R v Wilson
[2004] VSC 468
•23 July 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1433 of 2004
| THE QUEEN |
| v |
| THOMAS WILSON |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2004 | |
DATE OF SENTENCE: | 23 July 2004 | |
CASE MAY BE CITED AS: | R v Wilson | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 468 | |
SENTENCE – Making Threat to Kill – Severe and chronic mental illness – Anti-social personality – Suitability for Community Based Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gamble | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Desmond | Paul Vale & Associates |
HIS HONOUR:
Mr Wilson, you have pleaded guilty to one count of making a threat to kill and to two summary charges of using a telecommunications service to make menaces. Through your counsel you have consented to this court hearing and determining the summary charges.
All of these offences were committed during a series of telephone calls you made on the evening of Monday, 8 December 2003. The victim and recipient of each of these calls was John Smallwood. On each occasion you used your mobile phone to call his home address. Mr Smallwood lived at that address with his wife and children. You knew Mr Smallwood to be a County Court judge at the time of making these calls.
Your motivation for making the calls, however, appears to have been that you had been the victim in an incident which occurred many years previously, in about 1995. At that time you went by the name Graham Reid. His Honour, appearing as defence counsel in the Supreme Court trial, cross-examined you. His Honour’s client was charged with attempted murder, but was acquitted after the jury accepted a defence of self-defence.
The first phone contact you made appears to have been a message which you left on his Honour’s answering machine two to three weeks prior to 8 December 2003. This call is not the subject of any charge. His Honour and his wife listened to the message. In the message you said:
“Hello, sir – John - Mr Smallwood – I don’t know what to call you. You’ve helped me before and I need you to help me again. My name is Tom Wilson. My phone number is 0400 259 847. You will know who I am.”
You also said that you wanted the name of a doctor from a registration number that you had. You said that you could not get the number from the authorities and you needed it for your survival. You said you needed the assistance of people like Mr Smallwood and that you also needed information regarding registration numbers in Newlands Road, North Coburg. You actually lived in this road and the number that you left his Honour was your own number. You concluded the message by asking for your call to be returned.
The details of the caller were noted by his Honour, but the message itself was erased. His Honour never returned the call. He did not recognise your name because it was different to the name Graham Reid. The call was of great concern to his Honour who detected a note of hostility even though at that time no threat was made.
The remaining calls all occurred on the evening of 8 December 2003. Phone records seem to indicate that six calls were made from your mobile number to the home of his Honour between the hours of 8.49 p.m. and 11.15 p.m. Three of these calls are the subject of specific charges. Both his Honour and his wife in their respective statements only refer, however, to three calls being received that night.
The first of those calls was made at 8.49 p.m. This call is the subject of the first summary offence and is contained in Information No. 2. The call was answered by one of his Honour’s children and the phone was handed to Judge Smallwood after you asked to speak to him. During the call you were abusive. You used names such as “cunt” and “dog” when referring to his Honour. You complained about having been left “out to dry”. You did not identify yourself despite requests to do so. His Honour did not recognise your voice. The nature of the call concerned him. Police were called from the phone at a neighbouring property. Northcote police arrived shortly thereafter but were unable to assist at that stage without knowing your identity.
The next call was made at approximately 10.37 p.m. and this call forms the basis of Count 1 on the presentment - making a threat to kill. The call was answered by his Honour’s wife. You asked to speak to his Honour and when he came to the phone you were again abusive and angry. You said: “Have you fucking worked it out yet?” When his Honour queried you as to who you were, and tried to remonstrate with you, you became angrier and threatened to expose him to “the club” and then said: “You’re a fucking judge cunt, you know”.
Your abuse went on for some time with his Honour repeatedly saying that he did not know what you were calling about. You then said (referring to his Honour) that he had stabbed you in the back ten years ago. His Honour continued to try and obtain information to assist in identifying you without success. He said: “I don’t know who you are, Pal” to which you responded: “I’m not your fucking pal. You’re fucked and your family is fucked”. Mr Smallwood (his Honour) understood this to be an explicit threat and to his memory it was the first threat to have been expressly uttered by you during the conversation to that point. You continued: “Don’t think you’re going to get a trace on me”. You were reassured that that would not happen by his Honour, but you continued being abusive before then hanging up.
