R v Thomas
[2019] ACTSC 306
•31 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thomas |
Citation: | [2019] ACTSC 306 |
Hearing Date: | 18 and 31 October 2019 |
DecisionDate: | 31 October 2019 |
Before: | Mossop J |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – arson damaging property – offender suffers from schizophrenia and chronic pain condition – bed available at a residential rehabilitation facility – suspended sentence imposed upon entry into good behaviour order with residential rehabilitation program requirement |
Legislation Cited: | Crimes Act 1900 (ACT), s 309 Criminal Code 2002 (ACT), s 404(1) |
Cases Cited: | R v Dash-Greentree (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013) R v Haigh (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 9 August 2013) R v Wrigley [2015] ACTSC 114 |
Parties: | The Queen (Crown) Scott Thomas (Offender) |
Representation: | Counsel M Lucero (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number: | SCC 225 of 2019 |
MOSSOP J:
Introduction
The offender, Scott Thomas, pleaded guilty in the Magistrates Court to one count of arson contrary to s 404(1) of the Criminal Code 2002 (ACT), the maximum penalty being imprisonment for 15 years, 1500 penalty units or both.
Facts
The facts were agreed. They were in summary as follows. The offender was the sole occupant of a public housing unit in a block of units at Chandler Street in Belconnen. At about 8.20am on Sunday, 21 April 2019 the Australia Capital Territory (ACT) Fire and Rescue attended in response to reports of a fire. Smoke and flames were coming from the offender’s unit as well as a unit immediately above his. Firefighters entered the unit through a locked screen door and had to force entry through another locked screen door on the rear balcony in order to check that no one was present. Firefighters were required to assist the occupant of the unit above the offender’s to exit her unit. She was stuck inside due to the large amount of smoke and had put her head out of her window so that she could breathe. Firefighters extinguished the fire in the offender’s unit. The offender was stopped by police, walking towards his unit. He said that he had woken up in his bedroom feeling heat from a fire which was coming from the cupboard inside his bedroom. He unsuccessfully tried to extinguish the fire and exited his unit by the balcony. He jumped down from the balcony and walked away to a nearby street. He sustained minor burns on his right hand and right foot. He is a diagnosed schizophrenic and had been non-compliant with his prescribed antipsychotic medication. He was taken to the Canberra Hospital for assessment and diagnosed as suffering from a relapse of symptoms of chronic schizophrenia.
Australian Federal Police crime scene investigators determined that the origin of the fire was within the offender’s bedroom, but could not identify where within that room it had originated. No accelerant was involved and the fire appeared to have been slow burning. It may have been lit the day before and continued to burn until 21 April 2019.
The damage to the offender’s unit was substantial, costing the Territory some $236,650 to repair.
Objective seriousness
In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J identified a number of matters relevant to the assessment of the objective seriousness of an offence of arson. In the present case the offending was reckless rather than intentional. It caused substantial damage. No motive was identified. Although not intended to harm others, the fire carried with it the potential risk of injury to the lives of other occupants of the building. It also carried the risk of more extensive damage than that which occurred. I would assess the current offence as being below the mid range of objective seriousness for the offence of arson.
Subjective circumstances
The personal circumstances of the offender are described in the pre-sentence report. He is 43 years old. He was born in Canberra. He is of Aboriginal descent. He had previously reported a positive childhood although he took on caring responsibilities for his younger siblings at an early age. He left home at the age of 15. He reported no current contact with his parents or three siblings. He has two children with whom he has no contact. He had been living in the ACT Housing property for a year. The residence is no longer available to him.
He attended school up to Year 9. He has had some employment in the past as a labourer, kitchen hand and fruit picker. He has been receiving a disability support pension since 1998 due to chronic back pain and his mental health.
Prior to being remanded in custody he was using cannabis and methamphetamine a few times a week.
The medical evidence tendered indicates that he has a diagnosis of schizophrenia. It was the diagnosis given to him in a forensic psychiatric report prepared for the purposes of sentencing for earlier offending in February 2015. The diagnosis was repeated upon his referral to hospital after his arrest where the impression recorded by psychiatrists was of a relapse of schizophrenia.
