Director of Public Prosecutions v Thurston

[2019] VCC 2010

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01659

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARRYD THURSTON

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2019
DATE OF SENTENCE:	3 December 2019
CASE MAY BE CITED AS:	DPP v Thurston
MEDIUM NEUTRAL CITATION:	[2019] VCC 2010

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Accused	Ms C. BLAKENEY

HIS HONOUR:

1Mr Thurston, you have pleaded to two main charges:

·Aggravated burglary with an offensive weapon.  This charge has a maximum penalty of 25 years' imprisonment; and

·Intentionally destroying property.  This charge has a maximum penalty of 10 years' imprisonment.

2You have also pleaded guilty to the summary offence of committing an indictable offence while on bail.  This charge has a maximum penalty of a fine of 30 penalty units or three months' imprisonment.  The current value of a penalty unit is $165.22.

3At the time of your offending you were aged 28.  You are now 29.

Circumstances

4The circumstances of your offending are set out in the summary of the prosecution opening which was admitted into evidence as were
22 photographs.

5One of the victims in this case is David Robertson.  At the time of these offences, you had known him for a couple of years.  He knew your then girlfriend, Teisha Tilley, and she introduced him to you.  Sometimes, you visited his home with her.

6Last year, in January, you started visiting Mr Robertson's home without
Ms Tilley.  You arrived at odd times, asking for cigarettes or to use the toilet.  He would let you in because he was worried you might become aggressive.  Sometimes, you asked to stay because your mother had kicked you out of her home.

7At about 11.30 pm on 13 March last year, you went to the front of
Mr Robertson's home and asked to enter.  When he did not let you in, you kicked the front door, forcing it into his face.  He closed the door and you left.

8About an hour later, you returned and went to the rear of the house.  You then kicked the glass sliding door.  After seven kicks, the glass shattered.  You entered the house.  You had a metal trowel in one of your hands.  You intended to assault Mr Robertson.  Apart from him, two others were present, Anna Inward and Michael O'Brien.

9During your interview with the police, you agreed with the description of it, that is, the metal trowel, as a cement trowel, having initially said it was like a cake scoop.

10Ms Inward ran into a bedroom, locked the door and called 000.  You rushed past Mr Robertson into the kitchen.  He also left the home and rang 000.  In the kitchen, you went to the sink, picked up dishes and threw them to the ground, smashing them.  You were seen by Mr O'Brien.  He was afraid.  He left the house and ran to his home.

11Inside the bedroom, Ms Inward could hear you cursing and pacing up and down the corridor.  She saw the trowel, believing it was a small axe.  She was petrified, fearing for her life.  She left the bedroom, ran past you and out of the house.

12The police arrived shortly before Ms Inward left.  They heard you screaming and saw you holding a meat cleaver in one hand and a kitchen knife in the other.  Ultimately, you left the house, lay down the cleaver and knife and were arrested.

13At the time, you were on bail for charges of theft from a shop and possessing a controlled weapon.

14After an abortive attempt to interview you because of your state, you were interviewed.  You repeatedly claimed you had not slept for three days.  You said you had entered the house to scare Mr Robertson.  You believe he had ripped of your former girlfriend, Ms Tilley, and had touched her friend Charmaine and someone called 'Horgy'.  You called him a paedophile.  You were unaware of the presence of the other two.

15You were remanded into custody on 14 March and have remained in custody since then.  You have been in custody for 263 days, not including today.

Victim impact statements

16There are no victim impact statements in this case.  I understand each of the victims was given the opportunity but did not make one.  I will not speculate as to why.

Personal circumstances

17Your parents separated when you were young.  You have never known your father.  You have an older brother and four half-siblings.

18Between the ages of five and 17 you lived in foster homes.  You believe you lived in 70 different homes in that time.  You attended many primary schools and completed only Year 6 at primary school.  Your childhood was very disrupted.

19You have largely not worked except for brief stints as a house painter and cabinet installer.

