Director of Public Prosecutions v Thompson

[2024] VCC 1412

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -24-00597

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW THOMPSON

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2024
DATE OF SENTENCE:	9 September 2024
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2024] VCC 1412

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Arson

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins [2007] VSCA 62.

Sentence:  6 months’ imprisonment

2 year therapeutic CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Martin	Office of Public Prosecutions
For the Offender	Mr McLennan	Victoria Legal Aid

HER HONOUR:

1Matthew Thompson, you have pleaded guilty to the following offences:

Charge	Maximum penalty
Charge 1: Arson	15 years’ imprisonment
Charge 2: Arson	15 years’ imprisonment

2You were born on 10 September 1975, and at the time of these events you were 47 years of age.  You have a history of schizophrenia.  Both offences occurred in the context of your having significant psychotic symptoms. You are in receipt of a disability support pension (DSP) and have continuing carer support through the National Disability Insurance Scheme (NDIS). Your finances have been managed by the State Trustees since 1996.

3The summary of prosecution opening has been tendered.  It is agreed to be an accurate account of events.  The general summary of the facts is as follows:

4Charge 1 occurred on 28 December 2022, when you attended the psychiatric unit at the Sunshine Hospital under a community treatment order. At the time, you were not aware that you were to be admitted for further assessment. When you were advised of this, you became upset and stated that you did not want to stay at the hospital.

5After the initial assessment proceeded, you were placed into the adult psychiatric ward in an isolated room with bedding. You set fire to a foam mattress and the bedding, using a small lighter that you had concealed. The fire caused smoke to spread into the ward, which activated fire sprinklers.

6Hospital staff and patients on the ward needed to be evacuated and you were moved into the courtyard. You told a nurse that you lit the fire in your room.  The hospital discharged you, due to the risk you posed to other patients.  You were arrested by police and deemed unfit for interview.

7You were remanded into custody. A Mental Health Advice and Response Service report was prepared the following day. Your diagnosis of schizophrenia was confirmed. The author noted that you appeared to respond to auditory hallucinations and that you had poor insight into your need to review your current treatment.  She confirmed that your risk to yourself and others was high, due to paranoid symptoms and recent acting-out on your paranoid beliefs. You were recommended to be provided with treatment in custody by mental health services. You were released on bail on 1 February 2023.

8Charge 2 occurred on 22 February 2023 at a disability support care facility in Tarneit, where you resided. You had spoken on the phone to the manager of the residence, as you believed that a previous carer had taken money from you. You became upset during the conversation when you were told that the State Trustees confirmed that no money had been paid to anyone and that they would organise a discussion with you. After the call, you broke your phone, went outside to calm down and soon returned to the house. 

9The manager of the residence was in conversation with your carer on the loudspeaker so that you could hear her.  She tried to explain that no money had been taken from you and that both of you would speak to your guardian from the State Trustees the next day.  You became angry during the conversation and blamed the manager for the matter not being finalised.

10You tried to leave the property, but the security door was locked. You went into your room to calm down.  Your carer checked on you and asked if you wanted to take your medications, but you refused.  You told the carer to open the front door and leave.  He viewed this as a threat and left the residence. 

11You soon followed the carer and shortly thereafter the alarm in the house was activated.  Your carer called Triple 0 and realised there was a fire when he noticed smoke coming from the house.  The carer also called the manager of the residence to tell her about the fire. When she arrived at the address, she observed you sitting at the garage and asked you what happened. You replied, 'I lit it up', and laughed.  The cost of the damage to the property was $165,557.04.

12Fire Rescue Victoria and police members attended the incident and you were arrested at the scene.  You were assessed by a forensic medical officer and deemed to be fit to be interviewed, which was conducted by police in the presence of an independent third person.  You co-operated with police and told them you had suffered from paranoid schizophrenia since 1993.  You admitted that you lit your mattress on fire because you believed sexual things were happening to you when you were asleep.  You stated that you hoped that by doing this you would go back into gaol.

