R v Thomson
[2007] VSC 383
•5 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1640 of 2005
| THE QUEEN |
| v |
| ROBERT ANTHONY THOMSON |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2006 | |
DATE OF SENTENCE: | 5 February 2007 | |
CASE MAY BE CITED AS: | R v. Thomson | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 383 | |
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Murder charge – manslaughter conviction – unlawful and dangerous act- addict at time of killing – rehabilitation whilst in custody – Sentence: 7 years – 5 year minimum.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Johnston | Ms T. Heffernan office of Public Prosecutions. |
| For the Accused | Mr J. Montgomery | T. Magazis and Associates. |
HER HONOUR:
Robert Anthony Thomson, you are charged with murdering Mr Amir Hashmati on 21 April 2005. You were acquitted of that charge and convicted of manslaughter by a jury.
The penalty for the offence of manslaughter is 20 years pursuant to s.5 of the Crimes Act.
The defences put to the jury in this case were alternative defences of self-defence and lack of intent to kill or inflict really serious injury. In accord with the verdict of the jury, I find that you were not acting in self-defence, but equally, I find that you had not formed the intent to kill or to inflict really serious bodily injury and I therefore sentence you on the basis of an unlawful and dangerous act, manslaughter.
The circumstances as I find them to be, consistent with the verdict of the jury, are as follows:
The deceased had a house in Landells Road, Pascoe Vale, at which there was a separate bungalow type of flat attached to the house. The deceased used to rent that bungalow to people and you became his tenant, in that bungalow, some months prior to his death. Mr Hashmati was described by many witnesses as a violent and sometimes angry man, who had trouble with his temper. He was very powerfully built, was a wrestler, and involved in other martial arts. He had worked sometimes as a crowd controller or bouncer, but his temper was too unpredictable for that and he had worked, only very occasionally in that job, for some time. The deceased was, it would appear, an illegal immigrant from Iran, who at some stage was permitted to remain in the Australian community. I am unable to ascertain in what circumstances that occurred, but I accept that he was in this country in a legitimate capacity at the time of his death.
From information the deceased provided to various people, he was believed to have been involved in the army in Iran, in allegedly a death squad type of role, although there is no actual consistency to people's knowledge or information about his actual background.
A few weeks prior to his death the deceased assaulted you, causing you bruising, a cut lip and chipped tooth. This was allegedly over your use of drugs, with witnesses saying that he had said he was going to control how you lived your life and it was to be on his terms. Although there were these expressions of anti-drug attitudes, it is equally clear that he was involved, in some measure, in the growing of substantial amounts of marijuana, as evidenced by conversations with other witnesses and the amount of chemicals and hydroponic growing lights found in his premises.
I am unable to reconcile these matters, but they are not really relevant to the sentence I have to impose upon you for this crime, but I act upon the basis that you had some fear of this man, in respect of his previous assault upon you, his physical size and his short temper.
You had also failed to pay rent on the bungalow to the deceased and this had equally caused problems between you. As a result of the combination of the failed rental payments and the assault that occurred, you ceased residing at his premises and whatever possessions you had remained at the bungalow. The deceased was said to have made threats to you and your family, over a short period of time. It ultimately became known that the deceased was getting rid of your possessions by dumping them. There is some dispute as to what possessions remained, equally as there is a dispute as to the state of the bungalow at the time you left it; but once again, that is not particularly relevant to the matter of sentence.
All of this is really only background material that provides a form of explanation of your presence at the deceased's premises on that night. I am satisfied that, on the night in question, you returned to the home of the deceased and that you had with you, a .22 calibre rifle. That rifle, I accept, you had taken from the premises of the deceased earlier. I am satisfied that it was his rifle that you had obtained. I am also satisfied that there was only one gun present at the scene on that night; that in my view is consistent with the verdict of the jury. It had been argued that the deceased had had the rifle, that he was the one who produced and fired the rifle at the time of the killing; but the jury rejected that scenario, with the rejection of self-defence. The rifle ended up inside the deceased's premises after the killing, but the only gunshot residue found on the deceased was on the palms of his hands, consistent with him having picked up the rife after it had been fired and thus coming into contact with the gunshot residue, in that manner.
Equally, however, the jury rejected the view that you had come to the deceased's premises with a loaded firearm, intent on revenge for his previous assault on you and the destruction of your possessions.
There were a number of shots fired on that night, the majority into the premises of the deceased. There was only one shot fired into the body of the deceased. It was in the back and somewhat to the side. The bullet travelled upwards, hit the 10th rib and was deflected further upwards and went through the right lung and the top of the right side of the heart. The deceased bled to death fairly quickly.
Your counsel submitted to the jury that if you had intended to kill him or cause him really serious injury, then more than one shot would surely have been fired at the deceased. Clearly, the jury agreed with that submission and on the material before me it had some real force.
It is not possible to say precisely what circumstances drew you back to the premises of a man, of whom you were clearly afraid, armed with a loaded rifle. However, you could not have placed either of you in a more dangerous situation. Whilst I am not able to say what your motivation was in attending the premises I, of course, act upon the basis that you did not attend there with the intention of killing the deceased man, but on the basis that by your actions you had placed yourself and the deceased man in a perilous situation. That situation resulted in the deceased man being killed.
You did not dispute that you had killed the deceased man, only the circumstances in relation to how the killing had occurred and that was a matter for the determination of the jury.
The deceased man had no family in Australia and there have been no impact statements submitted by anyone relating to his death. Despite that, one must still have care and realise that at some stage the deceased man may be missed by some people and every life has value to this community.
