintance, Ryan Cupo.[4] You told Mr Cupo that you had just threatened someone with a hammer and taken their phone. At the time you were wearing a onesie. The following day Mr Cupo discarded the onesie, and the hammer was left in the backyard.
[4] A pseudonym.
8On 23 October 2023 police observed you in the passenger seat of a ride-share vehicle. The vehicle was intercepted, and you were placed under arrest. A pat down search was conducted and police located and seized the following:
(i)0.1 grams of methylamphetamine; (Charge 2)
(ii)4.3 grams of 1,4 Butanediol; and (Charge 3)
(iii)One mobile phone
9A search warrant was subsequently executed at a property in Albanvale and one in Taylors Lakes. No items were seized during the search. A further search was done at the home address of Mr Cupo and police located the hammer you had been carrying on the night.
10You provided no comment during your record of interview, which of course was your right. You were then charged and remanded. You were granted bail on 13 November and placed upon the CISP programme (Exhibit 7TA). Your bail was revoked on 8 February 2024 following further alleged offending. You have remained in custody since that date. You told Ms Rimmer (Exhibit 4) of being drug free for around 12 weeks on the CISP program and then lapsing for reasons you can no longer recall, possibly connected to your ex-partner. The lapse turned into a relapse and in your words, you were ‘caught with a half-litre of juice in Footscray’.
11On the 27 February 2024 the matter was committed to the County Court with an indicated plea of Not Guilty. On 24 June 2024 the matter resolved and on 26 June 2024 was adjourned into the Drug and Alcohol Treatment Court on the 26 June 2024 for a Determination hearing which concluded on 9 August 2024.
12Exhibit 3 on the Determination hearing was a Case Manager assessment report from Lauren Rimmer dated 22 July 2024 (with an appendix). Exhibit 5 was a Clinical Advisor assessment report from Krishna Jones of the same date. I also received an ACSO assessment report by Adam Love dated 4 December 2023, a CISP progress report dated 12 January 2024 from Madelina Rendina and your criminal record. Taken together these documents set out your personal narrative and your mental health, forensic and substance use history and, where appropriate, made recommendations for treatment.
Personal History
13You were born in May 1996 to a family of Bosnian heritage and are now 28 years of age, 27 at the time of this offending. You have one younger brother and a female cousin to whom you are particularly close. You grew up in Williamstown speaking Bosnian at home and you report being fluent in Bosnian, Serbian, Croatian and Macedonian – a considerable skillset.
14You describe a loving childhood, absent the trauma so often encountered in this court. Your parents separated when you were 14, for which there had been no prior notice. The breakup was by no means amicable and you recall no conversations with your parents at the time of their separation. You then lived with your father and his new partner, and lost contact with your mother and her side of the family for many years, in part due to the hostile narrative that you were fed by your father.
15You enjoyed school and completed year 12. You began a science degree at Latrobe but left the course after the first year, in part due to your introduction to alcohol and substance use. You have also completed a Certificate in Building and Construction but do not yet have a builders’ licence. You have worked as a subcontracted painter, and you describe yourself as a good worker, particularly when you are not substance affected.
16You lived with your father until the age of 21 and then lived at various addresses with either friends or family members, including with your mother. Your father has tried to support you in the past to remain drug free, but will not have you living with him when you are using drugs. Both your parents attended the hearings in this court.
17As to your substance use history: your introduction to substances began with tobacco, alcohol and cannabis at the age of 19. In your early 20s you report MDMA and cocaine use ‘in the context of clubbing’. You first used methamphetamine at the age of 21 with friends. Your use would fluctuate: sometimes abstinent and sometimes going on a ‘bender’ for 1 or 2 weeks. You were an intravenous user at the time of your arrest on the index offending. Your pattern of ‘binge use’ continued up until your arrest on this offending. You began using heroin at the age of 26 and using GHB at the age of 22. You quickly became a daily user of GHB and report several overdoses and hospitalisations. Whilst on remand you have used illicit buprenorphine, and are considering Opioid Replacement Therapy when back in the community.
18You told Ms Jones that from age 20: my life has been in a downward spiral due to substance use which “has ruined my life”. You have engaged in short episodes of private residential treatment. You have some insight into your triggers, such as low mood and negative peer association. Whilst you have been able to manage short periods of abstinence, you have always returned to use. You hope to control your use, but you also recognise the impossibility of such a goal. You also reported highly problematic gambling behaviour commencing when you were 13 which is of concern to you. Ms Jones noted that you are currently prescribed Seroquel and there is an apparent history of self-harm. You believe that you have bi-polar disorder, although there has apparently been no past diagnosis to support such a view.
