R v Thompson

[2022] NSWDC 724

District Court

New South Wales

Medium Neutral Citation:

R v Thompson [2022] NSWDC 724

Hearing dates:

8 July 2022

Date of orders:

8 July 2022

Decision date:

08 July 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 3 years 4 months with a non-parole period of 1 year 8 months. See orders at [51]

Catchwords:

CRIME – Damage property by fire/explosive with intent to injure

SENTENCING - Relevant factors on sentence - Breach of Community Corrections orders – early guilty plea - targeted arson offence – little property damage potential for harm great – young offender- background of disadvantage and trauma - ICO rejected - community safety requires a supervision plan and drug rehabilitation - need for extensive support on release to prevent institutionalisation

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 Porter v R [2008] NSWCCA 145

R v Pitt [2001] NSWCCA 156

Category:

Sentence

Parties:

Joshua Thompson (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr N Ashby, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms J Walshe (for Director of Public Prosecutions)

File Number(s):

2021/00231696, 2021/00324466

sentence – ex tempore revised

Introduction

1. Joshua Thompson, the offender now before the Court, is a young man. He has a number of significant problems that he will have to live with for the rest of his life, to which I will soon refer. He has not had the sort of background that many in the community expect; the sort of background we should all be entitled to receive. Since he was very young he has used illicit drugs and combined with some mental health issues this has meant that he has been in trouble with police and come before the courts. He has a limited education. He does, however, have support from family and friends, who are here in court today.

2. He appears for sentence because he offended in a very serious way against the community, targeting one young woman specifically.

3. On 13 July 2020 a double mattress was set alight in the stairwell of a walk-up, three-storey unit block in Wollongong. Although that fire was extinguished reasonably rapidly, the use of the mattress, the position of the mattress and the fact it was lit in the early hours of the morning would have caused the residents considerable disquiet.

4. A police investigation led to Thompson’s arrest on 13 August 2021. He co-operated when the matter was before the Local Court. He indicated that he would enter a plea of guilty to a charge of damage property by fire with intent to injure; s 196(1)(b) Crimes Act 1900, maximum penalty 14 years. He also asks that when I sentence him, I take into account his admission of guilt to another 196(1)(b) Crimes Act offence committed in the same stairwell on 26 June 2021. It is appropriate that I do so.

5. At the time he was serving sentences subject to Community Corrections orders. The fact that he breached the promise to be of good behaviour inherent in accepting that sentence is a matter that aggravates the sentence I impose today. He has also asked that I deal with him for the breaches of the Community Corrections orders, and it is appropriate I do so.

6. Because I have taken into account the fact that these offences were committed in breach of Community Corrections orders as an aggravating, factor I will take care not to double-count against him that fact when I come to deal with the breaches.

7. As the plea was entered in the Local Court he is entitled to a reduction of 25%, from the otherwise appropriate sentence, to reflect the utilitarian value of his early plea.

Facts for sentence

8. The police investigation of the fire was thorough. It is set out in the agreed facts.

9. Thompson and his family lived in a unit block in the complex. His victim, a young woman, lived in another. Thompson formed a grievance against her. The reasons for his doing so are unclear, as he did not know the young woman very well.

10. On 26 June 2021 at 1am he entered the stairwell of the unit block she lived in. He placed two pillows in the common area stairwell and set them alight.

11. Smoke alarms were activated. An occupant woke up and called Triple-0. He then extinguished the fire using a bucket of water.

12. All of the units were occupied at the time and the residents were asleep. There is no fire escape. If the fire had developed it could have blocked the escape of the occupants of two of the units. The complainant resides in one of them.

13. On 1 July 2021 a note was left under the complainant’s door. It was threatening. It was signed with a false name, but it did include an address; which was the same block as that occupied by the Thompson. Although a different unit number was used.

14. A second threatening note was left on 4 July 2021. It contained abuse and a threat to “blow up the house with you in it” and “The star well the ovr night was for you dog” (sic).

15. At about 2.30am on 13 July 2021 the offender, with another young person, who is now deceased, were captured on CCTV entering the block where the young complainant lived. The pair carried a double mattress. They placed it in the stairwell and set it alight.

16. The mattress blocked the entire landing, potentially stopping anyone from leaving. A witness was alerted to the fire while it was still in its early stage. The sprinkler system to the complex was activated. It was able to suppress the fire. When New South Wales Fire and Rescue arrived, they were able to fully extinguish the fire, thus preventing injury to the occupants and major damage to the property.

17. The property did sustain some minor smoke and water damage. However, if the fire had developed further it had potential to endanger the lives of everyone living in the unit complex, as their escape was blocked by the mattress and the fire.

