R v Thompson [2016] ACTSC 164

Crimes Act 1900 (ACT), ss 26, 34

Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT), ss 308, 310(b), 311, 318(1)

Supreme Court Act 1933 (ACT), s 68D

Bugmy v The Queen (2013) 249 CLR 571

R v Austen [2013] ACTSC, Penfold J, 7 February 2013

R v Britt [2015] ACTSC 402

R v Hutchison [2013] ACTSC, Higgins CJ, 4 April 2013

R v Keenan [2014] ACTSC 342

R v Thompson; R v Taylor [2011] ACTSC, Higgins CJ, 10 June 2011

R v Tresize [2012] ACTSC, Nield AJ, 7 September 2012

R v Twerd [2013] ACTSC, Higgins CJ, 20 June 2013

Thompson v The Queen [2012] ACTCA 35

1. Steven Thompson has been found guilty by a jury of five offences as follows:

(a) burglary, contrary to s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 14 years;

(b) theft, contrary to s 308 of the Criminal Code and carrying a maximum penalty of imprisonment for 10 years;

(c) aggravated robbery, contrary to s 310(b) of the Criminal Code and carrying a maximum penalty of imprisonment for 25 years;

(d) unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT) and carrying a maximum penalty of imprisonment for 10 years; and

(e) taking a motor vehicle without consent, contrary to s 318(1) of the Criminal Code and carrying a maximum penalty of imprisonment for five years.

2. A charge of common assault under s 26 of the Crimes Act was also transferred to the Supreme Court to be dealt with under s 68D of the Supreme Court Act 1933 (ACT) on the basis of the evidence given at trial. In the event, the evidence given at trial did not refer to an assault that could be separated from the robbery, so the assault charge has been withdrawn by the Crown.

3. The incidents from which these charges arose took place in December 2014.

4. On 19 December, Faye Dudeck had been at the front of her house when her next door neighbours left for a holiday over the Christmas period.

5. A few days before Christmas, Mr Thompson was introduced to Ms Dudeck by a mutual acquaintance. In the days following this initial encounter, Mr Thompson and Ms Dudeck spent a significant amount of time together, and he stayed at her house in Richardson. Mr Thompson helped Ms Dudeck with some household chores and minor motor vehicle repairs. Mr Thompson and Ms Dudeck also used the drug Ice together.

6. On the night of 22 December, Mr Thompson stayed at Ms Dudeck's house. The next day she went out for a while leaving Mr Thompson at her home. When she arrived home, Mr Thompson told Ms Dudeck to drive her car down the driveway and through an open gate to the side of the house, which she did. When Ms Dudeck reached the side of the house, she noticed two clothes baskets near her driveway, one of which contained something that looked like a doona cover that had been tied up with items inside it.

7. She also saw Mr Thompson in the back yard of the neighbouring property wearing black gloves. Ms Dudeck went inside, from where she saw Mr Thompson placing the baskets in the back seat of her car. Mr Thompson also passed two television sets over the fence from the neighbouring property, placing them on top of a hedge that ran alongside the fence adjoining the two properties.

8. Sometime later, police went to the next door house and observed that it had been broken into and ransacked. The occupants were notified and returned early from their Christmas holiday. Some of the items stolen were subsequently recovered. The entry to the next door house and the removal of the property from it constituted the burglary and theft.

9. Later on the day of the burglary, Mr Thompson and Ms Dudeck drove in her car to a block of units in the suburb of Theodore.

10. When they arrived, the car was driven straight into an enclosed garage. From there, Mr Thompson and Ms Dudeck went into a unit with the occupant, Mr Atherton.

11. Soon after that, Mr Thompson demanded that Ms Dudeck give him her handbag and Ms Dudeck complied. Mr Thompson searched through the bag and removed $900 in cash from Ms Dudeck's wallet, which he put in his pocket.

12. Mr Thompson also found a bankcard in Ms Dudeck's wallet; he demanded that she provide him with the PIN for the card, but she initially refused to do so.

13. Later, in response to a request from Mr Thompson, Mr Atherton produced several knives from the kitchen and began to sharpen them. He then placed the knives on a table near Mr Thompson. Mr Thompson asked Ms Dudeck to stand. He held a knife to her throat, demanded that she remove her jewellery, and then made a number of rambling but very unpleasant threats to harm Ms Dudeck's daughter. Ms Dudeck removed a number of items of jewellery, including gold and diamond rings and a gold bracelet, and gave them to Mr Thompson. Mr Thompson forcibly removed a number of other items of jewellery that Ms Dudeck had been unable to remove herself. The taking of Ms Dudeck's jewellery, accompanied by the making of threats, constituted the aggravated robbery.