The call caused his Honour extreme concern for his own safety and that of his family. It worried him that he could not calm you down and he believed that you were genuinely dangerous. He phoned the police from a neighbouring property.
Before Broadmeadows detectives arrived you made a further call to his Honour. This call appears to have been made at about 11.07 p.m. and is the subject of the second summary charge contained in Information No. 6. During that call you asked his Honour: “What sort of justice is this? I’m going to kill you and your family. I’m at 47 Newlands Road, Coburg. I’m being put in a divvy van.” Laughter could be heard in the background.
The reference to Newlands Road caused his Honour to fear that the earlier reference to “the club” may be a reference to the motor cycle club The Black Newlands, a club whose headquarters were located in that road.
The reference by you to police in this call was factually correct. Officers from the Broadmeadows Regional Response Unit had, coincidentally, attended at your home address after they had received a complaint that a pizza delivery boy had been assaulted. They had no idea at that stage that there had been any threatening calls made by you to his Honour.
Police investigating the pizza delivery incident attended at 11.00 p.m. and attempted to speak to you. You were uncooperative and refused to tell them your name. You were arrested and placed in the rear of the police van. You were then seen to start to use your mobile phone as the door of the van was being closed. It would appear that it was at this time that you made the third phone call which I have just described.
While police were still at your premises your father told the police that your original name was Graham Reid, but that you had changed it to Tom Wilson. On confirming your identity, police released you and you were then told that you may be charged on summons.
Detectives from Broadmeadows who were investigating the calls made to his Honour phoned him to advise of your identity based upon reverse call charge records. They told his Honour that it was believed that you had been arrested and that you were likely to be charged on summons in relation to an unrelated matter. On hearing the name Graham Reid, his Honour immediately recalled his client and his role in cross-examining you and he explained to the police the basis upon which he had been involved in the case some ten years earlier and to which I have referred.
Police from Northcote CIU attended at your home address as a consequence and at 1.50 p.m. on 9 December 2003 you were arrested in the rear bungalow and charged with making threats to kill. You denied making any calls but you were still in possession of the mobile phone used to make the calls. The phone was registered in your name.
You were taken to the offices of Northcote CIU and placed in an interview room. You complained of feeling ill so arrangements were made for a doctor to examine you. At 4.10 p.m. Dr Cynthia Lim examined you. You complained of an acute asthma attack and chronic body pains and you were provided with appropriate medical treatment for both pre-existing illnesses. Dr Lim was of the opinion that you were able to represent yourself adequately and declared you fit for interview.
The interview commenced at 4.58 p.m. and concluded at 5.05 p.m. During the interview you exercised your right to answer “no comment” to the allegations. You did tell the police, however, that you felt unwell and appeared to believe that police were going to punish you or otherwise endanger your health.
In the course of the plea, a Victim Impact Statement was tendered. The salient part of it, to which I shall refer, relates to the observations made by his Honour, Judge Smallwood, concerning the effect of these phone calls on 8 December 2003. His Honour said:
“Until about midnight on the night of the calls I was extremely concerned, as was my wife. However, the police handled the matter very well and once the caller was identified, I simply felt very angry. It was clear throughout the calls that the caller had some delusions about me and this made it even more concerning.”
His Honour then went on:
“This man obviously has his problems and I wish him well. I just don’t wish this to happen again.”
Mr Wilson, you are 40 years of age. You are on a disability support pension and you live with your parents in Coburg and you did so until your arrest on 9 December 2003. You were held in custody from 9 to 31 December 2003 and then on 31 December you were transferred to Thomas Embling where you remained as an involuntary in-patient until 4 June 2004 when you were returned to the Melbourne Assessment Prison.