In relation to your personal circumstances, you are now aged 35, having been born on 17 April 1971, and you are a house painter by occupation. You admitted 52 prior convictions from 15 court appearances from December 1988, when you were aged approximately 16 years, up to and including 2004, when you were aged approximately 33 years. Those offences relate to using and trafficking in drugs, being amphetamines, heroin and cannabis, dishonesty type offences, of differing levels ranging from thefts and going equipped to steal, to attempted armed robbery. There are numerous driving offences such as three exceeding .05 and multiple driving whilst disqualified. These offences have resulted in penalties ranging from fines, community based orders, intensive correction orders and suspended sentences, to relatively short terms of imprisonment. Although not necessarily of similar type, they have some impact on the sentence which I am about to propose. Your counsel has rightly conceded that this is an offence that must carry a custodial sentence.
It was submitted that you had never avoided responsibilities for your actions, although you did make yourself unavailable to the police for a few days. That said, you said twice to the police in the car that it was disgusting that he was dead. I accept that you did not abscond in the true sense, but equally I accept you did not come forward to the police, they had to locate you. In my view, all of the matters relating to whether you made yourself unavailable or available to police makes no real difference to the sentence that I will impose in relation to the offence.
Your counsel went through a number of your prior convictions and particularly dealt with the offences relating to any offences of violence, being 1989, carrying an offensive weapon, stating that you had bought a knife from a martial art shop and were stopped by police and found with it. In relation to the count of attempted armed robbery, that was with another person in 1991. You had a pocket knife and made a demand of the owner. You ultimately ended up being the one stabbed and you had been stabbed by the victim.
Your counsel submitted that all of your offences are explicable in light of your usage, as an addict of heroin, amphetamines, cannabis and alcohol. You had what could be described as a classic history for an addictive type personality. None of this, of course, excuses your behaviour either then or now, it merely helps to try and explain it.
During the trial your treating doctor was called and gave evidence about the length and nature of your addictions and the type of assistance that had been supplied to you over the years. There was nothing put forward, either during the trial or on the plea that you were in any way affected by alcohol or drugs on the night of this killing.
From what I have been able to ascertain from the plea, your personal history is that you were brought up in Broadmeadows; your father was a mechanic and your mother a waitress. You attended local primary and secondary schools until you left school in Year 9 when you were aged 15 years. You left to do a motor mechanics apprenticeship. You have an older brother and a younger brother.
When you were aged 16 your mother went to Italy with your younger brother; your father left home for another woman; and your older brother went to stay with his grandmother. That left you alone in the house. At that stage you had a girlfriend, she became pregnant and had the child. When your mother came back, you moved out with your girlfriend and the child, and your girlfriend then ran away with your older brother to Queensland when you were aged 19. You had another girlfriend to whom you also had a child and, surprisingly, you subsequently had another girlfriend which lasted somewhat longer and had two children with her.
Your counsel said that you accept that the relationships didn't last because of your addictions, both to alcohol and drugs. Those same addictions caused you to stop your apprenticeship 20 days short of qualifying. You became involved in a Cheap As Chips steam cleaning operation, as a franchise operator, which went on for some months. You spent some $50,000 on equipment and a van, but not having purchased the franchise. The franchise owner wanted you to do that, you didn't and work in fact dried up. You ended up with debts of some $50,000. You next spent a decade painting, as a subcontractor painter. Despite the breakdown of your relationships, your counsel submitted that you remained interested in your children, a boy 17 and three girls, 15, 10 and 9. You have not seen a great deal of your son, but have had more to do with the others, particularly the youngest two, you apparently see them a lot on weekends.
Through your counsel, you expressed regret at not seeing your children, as a result of being incarcerated, but you consider prison an inappropriate place for them to visit. Your mother and aunt visit you and the two older children are aware that you are in gaol, whilst the younger children are not.
It was submitted that you have had a number of significant relationships, produced four children, about whom you care very much, and I have no reason to doubt that matter and I accept what your counsel says.
Your counsel has submitted that you now look a fitter person than when you were arrested. That can clearly be seen from the photos. It is a shame that sometimes a period of incarceration is almost necessary to change the downwards spiral of dependency for those with problems such as yours. You have not been consuming any illegal substances whilst in prison and as indicated it is obvious, if only with your physical health, that there has been an improvement. Your counsel submitted that the court ought not give up on you having any prospects of rehabilitation. I agree that you are not without hope, but I do not feel that you have high prospects, no matter how good your intentions may be. It is one thing to be drug free in prison and quite another to be drug and alcohol free when you have the exercise of free choice. That will remain a matter for you and what you want and expect from your life when you are released.
I have to try and balance your personal circumstances, your prospects of rehabilitation, with the offence you have committed, and the need for both general and specific deterrence, which I consider are appropriate in this case. Equally, it is important that the court expresses denunciation of the taking of a human life in these circumstances; circumstances of a person embarking upon an extremely dangerous course of attending at a person's home with a loaded firearm. The consequences from such actions will invariably result in tragedy of some kind and there is a need to ensure that all members of the public, as well as you, are aware and understand the potential of engaging in that sort of conduct.
Accordingly, taking all the matters to which I have referred into account, for the manslaughter of Amir Hashmati, you are sentenced to be imprisoned for seven years. I fix a minimum of five years before you become eligible for parole. Pursuant to s.18 of the Sentencing Act, I declare that the time you spent in custody in relation to these proceedings is 619 days inclusive of today and I direct that such time be reckoned as a period of imprisonment already served under this sentence. I grant the disposal order and the retention order for the forensic sample pursuant to s.464ZFB(1) of the Crimes Act.
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