Director of Public Prosecutions v Tomkins
[2022] VCC 648
•16 March 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
CR-21-01655
Indictment No. L12876312
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LORETTA TOMKINS |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 April 2022 | |
DATE OF SENTENCE: | 5 and 6 April 2022 (ex tempore) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Tomkins | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 648 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – SENTENCE
Catchwords: False imprisonment – plea of guilty – offender of Aboriginal descent – no prior convictions – COVID-19 discount – rehabilitation during delay – evidence of remorse
Legislation Cited: Sentencing Act 1991, s8
Sentence:Without conviction released on an adjourned undertaking to be of good behaviour for a period of twelve months
Section 6AAA declaration: Conviction and fine of $5,000
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M N Keks | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A Singh | Victorian Aboriginal Legal Service |
HER HONOUR:
1
Loretta Tomkins, you are to be sentenced in respect of one charge of false imprisonment made in Indictment L12876312. You pleaded guilty when arraigned before me today. The maximum applicable penalty for this charge is
10 years’ imprisonment.
2By way of background, this matter was listed for trial in the Mildura Circuit in January of this year. At that time, you were jointly charged on Indictment C2014124 with Lilly McPherson. That indictment alleged two charges of common law assault against Lilly McPherson (Charges 1 and 2) and two charges jointly with Lilly McPherson: one charge of kidnapping (Charge 3) and one charge of false imprisonment (Charge 4).
3
The matter came before me for case conference earlier this year on
10 February 2022. That was a very fruitful process, as it resulted in further frank discussions being held between the parties. It was clear that the sticking point standing in the way of settlement was the charge of kidnapping. As a result of those discussions, there were further negotiations held between your legal representatives and the Prosecution. Ultimately, the Prosecution agreed to withdraw the charge of kidnapping and proceed only on a charge of false imprisonment in the event that you pleaded guilty. I was then asked to give a sentence indication in relation to the sole charge of false imprisonment. The sentence indication was conducted this morning.
4The learned Prosecutor, Mr Keks, opened the case with Exhibit A, the Amended Summary of Prosecution Opening dated 7 March 2022, annexed to these Reasons for Sentence and marked “Annexure ‘A’”. Mr Keks made it clear that a number of the paragraphs did not apply to you, so he did not read or rely upon the entirety of paragraph 1, bullet point 1 of paragraph 3 and paragraphs 7‑13 inclusive. In effect, the asserted facts commence at paragraph 14. Paragraph 23, pertaining to the arrest and interview of Ms McPherson, was not read.
5It is clear from the Summary that you were not interviewed in relation to the matter. There was a contested committal at which seven witnesses were cross-examined, including the complainant. During cross-examination, some important concessions were extracted by your counsel at that hearing, the effect of which was to limit the role that you played in the offending.
6I will not repeat the facts as asserted as they are set out in Exhibit A. In short, it is clear that you involved yourself in the actions of Lilly McPherson, your daughter, who had an ongoing dispute with her friend, Jordana Munro-Glare, the complainant in this matter. Your daughter felt that the complainant had been having a relationship with your daughter’s boyfriend. The complainant was only 17 years of age at the relevant time.
7Your involvement started innocently enough. You intended to be a peacemaker but, matters escalated and you became complicit in the false imprisonment. This occurred when the complainant entered your vehicle and you started to drive off, leaving her no means to escape until the car stopped. When the car stopped, you made an attempt to stop the complainant from getting out of the vehicle. In that attempt, the complainant’s top came off and she ran topless to a nearby toilet block where she was assisted by two men, one of whom gave her his shirt. You then approached the complainant in a non-aggressive and non-hostile manner.
8The charge before the Court is a serious charge, as the Prosecutor has said, but on your behalf, your counsel, Ms Singh, has identified a number of factors in mitigation which, she submitted, combined to justify releasing you on a non-custodial disposition and without conviction. At the sentence indication hearing, I indicated that I would, if you pleaded guilty to the single charge of false imprisonment, impose a non-custodial disposition, and I am bound by that ruling. I left open the question of whether or not, upon a plea, that disposition would be with or without conviction.
9I now briefly turn to the matters that were raised by your counsel, Ms Singh, on your behalf. Those matters are set out in full in Ms Singh’s written submissions, Exhibit 1, annexed to these Reasons for Sentence and marked “Annexure ‘B’”.
10By way of summary only but accepting all of the matters that have been put on your behalf, your counsel submits that although your plea of guilty is late, the timing of the plea was affected by the fact that you were facing a kidnapping charge which was only abandoned by the prosecution very recently. As soon as the offer was made to drop that charge, you pleaded guilty. Nevertheless, I take into account the timing of the plea of guilty and the circumstances in which that plea of guilty was entered.
11A plea of guilty, no matter why or when entered, must almost always attract a sentencing discount. The matters that I take into account include the timing of your plea and the fact that I accept that your plea is indicative of remorse. You are entitled to a statutory discount because of your plea. There is social utility inherent in your plea of guilty, and, on that question, because your plea of guilty is entered at the time of the worldwide pandemic of COVID-19, the Court is required, as a matter of law, to give extra weight to a plea of guilty.