You were born in Melbourne. You have an elder brother. Your father was a maintenance fitter and your mother a process worker. You grew up in Coburg. It appears that your father was a violent alcoholic and it appears from the various medical reports that have been tendered in evidence that your upbringing was a difficult one and your home life somewhat disturbed.
You attended at Coburg State School, as a result of which, according to information you have provided to counsellors, you were victimised by a 6th grade teacher. You did not get along with some of your other teachers. You went on to Coburg Technical School completing Year 8.
At 15 years of age, you commenced work as an apprentice diesel mechanic and later you did panel beating, spray painting and process working at Repco. Since the age of 25 you have been on a disability pension. You have also had a serious car accident which has been seriously disabling and since then you have only done casual jobs.
You were married at age 21, this relationship lasting until you were 24. You informed Dr Jager, who interviewed you, that you had two children from that relationship. You were divorced some ten years later. You also told Dr Jager that you had been married a second time, but that was a marriage of very short duration.
You have been a heavy drinker in your 20’s but you only drink alcohol occasionally now. You apparently have smoked marijuana for the last 20 years, explaining that you did so, because it gave you relief from your pain. It appears that you still smoke a couple of pipes a day to provide pain relief for your back and neck injuries.
You have admitted a number of prior convictions and your criminal history indicates you have offended since at least as far back as the age of 29. Your convictions include crimes against both property and persons.
The determination of the appropriate sentence or sentences that should be imposed upon you has been more complicated because of your present state of mind, your attitude concerning the victim and your ongoing psychiatric illness. In the report of Dr Jager, which was tendered on the plea (Exhibit 5), Dr Jager made the following observations about your mental state. He described you as a strongly built man who had a brittle and abrupt manner and a wooden emotional tone. He described you as having multiple fixed and false persecutory beliefs with prominent themes of conspiracy against you. Dr Jager then outlined some of those conspiratorial beliefs which you hold. I regard it as unnecessary to detail those beliefs here, but they clearly confirm the general observations made by Dr Jager.
In relation to Judge Smallwood, you told Dr Jager this – you described how Judge Smallwood had stolen your compensation money, had stolen your house and was driving around in your 1996 GT Falcon. All of those matters, it is clear, are false and confirm the diagnosis made by Dr Jager that you have false persecutory beliefs.
Dr Jager gave the following summary and diagnosis of your condition. He said that much of the history that you provided was unreliable and that this was due to your psychotic state. You had little formal education and you had reported that you were suffering from schizophrenia for most of your adult life and that you had not worked for many years. He referred to your long criminal history of offending against persons and property, your abuse of alcohol and your continued abuse of marijuana. He referred to your multiple physical illnesses, including your fractures from the serious car accident, and to the fact that you were currently held at Thomas Embling Hospital and were being treated with anti-psychotic medication. He diagnosed you as suffering from a chronic paranoid schizophrenia induced from cannabis use, but now in remission, and from having an anti-social personality disorder.
As to his opinions and recommendations, Dr Jager said the chronic paranoid schizophrenia refers to a long-term psychotic illness experienced by you with predominantly fixed and false persecutory beliefs. Your condition is not controlled and requires ongoing treatment with anti-psychotic medication as an involuntary measure. In addition, you require psycho-social support, whether that be in custody or in the community.
Dr Jager said that if you were detained in custody it would be appropriate for you to be placed under a hospital order. If you were to be released into the community, it would be appropriate for you to be placed on a community treatment order. Even with treatment, in Dr Jager’s opinion, it was unlikely that your psychotic symptoms would be eradicated. Your condition requires close supervision, Dr Jager said, and as such you would not be appropriately treated in the private sector. Dr Jager said that the recommendation by Dr Felman (Exhibit 3 on the plea) that you be treated at Moreland Clinic under a community treatment order was appropriate. Dr Jager also made further recommendations in relation to your anti-social personality disorder.
