R v Thomas
[2016] VSC 789
•19 December 2016, Wangaratta
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0102
| THE QUEEN | |
| v | |
| IAN DAVID THOMAS | Accused |
---
JUDGE: | LASRY J |
WHERE HELD: | Melbourne (trial and plea) |
DATE OF HEARING: | 28 October 2016 |
DATE OF SENTENCE: | 19 December 2016, Wangaratta |
CASE MAY BE CITED AS: | R v Thomas |
MEDIUM NEUTRAL CITATION: | [2016] VSC 789 |
---
CRIMINAL LAW – Sentence – Verdicts of guilty of murder after a trial - Murder of both parents – Explanation for offences - Evidence of family violence led at trial –– Whether historical family violence is provocation that mitigates offending – Pre-meditation – Post offence conduct – Concealment of evidence – Desire to avoid responsibility - Delay between charge and trial – Life sentence – Prospects of rehabilitation – Minimum term.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC with Ms K. Churchill | The Office of Public Prosecutions |
| For the Accused | Mr T. Kassimatis SC with Ms A. Burchill | Spicer Lawyers |
HIS HONOUR:
Ian David Thomas, on 5 May 2016 in this Court you were found guilty by a jury of two counts of murder. The victims of your actions were your parents, William and Pauline Thomas, and you murdered them in the family home on the Great Alpine Road, Wangaratta on 21 April 2013. The jury’s verdicts concluded a six-week trial earlier this year.
At that trial you pleaded not guilty to both counts of murder and in your defence gave sworn evidence. During that evidence you asserted that your father had murdered your mother. Significant time was spent during the trial developing a case that your father was violent enough during the history of the family, particularly to you, to have done such a thing. You also claimed that when you returned to the house on that afternoon and discovered your mother was dead, you were confronted by your father with a shotgun apparently intending to you kill you. You said you disarmed him and then shot him in an action of self-defence, as you put it to the jury. By their verdicts, the jury clearly rejected that evidence.
A considerable time after the trial concluded, on 28 October 2016 in Melbourne, I heard submissions on the sentence I should impose on you from your counsel, Mr Kassimatis of Senior Counsel, and also the Senior Crown Prosecutor.
The maximum penalty for murder is life imprisonment. It is now my responsibility to sentence you for these two offences.
Circumstances of offending
In early April 2013, having lived away from your parents for about 20 years in the Navy and in Perth, you began living at their property in Wangaratta. In your evidence at your trial, you said you planned to re-establish yourself in Victoria using Wangaratta as a base. That may have involved you taking up fly-in, fly-out work interstate.
On Sunday 21 April 2013 your mother Pauline attended the St Patricks Catholic Church in Wangaratta. After the service she went to the Paddy’s market in Newman Street. Following that there were various contacts with Pauline and William Thomas during that day. Among other things those contacts concerned William Thomas in the sale of some fence pickets and a sheep transport job later in the afternoon. The last outside contact was at about 12:50pm. You were at the property at that time as you agreed and your motor cycle was seen by a passing motorist.
At about 2:00 pm William Thomas left the property to pick up sheep from Mt Bruno and was gone for some time leaving you and your mother alone at the home. Sometime during the afternoon, while you were in the shed where your Kia van was parked and on which you were working, your mother went to the shed. According to what you later said, she was annoying you, nagging you and, as you put it, driving you crazy. You and she had an argument and then you put your hands around her neck and squeezed until she fell to the floor and died. You then left her there for a time. The later post mortem examination indicated that the cause of her death was neck compression.
Sometime after murdering your mother, you must have decided that you would also kill your father. You obtained a single shot shotgun that was in the shed and pick axe handle that you kept in your car. You also changed your clothes and that included wearing a balaclava that you would normally use on your motor bike. Once it became dark you turned off all the lights in the house except the ones leading to the bedroom. As part of the plan you turned on the water in the en suite bathroom to give the impression to your father when he arrived home that your mother was in the bedroom. At what must have been after 6:30pm, based on the phone records, you heard your father's truck arrive and he followed his usual routine, walking into the bedroom having earlier removed his boots. Having laid in wait for him, you then shot him in the region of his chest. It was, according to the pathologist, the shotgun wound that caused his death. You then picked up the pick axe and struck your father’s head repeatedly resulting in evisceration of the brain. With both of them dead, at some stage you retrieved your mother’s body from the shed and then laid the two of them out together in the room adjacent to the bedroom. The crime scene photographs produced in the trial show the way you left them.
