R v Thorpe
[2000] VSC 17
•27 January 2000
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION Not Restricted
No. 1579/97
| THE QUEEN |
| v. |
| THOMAS DESMOND THORPE |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 27 JANUARY 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 17 | |
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CATCHWORDS: Two previous murder convictions – Two re-trials ordered – Guilty plea to manslaughter – Ingestion of alcohol -
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. McArdle | Office of Public Prosecutions |
| For the Accused | Mr. G. Thomas | Victorian Aboriginal Legal Service |
HIS HONOUR:
Thomas Desmond Thorpe, having been twice presented for the murder of Charles Peter Carlson at Norlane in the State of Victoria on 11 February 1997 and on both occasions being found guilty by the jury then empanelled, each of the verdicts entered against you and the sentences consequently imposed have been set aside by the Court of Appeal and a retrial ordered.
You have at your third trial entered a plea, which the prosecution has accepted as appropriate in the circumstances, of guilty to the manslaughter of the deceased.
It is now my responsibility to impose sentence upon you on that basis.
You have admitted a substantial number of prior convictions involving 16 court appearances over the last twenty years. They relate to a variety of offences most of which were dealt with at the Magistrates' or Local Court level in Victoria and southern New South Wales. Of relevance for present purposes are the observations that some were concerned with acts of violence that you perpetrated and all were consistent with the itinerant lifestyle and the background of alcohol abuse outlined by your counsel in the course of presenting submissions on your behalf.
The circumstances of the commission of the offence which brings you before this court have, of course, been the subject of considerable attention in the two previous trials.
In that circumstance, it is, I think, sufficient for present purposes to set out and adopt the description of them contained in the sentencing remarks of the judge who presided over the first of those hearings. I understand that that description is not the subject of any controversy between the prosecution and yourself. It reads:
"The day of Tuesday, 11 February 1997, commenced unhappily like many others for you, as a day of drinking alcohol and a day lacking in any positive interest for you. By the evening of Tuesday, 11 February 1997, you had gone around with your friends, similarly situated to you, to 14 Kookaburra Court, Norlane. There you and your friends were drinking in the loungeroom of those premises. After some time spent drinking and sitting around an argument re-agitated concerning the ownership of a pornographic video, an argument that had commenced earlier that afternoon at another friend's home. The earlier argument had led to nothing. Unhappily and tragically, on the evening of Tuesday, 11th, the argument led to the death of an innocent person, Mr Carleton.
You smashed the video in a fit of temper and a little later, still in a fit of temper, you went behind Mr Henry, who was seated, picked up a piece of wood that was in the lounge, tendered as Exhibit B in this trial, and struck Mr Henry once on the head. When Mr Henry stood up you struck him again. You did not strike him further and desisted from any further violence towards him. You all then sat around in the loungeroom for some time while Mr Henry bled. He went outside to seek assistance. You remained in the loungeroom.
While Mr Henry was outside, Mr Carleton, who lived in the rear room of the premises, went outside, saw the result of your twice striking Mr Henry on the head, saw the bleeding, was upset by what he saw, said: 'I'll fix that black bastard' and went back into the house.
Mr Carleton at the time had a blood alcohol content of approximately .4 to .46 per cent. Mr Henry had a blood alcohol content of .22 to .298. You had a blood alcohol content of approximately .15.
When Mr Carleton went back into the house, he went to his bedroom at the rear of the house and picked up another piece of wood, Exhibit B. He then came into the loungeroom where you were, probably asleep. You were seated on the couch on the west side of the loungeroom under the map of the world which can be seen in the photographs. Mr Carleton struck you on the head with a piece of wood, causing a minor injury to your left forehead. You and he then commenced to fight. You struck him with the piece of wood a number of times and then, tragically for Mr Carleton, and unfortunately now for you, you took to him with an urn, Exhibit F, and struck him a number of times severely around the head while he was on the floor unconscious and offering no threat to you. The attack you made upon Mr Carleton was brief but extreme.
The evidence of Dr Ranson, the pathologist shows the deceased, Mr Carleton, suffered severe head injuries including fractures of the skull, 67 lacerations, tearing and splitting injuries, 17 areas of bruising and 31 areas of abrasions, all done at your hand in a very short space of a violent attack by you on the deceased. The injuries were all concentrated on the head of the deceased. You then sat down in the same room on the opposite couch, next to the windows and beside the body of the deceased, and fell asleep. Perhaps you suffered then an epileptic fit. At all events, while you inflicted the severe injuries to the head of Mr Carleton, you were not then suffering from an epileptic fit. The nature and direction and severity of the injuries are what caused you to be convicted by the jury of the murder of Mr Carleton, and particularly the fact that you used not one but two weapons on him, even though the initial incident was commenced by Mr Carleton having a go at you with his piece of wood while you were seated, probably asleep, on the internal couch.
Fortunately, the injuries to Mr Henry were much less severe. Dr Jackson of the Emergency Department of the Geelong Hospital treated two deep lacerations over Mr Henry's right scalp. There was no skull fracture or other injury. The doctor cleaned the wounds, sewed them, and Mr Henry spent four days in hospital, essentially as a precautionary measure.
You remained asleep or unconscious until later aroused. The depth of your sleep, suggesting that you probably had an epileptic fit after you attacked Mr Carleton, is demonstrated by the evidence of the ambulance and police officers who attended the scene and who could not rouse you except by extreme measures. You were taken to the local police station, interviewed by officers, taken to Melbourne Homicide Squad and further interviewed. You were then charged with the murder of the deceased and causing serious injury to Mr Henry and you have remained in custody from that time until this."