20At the time of these offences, you were 'couch surfing'.  Upon your release from prison, you expect to live with your mother in Ferntree Gully.  She, however, would only let you live with her if you are not taking drugs.

Prior convictions

21You have an extensive history of prior convictions or findings of guilt.  Between June 2009 and August 2018, you have appeared in a court 11 times, answering 109 charges.  You have been convicted of aggravated burglary twice and burglary three times.  In November 2016, you were sentenced to six months' imprisonment for an aggravated burglary.  This sentence was part of a larger imprisonment sentence together with a community correction order, the latter you subsequently contravened.  Interestingly, the longest sentence you received was in 2010 in this court for intentionally causing serious injury.  You stabbed someone under the influence of Xanax.  You were sentenced to four years' imprisonment with a non-parole period of 18 months.  You were paroled but it was cancelled shortly afterwards.

22When last released from prison on 16 November last year, you ceased then or shortly afterwards taking the anti-psychotic medicine you were taking in prison.

23Since your remand on 14 March, you have been prescribed Elazapine, Zoloft and Methadone.

24This time in custody you have not taken any courses.  However, you work cleaning the units in which the prisoners live.

Psychiatric assessment

25At request of your solicitors, Lester Walton, a psychiatrist, examined you on
12 April 2019.  For the examination, your lawyers gave him four psychological reports.  Primarily, Dr Walton was asked to examine you as to whether the defence of mental impairment was available.  He concluded it was not.  One of the four psychologists, Ms Crole, considered you remained psychotic on
14 March.  Another of the psychologists, Dr Cunningham, considered you were in the borderline range of intellectual capacity.

26Dr Lester wondered whether your psychosis was drug-induced or whether it was due to schizophrenia.  If the latter, then the disorder was fairly mild and responsive to treatment.  Nevertheless, he seems to opt for drug-induced psychosis and said this was relevant to your offending because it reduced your ability to control your aggressive urges or give proper consideration to the consequences of your actions.  I accept that diagnosis and his view of the condition's effect on you.  Certainly, you were intoxicated at the time, telling
Dr Walton you drank about 10 cans of bourbon-mix, taken about 13 Valium tablets and a 'few points' of ice.

27Dr Lester recommended you engage in extended drug rehabilitation, saying avoiding drugs will help your mental health.  Overall, he considered the prognosis for your mental health and for your re-offending as in a precarious balance at present.

Plea of guilty

28You have entered pleas of guilty at an early opportunity.  They have spared the three victims and three others from giving evidence.  It assists the efficient process of justice by bringing these charges to an early end.  They entitle you to a significant reduction in the sentences I would have imposed if you had pleaded not guilty and had been found guilty after a trial. 

Remorse

29I accept your pleas of guilty indicate your remorse for your offending.

Verdins

30There was no reliance upon any of the propositions in the case of R v Verdins[1].  However, the prosecutor conceded your moral culpability was reduced because you were in a psychotic state at the time.  This was so even though your state was induced by you taking various drugs including alcohol.  I accept the concession.

[1] (2007) 16 VR 269.

Current sentencing practice

31Neither counsel drew my attention to any cases dealing with current sentencing practice.  I have had the opportunity to read three somewhat similar cases:  DPP v Jameson, a sentence of Judge Smallwood on 14 November 2019;
DPP v Olsen, a sentence of Judge Dean delivered on 1 August 2019; and the DPP v Sayour, a sentence of Judge Lawson delivered on 24 May 2017.

Discussion

32Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing. My sentences should deter you and others from committing offences of the same or similar character. They should manifest the denunciation of the conduct you have engaged in. They should protect the community from you.

33I should also establish conditions within which your rehabilitation would be facilitated.  This was the thrust of your counsel's submissions.