12Although the matter was listed for trial in January of this year, the matter did not proceed to trial through no fault of either party. As I understand it, because of the pandemic, judges who were required to sit on Circuit, including at Mildura, where this trial was to be held, were shifted to other duties. That meant the trial could not proceed. For whatever reason though, the cost of a trial has been avoided.
13
Turning to your personal circumstances, these are well set out in Exhibit 1. You are an Aboriginal woman from the Kamilaroi Tribe, the youngest of four siblings. You have spent the majority of your life in the remote rural town of Rankins Springs in New South Wales, located about an hour away from the next major town of
Griffith, New South Wales. It is a place where there is a very small population with limited work opportunities. Your counsel has set out your background at paragraphs 13-20 of Exhibit 1.
14Importantly, you are a person of prior good character. You have no prior convictions, you have never been in trouble with the law before and a number of references were tendered on your behalf, attesting to your good character. You are clearly a reliable friend and a support to many people in your family and in your community. Your prior good character is a matter that I take very much into account. There are no issues with drug or alcohol problems. You do not suffer from any mental health conditions that might affect your capacity for rehabilitation. You enjoy good health, as far as I understand it.
15Relatively recently, you have found your calling in life, and that is to work with children in an education environment. You have undertaken a number of courses and it is to your great credit that you have done that. A number of certificates were tendered on your behalf, attesting to your dedication to self-improvement, further education and your commitment to assisting others, namely, young children, in education. You work at a public primary school as a school learning and support officer. Your children have all attended this primary school. Your role includes classroom support, child support and support in the playground. You also ran the special program for effective reading at Royal Far West Speech Pathology.
16Because these charges were hanging over your head, on 15 February of this year, you resigned from your role as a teacher's aide as you felt morally you could not continue in this role in view of the charges.
17Your employment prospects are limited, as I say, because of your place of residence, which is, as I said, in a remote town in New South Wales. You have recently found employment in Griffith, an hour away from your home, where you are working as a cleaner. You anticipate receiving $700 a fortnight from this employment but the cost of fuel is prohibitive. As I understand it, it costs you around $40 in fuel for a round trip to Griffith, leaving you very little income left after this cost is deducted from your pay. Your partner works. He earns $700 per fortnight. There are many that must be met from the limited combined income that your family produces.
18You have no charges pending. So, not only do you have prior good character, but there is no suggestion of any further offending.
19There has been considerable delay in the matter coming to Court, partly because of the contested committal and partly because of COVID-19. In the period of delay, you have had the stress of the proceedings hanging over your head. Importantly, in the period of delay, you have rehabilitated yourself.
20Your counsel submits that you are truly remorseful for your conduct and although you have no correspondence or letters saying that you are remorseful, this is understandable given there is a question mark as to the use that might be made of such documents in the event that the matter did not resolve at either case conference or at sentence indication. Nevertheless, today you have indicated through your counsel that you are deeply ashamed of your conduct, that you are very sorry for what you have done and that you appreciate the gravity of your conduct. You are not proud of how you made the complainant feel. You would never want to be in such a situation, nor would you want any of your children to be in the situation in which you placed the complainant. You regret the entire episode and you have undertaken to write a letter of apology to the complainant.
21Your counsel has indicated, and I accept, that as a result of what has happened, you have become much more vigilant about having children in the car and making sure that the direction they give you will be adhered to. You would never want to repeat this type of conduct and you have resolved never to do so. I accept that you are genuinely remorseful. Your expression of remorse has come late in the piece, but it nevertheless counts in your favour.
22Your counsel submits that you have excellent prospects of rehabilitation and, with respect, I agree. The learned Prosecutor, Mr Keks, does not disagree. I am satisfied your prospects for rehabilitation are good because you have insight into the reasons for your offending and you have done something about it. There are no drug or alcohol issues that may affect your capacity for rehabilitation. You have no mental health issues that would impair your capacity for rehabilitation and I am satisfied that you have taken very real steps towards rehabilitation. You have good prospects of employment, provided you can regain your work at the primary school. Even if you are unable to do so, it is clear that you do not just sit on your hands. You have obtained work as a cleaner. I am satisfied that you are not a lazy person who just sits back waiting and hoping that others will take care of you. Indeed, according to the references, you are the sort of person who makes an effort to take care of others.
23
I now turn to the submissions made on behalf of the Prosecution. These are set out in Exhibit C, Outline of Crown Submissions on Sentence Application dated
4 April 2022. The Prosecution submitted that given the gravity of your offending, that it would be appropriate to impose a Community Correction Order, although, in discussion with me, Mr Keks acknowledged that it would not be open or practical to attach many of the special conditions to such an order. For a start, the work component could not be attached, given your place of residence. Supervision would not be possible and there is no suggestion that you need any of the treatment or rehabilitation programs that might otherwise be available.
24Mr Keks submitted that whatever the disposition, it should be with conviction. Mr Keks submitted that I should not see you as merely a passive participant driver, but I should take into account that it was agreed in the Summary of Prosecution Opening that you did apply some force to the complainant by grabbing her jumper when you tried to stop the complainant from escaping from the vehicle. He submitted that you were complicit in Ms McPherson's actions of intimidation. I note you are not charged with any of the other offences of assault that Ms McPherson faces.