Objective seriousness

18. Factors relevant to my assessment of the objective seriousness here include that the motive was revenge, for a perceived grievance of no consequence. I cannot ignore the intended threat was directed at a young woman and the possible impact of what occurred on her. There is no Victim Impact Statement, but its absence cannot mitigate.

19. An element of the offence is “intent to injure.” Here, although she was personally targeted, the nature of the fire did not mean that she was directly confronted as, for example, if a firebomb was thrown at her. The intent to injure was of a more general nature, but nevertheless a matter that must be taken into account as an element of the offence.

20. There were other unintended potential victims living in the unit block.

21. There was obviously some premeditation and planning, in the sense that a mattress had to be obtained. There was also persistence in the sense that the behaviour from the earlier Form 1 matter was repeated. But whatever planning there was, was utterly haphazard as evidenced by the fact that the perpetrators were caught on CCTV. The camera would have been obvious to them.

22. Thankfully, the actual property damage caused was not substantial, but that was only because of prompt action by residents and New South Wales Fire and Rescue.

23. I cannot and will not ignore the potential risk of injury to residents at the block as had the fire had taken hold the mattress may have blocked their only means of escape.

24. To light a fire within a residential property, a block of units’ stairwell, is an extremely serious and dangerous crime given the potential destructive consequences. Such crimes are easy to commit and often difficult to detect. In such cases courts must, consistent with general principle, give a degree of prominence to the objective of sentencing, known as general deterrence, or sometimes, retribution. That is, by the example of the sentence imposed seek to get through to members of the community, such as Mr Thompson, that to commit such crimes will be punished severely; Porter v R [2008] NSWCCA 145, R v Pitt [2001] NSWCCA 156 at [29].

The Form 1

25. I have had regard in the general facts outlined to the earlier incident on 26 June. They have informed my sentence. That matter is also on a Form 1. I apply the principle from the guideline judgment: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. I can take it into account as part of my synthesis of all relevant matters. It increases the need for personal deterrence and retribution for the crime for sentence. But I have to take care here as that first offence informs the second and I cannot double count matters against the offender.

Maximum Penalty

26. There is a maximum penalty of 14 years. It is one important guide to the exercise of my sentencing discretion.

Criminal record

27. Thompson has a Local Court record. I have already noted he was on Community Correction Orders. He is not entitled to the leniency often given first offenders. But this is his first custodial sentence, a matter I will take into account.

28. He was bailed after serving 74 days in custody. There was a bail breach and a further day in custody. He was returned to custody on 15 November 2021. He has been in continuous custody since that date. I will take into account time served. Accordingly, his sentence should start on 1 September 2021.

The case for the offender

29. I heard evidence from Mr Thompson. He is a young Aboriginal man.

30. He told me that he was “sorry” and that he did not mean to do it. I am not sure what he meant by that qualification, as he clearly did mean to do what he did. But I think what he was trying to say was that he would not have done what he did had he not been affected by alcohol, Xanax and or ice and that now, free of the impact of illicit drugs, he realises what he did was wrong. That is the best way I can interpret what he said.

31. He told me that he wishes to get back on his medication and that he wants to engage in rehabilitation programs; with residential rehabilitation if necessary. He said he wants to return to live with his family and provide assistance to his mother.

32. He was born in 2001. I have a letter from his mother who sets out matters relating to his background and history, which are not in dispute.

33. Thompson is autistic. As a young man he witnessed and experienced considerable domestic violence in the home. The Department of Community Services had to step in. He has suffered as a consequence of the many problems both his parents had. He sometimes, she said, takes the blame for stuff he has not done. His mother expressed the opinion that gaol will not do him any good. She said a rehabilitation programme would be good for him. Most importantly, she says, “I just want him off drugs. He’s such a beautiful soul”.

34. A comprehensive report has been provided by Ms Assaf, a social worker with Legal Aid. She provides a history of the trauma Thompson suffered as a child and how he responds to trauma, which is consistent with the studies she cites in her report. She says his history meant that he has a diminished capacity to regulate and make rational decisions and cope in the face of stress, and that his addiction to drugs is not surprising, as it is a way of surviving a history of significant disadvantage.

35. While he has been in custody, he tells me that he has caught COVID twice. He did receive some medication, but primarily he was placed in isolation.

36. Ms Assaf’s report says that to date the only thing he has really had, apart from that treatment, he was provided with an “in-cell coping strategies pack”. I am not sure what that is, and I am not even sure he had the capacity to read it. She indicates that he will immediately on release need to be transitioned into residential rehabilitation. He needs a holistic approach that is trauma-informed and would benefit from a service that could case manage all his ongoing needs. She suggests a couple, but there is no material before me that any programme is available now, or in the future.

37. He should take advantage of any programs that could be made available to him, such as, EQUIPS Anger Management or other EQUIPS programs and drug and alcohol programs. He is presently on a list.

