Director of Public Prosecutions v Thumpston

[2018] VCC 434

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-01848

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIE THUMPSTON

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:	26 March 2018
DATE OF SENTENCE:	10 April 2018
CASE MAY BE CITED AS:	DPP v Thumpston
MEDIUM NEUTRAL CITATION:	[2018] VCC 434

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Schultz
For the Accused	Ms K. Martin	Victoria Legal Aid

HIS HONOUR:

1Julie Thumpston, you have pleaded guilty to nine charges of intentionally or recklessly causing a bushfire.  Each charge carries a maximum penalty of 15 years' imprisonment.  The nine charges relate to 14 separate fires lit between 3 February 2014 and 2 January 2015 in the Tatura and Mooroopna area.

2The facts of your offending are set out in Exhibit A, the prosecution opening, I was informed by your counsel that I could treat this document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.

3Charges 1 to 5 are rolled up charges.  Each charge relating to two fires lit by you.  Charges 6 to 9 relate to one fire only each.  You lit each fire on the side of the road using matches or a lighter to ignite dry vegetation.  Although the fires were relatively small, and were able to be extinguished by local CFA units, there was a substantial risk that any of the fires could have spread and cause serious damage.

4Most of the fires you lit were near a farm whose manager's son was involved in a disagreement with you in 2013.  That disagreement may be the motivation for some of the fires you lit but I do not accept that all of your offending was so motivated.  You were not forthcoming when interviewed by police even though you had been observed in the vicinity of some fires and a tracking device installed on your car placed your vehicle in the vicinity of other fires.

5You were in custody for 88 days subsequent to your arrest on 2 January 2015.  Since your arrest, there have been no further fires.  You fall to be sentenced as a serious arson offender and I must therefore regard protection of the community as the principal sentencing consideration.  I direct that it be recorded in the records of the court that you have been sentenced as a serious arson offender in respect of all charges.

6Victim impact statements were filed by the captains of both the Tatura and the Mooroopna urban fire brigades.  It is clear that the members of both brigades were significantly affected by your offending.  Members of the brigade suffered sleep disturbance and increased fatigue which in turn impacted upon their families.  Both brigades were busy units and your crimes imposed significant additional difficulties for each.  Your crimes involved substantial financial cost.  On average each fire cost approximately $7,500.

7You pleaded guilty after this court made a ruling in relation to the joinder of counts and cross-admissibility of coincidence evidence.  That ruling was upheld after your interlocutory appeal to the Court of Appeal.  Nonetheless, your pleas of guilty have significant utilitarian value.  You have spared the community the cost of what would have been a lengthy trial and you have spared numerous witnesses the need to give evidence at that trial.

8You are entitled to a reduction in the sentence I would otherwise impose for your offending.  I am obliged to state the effect of that reduction and I will return to that matter subsequently.

9Turning to your personal circumstances.  You are now 53 years of age having been born on 4 February 1965 in Nimbin, New South Wales.  Your history is set out in your counsel's sentencing submissions, Exhibit 1, on your plea.

10You have had a difficult life.  Your parents were tragically killed when you were only two years of age.  You were placed in foster care and had serious issues with your stepmother.  You were sexually assaulted when you were 13 by your stepbrother.  You completed Years 8 and 9 at Moss Vale but were illiterate.  You ran away at age 16 and lived on a farm for three years.  At the age of 20 you met your husband Chris.  You had four children between 1986 and 1994.

11In 1998, Chris drowned whilst yabbying at a local golf club.  You then spent some time in Port Augusta before moving to Churchill in Victoria with your children.  Two of your children were taken into DHS care because of drug abuse and absconding issues and you have not seen them since.  In 2003, you moved to Tatura.  In 2008, you suffered from thyroid cancer and commenced receiving a disability pension.  In 2010, another child was taken into DHS care and you have not seen her since.  And you are now, I am told, estranged from your eldest daughter.

12You have been neuropsychologically assessed by Dr Peter Dowling and I refer to Exhibit 2 on your plea.  You have been assessed as having a mild intellectual disability with an IQ of 67.  You have marked restrictions in your literacy and numeracy skills.  In addition, you have several significant medical conditions including chronic obstructive pulmonary disease, ischaemic heart disease and osteoarthritis.  You have asthma, anaemia, psychologically suffer from depression and anxiety.  You take several medications.

