DPP v Thompson [2022] VCC 92 (8 February 2022)

Last Updated: 28 June 2023

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-20-00247

DIRECTOR OF PUBLIC PROSECUTIONS
v
DEAN THOMPSON

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JUDGE:	Mullaly
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2021
DATE OF SENTENCE:	8 February 2022
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2022] VCC 92

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence

Catchwords: Plea of guilty – Armed robbery

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited: DPP v Candaza & Ors [2003] VSCA 91; Boulton & Ors v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169

Sentence: 2-year community correction order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K. Farrell	Office of Public Prosecutions
For the Accused	Mr C. Morgan	Stary Norton Halphen

HIS HONOUR:

1. Well over three years ago on 19 October 2018, you were on the Croydon station. You approached another public transport user, the victim, asking him if he had a lighter. You continued talking asking him where he was heading and if he wanted to share some drugs, being methylamphetamines. He declined. You then produced a small knife and demanded he hand over all his money. He initially resisted but then complied when you threatened to stab him if he did not do as you said.
2. He handed over $95. You grabbed the money and ran for a nearby bus. The victim got the attention of the nearby Protective Services Officers and told them what had happened. They then got on the bus and you were ultimately arrested. The search discovered the $95 cash and the knife. When police arrived and you were interviewed, you admitted a robbery but despite having a knife on you, you denied using it in the robbery. That approach was maintained through a committal and onwards towards a trial. The matter resolved for a plea of guilty to an armed robbery in November 2021 when it became clear your approaching trial would not occur due to the further suspension of jury trials as the pandemic continued.
3. Offending with a dangerous weapon in public is to be condemned. Armed robbery is always a serious crime. Denunciation and deterrence loom large. Safety on and around public transport is important. Crimes of this kind are corrosive and make the public wary of using public transport. While the seriousness of this offending is a very important sentencing consideration, I am reminded of the words of Chernov J in the matter of DPP v Candaza & Ors.^[1] A case where four young men were given community corrections orders without convictions being recorded for an armed robbery committed in company. What was said relevant to this matter is at paragraph 15. Chernov J said:

Although I consider that the sentence imposed are very light, seems to me that in all the circumstances of this case, the seriousness of the offences should not wholly dictate the punishment that is appropriate.^[2]

4. Subsequent to that case which was decided in 2003, a completely new community correction regime was introduced into the Sentencing Act 1991 (Vic) in 2012. The guideline judgment of the Court of Appeal in Boulton & Ors v The Queen,^[3] delivered in late 2014 made it clear that this new regime had changed the sentencing landscape significantly. It permitted community corrections orders to be imposed for crimes that would have otherwise in earlier times been met with mid-level gaol terms or suspended sentences.
5. The five judges sitting as the Court of Appeal in that case commenced their decision by making it clear with the following:

The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.^[4]