14. Mr Thompson then told Ms Dudeck to sit on the floor facing the wall. He allowed her to use the toilet, but required her to return to this position afterwards. When Ms Dudeck spilled some water, she was refused a cloth and told to clean the spill up with her trousers. Ms Dudeck asked Mr Thompson if she could go home to her daughter, but Mr Thompson refused this request and laughed at her. Mr Thompson's continuing refusal to allow Ms Dudeck to leave the unit was the first stage of the unlawful confinement.

15. Mr Thompson kept demanding that Ms Dudeck tell him the PIN for her keycard, threatening at one point to take her to an automatic teller machine with him. Eventually Ms Dudeck gave Mr Thompson her PIN.

16. Mr Thompson then demanded that Ms Dudeck write a false receipt stating that she had sold her car to him for $3,000. Ms Dudeck tried to comply, but she was shaking and incapable of writing legibly, so Mr Atherton wrote the note for her. Mr Thompson did not give Ms Dudeck any money in exchange for her car.

17. Mr Thompson then asked Ms Dudeck to write another note stating that she had broken into her neighbour's house earlier that day. Again, Ms Dudeck was incapable of writing this note so one of the two men (Ms Dudeck was not sure which one) wrote it.

18. Eventually, sometime after midnight, Mr Thompson took Ms Dudeck back to the car. He drove the car, with Ms Dudeck sitting in the passenger seat and Mr Atherton in the rear, to the suburb of Richardson, where he stopped the car and made Ms Dudeck get out. This was the end of the period of confinement which therefore ran for some hours. Mr Thompson drove away in Ms Dudeck's car with Mr Atherton. Ms Dudeck did not consent to Mr Thompson taking her car.

19. Ms Dudeck walked to the nearby home of a friend, and was driven home. The next day, at the prompting of another friend, Ms Dudeck went to the Tuggeranong Police Station to report the incident.

20. On 27 December, police located Mr Thompson asleep in the driver's seat of Ms Dudeck's vehicle, which was parked outside a unit complex in Isabella Plains. In the vehicle police found various items taken from Ms Dudeck's neighbours' property, as well as some of Ms Dudeck's jewellery and the handwritten note purporting to be a receipt for the sale of Ms Dudeck's vehicle to Mr Thompson.

21. Mr Thompson was arrested and was granted police bail on 28 December, but failed to appear in the Magistrates Court on 9 January 2015. On 19 January 2015, he was arrested and remanded in custody, and he has been in custody ever since.

22. On 26 April 2016, Mr Thompson was dealt with in the Magistrates Court on pleas of guilty to three other charges associated with the offences for which I am sentencing him, being:

(a) unlawful possession of stolen property;

(b) possession of a prohibited weapon (being an improvised knuckle-duster); and

(c) a failure to appear on a bail undertaking.

23. He was sentenced to three months imprisonment from 19 January 2015 for the fail to appear offence, and three months and six months imprisonment respectively for the stolen property and weapons offences, both of which were to be "fully suspended" on 12-month good behaviour orders from the date of his release.[1]

24. Mr Thompson had pleaded not guilty to the current offences in the Magistrates Court in February 2015, and was committed to this Court for trial. The jury returned its verdicts on 8 December 2015.

25. At the time of these offences, Mr Thompson had been on parole for some months under a sentence imposed in 2011. His parole was cancelled on 3 February 2015, and he is currently serving that earlier sentence, which will be completed on 24 May 2018.

26. The following material is in evidence before me, as well of course as the evidence given at the trial:

(a) a victim impact statement of Faye Dudeck dated 12 February 2016;

(b) a victim impact statement of Dianne Howell dated 10 February 2016;

(c) Mr Thompson's criminal history dated 17 May 2016;

(d) a pre-sentence report dated 8 March 2016;

(e) a CADAS report dated 9 February 2016;

(f) sentencing remarks delivered by Higgins CJ in sentencing Mr Thompson in 2011 (R v Thompson; R v Taylor [2011] ACTSC, Higgins CJ, 10 June 2011); and

(g) the judgment of the ACT Court of Appeal in the matter of Thompson v The Queen [2012] ACTCA 35, a 2012 appeal from the Chief Justice's 2011 sentencing;

27. As well, the defence tendered a pre-sentence report dated 17 May 2011, prepared for the 2011 sentencing by Higgins CJ. It contained significantly more background information about Mr Thompson than the more recent pre-sentence report.