At about 10:00pm, you drove into Wangaratta and from a public phone box endeavoured to speak to your lover, Jacinta Emselle. She did not answer but you left a message which included the exhortation that it was ‘a matter of life and death’.
After all this had occurred you collected all the items connected with the murders you had just committed, placed them in a bag and put them with a swag on your motor bike. In the early morning you left the property on that motor bike filling up with fuel at Euroa as you travelled down to the Geelong area to be with Jacinta Emselle. At about midday on Monday 22 April 2013 you met with her at the Cremorne hotel in Geelong and described to her what you had done.
Ms. Emselle asked you what happened and you said, that your mother was annoying you. You said she was nagging you and driving you crazy. She came out to the shed and you had an argument about a hair dryer which you had borrowed to remove stickers from your motor vehicle. You said you put your hands around her neck and squeezed until she fell to the floor. You said you then left her and went and prepared yourself self for your father's return. You also said you changed your clothes. You said you then went and got the shotgun from the shed and a pick axe handle from your car. You said you then turned off all the lights in the house except the ones leading to the bedroom and turned on the water so that it would appear as though your mother was in the bedroom. You said you waited until you heard your father's truck and then when he walked into the bedroom you shot him immediately in the stomach region. You said you then picked up your pick axe handle and struck your father’s head repeatedly. You said you then drove the van out of the shed and picked up your mother’s body and placed it side by side the body of your father exactly as they had been found by police wrapped in doonas or sheets.
Sometime later you and Emselle left the hotel and later stopped at a Safeway supermarket to buy beer for you. At 6:13pm you rang your parents’ landline at Wangaratta leaving a voice message that was essentially designed to establish a false alibi.
Emselle agreed that on that evening you stayed at her house at Meredith while she returned to her home in Geelong. At about the same time your sister Madonna Thomas who was in Queensland requested Wangaratta police conduct a welfare check at the family home since she had not been able to contact her parents. By now they had been dead for some 24 hours. At about 9:50pm police entered the premises and discovered the two bodies.
On the following day you and Emselle went to the Snake Valley area where the items which you had brought with you from Wangaratta were concealed in bushland. Those items were discovered with the assistance of Emselle sometime later on 8 July 2013. When you and Emselle returned to Meredith you were both arrested by police.
Background, motive and provocation
In the course of his plea on your behalf and in his written submissions, your counsel submitted that what he described as provocation or physical abuse early in your life might explain why you had committed two such serious crimes.
Your parents Bill and Pauline Thomas had been married for 40 years at the time of their deaths in April 2013, having first met at a local dance in Wangaratta. They married and settled in the Wangaratta area in 1980 having come from Shepparton and had remained there until you murdered them. They had five children. Bernadette was born in 1975, Jacinta in 1976, you in 1978, Madonna in 1980 and finally John in 1982. The Thomas family was severely fractured well before these tragic events.
The circumstances of you and your sibling’s upbringing were contested at your trial. As your counsel accepted, your claims about your treatment as a child gave you a potential motive to kill your parents, particularly your father. However you relied on that history for the purpose of establishing that your father was violent enough to have killed your mother and threatened to kill you. The jury rejected the defence you raised but that does not entirely deal with the issue in the form in which was raised during the plea made on your behalf. Your treatment is now being relied upon as an explanation for your conduct which might have the effect of moderating your moral culpability.
Two of your sisters, Jacinta and Madonna, described a loving and largely happy childhood while you, your eldest sister Bernadette and your brother John recall a violent and traumatic upbringing marred with constant physical abuse by your despotic father and complicit mother.