13You were subsequently charged and remanded into custody, where you were held until 18 August 2023 after making a successful bail application. At the time of your offending, your adherence to treatment was not good. Since your release on bail, you have maintained your treatment and medication. You have continued to engage with mental health services and NDIS supports and you have obtained stable, supported accommodation. You spent a total of 214 days in relation to both periods on remand. You have not re-offended. 

14It is fortunate that no-one was injured by your offending.  I note that when the first offence was committed, hospital staff and patients on the ward needed to be evacuated.  When the second offence occurred, none of the other occupants were present.  No victim impact statements have been made, and there is no information about any residual difficulty that your conduct has caused.  Photographs of the damage you have caused have been included in the summary. It is conceded by your counsel that the offence of arson is serious.  Your plea of guilty shows that you have accepted responsibility for your criminal conduct.  In light of your mental health issues, it is difficult to discern evidence of remorse other than through your guilty plea.

15I turn now to your personal circumstances.  You were born on 10 September 1975 in Wangaratta and are now 48 years of age.  You were initially raised by your mother. You were subject to abuse by her, as she suffered from her own psychiatric illness. When you were 18 months of age you and your sister were taken to live with your father.  Your mental health records outline that your father was violent towards you.   He died in 2022. You previously had limited contact with your sister, although you have recently re-engaged with her.

16You were a capable student and attended the Wangaratta Secondary College where you completed Year 9.  However, as a result of suffering from physical violence from your father, you ran away from home at the age of 16 and did not return to formal education. From an early age you would steal to survive and you were sometimes homeless.

17You began to use cannabis at the age of 16 and have since used amphetamine and heroin. You commenced using methylamphetamine approximately six years ago. At the time of the current offending, you used around one point of methylamphetamine every day, until your most recent remand in February 2023.  You did so to keep yourself awake for a couple of days, so that you could watch over yourself. You have a substance use disorder.

18You have a lengthy criminal history.  You have appeared in adult courts in Victoria and New South Wales more than 45 times since 1993.  Your offending includes crimes of violence, dishonesty, property damage and breach of court orders. In the past you have been sentenced to terms of imprisonment a number of times and have spent a significant portion of your adult life in custody. Relevantly, you were sentenced in December 2010 to three months' imprisonment in the Magistrates Court for one offence of arson. You have also been placed on several community correction orders, the most recent being in 2016. You have contravened these orders. In March 2024, you pleaded guilty in the Magistrates Court to a consolidation of outstanding matters that were committed prior to these incidents. You were released on an undertaking to be of good behaviour with conviction for a period of 12 months with conditions to continue treatment with the NDIS and Saltwater Clinic. You have complied with the undertaking.

19You have a longstanding psychiatric history and involvement with mental health services.  You were first diagnosed with schizophrenia in 1993, have required multiple inpatient psychiatric admissions and been subject to numerous episodes of involuntary treatment. You have been provided with periods of community mental health follow-up, under community treatment orders. In addition to your mental health history you have some physical health concerns, including Hepatitis B and C, which have both been treated and haemorrhoids.

20You have recently been on a community treatment order which is linked to Mercy Health, who have provided a letter to the court dated 7 August 2024. The order was due to expire on 4 September 2024. The letter states that your current treatment includes prescribed medication, monthly depot injections, psychiatric reviews, a monthly medical officer review, a weekly case manager review and you are also linked to a GP.

21You reside in NDIS accommodation in Werribee, where you have ongoing support from your NDIS support team and psychiatric treatment from your case-management team.  Your mental health is currently at a baseline level.  You are compliant with treatment, medication and you attend your appointments.  You have built a good rapport and engagement with your team and your NDIS support worker, which has allowed them to support your recovery in the community.  Given your fluctuating mental state and chronic mental health condition, it is anticipated that your treatment will be ongoing.