28. Ms Dudeck gave brief oral evidence before her victim impact statement was read in court.

29. In considering the objective seriousness of these offences, I have had regard to the following matters.

30. First, of course, these offences were aggravated by being committed while Mr Thompson was on conditional liberty under a parole order.

31. Next, there is no evidence on which I could find that any particular planning went into the commission of these offences, so I accept that they were largely opportunistic. On the other hand, the burglary apparently involved repeated entries into the Howells' home and the theft involved the removal of many items of property in a number of different trips in and out of the house. The confinement of Ms Dudeck extended over several hours, within which the aggravated robbery occupied a relatively brief period.

32. Although there had been some intimacy established between Mr Thompson and Ms Dudeck over the several days while Mr Thompson stayed at Ms Dudeck's house, I do not consider that it amounted to any kind of relationship in which Mr Thompson could be said to have been in a position of trust.

33. Since Mr Thompson denies the offences, he has not expressed any remorse nor offered any kind of explanation for them.

34. As noted, victim impact statements were provided by Dianne Howell, who was an owner of the house that was burgled, and by Ms Dudeck, the victim of the other three offences.

35. Ms Howell's victim impact statement referred to financial consequences for the family, including the excess payable on their insurance claim and increased insurance costs, as well as the costs of extra home security. She also described feeling "emotional and stressed" since the incident, and feeling as if her privacy had been invaded. She also mentioned the insecurity felt by her daughter, and the interruption to the family Christmas holiday after police discovered that their house had been burgled.

36. There was no assessment put before me of the value of the property taken from the Howells and, as already noted, some of it was ultimately recovered from Ms Dudeck's car.

37. Ms Dudeck, in her victim impact statement, described her daughter's anger over the incident (for which her daughter blamed Ms Dudeck), and her neighbours' belief that she was involved in the burglary and theft. She described feeling very scared for weeks after the incident, the severe anxiety and depression that resulted from her experiences with Mr Thompson, her need for counselling and medication, and her ongoing feeling of insecurity that has seriously limited her day-to-day activities and especially her social life. She has applied to move to a different house, has problems trusting new people, and has also suffered significant financial difficulties, including because she still owes money for some of the jewellery stolen from her, and has extra expenses arising from her sense of insecurity.

38. Ms Dudeck gave oral evidence explaining that before the incident with Mr Thompson she had suffered depression and anxiety over a period of about 10 years, but this had generally been under control. Her experience with Mr Thompson had, she said, escalated her problems. She also suffered bruising from Mr Thompson's forceful removal of her jewellery, and said that for some time afterwards she had trouble lifting things.

39. Defence counsel, acting on instructions, challenged Ms Dudeck at length about the credibility of her victim impact statement and her oral evidence. It may be that Ms Dudeck has exaggerated her claims to some degree, but I accept that the incident with Mr Thompson has left her with ongoing physical and emotional problems.

40. I conclude that the burglary and theft are of mid-range seriousness; the unlawful confinement is also of mid-range seriousness; the motor vehicle offence is of relatively low-range seriousness, and the aggravated robbery, while unpleasant and clearly very disturbing to Ms Dudeck, is of slightly less than mid-range seriousness. In reaching that last conclusion, I have had regard to the wide spectrum of criminal behaviour covered by the offence of aggravated robbery, and the principle that robberies in which members of the public are alarmed may be more serious than those involving only the actual victims, although one must also bear in mind that robberies may be more disturbing to victims who have no expectation of rescue by others.

41. I note also that although these offences were all committed over a single period of somewhat less than 24 hours, they really involved two quite separate incidents, one involving the burglary and theft from the Howells and the other the treatment of Ms Dudeck from the time she was taken from her home, confined in a strange unit and robbed, and finally deprived of her car.

42. I have also had regard in this sentencing to Mr Thompson's subjective circumstances.

43. Mr Thompson is 39 years old. He has an extensive criminal history. In the ACT, there have been more than 20 offences in the last 19 years, most relatively minor but several of a similar nature to those for which Mr Thompson is now to be sentenced, in particular offences of making a demand with a threat to kill, common assault, possessing stolen property and making a false instrument.

44. In Mr Thompson's New South Wales record, I counted nine convictions for assault occasioning actual bodily harm and another six for common assault.

45. The pre-sentence report prepared for this sentencing recorded that Mr Thompson had previously received both custodial and community-based sentences, and has on a number of occasions been the subject of breach action. He has also been subject to disciplinary action frequently during his current period in custody, including recently for assaulting two other prisoners and taking their property.