25Mr Keks submitted that there was an element of deception involved where you told the complainant you would be taking her to her brother’s house when you had no intention of taking her there. That is part and parcel of the false imprisonment charge. There is, however, no suggestion that any element of kidnapping is relevant to the present charge, the charge of kidnapping having been abandoned.
26Mr Keks correctly noted that as a matter of law, I am bound to take into account the impact of your offending on the complainant. Mr Keks pointed out that the offending has had a profound impact upon the complainant. She was fearful during the incident and was forced to escape topless in public, trying to find help whilst topless. In her statement of 16 April 2020, the complainant stated:
“Since that day I am still scared that Lilly and Loretta will turn up and try and take me away again. I am scared to go to places on my own and I worry about seeing them.
It makes my stomach turn and I feel on edge a lot. I am unsure what Lilly and Loretta are capable of and every time I think I see her car I feel like my breathing gets heavy and as if I am having a panic attack.”
27You have offered to write a letter of apology to the complainant and propose to do so. I can only hope that such a letter of apology will go some way to assuaging the complainant’s fears that you might re-offend against her in a like manner
28Mr Keks emphasised the maximum penalty, noting that ordinarily, in cases such as this, principles of general deterrence, denunciation and condemnation and just punishment are important sentencing considerations. He submitted that there is limited evidence of remorse, although, he accepts that today you have indicated, through your counsel, your remorse.
29In sentencing you, I must take into account matters such as general deterrence and principles of denunciation and condemnation and just punishment. I take into account all of the matters to which your counsel has referred, including your prospects of rehabilitation, your remorse, your plea of guilty and all of the factors personal to you.
30Your counsel has urged that I release you on an undertaking to be of good behaviour, without conviction. In the alternative, she submits, without conviction, you should be sentenced to pay a fine.
31The matters listed in s8 of the Sentencing Act 1991 are relevant to the question of whether a conviction should be recorded. That section provides:
“(1)In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including—
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.”
32I take all these matters into account when sentencing you today.
33In this case, on the charge of false imprisonment, I propose to not record a conviction and order that you be released and that the further hearing of this matter be adjourned to 4 April 2024, that is, a two-year Good Behaviour Bond, upon your giving an undertaking with the following conditions attached:
(1) that you appear before the Court, if called upon to do so, during the period of the adjournment;
(2) that you be of good behaviour during the period of the adjournment; and
(3)
that you write a letter of apology to the complainant/victim in this matter within
30 days. A copy of that letter of apology is to be provided to the Prosecution to hand on to the complainant. It is probably inadvisable for you to make direct contact with the complainant but I will hear counsel on whether or not that is the appropriate way for the apology to be provided.
34MS SINGH: Yes, thank you, Your Honour. I understand it’s usually given to the Informant or to the Prosecution. So my client would be happy to give it to the Prosecution rather than directly to the victim.
35HER HONOUR: Mr Keks, do you agree? I cannot hear, sorry, but I can read your lips. They are saying yes. You are nodding in agreement.
36So far as a donation to a charity is concerned, do the parties have in mind to whom such a donation should be made, which would be Condition 4?
37MS SINGH: I would say Beyond Blue or an organisation such as that dealing with mental health issues of young people and all types of people.
38HER HONOUR: Mr Keks?
39MR KEKS: There’s no instructions but that seems a reasonable suggestion.
40HER HONOUR:
(4) Make a contribution of $500 to Beyond Blue within 60 days. Provide a receipt to the Court and to the Prosecution within 24 hours of receipt of the receipt.
41I am obliged to warn you that, if you break the conditions of this undertaking, you may be punished for any offence that has been adjourned on your agreeing to enter this undertaking. You may be punished for failing to be of good behaviour. In addition to being punished for either of these, you may also be fined. Do you understand, Ms Tomkins?
42OFFENDER: Yes, I do.
43HER HONOUR: Are you prepared to enter the Good Behaviour Bond with those conditions?
44OFFENDER: Yes, I am.
45HER HONOUR: Section 6AAA statement; I state that but for the plea of guilty, you would have been convicted and fined $5000. I direct that this statement be entered in the records of the Court.
46MS SINGH: As Your Honour pleases.
47HER HONOUR: Now, the matter of preparing the Bond and how is your client going to sign it and return it to the Court.
48MS SINGH: Yes. I hadn’t quite thought through that practicality, Your Honour.
49HER HONOUR: Can that be perhaps done after lunch? Can she get herself to a place where there is a printer and a scanner so that she can sign the Bond and then return it and then I have to sign it and return it to her.
50
MS SINGH: Apologies for asking this way, Your Honour, but if I could ask
Ms Tomkins directly now; if that’s at all possible to do that today, Loretta?
51OFFENDER: Um, I will definitely try my best. It’s just, um, I presume the courthouse shuts at five.
52HER HONOUR: I do not know what time the courthouse shuts.
53MS SINGH: Yes, you would have to get the email to the Court by 5.30pm.
54OFFENDER: That’s – that’s where I would have to receive it from Griffith.
55HER HONOUR: You do not have to go to a court to sign the document. If there is a printer or a scanner with one of your neighbours, that will be alright.