38. It is clear to me that he will probably need a mental health care plan on release. He may need a work development order for other outstanding fine matters.

39. I take into account that he has served his sentence subject to COVID and will continue to do so.

40. His background of disadvantage has to be taken into account. Simply put, an offender who has the start in life that Mr Thompson has does not bare equal moral responsibility with one who would have what might be termed a normal or advantaged upbringing. His background has left a mark and impeded his capacity to mature and learn. He has also been impacted on by domestic violence when very young.

41. His background is relevant and will be given proper effect. It can help explain why as a young person he took up the use of illicit drugs.

42. The fact that he was using illicit drugs at the time does not mitigate or excuse what he did. The fact that he was using ice, Xanax and alcohol at the time meant that what he was doing was not rational because he was acting under the influence of drugs, making him more dangerous. But the fact of his addiction, its consequences, how it came about, what is to be done about it, will be taken into account. It is relevant, particularly when I come to structuring the sentence.

Synthesis

43. The law recognises that young people, particularly young people whose development was impeded, as Thompson’s was, do not have the same cognitive and emotional or psychological maturity of adults. It is well recognised that emotional maturity and impulse control develop progressively. That is a factor that must be taken into account. All the material before the court including the facts for sentence and, the inevitability of detection, demonstrate that Thompson was not thinking. He had no real awareness of the consequences of his acts on others or the consequences for himself; hopefully he will mature.

44. It is clear from the material before me that the longer he spends in custody without appropriate assistance, without appropriate medication and without a targeted drug and alcohol program, the greater the risk he will return to crime and gaol. Given his underlying mental health problems and other conditions and the trauma he suffered as a child, there is a real risk that those he associates with in gaol will have a negative influence upon him. The sooner he can be released the better. But he should be released in a structured way, so that he can receive targeted assistance.

45. To that end, his solicitor, Mr Ashby, suggested that an Intensive Correction Order (ICO) might best assist him rehabilitate and ultimately assist the community.

46. An ICO cannot be imposed unless the total sentence is less than three years. When I come to assess all of the matters, I could not give him an ICO on that basis alone without structuring the sentence to take into account time served, something in this case I am not prepared to do. As community safety is paramount without an actual release plan in place an ICO disposition could not meet that provision: s 66 (1) Crimes (Sentencing Procedure) Act 1999.

47. While imprisonment can protect the community for the period an offender is removed from it, Thompson has to be returned to the community. And the better and longer he is supervised the safer the community will be; and the better his chances of rehabilitation are. For that reason, I will make a significant finding of special circumstances.

48. Thompson is a young man, his capacity for the future should not be lost sight of. He is, sadly, a perfect candidate for a cycle of gaol, crime and gaol and institutionalisation. The longer he spends in custody the greater that risk. But sentences are not just about the offender. They have to be principled; they have to take into account the seriousness of the offence and the consequences for the community. They must take into account the potential consequences, and the fact here that there was a person, the subject of the charge, who was targeted by him in a particularly disturbing way. Her dignity must be vindicated.

49. Thompson has spent nearly a year on remand. There has been no evidence of any real progress toward rehabilitation other than the fact that he is now thinking clearer while drug-free. He cannot make this journey without help and without actual help his rehabilitative prospects remain theoretical.

50. Had it not been for the plea of guilty a sentence of four years and four months would have been imposed. There will be a sentence in this matter of three years and four months. There will be a significant finding of special circumstances.

Orders

51. The formal orders are: there will be a non-parole period of one year and eight months from 1 September 2021. Thompson will be eligible for consideration for release to parole on 30 April 2023. There will be a parole period of one year and eight months, that is half the sentence.

52. Your release will be subject to decision by the State Parole Authority. In other words, you will not get out until they consider community safety can be best protected on your release. They will consider where you are released to, whether it be home or to a residential rehabilitation centre; but that is a matter for them.

53. So far as the breach matters are concerned, I find the breaches proved:

1. For the intimidate of the bus driver, there will be a sentence of three months’ imprisonment. That sentence will date from 1 September 2021 and has been served.

2. In relation to the obtain benefit by deception matters, there is no utility in imposing any further penalty on you. Each will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

54. What that means, in summary, is that your sentence will be backdated to 1 September. The total sentence is three years and four months. The minimum you must serve is one year and eight months, which means you will be, hopefully, released to parole on 30 April next year. That is less than a year to go. It will be up to the Parole Authority where you go on 30 April. If you continue to go the way you are going you will be released on that date. Hopefully that will give them time to get a program in place for you.

55. While I took into account all the matters from your background, the seriousness of what you did and the potential consequences meant that a substantial head sentence had to be imposed, but it was reduced by 25% because of the plea of guilty.

AUDIO VISUAL LINK CONCLUDED

**********

Decision last updated: 23 March 2023