22At the time of your offending the full extent of your psychiatric condition was unclear.  Consideration was given as to whether the second incident would be suitable for a Crimes (Mental Impairment and Unfitness to be Tried) Act hearing.  Ultimately, this defence was not proceeded with. You did not conduct a contested committal hearing and your plea of guilty for the second incident was entered on 18 April 2024.  The first incident was previously listed in the summary stream and uplifted at around the same time.  Your guilty plea for that matter was entered on 3 July 2024.  There is no suggestion that there has been a deliberate delay in the resolution of your matters and no dispute that your guilty pleas were entered at an early opportunity.

23You are entitled to receive a substantial benefit for your guilty pleas. They have a highly significant utilitarian benefit.  You have saved the court the time and expense of running a trial and spared community members from giving evidence at any stage.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.

24A psychiatric report has been obtained by each party and both have been provided to the court. At the request of your solicitor, you underwent an assessment by consultant psychiatrist Dr Sachin Jindal while you were on remand for the second incident. He had access to previous medical material relating to your clinical history. His detailed medical assessment report, dated 7 August 2023, includes a summary of your personal and psychiatric history.

25Dr Jindal described that it was difficult to establish a rapport with you for the full length of the interview.  You were distressed in affect and appeared distracted.  You stated that you would hear people talking to you, although you cannot see them and sometimes they are talking about you amongst themselves.  They do not say good things about you. You are mentioned as a dog and as a sex offender, which you are not. You stated that people have been out to get you for some time, which is distressing. You asked prison staff to lock you in your room.

26Throughout the interview you asked multiple times whether Dr Jindal was really a psychiatrist and why he was calling you bad names?  You terminated the interview after 60 minutes and Dr Jindal did not have the chance to test your cognition in detail.  However, you did not show any gross disorientation during the interview and were able to comprehend questions of reasonable complexity.  You reported lowered mood and distress due to auditory hallucinations and persecutory delusions.  You denied any suicidal intent in the interview and also mentioned that you recently felt like self-harming due to your safety concerns in your unit. 

27You provided an explanation for your offending conduct and Dr Jindal considered the circumstances of both offences. Charge 1 occurred after your admission at the Adult Mental Health Rehabilitation Unit due to ongoing symptoms in the community and frequent acute inpatient psychiatric admissions. Upon your admission, you had auditory hallucinations. You incorporated the consultant psychiatrist and other co‑patients in your persecutory delusions.  You stated that you felt very frightened due to the danger of being on the unit. You lit the fire to be placed out of the unit.

28You resided at the share house where Charge 2 was committed.  You described that people came into your room at night and sexually abused you. You had not talked about it with workers as they would deny it.  You told the police that you started the fire because people at the house were doing bad things and talking about you.  You also had persecutory delusions about your money and had an argument over the phone with your NDIS co-ordinator.  There were visible signs of stress and your onsite worker felt unsafe. You lit the fire to be in police protection.

29Dr Jindal provided his opinion, namely:

·Your background is characterised by being significantly mistreated during your childhood and adolescence. You had almost non-existent personal supports. This resulted in early introduction to drug abuse and having your first psychotic episode at the age of 19 years.  You cope poorly with stress and utilise maladaptive behaviours to deal with it.

·You suffer from schizophrenia and substance-use disorder (methylamphetamine).  Your schizophrenia is a permanent condition and your ongoing symptoms were evident. You displayed contemplative motivational stage for your substance-use disorder.

·Mental health records note that you had an acquired brain injury due to altercations in 2008.  A neuropsychological report has not been provided. An assessment is recommended to determine whether you meet this diagnostic threshold.

·You do not satisfy the diagnostic criteria for pyromania, given that your primary outcome for the current offences was to change your living situation.

·Your health records describe that your recent psychotic symptoms were ongoing since early 2022, due to your concurrent methylamphetamine use and missing medication.  The ongoing auditory hallucinations and persecutory delusions led to frequent psychiatric admissions in 2022.