Jacinta and Madonna gave similar evidence in respect of your upbringing. Jacinta described your childhood a ‘very normal’ and you parents as loving and generous both to their children and to each other. She noted that there was, at some stage, ‘an alliance that formed between you, Bernadette and John and it was an alliance that was of anger towards myself, particularly mum and dad, and Donna’. She admitted to never knowing what caused the divide.[1]
[1] Trial Transcript at p 116.
Similarly, during her evidence, Madonna described your parents as being ‘very close’ and ‘inseparable’. She admitted the children were sometimes disciplined by your father and on occasion with a whack of a belt but that there were no beltings and that all the children were disciplined to the same extent. She recounted an incident in 2008 where the family dynamic changed and Bernadette, John and you went their own way. That incident was Madonna’s wedding in Perth at which time you began expressing your belief that you had been mistreated by your parents.
However Bernadette and John painted a very different picture. In Bernadette’s evidence she recalled an incident when she was young when you and she had fought over some missing cassette tapes belonging to her. She describes your father entering the room in which you were arguing and punching her in the stomach, winding her. After regaining her breath she recalls going over to the neighbours farm and hiding in the long grass. She also remembers being hit with a riding bridle by your father which left marks on her legs and forced her to wear long pants to school to avoid arousing suspicion.[2]
[2] Transcript page 527.
John’s evidence set a scene of similar cruelty and callousness. For example, he described an incident during which your father ripped a plank of wood off a shed and beat him with it.[3] He also recalls being knocked out by your father which resulted in his admission to hospital.
[3] Trial Transcript at page 620.
During your evidence you recall your father physically disciplining you from the age of five or six. You described being struck by your father with a belt he named ‘Joey’ which he left slung over an air conditioning cord as a tacit threat. You also gave evidence of being struck with a stirrup strap although with the leather rather than the metal section. You also described your parents’ relationship as being ‘cold’ and without communication.
When you were 16 years of age you left Wangaratta to join the Navy and upon discharge 5 years later you went to Perth and lived there and began a trade as an electrician having commenced to learn about those things whilst in the Navy.
The two competing versions of the early years at the family property effectively polarised you and your siblings into two discrete camps. The divisive element, of great significance during your trial, was your father’s character and more relevantly, his propensity for violence though not against his wife. However he was portrayed on your behalf as someone who was capable of killing.
On or about 28 April 2009 you drafted, but never sent, an aggressively angry letter to your father in which you seemed to be very hostile to both your parents. The letter was located on your computer. In your evidence you said you wrote that letter for your own therapeutic reasons. In your sworn evidence, however, you went on to say that by 2012 you and your father had re-established your relationship. You did that, you said, by spending time with each other. You also said that your mother had always been supportive of you.
As I said, violence and your father’s propensity for it was an important foundation on which your defence rested. In essence the evidence you gave at your trial was that on the day of the death of your parents you had been out for a time and then returned. In the shed you claimed to have discovered your mother’s dead body. During examination in chief when asked by your counsel what state she was in when you found her you said ‘She was dead. Her eyes were glazed over, she had her tongue hanging out of her mouth and she had a cable tie around her neck’.[4] You claimed you then armed yourself with an axe from the shed and entered the main house through the laundry making your way to your parent’s bedroom where the en suite light had been left on.
[4] Transcript p 1088.
You claimed you saw your father standing in the walk-in closet with a 12 gauge shot gun pointed at you. You said your father then advanced at you, cocking the weapon and aiming it at your chest at which point you reacted by grabbing the shot gun from your father’s grip. You then discharged the shot gun, hitting your father, in what you say was an act of self-defence.
With your father on the floor shot you then picked up the axe and struck him multiple times to the head with a force which eviscerated his skull. You then carried you mother from the shed to the lounge room where you laid both bodies side by side covered with doonas. Thus, in summary, you claimed that your father had killed your mother and you had subsequently killed your father in self-defence. For a number of reasons, it was unsurprising that the jury rejected that evidence.