46. Mr Thompson was born and grew up in New South Wales. He had a difficult childhood, although apparently contributed to by his own rebellious nature. In a pre-sentence report prepared in 2011, Mr Thompson claimed to have been sexually assaulted by a stranger at gunpoint when he was 13. He has apparently sought counselling in relation to this experience at least twice in the last 11 or 12 years, but at least one attempt at counselling foundered on the fact that the providing organisation wanted to involve the police while Mr Thompson was not willing to do so. This may be why Mr Thompson did not refer to the sexual assault in the most recent pre-sentence report.

47. Not long after that assault, aged 14, Mr Thompson left home and travelled through Queensland for around nine months, during which time he began to use drugs including heroin. He returned to the New South Wales south coast and in due course began his offending with an assault occasioning actual bodily harm. In 2000, Mr Thompson lost a partner of four years to a drug overdose. He formed a new relationship and by 2011 was married with four children, whose ages must now range between 14 and 7 or thereabouts. It seems that, at the time of the current offences, that relationship had ended, and it may be that the collapse of his marriage precipitated the relapse into heavy drug use that is said to have preceded the current offences.

48. There was no claim recorded in the current pre-sentence report, or made by defence counsel, that Mr Thompson now has any particular role in relation to his children.

49. Mr Thompson left school in Year 9. He has recently been referred for enrolment in short pre-employment courses such as first aid. He has had little employment in the community but has usually been employed while in custody.

50. Mr Thompson was diagnosed with Post-Traumatic Stress Disorder in 2009. He has a history of opioid dependency and is receiving methadone treatment in custody.

51. Mr Thompson claimed in 2008 (and I think maintained this claim in the course of this sentencing) that he had become "institutionalised" through repeated terms of imprisonment; he explained that this referred to the fact that his life was in many ways easier in prison than out of it, where he needs to organise his own life and his own activities and comply with a variety of different obligations. This is no doubt an accurate description of some of the differences between being in custody and being in the community, but even if I accept Mr Thompson's claim, it does not in my view entitle him to any particular leniency and it is certainly not any kind of "get-out-of-gaol-free" card for a repeat offender.

52. Defence counsel suggested that Mr Thompson's history of dishonesty offences was relatively less serious than his violent offending, and pointed out that the dishonesty offences are mainly more recent offences. I cannot see that this gives Mr Thompson any particular claim to leniency in relation to the current offences, in which violence and dishonesty offences are combined. On the other hand, I do accept that Mr Thompson suffered real problems in his childhood (whether or not they deserve the description of childhood deprivation) and that the effect of those problems even now cannot be ignored (Bugmy v The Queen (2013) 249 CLR 571).

53. As already noted, Mr Thompson continues to deny the offences and has offered no explanation. However, I note that he and Ms Dudeck had engaged in Ice use in the day or so leading up to the period of the offences. I also note that Mr Thompson's drug use in general began at an early age, certainly before it could be described as resulting from a mature decision on his part, and apparently in reaction to the traumatic experience of sexual assault as a child. On the other hand, he has had previous access to rehabilitation programs, and has over time received pharmacotherapy (in this case, methadone) to help him deal with the heroin addiction. To the extent that drug abuse is implicated in the current offences, the relevant drug seems to have been Ice.

54. Despite this, Mr Thompson told the CADAS reporter that he had no intention of engaging in drug counselling or programs at the AMC, and the CADAS reporter says that further CADAS intervention is not recommended. Mr Thompson has also refused to take part in either a violent interventions program or a cognitive self-change program.

55. At this point, I can place little faith in his prospects of rehabilitation, although I shall have more to say about that shortly.

56. These are serious offences, not committed in the heat of the moment but over an extended period; as such, general deterrence is a relevant consideration, and might even be effective. It seems that Mr Thompson also needs substantial personal deterrence.

57. In considering the appropriate sentences in this case, I have had regard to a number of other sentences involving aggravated robberies that were drawn to my attention by counsel, specifically:

(a) R v Keenan [2014] ACTSC 342;

(b) R v Twerd [2013] ACTSC, Higgins CJ, 20 June 2013;

(c) R v Austen [2013] ACTSC, Penfold J, 7 February 2013;

(d) R v Hutchison [2013] ACTSC, Higgins CJ, 4 April 2013;

(e) R v Tresize [2012] ACTSC, Nield AJ, 7 September 2012; and

(f) R v Britt [2015] ACTSC 402.