·You knew the nature and quality of your conduct in both incidents. However, you were having significant psychotic symptoms on each occasion and you could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.

·The defence of mental impairment was available for both incidents at the time of this assessment.

·You are likely to have chronic ongoing psychotic symptoms comprising of auditory hallucinations and persecutory delusions.  They will probably attenuate in intensity if you access regular treatment and abstain from substance use.

·People with schizophrenia find it difficult to cope in prison compared to mentally-well people.  This is the case in your situation.  However, the paradoxical beneficial effect of imprisonment on abstaining from your substance use and better monitoring of your medication adherence would also occur.

30At the request of the Office of Public Prosecutions, a Forensicare psychiatric report was sought after you had been released on bail the second time. Consultant psychiatrist Dr David Lien has prepared a report for court, dated
5 December 2023. He included a summary of your personal and psychiatric history. You were found to have ongoing psychotic symptoms with persecutory delusions and auditory hallucinations before and after each of these offences were committed. He had access to your previous mental health material, as well as Dr Jindal’s report.

31You arrived for your assessment in the company of your carer. You appeared guarded and as the interview progressed, you abruptly requested to terminate it several times.  Your speech was described as monotonous with normal rate and volume.  You provided brief answers to most questions. Your affect was severely blunted, consistent with chronic schizophrenia.  You stated that you were on a community treatment order which required you to take medication.  You were unwilling to comment on your mental health condition further and you did not appear to be responding to internal stimuli during the interview.  You were alert and oriented to time, place and person.

32You are financially supported by DSP and your finances are managed by a guardian of the State Trustees. The NDIS provides support with everyday activities including meal-planning, cooking, shopping, attending social activities and appointments. You described your current daily routine and said that you have spent the majority of your adult life in prison.  You are currently prescribed anti-psychotic medication, being chlorpromazine in the morning and olanzapine amongst other medication at night.

33You have been case-managed by the Saltwater Clinic since 20 September 2023. Dr Lien spoke to your consultant psychiatrist who said that despite your guardedness around your psychiatric symptoms, you had ongoing psychotic symptoms and that your antipsychotic medication keeps you well enough to stay out of hospital.

34Dr Lien made the following observations and provided his opinion:

·You had a tough childhood that was hallmarked by threats to your safety, repeated exposure to violence and neglect.  You left home and school when you were 16 and had been homeless.  You began to use illicit substances from an early age.

·You had your first inpatient psychiatric admission and were diagnosed with schizophrenia in 1993. You have required multiple inpatient psychiatric admissions and periods in the community under a community treatment order.  You had comorbid antisocial personality disorder and substance-use disorder. 

·Your psychotic illness became worse over the past two years, possibly in the context of active and heavy methylamphetamine use and inconsistent compliance with your medication.  You required multiple admissions in 2022 for worsening psychosis and despite being on antipsychotic medication, you continued to experience psychotic symptoms leading up to the arson in December 2022.

·You presented with features of chronic schizophrenia with severely reduced facial expression and emotional response.  You were highly guarded and continued to harbour prominent paranoid beliefs about others.  Your insight into your mental illness at the time of the alleged offences was poor.  You had ongoing psychotic symptoms when you were last reviewed at the clinic in October 2023 and your diagnosis had been revised to treatment-resistant schizophrenia.

·You suffered from a mental impairment, namely schizophrenia, at the time of both incidents.  You likely knew the nature and quality of the conduct but did not know that the conduct was wrong in either incident. This was due to the treatment-refractory psychosis you were suffering from at the time which led you to experience intense persecutory delusional beliefs and auditory hallucinations.  You did not attempt to abscond from the scene or hide evidence after either incident.

·A defence of mental impairment would be available to you.

·It is reassuring that you re‑engaged with your community mental health services after you were released from custody in August 2023.  You were treated with an anti-psychotic for treatment-resistant schizophrenia and your carers support your daily activities.  It is essential that you continue to adhere to your medication regime with close oversight from mental health professionals to ensure your psychosis can continue to be managed in the community setting.