Yesterday I ordered a pre-sentence report in anticipation that I might make a community based order in relation to one or more of the summary charges. That report was provided late yesterday afternoon and both I and your counsel have had an opportunity to review the report.
The author of the report commences the report by making the observation that it is with grave reservations that you are considered to be suitable for a community based order. The report recommended that the following conditions be imposed in the event that an order was made, namely, that you be supervised and that you be assessed and treated for your psychological needs. It was also observed that you were somewhat unwilling to engage in the assessment process; that your presentation throughout the assessment interview was consistent with the information outlined in Exhibit 5, the psychiatric report of Dr Jager, and that this reinforced the nature of your mental health issues.
The author of the report concluded that you demonstrated paranoid and persecutory thoughts towards the mental health and justice systems. The report stated that you would only continue to comply with medication for your diagnosed mental illness due to your fear of the consequences of non-compliance as would be enforced by the mental health system. You stated that you would continue to comply with future psychiatric treatment. You expressed refusal, however, towards any continued treatment with Dr Kumar.
Despite being medicated for your mental health problems, it seems that the symptoms of these illnesses continue to affect you and as the author of the report noted, just as Dr Jager had done in his report, your psychotic symptoms have not been, and may not be, fully eradicated as a consequence of any ongoing treatment.
I am conscious, Mr Wilson, that you have pleaded guilty to all of the charges and, therefore, any penalty that should be imposed must be seriously discounted. You clearly have had for a long time, and continue to have, a serious psychiatric illness. That illness significantly moderates the need for this Court to impose any general or specific deterrent. The correct approach to such illness in relation to the imposition of penalty was recently referred to in the decision of the Victorian Court of Appeal in R v Hill[1].
[1][2004] VSCA 116.
A conviction for making a threat to kill will generally require the imposition of a substantial penalty. Clearly, your sense of injustice arising out of the litigation some ten years ago, as expressed by you on 8 December 2003, related to Judge Smallwood’s cross-examination of you in his role as counsel. I accept the submission made on your behalf by Mr Desmond that your phone call was not intended as an attack on the judiciary, but it seems to me that it is of little moment whether or not your phone call was intended as such an attack on Judge Smallwood in his judicial capacity or because of his role as counsel. Obviously anybody who participates in the criminal justice system is entitled to go about their business free from harassment or intimidation.
Inevitably, when sentencing someone for an offence such as this, the Court must regard the offence as serious and the penalty to be imposed must reflect the harm which is caused to those who are the recipients of such threats. Fortunately, Judge Smallwood, as he has explained in his Victim Impact Statement, wishes you well, and recognises that you have personal difficulties which must be addressed.
Taking all of your personal circumstances into account, I have reached the conclusion that the appropriate sentence I should impose in relation to count 1 is six months’ imprisonment. As you have been in custody since 9 December 2003, you have already served some 228 days, and by virtue of s.18 Sentencing Act 1991 such days in custody must be reckoned as a period of imprisonment already served. As you will have effectively served the sentence that I have imposed upon you, you will be eligible for immediate release.
In relation to the two summary charges, I consider that the appropriate course to follow is that a conviction be recorded on each of the two summary charges and that I make a community based order under s.36 Sentencing Act 1991 in relation to those two charges.
In doing so, I am conscious that your present psychiatric condition is precarious and will require the most careful assessment and treatment. Dr Wood, who gave evidence on the plea yesterday, will undertake such an assessment under the provisions of the Mental Health Act. Although your management and treatment will thus be under the control of Dr Wood and others at the Victorian Institute of Forensic Mental Health, I consider it desirable, as submitted by the learned Crown Prosecutor, that one should also make orders that will provide that your condition is monitored by a Community Corrections Officer. I therefore propose to make the following community based orders.
The order will commence today and will end on 23 July 2005. You will be required to attend at the Hume Community Correctional Centre at Level 2, 1100 Pascoe Vale Road, Broadmeadows within two clear working days of the commencement of this order.
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