Director of Public Prosecutions v Thomus

[2019] VCC 1683

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR-19-01555

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY THOMUS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	BENDIGO
DATE OF HEARING:	16 October 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Thomus
MEDIUM NEUTRAL CITATION:	[2019] VCC 1683

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords: plea of guilty to one charge of arson – offender lit fire in her unit – total damage to that and a second unit of $128,000 – offender suffers mental illness – deprived background - relapse at time of offending caused by failure to take medication and consuming illicit drugs – remanded in custody – responded well to medication – management plan through ACSO for her release from custody – improved prospects for rehabilitation.   267 days pre-sentence detention   

Legislation Cited: Mental Health Act 2014

Cases Cited:Verdins v R; Bugmy v R (2013) HCA 37

Sentence: 267 days’ imprisonment with 12 month CCO. (S.6AAA declaration – 12 months’ imprisonment with two year CCO.)          

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. G. Hayward	Office of Public Prosecutions
For the Accused	Ms. K. Rolfe	Victorian Aboriginal Service

HER HONOUR:

1Kerry Thomus, you have pleaded guilty to one charge of arson.  You caused damage by fire to the premises in which you were living and the premises next door.  These residential units at Nos 13 and 14 of 15 Burrowes Street in Golden Square were owned by the Department of Health and Human Services.  You lived in No.13. 

2It is very serious offending to cause a fire as you did and it deserves a punishment that is severe enough to deter others from committing such a crime and also to deter you.  The maximum penalty is 15 years imprisonment.

3The protection of the community is the most important factor as part of my sentencing task, and so I must consider how best to punish you and to prevent such a thing from happening again. 

4The best way to achieve that is to impose a Community Correction Order, taking into account that you have already spent about nine months in prison. That means you will be released from prison today.

5Plans have been made to have available somewhere for you to stay until proper accommodation can be found and there will also be plans for you to continue taking your medication and to help you to avoid using drugs again. 

6I will now explain what happened in this case and then I will further explain the details of the sentence I am going to impose.

7On 18 January, 2019, you went to the Department of Health and Human Services in Bendigo and staff observed you to be agitated and mumbling.  You were holding a kitten in your arms and you asked staff if you could speak to the client support officer.  That person was unavailable, and you continued to move around the reception area in an agitated state before leaving the office.

8When you went home around lunch time, a witness, Shane Cobourn, observed you, in his words, 'ranting and raving.'  He said that before you went into your unit you threatened to, 'Burn everyone out.' 

9Witnesses then heard banging noises coming from inside.  Mr Cobourn saw you coming out of your unit saying, 'Now youse are fucked.'

10Four minutes later he heard a neighbour yell out that there was a fire, and Mr Cobourn saw your unit fully engulfed in flames.  Another witness also saw you go into your unit, and two minutes later, he saw smoke pouring out.  He saw flames and black smoke and dialled 000.  He saw you walking away heading south towards Taylor Street. A further witness saw you walking away carrying a kitten. 

11You were located near the Bendigo Police Station and you were arrested under s.351 of the Mental Health Act 2014. You were interviewed on 22 January and you made partial admissions, saying you had been smoking a cigarette and the couch or bedding caught fire, but you denied deliberately lighting the fire. You said you called 000 and asked them to attend the address.

12The possible causes of the fire were investigated by a scientist from the Victoria Police Forensic Services Centre and it was found that there were multiple points of ignition in the unit, but no evidence of any accelerant being used, nor was it likely that the fire started accidentally, and it was considered most likely to have been started by a match or cigarette lighter applied to furnishings, but no one source of ignition was able to be determined. 

13The cost of restoring the damaged units was assessed as being $110,411.18 for Unit 13, and $17,820 for Unit 14, a total of $128,231.18. 

14I have read two reports from a forensic psychiatrist, Dr Pandurangi.  The first is dated 5 October 2019, and in it he describes having interviewed you twice in July, once by video-link and then personally at the prison.  He explained that you have been in the Rosewood Unit at Dame Phyllis Frost Centre and you have been working, exercising and socialising with the other prisoners and maintaining a positive mood.  You are currently prescribed Olanzapine which is an anti-psychotic medication and Sodium Valproate, a mood stabiliser and there is now no evidence of psychosis.

15He said your records indicate a long history of mental illness but the causes, indeed the diagnoses, have not always been clear.  This was partly because you were using illicit drugs sometimes and that may have caused psychosis.

16Dr Pandurangi diagnosed schizo-affective disorder or possibly schizophrenia, and that you were suffering a relapse of your illness at the time of the offending.  This was caused by failing to take your medication and by using drugs at the time, namely synthetic cannabis and ice.

17You told Dr Pandurangi that at the time of the offending you were feeling sad and isolated and that a close friend had just died.  He said you were experiencing persecutory beliefs and referential ideas relating to your neighbours, and here he referred to what witnesses had said about your behaviour that day.

18Dr Pandurangi concluded that your underlying mental illness would have significantly contributed to the offending, in that it would have affected your judgment and compromised your ability to make calm and reasoned decisions.  Your illness means your moral culpability, or blameworthiness, is reduced. 

19That means that the sentence I impose should be modified to make it less harsh than if you did not have a mental illness contributing to your offending.  In legal terms, that is referred to as a reduced need for general deterrence, but the sentence should also try to deter you, yourself, from offending again, and I shall come to that in a moment.