35The prosecution agrees with your counsel’s submission that the principles of Bugmy v The Queen[1] are enlivened in your case and that this is a mitigating factor.  You were exposed to family violence by both your parents throughout your childhood. Your unsupportive environment resulted in your leaving home, developing substance abuse and subsequent delinquency.  I accept that your formative years resulted in exposure to chaotic and violent experiences.  Your childhood reflects a background of disadvantage which has not diminished and the principles of Bugmy are enlivened in your case.  This is a mitigating factor on your plea.  I also accept that there is a link between your personal history and your subsequent substance abuse.  The principles of Bugmy are applicable to the overall sentencing process here.  I accept that your moral culpability is reduced.  The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely.  This is counterbalanced, however, by the principle of community protection, which remains a relevant sentencing consideration.

[1](2013) 249 CLR 571

36Your counsel has submitted that your mental health has enlivened mitigating principles of R v Verdins[2] being Limbs 1 to 4.  It is conceded that your impairment at the time of offending was exacerbated by your use of illicit drugs.  It is submitted, however, that your mental impairment and substance use are independent.  This is demonstrated by the persistent impact of your impairment when you have been abstinent from drug use and in receipt of medication.  Therefore, your counsel proposes that the principles of Verdins continue to have full effect.

[2] [2007] VSCA 62.

37The prosecution has not challenged the medical evidence and does not take issue that you suffer from a mental illness, although, when assessing your moral culpability, your abuse of methylamphetamine is relevant and a contributing factor. It is submitted that your drug use cannot be disentangled enough to determine if considerations of Verdins Limbs 1 to 4 are applicable.

38It is impossible to evaluate with any precision the extent to which your underlying mental impairment is connected to your offending, as opposed to the effect of your drug abuse.  I have no doubt that the latter has aggravated the former. In the absence of your underlying mental illness, I doubt whether this offending would have occurred. Its circumstances bespeak mental illness.
Dr Lien observed that you have ongoing psychotic symptoms despite being abstinent from drug use and in receipt of medication.  After careful consideration, I have assessed all the expert evidence and am satisfied that the psychotic symptoms you suffered at the time of your offending were attributable to your mental health issues, notwithstanding your long-term consumption of illicit substances.

39I propose to sentence you on the basis that your underlying mental illness is substantially causally connected to your offending.  I am satisfied that the relevant Verdins principles have application, as well as the sentencing principles of Bugmy.  While these significantly moderate relevant sentencing considerations, I am also obliged to impose a sentence that is proportionate to the overall gravity of your offending. Ultimately, your mental illness will have an effect on the disposition imposed in court.

40Shortly before you were released on bail you were in the Aire Unit of the Ravenhall Correctional Centre and expected to be sent to the Thomas Embling Hospital. You stated that you only came out of your room for two hours a day at your own request.  You did not want to get into the main unit as you felt at risk from others. Dr Jindal’s report confirmed that it is more difficult for you to cope in prison than mentally well people. Your counsel has submitted that Limb 5 of Verdins, being hardship in custody, is also a relevant consideration.  The prosecution does not dispute this submission but suggests it should be considered in the context of the paradoxical beneficial custodial effects that I have referred to.  I accept that you feel more vulnerable to the effects of imprisonment than a person without your mental health issues, notwithstanding that supervision and monitoring in custody is of assistance to you. I accept that these factors do enliven the fifth limb of Verdins to some degree and I take this into account. I note that you have not relied on Limb 6 of Verdins, as there is no suggestion that imprisonment would have a significant adverse effect on your mental health.

41There is no dispute that you are to be sentenced as a serious arson offender in light of the offence of arson that was dealt with in 2010.  While the principle of community protection is a relevant consideration for all charges, it becomes the principal purpose when these sentences are imposed.  The prosecution does not, however, seek a disproportionate sentence in your case.