19Your criminal record in Victoria goes back to 2016 and comprises convictions for interpersonal violence, criminal damage in the context of family violence and breaches of both FVIOs and CCOs. Of concern are the multiple past and current family violence orders where you have been the respondent and where adult family members and intimate partners have been the protected persons. Whilst of course you do not fall to be sentenced again for matters in respect of which you have already been dealt with by the courts, your criminal history does impact my assessment of the need for specific deterrence, your prospects of rehabilitation, your moral culpability and the need to protect the community from you. You recognise the connection between your drug use and your offending.
20The index offending was committed whilst you were in the midst of a two-week ‘bender’, as Ms Rimmer notes (Exhibit 4): he was deep into a two-week bender, on the 13th or 14th night of using, he was injecting and all rational thoughts were out the window. (He was) so cooked, real cooked, you don’t give a shit in what you do. You reported that the offending was not planned and that: ‘he wasn’t all there….the juice didn’t help and injecting gear the rush is so intense. He was having a horrible time with his ex-partner at the time, they were not on good terms (he) wasn’t speaking to his family at the time too and (had) no supports in place’.
21Ms Rimmer noted your motivation and your determination to never return to prison, your family supports, work history and found you suitable for a DATO but recommends firm restrictions on driving and gambling, amongst other conditions. The order would aim to address your substance use whilst focusing on the links between your substance use and your offending with the intention of reducing the likelihood of recidivism.
22Ms Jones was of the opinion that you would have satisfied diagnostic criteria for substance use disorder at the time of the offending, severe in nature and currently in sustained remission in a controlled environment. She was also satisfied that the treatment and supervision component of a Drug and Alcohol Treatment Order would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an order.
23The particular purposes of a DATO are[5]:
(i)to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;
(ii)to take account of the offender participant’s drug or alcohol dependency;
(iii)to reduce the level of criminal activity associated with drug or alcohol dependency;
(iv)to reduce the participant’s health risks associated with drug or alcohol dependency.
[5] S18X(1) Sentencing Act
24Mr Traczyk on your behalf submitted that such a disposition was an appropriate disposition in your circumstances and the circumstances of this offending.
25Ms Kambouropoulos conceded on behalf of the Director that it was open to the court to adopt such a course.
Objective gravity
26Mr Thurgood, armed robbery represent serious offending as is clear from the maximum penalties that Parliament has seen fit to impose. Whilst this offence could be viewed as toward the lower range for such offending it remains a serious offence. Both of your victims were walking along their local streets when approached by you. Your substance affected presentation was such as to cause concern and your persistent focus such as to cause fear. Mr Finch was able to seek help from a passing motorist and thereby escape your attentions. Mr Muscat was not so fortunate: you pursued him as he retreated from you and sought refuge. You laid hands upon him and threatened him. In consequence he handed over his mobile phone. As his Victim Impact Statement (Exhibit 3) makes clear, it was a traumatic event for him and has left him with a lasting sense of anxiety and apprehension.
27True it is that this offending was absent many of the aggravating features so often found. You were not disguised in any way, nor did you use more threat of force than was necessary to achieve your purpose. It was spontaneous rather than planned offending and your victims were not targeted. However, this does not diminish the objective gravity of this offending. Both of your victims were easy victims. The offending was committed in the evening in a residential street. Offending such as this undermines the community’s sense of safety. The very randomness of such offending feeds into that communal sense of fear and lack of safety. The courts will do everything they can to ensure that members of the public are free to go about their everyday lives. That you were so heavily substance affected and in the midst of a two-week ‘bender’ may provide the context for this offending, but it certainly cannot excuse it. Your moral culpability for the offending is plain.
General principles
28Mr Thurgood in sentencing you I must have regard to a range of different factors. I must give effect to the principal of general deterrence that is, to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon the community. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure as far as possible that you are rehabilitated and reintegrated into society. In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
29These sentencing purposes as identified in S 5(1) Sentencing Act are all still enlivened in your case. Clearly general and specific deterrence, denunciation, all loom large in the sentencing process. However, if the court is considering making a Drug and Alcohol Treatment Order, then your rehabilitation and the protection of the community (achieved through your rehabilitation) have greater importance than those other sentencing purposes.[6]
[6] S 18X(2) Sentencing Act
Findings
30On all the material in front of me I am satisfied on the balance of probabilities that:
(i)you have a poly substance dependency (methamphetamine; opioids, GHB)
(ii)that your dependency contributed to the commission of the offending in front of me
(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years and
(iv)that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.
(v)that it is appropriate in all the circumstances to make such an order.
