Thomas v The Queen [2017] VSCA 333

1 On 28 August 2017, the applicant pleaded guilty in the County Court to one charge of armed robbery and one charge of causing injury intentionally. Following a plea hearing, on 7 September 2017, the applicant was sentenced as follows:

[s 75A of the Crimes Act 1958]

[s 18 of the Crimes Act 1958]

2 The applicant seeks leave to appeal against her sentence. The sole ground upon which the applicant seeks leave to appeal is that the sentence imposed is 'manifestly excessive in all the circumstances'. In particularising her proposed ground of appeal, the applicant contends that the sentencing judge gave insufficient weight to the applicant's plea of guilty, prospects for rehabilitation, remorse and the fact that medical conditions suffered by the applicant would make imprisonment more burdensome for her.

3 On 28 February 2017, the applicant was travelling as a passenger on a bus from Chadstone shopping centre to the Mentone railway station. The applicant's victim was a fellow passenger, Mr Yuwei Hu. Mr Hu is a Chinese citizen who was studying in Australia at the time of the applicant's offending.

4 In the early afternoon of 28 February 2017, Mr Hu boarded the bus and took an aisle seat towards the rear of the bus. The applicant was seated in the opposite seat and playing loud music. Approximately 10 minutes into the journey, the applicant spoke to Mr Hu and asked him for coins. Mr Hu looked in his backpack and told the applicant that he did not have any coins. The applicant continued to ask Mr Hu for money and pleaded with him to give her $10.00.

5 Mr Hu felt that the applicant was becoming very persistent and stubborn and he decided to get off the bus, several stops before his intended stop. Mr Hu stood up, but the applicant stood up and blocked Mr Hu's path. The applicant was at this stage holding a glass wine bottle by the neck of the bottle, in a threatening manner.

6 The applicant hit Mr Hu with the bottle on the right side of his face, then the left side of his face and then on the side of his head. The applicant said to Mr Hu, 'I will kill you, give me your wallet. I want a $100 and your wallet.' The applicant continued to threaten Mr Hu with the bottle, so Mr Hu opened his backpack.

7 The bus driver yelled out to the applicant, who turned her head and yelled back to the bus driver. While the applicant was distracted, Mr Hu grabbed hold of the applicant and they began to wrestle. During this wrestling, the applicant reached into Mr Hu's backpack and stole his wallet which contained a little over $200 and identification and banking cards. These events constituted charge 1 (armed robbery).

8 Mr Hu held the applicant down and took the wine bottle from her. The bus driver approached, and Mr Hu handed the wine bottle to the bus driver. Mr Hu then let go of the applicant. The applicant then punched Mr Hu, with a closed fist, to his right eye, causing Mr Hu to experience pain and disorientation, and to fall down. These events constituted charge 2 (causing injury intentionally).

9 The applicant is an Aboriginal.[1] The applicant was 31 at the time of her offending, and 32 at the time of sentencing.

10 The applicant grew up in many parts of Victoria and South Australia, mainly with aunts and uncles who moved around, setting up churches in Aboriginal communities. At the time of sentencing, the applicant had three children aged 12, 13 and 14 who were living with their aunt.

11 As the judge noted, the applicant's own mother had been unable to look after her, and the applicant's father was an alcoholic. At the time of sentencing, the applicant's parents were both deceased, as was an older brother who had been the applicant's main support.

12 The applicant started using cannabis at the age of 13, after being beaten by an aunt's partner. She became a regular user at 16, and ceased when she started using harder drugs such as heroin and methylamphetamine. The applicant has also abused alcohol in the past and has survived two drug overdoses.

13 The applicant has only had a limited education, her education being cut short because the applicant did not 'cope well'.

14 Some years ago, the applicant was the victim of two beatings and suffered ongoing pain which had to be managed with medication. When assessed by a forensic psychologist, Dr Aaron Cunningham, on 16 August 2017, the applicant was diagnosed with a post-traumatic stress disorder. Psychometric testing performed at that time also indicated that the applicant had a verbal learning disorder.

15 The applicant has multiple prior convictions from 11 court appearances between 2003 and 2015. Most of her offending involved theft and street-related crimes. More significantly, however, the applicant had a prior conviction for recklessly causing injury and a prior conviction for robbery.

16 The judge commenced her reasons for sentence with a description of the applicant's offending.[2] The judge made reference to the applicant's prior convictions, noting that the applicant had only ever served short sentences of imprisonment, including a 28-day prison sentence imposed following the applicant breaching a community correction order imposed in August 2014.[3]

17 The judge noted that the applicant pleaded guilty to the present charges at the earliest possible opportunity, and said that the applicant was entitled to a discount on her sentence for having avoided a trial. The judge said that she also accepted that the plea of guilty was an indication of the applicant's remorse.[4]

18 The judge noted the applicant's participation in the Koori court hearing,[5] saying that this can be confronting and challenging and it therefore served as an indication that the applicant has been prepared to take on responsibility for her wrongdoing.[6]

19 The judge then set out a description of the applicant's background,[7] before saying:

It is accepted that the impact of deprivation and traumatic experience during a person's early years does not diminish over time and that reoffending is common until such time as differing circumstances and increased maturity might enable an offender to change. You told Dr Cunningham that at the time of your offending, you were intoxicated with alcohol and had been using methylamphetamine, which had occurred in the context of the anniversary of the deaths your mother and brother. You told him that you had struggled to identify the reasons for your offending, which I note represents an escalation of your previous offending and that your auntie had told you that Aboriginal people were the owners of the land and that that justified taking things from shops. You thought you might have been influenced by that opinion.[8]

20 The judge then referred to Dr Cunningham's opinion, before turning to the fact that the applicant had been using her time effectively while on remand, attending Alcoholics Anonymous and Narcotics Anonymous meetings and doing various courses in the hope that this would improve her work prospects. The judge then said:

You saw your children for the first time in prison only recently and it is clear that your separation from them has been a cause of grief for you. You are concerned that their aunt may not be able to continue to look after them and you are keen to be able to help guide them away from the influences that have caused your criminality. That anguish for you is a matter that I take into account in determining the length of your sentence and, in particular, the period that you must serve before being eligible for parole which should be of a shorter rather than a longer duration.