42I accept that your primary diagnosis is of schizophrenia.  This underlying illness requires treatment for the foreseeable future. Your rehabilitation depends on your ability to improve with your treatment.  Your mental illness has been ongoing for many years, and you have an extensive criminal history.  You now maintain the support of your treatment and have not been charged with further offences for 18 months.  The principle of community protection is best served by assisting your rehabilitation.  The ongoing management of your mental health treatment provides the most effective protection for the community, as well as assisting your prospects for rehabilitation.  It may be that your compliance with future treatment can be augmented by an extension of a community treatment order, if required.

43Your counsel has submitted that a community correction order (CCO) should be imposed in your case.  Further, that you should not serve more time in custody than you have served on remand for these offences.  The prosecution agrees that a combination sentence would adequately address all sentencing considerations and that an assessment for a community correction order should take place.

44Following submissions by both parties that a combination disposition would be within range, I requested that you be assessed.  Regrettably, you were not found to be suitable for a therapeutic order. You have had 14 previous interactions with the service and have previously demonstrated poor compliance and difficulty in complying with long term dispositions. Although you have a number of protective factors in place, the service is concerned that placing you on a CCO is setting you up to fail given that you have considerable mental health concerns.  However, you expressed motivation to engage in a community correction order to avoid returning to custody and consented to the making of the order. You were found to be a medium risk of reoffending. 

45While I appreciate the assistance of Corrections to undertake an assessment, it is the role of the court to impose sentence. I accept that mental health treatment is critical to improve protection of the community and to assist your rehabilitation. Notwithstanding your poor compliance with Correctional Services in the past, and despite the assessment outcome, I consider that a CCO should form part of your disposition. You have strong supports in place to assist your understanding and compliance with the requirements of the order. If you continue to access regular treatment and abstain from your substance abuse the level of your symptoms will probably be reduced.

46I take into account the maximum penalty for these offences and current sentencing practices. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct in the context of your significantly relevant plea material. I have taken into account a number of mitigatory factors that should moderate your sentence. Balancing all the factors as best I can, I have concluded that just punishment does not require you to serve any further time in custody.  I will now sentence you as follows:

Charge	Sentence
Charge 1	Convicted and sentenced to 3 months imprisonment
Charge 2	Convicted and sentenced to 6 months imprisonment

47I direct that these sentences be run concurrently. You have served 214 days by way of pre-sentence detention.

48In relation to both charges you are also convicted and sentenced to a two-year therapeutic community correction order.  You are required to attend at the Werribee Community Correction Service within two working days from today and I order that you:

·     be under the supervision of the Office of Corrections;

·     undergo any treatment and rehabilitation as required for your mental health; and

·     undergo treatment and rehabilitation as required for your drug use.

49The declaration I make under s6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of imprisonment of 12 months and a CCO in combination.

50I will ask my associate to print out the CCO order and then if you wouldn't mind, Mr McLennan, going through it with your client so that he can consent to the order in court.

51MR McLENNAN:  Yes, Your Honour. 

52HER HONOUR:  Thank you.  Would you mind just taking him through the standard conditions as well as the specific conditions?

53MR McLENNAN:  Yes, Your Honour. 

54HER HONOUR:  Mr McLennan, given the level of supervision in the community, psychiatric and also through the NDIS, I have decided not to impose a judicial monitoring condition.  Can I confirm that if there are any issues with compliance, he can always come back to court to seek a variation.

55MR McLENNAN:  Thank you, Your Honour.

56HER HONOUR:  Can I also thank his support person for attending with him every day, it's been highly beneficial, thank you very much, sir.  And thank you for coming in today, Mr Thompson, it's a lot easier to deal with this in person rather than on link.  Mr Martin, are there any further orders sought from the crown?

57MR MARTIN:  No, Your Honour. 

58HER HONOUR:  Thank you very much.

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