6. I also note that in introducing the legislation into Parliament, the then Attorney General emphasised the important rehabilitative aspect of keeping families together by imposing community corrections orders rather than the blunt and disruptive penalty of imprisonment. That is a key consideration in your case.
7. To that end, I turn to your personal circumstances.
8. You are now 35 years old and 32 at the time of the crime. You have prior convictions of real concern but they can be seen or attributed to a person of heavy drug use when you were in a relationship with a drug user and when that relationship came to an end. At that point you did not cope well.
9. What needs to be understood about your prior convictions is that you are not to be re-punished for your past crimes, rather I need to consider deterrence to you but also the question of whether you have made efforts to stop or change your past criminal patterns. That is important given that the offending that I am dealing with was committed in 2018.
10. Going to your personal circumstances and particularly your efforts to reform, you were raised in a supportive family in the eastern suburbs. You left school at Year 10 and secured a job as an apprentice boilermaker. You remained there for a couple of years before a serious hand injury brought that job to an end.
11. During the work and certainly after when you were unemployed, you drank too much and too often and took up using drugs and, concerningly, took up the use and the ever increasing use of the danger drug, ice. Drugs became a destructive lifestyle for you. You met your long-term partner who was also troubled by drug use in this time.
12. You and she had three children, a son and twin daughters. You had returned to employment as a roof tiler but the grip of drugs was causing significant difficulties in the relationship with your partner and with work. Child protection became involved and the three children then aged six and four – well, the twins were four – were placed with your parents where they remained and flourished.
13. You were before the Magistrates' Court during these years, 2013 to 2019 for offences of dishonesty, driving offences, violence both directed at police and within the family context.
14. You had suspended sentences, intensive corrections orders and community corrections orders imposed which were breached. You served periods of imprisonment as a result.
15. While in prison on remand, you witnessed the riots at the Melbourne Remand Centre. It caused significant mental trauma. Subsequently, you have had psychological treatment for post-traumatic stress disorder as well as for your longstanding depression and anxiety.
16. This past history is of concern and ordinarily may mean that I have no other option but gaol. However, in the period since this offending in 2018, especially of late during the pandemic, you have taken significant steps in rehabilitation though there have been lapses and backward steps as well. In very recent times, a magistrate imposed fines for breaching a community corrections order and for shop stealing. Your inability to complete a community corrections order are of concern as I have noted. It resulted in the community corrections officers assessment, for my purposes, as saying you were unsuitable. I will return to this matter. At present you play a solid role as a sole parent to your three now teenage children. There is no involvement from the mother. Your own parents are the mainstay and you all live with them in a family home.
17. Your father wrote a perceptive, realistic letter of support directed to the court. He outlined your past difficulties. He went on to say that you have recently shown positive steps and willingness to meet and be helped by professionals, who he sees as important in you being able to do the right thing permanently.
18. I just pause at this moment, Mr Thompson, to say, you should not from here let your parents down again nor your teenage children. It is time to put criminal behaviour, drug use behind you and get on with the corrections order which I am about to impose.
19. But all of this creates a real tension. It would be expected that with this crime and your past, a period of imprisonment would follow.
20. However, added to your period of recent rehabilitation in the last two or so years, there are a number of compelling mitigatory matters. First is that your plea of guilty in this period of real crisis in the criminal justice system is of greater value than in pre-pandemic times. The Court of Appeal in Worboyes v The Queen (‘Worboyes’) made clear that the benefit to the system of a plea in these times must be palpably more - that is the benefit to you must be palpably more than in the past.^[5] Plainly that means the sentencing judges are authorised or guided to impose lesser terms of imprisonment but also in cases on the knife edge, to impose sentences of a type more lenient such as a lengthy community corrections order for serious crimes.
21. Also to be considered is that in these times of the pandemic, gaols are different than they were before. Corrections have to do what is needed to protect inmates and staff from this highly infectious disease. This means greater restrictions or bans on visits, courses and less time out of cells. In short, gaol is more onerous. It must be kept well in mind in determining whether gaol of that level of onerousness, that is gaol of the kind that would be done now, is required or whether all sentencing purposes such as denunciation and deterrence and your rehabilitation can be satisfied by a community corrections order.
22. As I have said, this is a case on the knife edge. I think the conglomeration of the lengthy delay since the offending, the Worboyes point, the harshness of gaol and how gaol would significantly disrupt your steps to reform and disrupt your family life.