A conversation which took place in court on 28 August resulted in your agreement with the Elders that your only hope for rehabilitation is to cease using drugs because they are the immediate cause of your offending. You agree that you have the capacity to improve your life by making a fresh start and becoming a better person for the sake of your children and to avoid bringing shame to the Aboriginal community. You agreed with the Elders that it is important for you and your children to connect with your family, to help them identify with and belong to their culture. You promised the Elders that you would not be coming back to court and you acknowledged to them your appreciation for the things they had said to you. Clearly, you are very remorseful and ashamed and that is an indication that you have good prospects for rehabilitation.[9]

21 The judge then said that while taking into account all of the various mitigating factors, the offending was very serious.[10] The judge noted that while there was no victim impact statement from Mr Hu, statements made by witnesses to the applicant's offending described the fear they saw on the face of the applicant's victim.[11]

22 The judge concluded her reasons for sentence by saying:

Punishment can have a deterrent effect, that is to say others in the community might be deterred from offending in this way knowing that a prison sentence will be a result. That applies in this case and there is also a need for you, yourself, to be deterred from doing anything like this again. The community is entitled to protection from such offending but that protection may be achieved by means other than long terms of imprisonment. I am able to apply some leniency because of the mitigating factors I have mentioned and this leniency in the context of your ability to seize the positive influences in your life, might promote community protection through your rehabilitation.[12]

23 The judge did not make any reference to Verdins[13] in her reasons for judgment, no doubt because, during the plea hearing, counsel for the applicant specifically eschewed any reliance upon Verdins and 'Verdins principles'. On the plea, the applicant's counsel, while expressly not relying on Verdins, did however say 'but clearly [the applicant's] deprived background leading to the diagnosis of post-traumatic stress disorder, self-medicating with drugs and alcohol are relevant to your Honour's sentencing process'.

24 In her written case, the applicant relied upon the following matters:

• the applicant pleaded guilty at the earliest opportunity;
• the judge found the applicant had good prospects for rehabilitation;
• the applicant had undertaken courses and counselling in custody and is working in the prison industries;
• the judge found that the applicant was remorseful;
• the applicant suffers from post-traumatic stress disorder. Dr Cunningham's evidence was that the previous trauma the applicant had been exposed to had contributed to the violence and anger exhibited by her at the time of the offending; and
• the applicant's time in custody is more burdensome for her given her medical conditions (including diabetes).

25 In reliance upon all of these matters, the applicant submitted that 'a head sentence of less than four years and a minimum term of less than 22 months' imprisonment should have been imposed'.

26 In its written case, the respondent submitted that the sentence imposed by the judge 'cannot be faulted'. In support of that submission, the respondent contended that the judge was entitled to find that the offending was very serious. An appropriate total effective sentence was imposed by the judge, and the judge accepted and appropriately weighted the various mitigating factors including the applicant's early plea of guilty, her remorse and shame for the offending, and the fact that prison would be more onerous for the applicant because she would be separated from her children.

27 The respondent submitted that all of the relevant matters were appropriately weighed in the sentencing synthesis. It was to be noted, the respondent contended, that the judge determined that she would impose a shorter non-parole period 'accounting for leniency'.[14]

28 As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence imposed was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[15]

29 I have already referred to all of the mitigating matters that fell to be taken into account (and which were properly taken into account) by the sentencing judge. On the other hand, as the judge observed, the applicant's offending was serious. The judge was entitled, as her Honour did, to describe the applicant's offending as 'very serious'.

30 When one weighs all of the matters relevant in the sentencing synthesis, it is simply not possible to say that the sentence imposed by the judge in this case was wholly outside the permissible range. The sentence imposed for the armed robbery was 15 per cent of the maximum penalty for that offence. The sentence imposed for causing injury intentionally was 5 per cent of the maximum penalty for that offence. The non-parole period was less than 50 per cent of the total effective sentence. While such percentages are not, and cannot be determinative, they serve to reinforce the conclusion that when one looks at all of the circumstances of the offending and the offender in this case, it cannot be said that any of the sentences, the order for cumulation, the total effective sentence and the non-parole period, imposed by the judge were manifestly excessive.

31 Far from being manifestly excessive, the sentence was, with respect, entirely appropriate. The contrary proposition is not reasonably arguable.

32 The application for leave to appeal must be refused.

[1] See s 4E(a) of the County Court Act 1958 and the definition of 'Aborigine' in s 3(1) of that Act.

[2] DPP v Thomas (Unreported, County Court of Victoria, Judge Wilmoth, 7 September 2017) [1]-[4] ('Reasons').

[5] See ss 4B, 4C, 4E and 4G of the County Court Act 1958.

[13] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[15] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306. See also Hayes v The Queen [2017] VSCA 285 [47].