34You entered Mr Robertson's home by smashing the glass of the rear door.  This occurred in the early hours of the morning.  However, no one was asleep.  You entered with the intention of assaulting Mr Robertson by making him think that you would do so physically.  You did not physically assault him, but he certainly feared you would do so.  He had every reason to do so given what had happened an hour earlier together with his view of you from other contacts.  You frightened the other two, especially Ms Inward, who was petrified and feared for her life.  However, when you entered, you only expected to find
Mr Robertson.  You had with you a weapon, a metal trowel.  You were alone.  You did not verbally threaten anyone.  It was the way you behaved that frightened the others and this included the smashing of the glass door and the dishes in the kitchen and carrying the metal trowel.

35This is a significant form of aggravated burglary.

36Deterring you from re-offending in this way is important because of your history.  As I said earlier, you have previous convictions for aggravated burglary and for burglary.  You have convictions or findings of guilt for a large number of other offences.  You have shown a persistent disregard and disobedience of the law.

37Your history of previous offending means denunciation of your offences and protection of the community are important.

38Your prospects of rehabilitation are uncertain.  You need to address your drug addictions.  Your counsel says you will do just that now that I have sentenced you.  I encourage you to do so.

39Although your counsel did not rely on any of the propositions in the case of
R v Verdins, I do take into account as a significant mitigating factor the fact that you were psychotic at the time of the offending.

40As one of two alternatives, your counsel submitted I should consider a sentence of imprisonment with a community correction order. Although a community correction order is itself a punitive order, I consider the restrictions placed on my sentencing powers by s.44 of the Sentencing Act 1991 make this submission inappropriate in your case.

Sentence

41On the first charge, aggravated burglary with an offensive weapon, I sentence you to 30 months' imprisonment.

42On the second charge, intentionally destroying property, I sentence you to six months' imprisonment.

43On the charge of committing an indictable offence while on bail, I sentence you to one month's imprisonment.

44Each of the sentences will be served concurrently, making the total effective sentence 30 months' imprisonment.

Non-parole period

45I direct you serve 18 months' imprisonment before becoming eligible for parole.

S.6AAA

46But for your pleas of guilty, I would have imposed a total effective term of
39 months' imprisonment with a non-parole period of 23 months' imprisonment.

Pre-sentence detention

47I declare that you have served 263 days by way of pre-sentence detention, not including today.

48I assume that you agree with the figure for pre-sentence detention?

49MS BLAKENEY:  If I might just have a moment, Your Honour, I calculated 264.

50MR PLUMMER:  Apologies, Your Honour, I just - I believe the plea was Thursday, Your Honour.  It was 259 days up to and including Thursday.  So we'd add, Friday, Saturday, Sunday, Monday.  Yes, so I think on that basis it's 263.

51HIS HONOUR:  Not including - all right.  Well, I'll make the declaration of 263 then, not including today.

52There are no other matters, are there?

53MR PLUMMER:  No, Your Honour.

54MS BLAKENEY:  No, Your Honour.

55HIS HONOUR:  Do you want a moment to speak to your client before he's taken downstairs or will you see him in the cell?

56MS BLAKENEY:  I'll see him downstairs, thank you, Your Honour.

57HIS HONOUR:  All right.  In those circumstances I'll adjourn briefly.

58MR PLUMMER:  As Your Honour pleases.

59MS BLAKENEY:  As Your Honour pleases.

(Short adjournment.)

60HIS HONOUR:  I understand, Mr Plummer, on recalculation you agree with
Ms Blakeney?

61MR PLUMMER:  Yes, I do.  I apologise, Your Honour.  The plea was Wednesday, not Thursday, so it's one additional day.

62HIS HONOUR:  All right and do you want your client up here while I remake my declaration, Ms Blakeney?

63MS BLAKENEY:  No, I'm content to explain to him.

64HIS HONOUR:  All right, in that case then I'll declare that 264 days have been served by way of pre-sentence detention, not including today.

65MR PLUMMER:  As Your Honour pleases.

66MS BLAKENEY:  As Your Honour pleases.

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