56OFFENDER: No-one - - -
57HER HONOUR: Or the police station. Is there a police station near you?
58OFFENDER: Ah, we - we don’t have a police station here, no.
59HER HONOUR: What about the school? Is there an office in the school?
60OFFENDER: Um, I can - I can source that.
61HER HONOUR: All right, , what time should we resume?
62MS SINGH: Your Honour, perhaps - again, if I might quickly ask Ms Tomkins. Are you able to go to the school this afternoon and get that signed and scanned or take a photograph with your mobile phone?
63OFFENDER: No, I will have to have that organised. I don't know if it will be able to be done this afternoon.
64MS SINGH: All right.
65
HER HONOUR: Well, should we adjourn till tomorrow morning for the paperwork to be done? I have another matter tomorrow but we will squeeze this in. I also want to make sure that I have covered everything in my ex tempore Reasons for Sentence.
Mr Keks?
66MR KEKS: Yes, Your Honour. On that latter point, nothing from me. In relation to tomorrow, I am unavailable but my instructor can appear
67HER HONOUR: As I understand what you are saying, you cannot be there but you can arrange to have your instructor present.
68MR KEKS: Yes, Your Honour.
69HER HONOUR: Thank you.
70MR KEKS: Thank you and I am sorry.
71HER HONOUR: Again, it is alright.
72MS SINGH: Your Honour, if it’s possible at all to have this matter perhaps relisted for tomorrow afternoon. That gives Ms Tomkins an opportunity to get to Griffith, perhaps go to the police station there, sign the document, get it to me and I can provide it to the Court hopefully tomorrow.
73HER HONOUR: She needs to acknowledge in my presence that she has signed it, so we need to have another link. She needs to be present. So what I will do, it is already half past one and everyone is entitled to their lunch, but what I will have my associates do is prepare the Order and send it to everyone to make sure you all agree that it covers what I have said. Then we will adjourn. If it is possible to do it later today, we will do it later today. If not, then we will have to do it tomorrow.
74MS SINGH: If I might ask Ms Tomkins one quick question, Your Honour. Loretta, can you get to Griffith police station this afternoon to do this?
75OFFENDER: I will have to get organised to try and get that done, yes.
76MS SINGH: You can get to the police station this afternoon?
77OFFENDER: I will try to. As I - I am - um, I have children coming off the bus and things. I'd have to really get organised. It's quite a distance.
78MS SINGH: Yes, understood. Your Honour, if it is possible to adjourn it off until tomorrow afternoon, it would be greatly appreciated. She has two young children at home - who are returning home from school. Griffith is over an hour away and I foreshadow there being some difficulties for getting this document to you this afternoon.
79HER HONOUR: But tomorrow, what time suites everybody? I am happy to do this at 4.30pm if that means Mr Keks can be available.
80MS SINGH: That's suitable to me.
81HER HONOUR: Mr Keks, does that suit you?
82MR KEKS: (No audible response.)
83HER HONOUR: All right. Well then, we will list this at 4.30 tomorrow.
84MS SINGH: Thank you, Your Honour.
85HER HONOUR: - - - for finalisation of the paperwork.
86MS SINGH: As Your Honour pleases.
87HER HONOUR: I also want to thank both counsel for the assistance that you have given. The preparation from both sides has been impeccable. You both clearly read all of the material; you made very sensible submissions. You have assisted the Court, you have certainly assisted me in being able to not only give the sentence indication but to give the ex tempore Reasons for Sentence and I thank you both. It is not every day that we see such well-prepared counsel and so able to make submissions on the run, as it were. So I thank you both.
88We will see you tomorrow at 4.30pm and if it is necessary to say bail is extended, I will say bail is extended because the sentence is part heard.
89MS SINGH: As Your Honour pleases.
90MR KEKS: If it please the Court.
[Court adjourned part heard until 4.30pm, 6 April 2022].
[4.30pm, 6 April 2022]:
HER HONOUR:
91All that remained for yesterday was for the undertaking to be entered into and acknowledged. Now, my chambers have received the document already signed. When was this document signed?
92MS SINGH: As I understand it, Your Honour, and my client can correct me if I'm wrong, but it was signed today at Victorian Legal Aid in Griffith.
93HER HONOUR: I was hoping that it would be signed in my presence which is why I asked for ‑ ‑ ‑
94MS SINGH: My apologies, Your Honour, I didn't realise that that was the nuance of the undertaking but it was signed today.
95HER HONOUR: Very well, if I hold this up to the screen, can you see the signature there, Ms Tomkins? Is that your signature?
96OFFENDER: Yes, I can. That is my signature.
97HER HONOUR: Excellent. And you acknowledge that the undertaking carries with it consequences if you breach it, if you break your word?
98OFFENDER: Yes, I understand that.
99HER HONOUR: And I remind you, you may be punished for any offence that has been adjourned on your agreeing to enter this Order, you may be punished for failing to be of good behaviour and in addition to being punished for either of these, you may also be fined. Do you understand that?
100OFFENDER: Yes, I do.
101HER HONOUR: Very well, I will sign the Order and that is why I wanted you to be near a machine so that you can receive it also, the signed copy from me, but anyway I am not sending you back to Griffith now. I will send this to - your lawyers will receive it – but as you will see, I have now signed the Order as well.