Despite that, your counsel relied on what he described as the “resentment and pain” that had built up over your life that resulted in your actions on 21 April 2013. There may well have been some conduct of the kind you described in your evidence. As your counsel argued, your account of this history was supported by two of your siblings and I am by no means prepared to conclude beyond reasonable doubt that all of your evidence about that aspect of the history was false. However, in my opinion it is significant that notwithstanding what you, Bernadette and John described as an extremely brutal and unforgiving childhood and various instances of family hostility since, you returned to the family property in Wangaratta around the 11 April 2013, 10 days before you committed these murders.
Whatever violent treatment had originally been meted out to you in the past, and it was some 20 years previously, your sworn evidence, as I’ve already said, on your trial about the 10 days or so that you had resided with your parents before you murdered them was that there were no problems at all and no cause for concern so far as your father was concerned. You said that during that time he was pretty much doing his own thing and you were doing yours. Your expectation was that when the family went to Fiji for your sister Madonna’s wedding which was imminent, you would remain there and look after the house[5]. As I have earlier noted, you said you planned to base yourself in Wangaratta from then on and possibly work interstate.
[5] Transcript page 1083
If you harboured resentment about the way you were treated as a child that may be some explanation as to why you did what you did. It may explain why you strangled your mother over something so trivial and, apart from having shot him, it may also explain the post mortem injuries you inflicted on your father.
In considering the evidence and the inferences that are open for me to draw, in my opinion you did kill your mother spontaneously after some kind of argument as your counsel has submitted. That is the explanation you gave Jacinta Emselle on the 22 April 2013. To have done such a thing over an issue so unimportant does suggest that notwithstanding you were back living in Wangaratta, you continued to harbour resentment toward both of your parents and probably as a result of the family history.
The next question is why you murdered your father. To me there is a clear reason as to why you would have done that which does not depend on the family history as an explanation. Having murdered your mother and desiring to escape responsibility for having done so, the murder of your father was the only option open to you to enable that to happen. Without killing your father when he returned to the house, you had no opportunity to deny the killing of your mother because at the time of her death you and she were the only people at home. With some planning between killing your mother and your father returning to the house, the killing of your father would permit you, as you did, to claim that your father killed your mother and that you were acting in self-defence when you killed him. That gave you some chance to escape responsibility for both killings and that is what you tried to do. It was obviously a devious plan but unless you were going to take responsibility for what you did to your mother, which you were never going to do, the second killing was the only option open to you. The lengths you went to, with Ms Emselle’ assistance, to conceal any evidence of your involvement in these murders provides further support for the conclusion I have reached. However, I accept that you continued to harbour significant resentment toward your parents, particularly your father and, in the heat of the moment, the existence of that resentment was demonstrated by what you did after you shot your father.
The objective seriousness of the murder of your mother is clear enough, though tempered to a degree by it having apparently happened relatively spontaneously. There is no evidence that you had planned to kill her for any significant time prior to it occurring.
It was accepted on your behalf that the murder of your father was a more serious offence than the murder of your mother due to the fact that the latter was spontaneous whereas time had passed and some planning went into the murder of your father. That is of course true. But all the more so when at least part of the reason for killing your father was to enable you to avoid responsibility for both killings. Thus, it was a calculated, planned and callous killing.
Victim Impact Statements
During the hearing on 28 October 2016, three victim impact statements were tendered by the prosecutor. They were not read aloud but filed for me to read. They were from Madonna Sheffield and her husband Clint Sheffield and also Jacinta Thomas.
The Thomas family has been fractured by conflict. These three people have had their lives shattered by what you did. They are innocent of wrong doing yet their statements portray their suffering and when something as catastrophic as your extremely violent actions take place, the lives of the rest of the family are terribly affected. No doubt there is a broader effect on the community of Wangaratta and the particular social groups that the two deceased people had contact with. However I only take into account the documents before me and I will not speculate about the specifics of the wider effect.
You murdered your parents on 21 April 2013. The next day was your sister Donna’s birthday and it was on that day that she and Jacinta Thomas discovered their parents had been murdered. That anniversary is therefore there for life whatever else happens.
These statements were harrowing reading as they so often are. I have taken them into account as being of assistance to me to determine the sentence I will impose on you.