Following his arrest he was referred for treatment under s 309 of the Crimes Act 1900 (ACT) and was only discharged from treatment on 29 April 2019.
The author of the pre-sentence report expresses the following opinion:
Mr Thomas is a 43 year old Aboriginal man who has been assessed as a medium to high risk of general reoffending. His criminogenic needs relate to his mental health, substance dependency issues, accommodation and lack of prosocial influences. He appears to have minimal protective factors in the community.
I accept the submission made on behalf of the offender that, on the balance of probabilities, the offender was suffering the effects of his schizophrenia at the time of the offending. I make that finding on the basis of the terms of the Agreed Statement of Facts, the clinical notes of his attendance at the Canberra Hospital following his arrest and the demonstrated past history of chronic schizophrenia. That conclusion reduces the offender’s culpability and makes him less suitable as a vehicle for general deterrence.
Criminal history
The offender has a criminal history in Victoria, Queensland, New South Wales and the ACT as well as South Australia and the Northern Territory. The most significant offending has been in New South Wales and the ACT. He has received custodial sentences in New South Wales for manufacturing a prohibited drug in 2010, destroying or damaging property in 2011 and two offences of breaking and entering a house in 2013. In the ACT he received a total head sentence of four years and one month for offences which included two counts of aggravated robbery committed in August 2014. He also subsequently received a custodial sentence for two very old failures to appear.
Plea of guilty
The offender pleaded guilty to the offence in the Magistrates Court on 30 August 2019. That date was the seventh mention of the matter in the Magistrates Court and was before the provision of a brief and prior to the matter being committed to this court. The plea of guilty was entered following negotiations between the parties and the downgrading of a count of intentional arson to one of reckless arson. Although the Crown case was a strong one, I accept that a reduction of 20% of the sentence that would otherwise have been imposed is appropriate in the circumstances.
Time in custody
The offender has been in custody since 21 April 2019. Up to and including 30 October 2019, that means that he has spent 193 days, or six months and 10 days in custody.
Comparable cases
The Crown referred to a number of cases in this court involving offences of arson committed by persons with schizophrenia or similar conditions. In R v Haigh (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 9 August 2013) the offender had set fire to his flat, a public housing property in Griffith. The cost of repairing the damage was estimated at $100,000. He did so deliberately, having warned others of his intention to do so. He was charged with recklessly committing the offence. The offender suffered from depression, symptoms typical of schizophrenia and polysubstance abuse disorder. He had a long history of using illicit drugs. He suffered a psychotic episode when he committed the offence which may have resulted from drug use on the day. He received a discount of 25% for his guilty plea. The sentence imposed was three years’ imprisonment, reflecting a starting point of four years. He received a non-parole period of 50% of the head sentence.
R v Dash-Greentree (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013) involved the offender emptying a jerry can of petrol under the door of someone else’s flat and lighting it with a cigarette lighter. Fortunately, it only caused $2675 worth of damage. At the time of the offending the offender was hearing voices in his head. Penfold J said that there was little doubt that the offence reflected his mental health problems. The offender had a significant criminal history. He had for the last 10 years lived mainly on the streets, except when involuntarily detained in psychiatric institutions or in prison. He had a diagnosis of paranoid schizophrenia and was receiving antipsychotic and mood stabilising medication. The arson had occurred in 2006, some seven years prior to the sentence being imposed. Penfold J accepted that his moral culpability was reduced by the fact that the offence was inspired by beliefs arising from his paranoid schizophrenia. On the arson charge he was sentenced to 15 months’ imprisonment reduced from 20 months on account of the plea of guilty.
R v Pearce [2016] ACTSC 393 involved arson committed after a stand-off with police. An accelerant was sprayed onto curtains of a public housing unit and petrol was poured onto the floor of the unit. The offender was experiencing psychotic symptoms including paranoid ideation and had also used methamphetamine. Murrell CJ considered that his mental health issues affected his moral culpability and made him a less suitable vehicle for any message of general deterrence. The starting point for the sentence of arson was two years’ imprisonment reduced to 20 months on account of the plea of guilty.