20You are aged 36 now and you were 35 at the time of the offence.  You were born in Brisbane and you belong to both the Aboriginal and the Torres Strait Islander communities through your mother's family. 

21Your parents separated when you were aged 3, and although you believe your father lives here in Bendigo, you are not in contact with him.  You were raised by your grandmother in Kyneton, where you went to school, but that seems not to have been a happy experience for you as you were the only Aboriginal child and you were bullied there. 

22You left school during Year 10 and you were helped to find employment but that did not continue, and you have been on a Disability Pension since you were 20. 

23You have lived in Bendigo for the last 11 years and the last three years was in the unit in Burrowes Street, which was your first time in stable independent accommodation.  Before that you had periods of homelessness and transience. 

24Over the years you have used illicit drugs from time to time, resorting to them at times of emotional distress. 

25You have four children, aged between 3 and 16 years, but none of them are in your care.  The law recognises that people who have had a deprived and disadvantaged background do not emerge from that unscathed, and the effects of it can be long-lasting.  I have already referred to your history of mental illness which, combined with all these others factors has made life difficult for you.  I take that into account in a general sense but also specifically in relation to the length of your sentence.

26Another mitigating factor to be taken into account is the fact that you pleaded guilty at an early stage, which has avoided the need for a trial and has allowed the case to progress so that it has been dealt with relatively quickly.  It is also an indication of remorse and it means you are entitled to a discount on your sentence.

27Whilst in prison, as I said before, you have been working and you have completed a number of courses, and in particular, you have taken part in a program of activities for Indigenous prisoners which you have enjoyed.

28I read a letter from Ms Sharp of the Australian Community Support Organisation who, as your case worker through the Re-start program, has arranged support for you once you are released.  You will be offered crisis accommodation initially, and later permanent accommodation.  You will also be provided with some limited material and financial assistance for your immediate needs.  Hopefully this assistance will help you start again and to avoid any further offending. 

29Dr Pandurangi made it clear in his report that if you take your medication and do not use drugs, you will have a better chance of recovery.  It follows that you are less likely to commit further crimes. 

30You do have quite a long criminal history including convictions for criminal damage to property, but you have not previously had a sentence which did provide for the sort of assistance which is being offered to you today.

31Both your counsel and the prosecution are in agreement as to the appropriate sentence for you.

32However, you have been assessed as unsuitable for a Community Correction Order as we just heard, because you have been assessed as being at high-risk of reoffending and you do not have stable accommodation at this time.  It was not clear to Ms Roberts, the Corrections officer, whether you had been referred to a mental health provider in Bendigo.

33I heard further submissions arising from this assessment and Ms Roberts, the Corrections officer who assessed you, gave evidence about her concerns and how they could be adequately addressed.  It transpired that an appointment has been made for you to see a doctor tomorrow and that will provide an opportunity for a mental health plan to be put in place if appropriate, and for a referral to a psychologist.  Such treatment would then be monitored as part of the Community Correction Order. 

34Ms Roberts also had concerns as to provision for your housing, in that permanent housing cannot be guaranteed and her further concern was that you had breached a previous Community Correction Order. 

35Notwithstanding the unsuitable assessment, I will impose a Community Correction Order as part of your sentence in combination with a prison term.  In doing so, I take into account that you have been abstinent from drug use for almost ten months which was not the case previously.

36Would you stand now please, Ms Thomus. 

37You are sentenced to a prison term of 267 days, which is the time you have already served, so you will be released today.

38I will impose a Community Correction Order, as I said, which will begin today and will last for 12 months.  You will be under supervision and you must attend any programs to which you might be directed including treatment for abuse of drugs and also to have your mental health treatment monitored. 

39You must also come to court from time to time to discuss your progress with me.  This is called judicial monitoring.  There will be no lawyers present on those occasions and you may come with a friend if you wish.  I will have a report about your progress and I will discuss it with you. 

40You must attend the Corrections office here in Bendigo by 4 pm tomorrow. 

41If you were to offend again while on this order, you could be charged with the offence of breaching it, and you would have to return to court to then be re-sentenced. 

42If you had pleaded not guilty, I would have sentenced you to the term of imprisonment of 12 months with a two year Community Correction Order. 

43I declare that you have spent 267 days in pre-sentence detention which is to be reckoned as already served and I shall note that on the court record.

44The prosecution seeks an order for the disposal of items of clothing.  Ms Rolfe, I did not make a note as to whether that was opposed or not.

45MS ROLFE:  Not opposed, Your Honour.

46HER HONOUR:  Not opposed.  I make that order. 

47Now the Corrections order is ready for signature.  Ms Rolfe, would you like to accompany my associate to the dock for that to be done. 

48There are two more things: first of all, Ms Thomus the first appointment for you to come to court to speak to me, will be on 6 December.  It will be at 9.30 here at this court and I will be in Melbourne, but there will be a video-link so we will be able to see and speak to each other.  Secondly, on the Correction order, which you are about to have a look at, it does say at the top that you have two clear working days to report to the Corrections office, but Ms Roberts prefers that you report by tomorrow at 4 o'clock.

49OFFENDER:  Thank you.  Thank you, Your Honour. 

50HER HONOUR:  Thank you. 

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