Prior Criminal Offences
As your counsel pointed out, though you have prior convictions they are primarily for driving or drink driving offences. You have no convictions for any offences of violence.
Personal circumstances
You were born on 15 February 1978 in Shepparton. At the time of murdering your parents you were 35 years old. You are now 38. Your family having moved to Wangaratta when you were very young, your primary education was in Wangaratta at primary school and then a Catholic college. You then joined the Navy and lasted 6 years during which you engaged in an electrician’s apprenticeship. After leaving the Navy you lived in Perth and there completed your training as an electrician. Financially assisted by your mother, you set up a business which operated until sometime in 2012.
You had begun drinking alcohol in the Navy and that continued to concerning levels afterwards. You realised you were an alcoholic. You also began using cannabis. You had two significant relationships in your life, the second of which was with Jacinta Emselle. You were 32 when you met her. You are now without much support of any significance. Your only family link is with your sister Bernadette with whom you have regular phone contact. Throughout your lengthy period of pre-sentence detention you have had not one visitor.
You have been in custody since the day of your arrest on 23 April 2013, a period of some 1336 days. This delay was indeed raised by your counsel on the plea he having described it as ‘inordinate’.
The delay between charge, trial and sentence, although considerable, is largely explained by decisions you made and which you were entitled to make, regarding how you wanted to conduct your trial. No doubt what occurred was done on legal advice.
The first post-committal directions hearing conducted in this court occurred on 30 July 2014. On 13 August 2014 notice was given on your behalf of an intention to make a change of venue application which, if granted, would transfer the trial from Wangaratta to Melbourne.
On 14 November 2015 I heard that application and, following enquiries being made as to the conditions that could be provided for you in Wangaratta, granted the application on 27 February 2015.
On 4 September 2015 the court was informed that counsel previously briefed in the case was no longer available and that your solicitors were in the process of finding a suitable replacement. It was also disclosed at that hearing that there may be an issue as to your fitness the plead for which an assessment was required.
At a further directions hearing on 29 September 2015 the fitness issue resolved and a trial date was set for 21 March 2016 and the trial commenced on that date.
The delay therefore, although regrettable, was necessary for the reasons I have summarised.
Remorse and Rehabilitation
Obviously there are no relevant considerations of remorse in the circumstances where you stood your trial, gave exculpatory explanations for the deaths of your parents and which were quite obviously rejected by the jury.
So far as your future is concerned, if and when you are eventually released from custody, in my opinion it is unlikely that you would pose any threat to the community as your counsel submitted.
I also note, as evidenced by a folder of certificated handed up by your counsel during the plea, that you have been engaging intensively with the programs on offer to you while on remand. You were also part of the induction program for vulnerable first time prisoners at Port Phillip Prisons. Your time so far in custody stands to your credit.
Conclusion
These were two terrible murders and your desire to conceal the truth about what occurred led you to commit the murder of your father. Whilst the murder of your mother was not a pre-planned killing, the murder of your father clearly was. You waited in the house for hours before he returned. In addition you mutilated part of his body. When you had done that you left the premises and did what you could to obscure and cover up what you had done. Part of that process included a denial that you killed your mother and false assertions about the death of your father.
For the murder of Pauline Thomas you will be sentenced to be imprisoned for a period of 30 years. For the murder of William Thomas you will be sentenced to life imprisonment and on that charge you are sentenced as a serious offender. Section 6E of the Sentencing Act 1991 provides that the sentence imposed on you as a serious offender must, unless otherwise directed by the Court, be served cumulatively on the sentence imposed on charge 1. However such an order would serve no practical purpose given the life sentence on charge 2. I therefore direct that the sentences be served concurrently.
The total effective sentence is thus life imprisonment. It was not contended by the prosecutor that I should decline to fix a minimum term to be served before you are eligible for release on parole. I will therefore fix a period of 32 years to be served before such an application can be made.
I declare that your pre-sentence detention is a period of 1336 days not including this day and direct that be entered in the records of the Court and reckoned as time already served pursuant to s 18(1) of the Sentencing Act 1991.
I have already made the disposal orders sought by the prosecutor.
0
0
0