In R v Wells [2018] ACTSC 121 I sentenced an offender who suffered from schizophrenia to 19 months’ imprisonment suspended after 129 days in custody. The starting point was a sentence of 24 months. He had poured petrol in the kitchen and lounge room of his partner’s house and set it alight. She was asleep in the bedroom at the time. At the time of his offending, the offender’s schizophrenia was in remission however he was suffering from terminal cancer at the time of the sentence.
R v Richardson [2019] ACTSC 9 involved arson on business premises. The offender had a previous diagnosis of schizophrenia. Elkaim J appeared to assume that the crime was precipitated by his mental health issues although the reason for committing the offence was not clear. His Honour sentenced him to 20 months’ imprisonment after a reduction of approximately 20% on account of the plea of guilty. That reflected the starting point of 25 months’ imprisonment.
Consideration
I accept the submission made on behalf of the offender that the symptoms of schizophrenia were causally relevant to the commission of the offence and hence reduced his moral culpability. It is however difficult to assess the extent of the contribution of those symptoms having regard to the limitations on the agreed facts as to the cause of the fire and his use of illicit substances prior to the offence. I also accept the submission that the existence of the mental health condition makes the offender a less suitable subject for general deterrence. There is no evidence that his time in custody would be more onerous as a result of his condition.
In relation to his mental health, the circumstances of the present offence are somewhat more favourable to the offender than those which existed at the time of his sentencing for the aggravated robbery: see R v Thomas [2015] ACTSC 38. In that case Murrell CJ did not find that he was suffering the effects of schizophrenia at the time of his offending, although her Honour did accept that there was an indirect connection with his condition.
Each of the comparable cases referred to earlier, except the decision in Haigh, reflect a starting point of between 20 and 25 months’ imprisonment. This reflects a significant degree of leniency when schizophrenia is present, even where the precise causal relationship between the condition and the offending is difficult to assess.
Clearly enough the sentencing must involve an element of specific deterrence and recognition of the harm done by reason of the conduct. As indicated earlier, general deterrence is less prominent than it might otherwise have been. Although the offender’s age tends against rehabilitation being a significant factor, there is evidence in this case that there is a bed available in a residential rehabilitation program known as the Wayback Four Phase Program. It runs for 10 months. A bed is available on 5 November 2019 and transport arrangements have been put in place if an order is made that permits his release from custody.
A sentence involving completion of such a program will address the offender’s illicit drug use which is clearly, for someone with schizophrenia and a chronic pain condition, a significant criminogenic risk.
In my view, the appropriate starting point is a sentence of 22 months reduced to 18 months on account of the plea of guilty. As to how that should be served, I do not consider that an intensive correction order would be appropriate in the present case, having regard to the offender’s age, his long‑term health and mental health conditions and his lack of supports in the community. However, I do consider that it is appropriate to suspend the offender’s sentence on 5 November 2019 so as to permit him to attend and complete the Wayback Four Phase Program. Backdating the sentence to the 21 April 2019 will mean that he will have spent six months and 16 days in custody prior to his release. While participation in a residential rehabilitation program will give him an earlier than usual release from prison, in combination with a period of residential rehabilitation, I consider that the purposes of sentencing will be adequately met by a sentence with this structure.
Orders
The orders of the Court are:
1.On the charge of arson (CC2019/4623), the offender is sentenced to imprisonment for 18 months from 21 April 2019 to 20 October 2020.
2.The sentence is to be suspended after the offender has served six months and 16 days upon entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months with the following additional conditions:
(a)Upon release at 9.00am on 5 November 2019 from custody he travel in the company of Troy McColl to the premises of Wayback Ltd, [address redacted] by the most direct route.
(b)That he be admitted to the Wayback Four Phase Program (the Program).
(c)That he complete the Program.
(d)That he provide evidence of completion of the Program to ACT Corrective Services within seven days of completion of the Program.
(e)That if discharged from the Program for any reason, he present himself to ACT Corrective Services, Level 1, 249 London Circuit within seven days unless readmitted to the Program within that period.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 7 November 2019 |
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