102OFFENDER: Thank you.
103HER HONOUR: And I have changed the date because it says the undertaking was acknowledged before me on 5 April. I have changed the date to 6 April. So I have just popped that on the scanner machine at the moment so just give me a moment.
104OFFENDER: Thank you, Your Honour. I have just sent that back to my associates who will on forward that copy for the Prosecution and a copy for the defence but you need to have a copy as well clearly, Ms Tomkins.
105MS SINGH: Your Honour, I will provide a copy to Ms Tomkins via email as soon as it is received from Your Honour’s associate.
106HER HONOUR: Thank you very much. I think I thanked you all yesterday for your assistance. Is there anything else that is required today? Any other orders required?
107COUNSEL: No, Your Honour.
108HER HONOUR: Thank you very much. Close the Court.
Annexure “A”
IN THE COUNTY COURT OF VICTORIA Indictment No: C2014124 AT MELBOURNE
CRIMINAL JURISDICTION
Court Reference: CR-21-01654 & CR-21-10655 IN THE MATTER OF
DIRECTOR OF PUBLIC PROSECUTIONS
v
LILY McPHERSON AND LORETTA TOMKINS
AMENDED SUMMARY OF PROSECUTION OPENING
Date of document: 7 March 2022
Filed on behalf of: Director of Public Prosecutions Prepared by:
Abbey HOGAN Solicitor’s code: 7539
Solicitor for Public Prosecutions Tel: 9603 7660
565 Lonsdale Street Direct: 9603 7640
Melbourne 3000 Ref: Jack Mighell
BACKGROUND
The accused, Lily McPHERSON (McPHERSON), was born in January 2001. She was 19 years old at the time of the alleged offending.
The co-accused, Loretta TOMKINS, is McPHERSON’s mother. TOMKINS was born in January 1981. She was 39 years old at the time of the alleged offending.
This matter concerns offending arising out of two incidents alleged to have occurred on:
· 16 January 2020 and involving McPHERSON only; and
· on 24 January 2020 involving McPHERSON and TOMKINS acting together.
The complainant in respect of both incidents is Jordana MUNRO-GLARE. She was 17 years old at the time of the alleged offending.
At the time of the offending, McPHERSON and the complainant had been friends for approximately two years.1 They were residing together at Douglas Avenue, Swan Hill, with McPHERSON’s boyfriend, Trevor FIREBRACE.2
TOMKINS was residing at Whitton Stock Rankins Springs in New South Wales. McPHERSON frequently visited and stayed with her mother, TOMKINS, in New South Wales.
THE OFFENDING
The first incident – 16 January 2020 – Charge 1 Common Law Assault
On Thursday, 16 January 2020 the complainant went to bed after a verbal argument with McPHERSON, believed to have arisen out of FIREBRACE commenting on the complainant’s Instagram photo.3
McPHERSON entered the complainant’s bedroom and began yelling at her. As the complainant attempted to leave McPHERSON grabbed the complainant by her hair and threw her into a wall, causing the back of her head to hit a wall. FIREBRACE entered the room and yelled at McPHERSON. The complainant attempted to leave the residence via the front gate but McPHERSON followed her, grabbing her by the shirt and attempting to grab her arm. As the complainant attempted to get free McPHERSON pushed her into the front gate. The complainant’s shin hit the front gate, which caused bruising to her shin (Charge 1 – Common Law Assault).4
The complainant left the premises and stayed at her brother’s house.5
1 Statement of Jordana MUNRO-GLARE dated 16 April 2020 (complainant’s 1st statement), depositions p.27.
2 Complainant’s 1st statement, depositions p.27.
3 Complainant’s 1st statement, depositions p.27
4 Complainant’s 1st statement, depositions pp.27-28.
5 Statement of Jordana MUNRO-GLARE dated 16 April 2020 (Complainant’s 2nd statement), depositions p.29.
Events between the first and second incidents 17 – 24 January 2020
The next day, on 17 January 2020, McPHERSON brought the complainant’s belongings to her (the complainant’s) brother’s house and threw them on the front lawn. McPHERSON stated she was going to stay with family in New South Wales and accused the complainant of breaking her and her boyfriend (FIREBRACE) up. McPHERSON told the complainant she was not allowed to live with FIREBRACE.6
Over the next few days, the complainant and McPHERSON were in communication but did not discuss what had occurred on 19 January 2020. McPHERSON sent a Snapchat message to the complainant asking when she was thinking about coming back.