58. Several of those sentences related to armed robberies committed in banks or other commercial premises, but the one that is most similar to the current matters, to the extent that they involve Ms Dudeck, is Britt, in which I sentenced an offender for offences of aggravated robbery, making a threat to kill, forcible confinement and dishonestly driving a motor vehicle without consent. In that case too, the offender had turned on a person who had been his friend, confined him in a private home, used force to try to get him to hand over valuables, and used the victim's car, in the victim's presence but without his consent. Mr Britt, who had a very poor criminal record, especially for offences of violence, a somewhat disrupted childhood without contact with his father, and apparently some psychological problems, received a total sentence of four years.

59. I am satisfied that in this case no other sentence than imprisonment is appropriate.

60. Mr Thompson, please stand. I record convictions on one charge each of burglary, theft, aggravated robbery, unlawful confinement and taking a motor vehicle without consent.

61. I now sentence you to imprisonment as follows:

(a) for the burglary - two years imprisonment to run from 25 May 2016 to 24 May 2018;

(b) for the theft - 12 months concurrent with the burglary sentence and therefore to run from 25 May 2016 to 24 May 2017;

(c) for the aggravated robbery - three years to run from 25 December 2017 to 24 December 2020 and therefore adding two years seven months to the total sentence;

(d) for the unlawful confinement - 20 months to run from 25 June 2019 to 24 February 2021 and therefore extending the total sentence by two months; and

(e) for the take motor vehicle without consent - nine months to run from 25 August 2020 to 24 May 2021, thus adding three months to the total sentence.

62. That gives a total sentence of five years, two years of which is to be served concurrently with the sentences that you are already serving. Since all the time you have spent in custody has already been accounted for at least once in respect of other sentences, I do not see any need to provide anything more than the two years concurrency between the new sentences and the earlier sentences that results from backdating the new sentence to 25 May this year.

63. Since you are already serving other sentences, I must set a new non-parole period to apply to the total effective sentence. That period will end on 24 May 2018, the day your earlier sentences will be completed, and I specify a start date for that non-parole period of 19 January 2015, which is the date on which your current continuous period in custody began.

64. On that basis, the non-parole period represents three years, four months and five days of a total term of six years, four months and five days, or roughly 52%.

65. I note also that by reference to the total of the earlier Supreme Court sentences, the fail to appear sentence imposed in the Magistrates Court, and the current sentences that I am imposing, the non-parole period would amount to a period of six years and three months in a total sentence of nine years and three months, roughly 67%, and of course there has already been one release on parole during that total period.

66. In case the non-parole period needs any further explanation, I should mention that it has been influenced on the one hand by your clear indication that you have little or no interest in rehabilitation and, on the other hand, by the need to ensure a long period of parole supervision to support you, if you have any relevant aspirations by that time, in addressing the impacts of your institutionalisation and in learning to take responsibility for your actions.

67. One effect of the sentences I have just imposed is that you will be eligible for parole, at the earliest, in just under two years, namely 24 May 2018.

68. Mr Thompson, I understand that you maintain your innocence of these particular offences, but you have been found guilty by a jury and, subject to the outcome of your appeal, you will serve a prison sentence in addition to the sentences that you have already been serving.

69. You claim that you have become institutionalised and this may be true. However, you need to think about what you are going to do about it, because no one else can solve that problem for you. If being institutionalised means that you are quite happy to spend a large part of your future in prison, then that is your choice, and you will presumably in that case continue offending after you are next released.

70. On the other hand, however, if you would like to see a future for yourself out of prison, then you need to make up your mind now to use the next two years to set yourself up for freedom. That, I suggest, would involve accepting help with your drug issues, help with the effects of your childhood sexual abuse, help with skills to deal with your tendency to use violence (and that will probably include some sort of cognitive self-change program), and help with practical skills that would fit you to live and work in the community.

71. All of those kinds of help should be available to you in the AMC in some form or other. It's all up to you now, Mr Thompson. You may sit down.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

[1] The effect of the Magistrates Court sentencing appears to have been that the two sentences were to run from Mr Thompson's date of release, but to be suspended at that point, and that Mr Thompson's good behaviour orders were to take effect on that release date. That is, he is likely on release to be subject to both parole supervision and good behaviour orders, applying to different sentences (albeit arising out of the same incidents), although the effect of being subject to two different regimes is likely to be minimal. However, if Mr Thompson is not released on parole but instead serves out the full term of the sentences imposed in this sentencing, then the effect would be that the Magistrates Court sentences would be fully accumulated on those sentences. Even if the imposition of a sentence with an uncertain start date is available under the Crimes (Sentencing) Act 2005 (ACT), I am not convinced that it is appropriate, especially where, as here, it means that the Magistrates Court sentences cannot be properly accounted for in applying the totality principle.