Reasons
31Your plea of guilty brings with it the practical benefit of saving the community the time and expense, and for your victims, the trauma of a trial. It also, I accept, demonstrates a willingness on your part to facilitate the course of justice.
32Whilst in custody over the last 6 months you have had an opportunity to reflect upon your current situation. You appear to now have some insight into the connection between your substance use and your cycle of offending.
33In this regard you spoke to Ms Rimmer of substance use being a choice and that you were trying to take positives from your present incarceration, viewing it as a reset and as an opportunity to reflect upon where your life is headed. You now believe that you have everything to lose.
34You told Ms Jones that you were not a criminal - and that you want to prove to your family and to yourself that you can change. You have the continued support of your family. They have offered you their homes in which to live. In this you are truly fortunate. There is clearly an acute need for a structured intervention such as a Drug and Alcohol Treatment Order particularly given that your uncontrolled GHB use presents an elevated risk to yourself and to others. This may be the right time for such an intervention.
35You told Ms Rimmer: it’s now or never. I’m 28 .... I don’t want to be anywhere near drugs…I have goals I want to achieve that are attainable, I want a family, I want to be close to God, I want to prove to myself I can do it. The order will help me if I put in 110% in. I am sick of the life I’ve lived: people speak about having no regrets, but I regret drugs.
36I am going to give you an opportunity to put those words into action.
Sentence
37Summary Charge 12, unlawful assault you are sentenced to 30 days imprisonment.
38Charges 2 and 3: you are convicted on each charge and sentenced to an aggregate term of 30 days imprisonment.
39I Order that 10 days of the aggregate sentence on charges 2 and 3 run cumulative to the sentence on Summary Charge 12.
40That equals a Total Effective Sentence of 40 days (time served)
41On Charge 1, you are convicted and placed upon a Drug and Alcohol Treatment Order.
42A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.
43The core conditions, which are that:
(a) you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed;
(d) you must report to and accept visits from members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions from the Drug Court Team.
44The core conditions will operate for 24 months, or until further order.
45The program conditions, which are that you must:
(a) Comply with your Individual Treatment Plan dated 28 August 2024 and signed by you on 28 August 2024.
(b) submit for drug and alcohol testing AS DIRECTED
(c) submit to detoxification or other treatment specified in the order AS DIRECTED
(d) attend vocational, educational and employment programs AS DIRECTED
(e) submit to medical, psychiatric and psychological treatments AS DIRECTED
(f) not associate with [omitted], [omitted], and [omitted].
(g) reside at [omitted] until further order
(h) comply with a curfew that you remain at the address [omitted] between the hours of 9:00 PM and 6:00 AM. This curfew is required until further order.
(i) not use a drug of dependence without lawful authorisation
(j) abstain from alcohol
(k) must not attend Gaming Venues, including but not limited to Crown, TAB venues, RSLs or any other venue with slot machines;
(l) must not gamble online or via any Smart Device;
(m) must not access any online gaming platforms;
(n) must only access the internet through one Device, which is nominated within 7 days and inform the Drug and Alcohol Treatment Court if you change Devices and reasons for the change;
(o) must only have one mobile phone, and inform the Drug and Alcohol Treatment Court if you change your phone or phone number and reasons for the change;
(p) must allow a designated Drug and Alcohol Treatment Court officer to view upon request at any time your internet search history and applications; and inspect any search history or any application relating to online gambling platforms, online gaming platforms or the like;
(q) must not delete internet search history or any applications without express prior permission of the Drug and Alcohol Treatment Court Team;
(r) must not drive a motor vehicle;
(s) Do or not do anything else that the Drug Court considers necessary or appropriate concerning:
(i)(i) your drug and alcohol dependency; and
(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour
46These program conditions will operate for two years, or until further order.
47The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 22 months. That is made up as follows:
48Charge 1, armed robbery: 22 Months.
49Pursuant to s6AAA, had you not pleaded guilty you would have been sentenced to a total effective sentence of 2 years and 10 months, with a non-parole period of 2 years.
50Pursuant to s 18(4) of the Sentencing Act 1991, I declare that Dwayne Thurgood has served 183 days of pre-sentence detention.
51Now, you are also at this point waiving all rights of confidentiality of communications between the Drug Court on the one hand and on the other hand, all treatment providers, all Government agencies, authorities and Departments. Do you understand what you are doing, Mr Thurgood?
52OFFENDER: Yes
53All right, now I am going to ask you a question, Mr Thurgood. I think I know the answer, but of course there is always a first time, all right? Do you consent to being placed on a drug and alcohol treatment order?
54OFFENDER: Yes I do, Your Honour.
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