At 2:26pm on Monday 20 January 2020 the complainant received the following text message from FIREBRACE:
FIREBRACE: “Hey Jord where you thinking about coming back? Just so I know how much I need for rent and stuff”
Complainant: “I’d only come back if I was right with everyone” FIREBRACE: “Yeah we want you too”7
The complainant returned to Douglas Avenue, Swan Hill, that day. She paid
$100 for rent prior to returning. Her phone screen broke and she was unable to message McPHERSON so she asked FIREBRACE to tell McPHERSON her phone was broken. 8
6 Complainant’s 2nd statement, depositions p.29.
7 Complainant’s 2nd statement, depositions p.30; Exhibit 4, depositions p.72.
8 Complainant’s 1st statement, depositions p.28.
The second incident – 24 January 2020 (Charges 2-4, McPHERSON and TOMKINS)
On Friday, 24 January 2020 at approximately 10:00am the complainant was at home when TOMKINS and McPHERSON arrived. TOMKINS’ two other daugthers were also present, Riley and Tahlia.9 The complainant let them inside the house. McPHERSON unzipped the complainant’s jumper halfway and noticed she was not wearing anything underneath. She accused the complainant of sleeping with her boyfriend, FIREBRACE. McPHERSON punched the complainant in the mouth, causing her head to hit the brick wall (Charge 2 - Common Law Assault — McPHERSON). As she did this McPERHSON (sic) called the complainant a “slut”.10
Both McPHERSON and TOMKINS yelled at the complainant to get in the car and told her they were going to take her interstate to New South Wales. The complainant sat on the ground crying, telling them she did not want to. And that she will move out and live with either her brother or mother, who reside in the Swan hill area. McPHERSON and TOMKINS told the victim that she was not allowed to live anywhere near McPHERSON’S boyfriend. TOMKINS grabbed the complainant by the jumper and told her to stop being stupid and that she had to go with them, whether she liked it or not.11 McPHERSON told the complainant that if she did not get in the car, she would tie her up.12
The complainant asked if they would take her to her brother’s house first to get more clothes. The complainant was unable to get away from McPHERSON and TOMKINS and believed that her brother would be able to help her once they got there. McPHERSON and TOMKINS said they would take the complainant to her brother’s place, so the complainant got into the vehicle in the backseat, together with TOMKINS’ two daughters. TOMKINS sat in the driver’s seat and
9 Complainant’s 2nd statement, depositions p.30. 10 Complainant’s 1st statement, depositions p.28. 11 Complainant’s 1st statement, depositions p.28. 12 Complainant’s 2nd statement, depositions p.31.
McPHERSON sat in the front passenger seat. The vehicle was a black Ford Fiesta with NSW registration CSL07Z, registered to McPHERSON.13
Once in the vehicle, the complainant tried to give directions to her brother’s house but TOMKINS ignored her. As TOMKINS drove south along McCallum Street, Swan Hill, approaching the Beveridge Street roundabout, McPHERSON told the complainant they were taking her straight to New South Wales.14 The complainant immediately thought about jumping out of the moving vehicle as she was fearful that if they left Swan Hill, she would not be able to get help.15 (Charge 3 – Kidnapping (common law) – McPHERSON and TOMKINS) (Charge 4 – False imprisonment (common law) – McPHERSON and TOMKINS)
When the car stopped at the traffic lights on the corner of McCallum Street and Campbell Street, Swan Hill, the complainant tried to escape out of the vehicle, throwing her seatbelt off and opening the door. McPHERSON reached from the front seat and grabbed the complainant by her arm. TOMKINS also tried to grab her but missed. McPHERSON still had hold of the complainant’s sleeve pulling the jumper off as the zip came undone. This caused a red mark on the complainant’s neck. There was a short struggle before the complainant managed to get free and escape McPHERSON’S hold.16
The complainant ran from the vehicle covering her top half with her arms due to having no clothing covering her top half. The complainant ran towards two men, Steve JOHNSTONE17 and Daniel BLAND18, who also had their young children with them standing at the toilet block located on McCallum Street, Swan Hill. Steve JOHNSTONE gave the complainant his shirt to wear. McPHERSON ran from the vehicle chasing the complainant yelling at her. The complainant stood behind the two males for protection. The second male
13 Complainant’s 2nd statement, depositions p.31.
14 Complainant’s 2nd statement, depositions p.31
15 Complainant’s 2nd statement, depositions pp.31-32.
16 Complainant’s 1st statement, depositions p.28; Complainant’s 2nd statement, depositions p.32.
17 Statement of Steve JOHNSTONE dated 24 January 2020, depositions p.37.
18 Statement of Daniel BLAND dated 24 January 2020, depositions p.41.
witness yelled at McPHERSON to leave the complainant alone. McPHERSON began to walk away however turned back around and approached the complainant again, yelling at her.
During this time TOMKINS drove the vehicle and parked near the toilet block. McPHERSON walked back to the vehicle and TOMKINS walked up to the male witnesses to get the complainant back in the vehicle. The male witnesses protected the complainant behind them and told TOMKINS to leave her alone.19 TOMKINS returned to the vehicle and they both drove to New South Wales.
The second incident was captured on Town Hall CCTV.20
Police arrived shortly after.21
ARREST AND INTERVIEW
On 9 February 2020 McPHERSON was arrested and interviewed at Swan Hill Police Station.22 In the digitally recorded record of interview, McPHERSON stated:
· She did not assault the complainant on either 16 January 2020 or 24 January 2020;
· She denied taking the complainant away against her will and said she was giving the complainant a place to stay;
· She said she was taking the complainant to her brother’s house before they took her anywhere.
Loretta TOMKINS was not interviewed in relation to this matter.