13Dr Dowling recommended,

"Link Julie with local psychologist who has experience in working with people with mild intellectual disability.  Her participation in therapy could be part of a community based sentence.  Julie's involvement in community activities could start off with meeting the requirements of a sentence that included a substantial number of hours of community service.  This would give Julie the opportunity to be introduced to voluntary work in the region and then she would have the option to continue with that work with some or other form of voluntary work after she has completed the actual sentence.

"Her doing volunteer work in the community of older mature aged adults would also provide some social contact and the opportunity to develop some friendships and supportive relationships.  This would promote a more stable and long-term pattern of activity that enhances her self-esteem and gives her meaningful life roles.

"It also would give her social contact and the opportunity to develop friendship and supportive relationships.  Her involvement in community activities would be initiated by a sentence that included a substantial number of hours of community service.  Julie would have the option to continue with that work or some other form of voluntary work after she completed the actual sentence."

14I take the contents of Dr Dowling's report into account in sentencing you.  After your release on bail you moved into a housing commission home in Benalla with your boyfriend Steve.  Unfortunately, he died in November 2017 but you remained in the house.  You were assessed as eligible for disability support services last year and have been assigned a case manager.  You were said to be severely chastened by your time on remand in prison.  Simply put, you have stopped lighting fires.

15You fall to be sentenced as a woman of prior good character.  You have no prior criminal history which is indeed remarkable given your significant social disadvantage.  Clearly your physical condition and your mental impairment would make prison more onerous for you than for someone without your problems.  Indeed, I accept that prison would damage your fragile mental health.  I accept Professor Carroll's conclusion in Exhibit 4 that an intellectual disability of the severity you have, would have had an impact on your capacity to think reasonably and make appropriate judgments.

16Your mental impairment clearly reduces your moral culpability.  I accept your counsel's submission that it is in the interest of the community to promote your successful rehabilitation.  I accept that you have taken steps to make that rehabilitation happen.  Because of your pleas of guilty, your deprived background, your cognitive impairment and your health issues, I accept the prosecution concession that,

"It is in the view of her intention to plea guilty to the nine charges on the plea indictment, the accused has in the circumstances served sufficient time in custody and a combination sentence of the time spent in custody and a community corrections order with conditions designed to address rehabilitation and discourage reoffending would be appropriate".

17I have had you assessed for suitability to undergo a community corrections order and you have been found suitable for such an order.  Corrections did not recommend unpaid community work because of your medical issues.  For the reasons set out by Dr Dowling, I propose to order unpaid community work and I direct that a copy of his report be provided to Corrections.  I do not propose to make an order in relation to your driver's licence.  Although you used your car to commit these offences to take away your licence would leave you isolated in the country, unable to properly carry out your community corrections order and damage your rehabilitation prospects.

18You need to understand that if you light any more fires, you will go back to gaol.  If you breach the community corrections order I am about to impose, you will be brought back before me and you do not want that to happen.  Both counsel conceded that it is appropriate to impose an aggregate sentence for your offending and I propose to do so.

19Would you stand up please?  On the nine charges of intentionally or recklessly causing a bushfire, you are convicted and sentenced to an aggregate term of imprisonment of 88 days.  I declare 88 days of that sentence have already been served by way of presentence detention.  In addition on all charges, you are sentenced to undergo a community corrections order for four years from today.  Apart from the core conditions you will undertake 300 hours of unpaid community work.  You will be under supervision, undertake treatment and rehabilitation for your mental health and undertake programs designed to reduce your reoffending.  Are you prepared to undergo such an order?

20OFFENDER:  Yes.

21HIS HONOUR: All right. You are to report to the Wangaratta Community Correction Centre within 48 hours of today. I warn you again, if you breach this order, you will be brought back in front of me and you do not want that to occur. I make an order pursuant to s.464ZF of the Crimes Act for you to provide a DNA sample.  I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample so it is in your interests to cooperate.  You will just to the police station and they will take a mouth swab, do you understand?

22OFFENDER:  Yes, Your Honour.

23HIS HONOUR: Pursuant to s.6AAA of the Crimes Act, I indicate that but for your pleas of guilty I would have imposed a term of imprisonment of two years and a five year community corrections order.  I make the forfeiture and disposal orders sought by the prosecution.  Are there any orders sought?

24COUNSEL:  No, Your Honour.

25HIS HONOUR:  The order should be there for you to sign?  Can you ensure that - I just faxed it up to Shepparton.  Have a seat while that is brought out.  And can we arrange for a copy of that when it is signed to be provided to her counsel.  I would be indebted if counsel would explain in some detail to her what I have just said.  I suspect most of it went over her head.  All right.  Thank you, I will terminate the link.  She is free to go.

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