As I have indicated, that description was provided at a time at which the sentencing judge was dealing with a conviction for murder and he also had to deal with the question of the attack upon Mr Henry. I am employing his summary, as I have indicated, as a description of the general circumstances in which you are to be sentenced for the crime of manslaughter.
A very similar but more abbreviated description is to be found in the sentencing remarks of the judge who presided over the second trial.
It has been submitted by both the prosecution and your own counsel that the appropriate formulation in the circumstances of this matter of the crime of manslaughter which you committed is that encompassed by the expression "manslaughter through the performance of an unlawful and dangerous act". I accept that this is the proper approach to adopt.
I also understand that you have been prepared to plead guilty to manslaughter from a relatively early stage of the history of this matter and that you did so as soon as that choice became, as a practical proposition, available to you. This preparedness and your plea must be taken into account in your favour.
I have no doubt that you will appreciate that the unlawful killing of another human being is a matter which our society and the courts through which it is represented regard with the utmost seriousness. Not only through the sentences which they impose must sentencing judges express our community's rejection and condemnation of the resort to drunken violence of the kind in which you engaged and which can have such tragic consequences, but also attempt, in so far as they are able to do so through the sentencing process, to deter those who may be inclined to engage in it.
However, of course, these are not the only considerations that must be taken into account in the determination of an appropriate sentence. Each case and each offender must be viewed in the light cast by all of the circumstances relevant to the specific situation and person before the court.
Turning then to your position, personal circumstances and background, to which regard must also be had. You are now aged thirty-eight years. You were born into a family of hard-working, non-drinking parents who I understand were respected members of the Aboriginal community in the Mildura area where they owned and operated a fruit block. You spent your early years there until, for reasons which are not clear, you began to get into trouble at around the age of 14 years. It was at this stage that you began to abuse alcohol and became involved in the commission of offences. I understand that there were some issues at home between your twin brother and yourself that may have resulted in the development by you of a sense of instability or uncertain self-esteem, and I am conscious through long experience of the difficulties and the destructive force of the social pressures that can arise for a young Aboriginal person in our society. Accordingly, whilst I do not consider that it is possible at this distance to ascribe confidently some genesis to the direction which your life has taken, your general history is one with which I am regrettably too familiar and is probably reflective, in part at least, of the social disadvantage and sense of alienation which Aboriginal people so often experience in our society and the impact of which frequently is overtly expressed by resort to alcohol and drugs and the engagement in antisocial activities in early adolescence. Whether or not that is an appropriate interpretation of your situation is arguable, but in your favour it is the one that I propose to adopt.
Since then you have led a fairly itinerant lifestyle in which alcohol consumption has played a very important role. In addition to the criminal history to which I have adverted, you are now basically illiterate and innumerate. You suffer from a variety of physical disabilities including epilepsy, diabetes, and I understand you have experienced periods of pancreatitis and liver dysfunction due to alcohol abuse. You are a chronic alcoholic and clearly have been so for some time. Your conduct and your level of culpability must be viewed in that context which mitigates your level of personal responsibility. Against this background, the evidence that you were either unconscious or very deeply asleep when first seen by ambulance and police officers raises the possibility that at the time of the killing you may very well have been acting in a state of clouded or reduced consciousness and I understand that it is because of the existence of that possibility that ultimately the prosecution has adopted the course of presenting you for the crime of manslaughter.
The protracted legal processes which have marked your case have, your counsel has informed me and I accept, been particularly stressful for you. You have now, unfortunately, been wrongly convicted of murder on two occasions and I have no doubt that over the long period of time during which you have been subjected to legal process you may have experienced the sense of hopelessness to which Mr Thomas adverted. The additional distress which has arisen from that protraction of the process and the fact of wrongful convictions which has accompanied your incarceration until very recently must be taken into account in your favour.
It appears that since you have been in custody and alcohol free, whilst your freedom has been restricted, your horizons have expanded and you have expressed an interest in painting and demonstrated talent as an artist. You regularly participate in Alcoholics Anonymous meetings and you have begun to contemplate the possibility of a more satisfactory existence than the one which you have led to the present time.
I am prepared to accept that in the long period that has elapsed since the commission of your offence you have come to regret your actions and I also take that consideration into account in your favour.
Whilst in view of your history it is not possible to possess any great measure of confidence in your prospects, there are indications that you are developing a more positive approach which have led me to the opinion, shared I should add with the other sentencing judges who have considered your situation, that your eventual reintegration be regarded as an important sentencing consideration.
I have had regard to the range of sentences imposed by the courts in this State over recent years upon persons convicted of the crime of manslaughter. I have, as I trust my remarks have already indicated, had regard to the purposes for which sentences may be imposed and the guidelines for sentencers as set out in the Sentencing Act.
As I indicated in the course of discussion, I consider that some tailoring of the sentence to be imposed upon you is required in order to give effect to the view at which I have arrived that there should be some partial concurrency of the sentence imposed for this offence and that which has already been served by you arising from your assault upon Mr Henry.
I understand that after an allowance is made for the period which you have served in relation to the offence committed against Mr Henry, you are entitled to credit for 693 days of pre-sentence detention. As I have indicated, whilst I consider that effectively some partial concurrency ought to be allowed, I do not consider that that should represent effectively the total period that you have undergone in relation to the offence committed against Mr Henry.
What that means is that, bearing in mind all of the matters to which I have adverted, and this last consideration, I consider that it would be appropriate to impose a sentence in your case of imprisonment for a period of seven years. I fix a non-parole period of five years. I declare that the period of 693 days be reckoned as the period having been served under the sentence hereby imposed and I direct that this declaration and its details be entered in the records of the court.
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