19 Statement of Billy CARPINTERI, depositions p.42.
20 Exhibit 2, depositions p. [52]-[64].
21 Statement of First Constable Ben Bradford, depositions p.46 and BWCF, depositions.
22 Transcript of Record of Interview, depositions p.51; Statement of Constable Kristopher Blackmore dated 28 December 2020, depositions p.47 and BWCF; Statement of First Constable Sarah Oliver dated 23 December 2020, depositions p.50; Discs containing photographs of the complainant’s injuries Exhibits p.(73-84).
NOTICE OF ADMISSIONS
The following admissions will be sought:
Admissibility of all photographs.
Admissibility of all CCTV footage.
Admissibility of all Body Worn Camera Footage.
Admissibility of text message between the complainant and Trevor Firebrace dated 19 January 2020.
Admissibility and transcript accuracy of Record of Interview of Lily McPherson.
……………………….
Jack Mighell
Solicitor for the Prosecution
Annexure “B”
IN THE COUNTY COURT Case No CR-21-01655
AT MELBOURNE Indictment No C2014124
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS for Victoria
v
LORETTA TOMKINS
DEFENCE OUTLINE OF SUBMISSIONS ON SENTENCE INDICATION HEARING
This sentence indication hearing is proceeding on the charge of false imprisonment, only.
Loretta TOMKINS was born in January 1981. She is 41 years of age.
TOMKINS has no prior criminal history. The co-accused, Lily MCPHERSON, is her eldest daughter. TOMKINS resides in the rural and remote town of Rankin[s] Springs, NSW, with her partner and two younger daughters.
Ultimately, it will be submitted that a good behaviour bond, without conviction is appropriate in all the circumstances, having regard to:
4.1.that the alleged offending is at the lower end of the range on a scale of objective seriousness;
4.2.TOMKINS has no priors and excellent prospects of rehabilitation,
4.3.this alleged offending occurs against a backdrop of specific mitigating circumstances;
4.4.delay;
4.5.her plea of guilty, in light of the Covid-19 Pandemic.; and
Defence relies upon the following material which has been e-lodged:
5.1.Bundle of character references;
5.2.Bundle of certificates of completion issued by NSW Department of Education.
Procedural history
The alleged offending occurred on 24 January 2020.
TOMKINS was charged on 21 October 2020. TOMKINS was not given the opportunity to sit a record of interview.
A contested committal hearing proceeded on 4 August 2021. On 21 September 2021, TOMKINS was committed for trial.
The matter was listed for trial in the Mildura Circuit commencing 17 January 2022. It is understood that this Circuit was vacated due to the Covid-19 Pandemic and the re- allocation of judges to Melbourne. If this matter does not resolve at this hearing, a new trial date will be sought.
10.On 10 February 2022, this matter was case conferenced before her Honour Judge Morrish.
11.On 18 February 2022, the prosecution offered a resolution on the basis of a plea of guilty to a charge of false imprisonment. This is the first time such an offer was put.
12.On 17 March 2022, a sentence indication hearing on the false imprisonment charge is listed.
Personal history
13.TOMKINS is an Aboriginal woman. Her mother is from the Kamileroi tribe. She is the youngest of four siblings (eldest two of which are her half-siblings). She has spent the majority of her life in the remote rural town of Rankin[s] Springs, NSW which is located about an hour away from the next major town of Griffith, NSW.
14.Rankin[s] Springs has a population of about 100 people. It has a primary school, Rankin[s] Springs Public School, and limited work opportunities.
15.TOMKINS completed primary school at Rankin[s] Public School and then travelled to Griffith for High School. She has completed up to year 10. TOMKINS describes a happy childhood with both of her parents, growing up on a farm. Her father is a Vietnam War veteran and has been diagnosed with PTSD, and her mother was his main carer. She says whilst neither of them were able worked, that her and her siblings never went without.
16.At 19 years, TOMKINS fell pregnant with her eldest daughter, Lily McPHERSON. TOMKINS currently resides in Rankin[s] Springs with her partner of 27 years, and their two youngest children: Kahlia (14 years) and Riley (13 years). Their eldest child, Lily McPHERSON (co-accused), is 21 years.
17.TOMKINS’ work history is varied. She has worked at the local pub and local hotel. At one time she ran her own cleaning business where she would clean for local farmers’ wives and would travel 60km West and North of her home in Rankin[s] Springs.
18.Around 3.5 years ago, TOMKINS was given an opportunity by the headmaster of Rankin[s] Public School to work as a School Learning and Support Officer (SLSO). She and her three children had gone to the primary school. Her role included in classroom support, child support and support in the playground. TOMKINS also ran the special program for effective reading, and the Royal Far West Speech Pathology.
19.TOMKINS found a passion with her role as an SLSO. She enrolled in a Certificate III in Teacher’s Support. She has obtained a number of certifications with the Department of Education, NSW.
20.Recently, on 15 February 2022, TOMKINS has resigned from her role as a teacher’s aid[e]. TOMKINS instructs that she could not morally continue her role in view of the current charges she faces. Her employment prospects in view of this proceeding are dim. For her role, she required a police check and a working with children’s check – she is concerned that the recording of a conviction, in particular, will affect her ability to be employed in her chosen field.