23. These are important matters. And in combination permit or leave me to consider that the just and appropriate sentence is one where you are not sent to prison. However, Mr Thompson, be under no illusion, that should you not do this community corrections order, or should you reoffend during the time of the corrections order, it would be almost certain that you will be sent to gaol for a substantial period of time in the re-sentencing that would follow.
24. As I said, your community corrections assessment was unfavourable due to your history of breaching community corrections orders. This community corrections order which I am to impose, notwithstanding your unfavourable report, is in my view where that history of breaching community corrections orders must stop. This corrections order is not to be seen as voluntary or an option for you to do whenever you are able to manage it. What is required of you must be done, each and every aspect of it without fail.
25. For committing the crime of armed robbery, I impose the following sentence with conviction. You will be placed on a two-year community corrections order. The conditions of that order I will outline both the mandatory ones and the ones specific to you. In brief terms, the program conditions specific to you are that you must do unpaid community work, that is 180 hours of unpaid community work. You must be under supervision. You must undergo treatment and assessment or assessment and treatment for drug addiction.
26. You must undergo assessment and treatment for alcohol abuse. You must undergo assessment and treatment for mental health problems and you must undergo programs to prevent reoffending as directed. Each of, or all of the hours that you spend engaged in those rehabilitative programs related to drugs, alcohol, mental health and other programs can be counted as unpaid community hours. Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of three years with a minimum term of 20 months.
27. Are there any other consequential orders or the like, Ms Farrell or anything else that needs doing?
28. MS FARRELL: Yes, Your Honour. There was a disposal order filed ‑ ‑ ‑
29. HIS HONOUR: Yes.
30. MS FARRELL: ‑ ‑ ‑ in November for the knife.
31. HIS HONOUR: I make that order, dispose of the knife. Anything else as far as you are concerned, Mr Morgan?
32. MR MORGAN: No, Your Honour.
33. HIS HONOUR: No. Mr Thompson, if you were here in court you get a document that sets out all the requirements of the community corrections order. You are not here but we will do it over the Webex as it were, straightforwardly as I have done. So, everyone who is on a community corrections order, you should know this, you have been on those recently and so on and so forth, have got to comply with the mandatory conditions. They are, and for you most importantly, you must not commit another offence for which you could be imprisoned during the course of the corrections order which goes for two years, so any crime, shoplifting of course. That will breach the order and you will be back before me and as I said, inevitably, you will be sent to gaol for a lengthy period of time.
34. The other aspects of the Corrections order that I have just imposed are really about cooperation. You have got to attend at the community corrections centre at Lilydale within two clear working days or get on the phone to them and make a connection with them. It may be necessary that telephone numbers are provided but within two clear working days, you have got to take it up with the people at the Lilydale community correction service.
35. You have got to keep them informed of things that are happening in your life. So, if you get work you have got to tell them about that. If you change your address, you have got to tell them about that. If you wish to travel outside Victoria, you have got to get permission to do it, you have got to accept visits from them and you have got to follow all lawful directions, it is all about cooperating. If you do not do it, you know the consequences. That is the mandatory conditions apply to everyone.
36. The program conditions that apply to you are the community work, 180 hours, assessment and treatment for drugs, alcohol and mental health and programs, you will be directed or could be directed to programs that will assist in reducing your risk of reoffending. You are also to be under supervision of the Corrections order because you are someone who is a high risk of reoffending. Now, that means you have got to have supervision, meetings and so on and so forth, you cannot miss those and if there are child care arrangements or whatever, you have just got to cooperate with them and talk it through and make sure that no one is - that you do not fall into breach.
37. Do not put your head in the sand if you do not turn up, just sort it out. I just do not want to see again. If I do, then you will be in this courtroom for sure, because you will be going out another door. So, Mr Thompson, do you consent to doing that order?
38. OFFENDER: Yes, sir.
39. HIS HONOUR: All right, that will be noted on the document that I sign that you gave oral consent in the virtual hearing. Anything else required?
40. MS FARRELL: Not from the Crown, Your Honour.
41. HIS HONOUR: Thank you, Ms Farrell.
42. MR MORGAN: (Indistinct words), Your Honour.
43. HIS HONOUR: Nothing from you, righto.
44. MR MORGAN: No, thank you.
45. HIS HONOUR: I thank counsel for their considerable assistance in sorting this out, so it is in your court, Mr Thompson. Merciful sentence. Will not be repeated. Just get this order done. Thank you. You are free to go.
46. MR MORGAN: If the court pleases.
47. MS FARRELL: As Your Honour pleases.

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^[1] [2003] VSCA 91.

^[2] Ibid [15].

^[3] [2014] VSCA 342.

^[4] Ibid [2].

^[5] [2021] VSCA 169.