Alleged offending
21.It is respectfully submitted that this offending is at the lower end of the range of objective seriousness for the following reasons:
21.1.Relatively short duration.
21.2.The complainant was not sequestered alone. In that regard, TOMKINS had her two youngest daughters in the backseat of the vehicle with TOMKINS.
21.3.No physical violence was used by TOMKINS on the complainant. Prior to this alleged incident, TOMKINS had admonished her daughter, co-accused MCPHERSON, after it’s alleged that she had hit the complainant to the face.
21.4.The complainant was not physically forced into the backseat.1
21.5.Accepted that the complainant was in a moving vehicle, however, the car doors were not locked at any time, as evidenced by the complainant’s subsequent exit from the vehicle.
22.The context of this alleged offending is as follows:
22.1.The complainant had been a friend of TOMKINS’ daughter, McPHERSON, for some time. The complainant had run away from home a couple years prior at Christmas time, when she was around 16 years of age. The complainant went to live with TOMKINS and her family for a time.2
22.2.TOMKINS instructs that she treated the complainant as another daughter. At committal, the complainant accepted this.3 TOMKINS and her family, together with the complainant, went on holidays together, including to Kiama in Christmas 2019 just prior to the incident.4
22.3.On the day of the incident, it was accepted by the complainant that she could no longer live at the address in Swan Hill.5 TOMKINS instructs that she, together with her two younger children (aged 11 and 12 years), were present that day as peacemaker.
23.It is clear from the totality of the evidence, that the motivation for the alleged offending was to facilitate the complainant leaving the Swan Hill address. TOMKINS had with her
1 Depositions (D)146: And you just got into the backseat of the car by yourself, didn’t you? – Yes, cause – yeah, yeah.
2 D122.
3 D154.
4 D27.
5 D142.
her own two younger children, she did not use physical violence on the complainant, and had a pre-existing maternal relationship with the complainant. For the purpose of the sentence indication hearing, it is accepted that this was ultimately against the complainant’s will.
24.Were it not for the charge of kidnapping, it is submitted that this charge would have been appropriate to be dealt with summarily in the Magistrates’ Court.
Factors in mitigation and sentencing considerations
25.The following matters are relied upon in mitigation:
Plea of guilty
26.It is submitted that TOMKINS’ plea ought be regarded as an early plea. The prosecution have maintained the charge of kidnapping throughout this proceeding, and this marks the first time (a trial date already having been vacated), that a charge of false imprisonment has been put. In the alternative it is submitted that the fact of the Crown’s change of position in relation to an acceptable ‘bottom line’ is relevant to the weight to be attributed to TOMKINS’s plea.
27.Nonetheless, this plea has substantial utilitarian benefit, with real value, in a period of unparalleled interruption of the Court’s business. A plea of guilty entered during the Covid-19 Pandemic is worth greater weight in mitigation that a similar plea when the community and Courts (evidenced by the vacation of the previous trial date in this case), are not affected by the Pandemic.6
Prior character and prospects of rehabilitation
28.TOMKINS has no prior convictions, being a person of 41 years. She is a person of good character and is respected and trusted by her peers as evidenced by the character references to be tendered on her behalf.
29.In light of her lack of prior convictions and the matters set out in the reference material, together with the support from her family including her long-term partner Jodi McPherson, it is submitted that TOMKINS’ prospects of rehabilitation should be regarded as excellent.
Delay and effect of proceedings
30.These matters have taken over two years to reach this stage of the proceeding. A trial date has been vacated and it is unknown presently, when a trial would be listed. These matters have hung over TOMKINS’ head and has affected key aspects of her life, including:
30.1.Her resignation from her dream job as a support worker in a town with limited employment prospects. TOMKINS instructs that she prides herself for trying to
6 Worboyes v R [2021] VSCA 169 at [39]; DPP v Bourke [2020] VSC 130, [32].
do well for herself and for her family and that in the past few years she has concentrated on educating herself so that she provide for her family.
30.2.She instructs it has affected how she communicates with her partner and how she parents her two younger children, who still do not have a proper appreciation of what occurred on the day of the incident.
30.3.It has affected how she deals with other people’s children and she does not feel comfortable transporting other children in her car.
Disposition submission
31.It is submitted that a without conviction disposition is appropriate in the circumstances.7 All three of the considerations set out in s. 8 of the Sentencing Act 1991 are in TOMKINS’s favour. She is a person of impeccable prior character. The impact of recording a conviction will likely be disastrous, given that her chosen vocation is as a support worker in primary school education. Further, the nature of the offending is not grave, having regard to the matters set out above. In all the circumstances, a conviction ought not be recorded.
32.It is submitted that for all of the above reasons, that is, that this alleged offence is at the lower-range of this type of offending, her prior good character and excellent prospects of rehabilitation, early plea of guilty and its utilitarian effect of real value in light of the Covid- 19 Pandemic, together with the delay and the inability of TOMKINS to continue in her chosen and passionate line of work, that a good behaviour bond without conviction is appropriate in all of the circumstances.
16 March 2022
A SINGH
Counsel for TOMKINS
7 See DPP v Walsh [2018] VCC 172: indicative of the Court’s willingness to give a non-conviction disposition for this offence in certain circumstances.
0
4
0