R v Thomas

• Jurisdiction: Australian Capital Territory
• Judge: Mossop J
• Judgment Date: 31 October 2019
• Docket Number: File Number: SCC 225 of 2019
• Court: Supreme Court of ACT
• Date: 31 October 2019

[2019] ACTSC 306

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop J

File Number: SCC 225 of 2019

The Queen

(Crown)

and

Scott Thomas

(Offender)

Representation:

Counsel

M Lucero (Crown)

P Edmonds (Offender)

Cases Cited:

R v Dash-Greentree (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013)

R v Haigh (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 9 August 2013)

R v Pearce [2016] ACTSC 393

R v Richardson [2019] ACTSC 9

R v Thomas [2015] ACTSC 38

R v Wells [2018] ACTSC 121

R v Wrigley [2015] ACTSC 114

Legislation Cited:

Crimes Act 1900 (ACT), s 309

Criminal Code 2002 (ACT), s 404(1)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and punishment — sentence — arson damaging property — offender suffers from schizophrenia and chronic pain condition — bed available at a residential rehabilitation facility — suspended sentence imposed upon entry into good behaviour order with residential rehabilitation program requirement

Decision:

See [27]

Mossop J

Introduction

1 The offender, Scott Thomas, pleaded guilty in the Magistrates Court to one count of arson contrary to s 404(1) of the Criminal Code 2002 (ACT), the maximum penalty being imprisonment for 15 years, 1500 penalty units or both.

Facts

2 The facts were agreed. They were in summary as follows. The offender was the sole occupant of a public housing unit in a block of units at Chandler Street in Belconnen. At about 8.20am on Sunday, 21 April 2019 the Australia Capital Territory (ACT) Fire and Rescue attended in response to reports of a fire. Smoke and flames were coming from the offender's unit as well as a unit immediately above his. Firefighters entered the unit through a locked screen door and had to force entry through another locked screen door on the rear balcony in order to check that no one was present. Firefighters were required to assist the occupant of the unit above the offender's to exit her unit. She was stuck inside due to the large amount of smoke and had put her head out of her window so that she could breathe. Firefighters extinguished the fire in the offender's unit. The offender was stopped by police, walking towards his unit. He said that he had woken up in his bedroom feeling heat from a fire which was coming from the cupboard inside his bedroom. He unsuccessfully tried to extinguish the fire and exited his unit by the balcony. He jumped down from the balcony and walked away to a nearby street. He sustained minor burns on his right hand and right foot. He is a diagnosed schizophrenic and had been non-compliant with his prescribed antipsychotic medication. He was taken to the Canberra Hospital for assessment and diagnosed as suffering from a relapse of symptoms of chronic schizophrenia.

3 Australian Federal Police crime scene investigators determined that the origin of the fire was within the offender's bedroom, but could not identify where within that room it had originated. No accelerant was involved and the fire appeared to have been slow burning. It may have been lit the day before and continued to burn until 21 April 2019.

4 The damage to the offender's unit was substantial, costing the Territory some $236,650 to repair.

Objective seriousness

5 In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J identified a number of matters relevant to the assessment of the objective seriousness of an offence of arson. In the present case the offending was reckless rather than intentional. It caused substantial damage. No motive was identified. Although not intended to harm others, the fire carried with it the potential risk of injury to the lives of other occupants of the building. It also carried the risk of more extensive damage than that which occurred. I would assess the current offence as being below the mid range of objective seriousness for the offence of arson.

Subjective circumstances

6 The personal circumstances of the offender are described in the pre-sentence report. He is 43 years old. He was born in Canberra. He is of Aboriginal descent. He had previously reported a positive childhood although he took on caring responsibilities for his younger siblings at an early age. He left home at the age of 15. He reported no current contact with his parents or three siblings. He has two children with whom he has no contact. He had been living in the ACT Housing property for a year. The residence is no longer available to him.

7 He attended school up to Year 9. He has had some employment in the past as a labourer, kitchen hand and fruit picker. He has been receiving a disability support pension since 1998 due to chronic back pain and his mental health.

8 Prior to being remanded in custody he was using cannabis and methamphetamine a few times a week.

9 The medical evidence tendered indicates that he has a diagnosis of schizophrenia. It was the diagnosis given to him in a forensic psychiatric report prepared for the purposes of sentencing for earlier offending in February 2015. The diagnosis was repeated upon his referral to hospital after his arrest where the impression recorded by psychiatrists was of a relapse of schizophrenia.

10 Following his arrest he was referred for treatment under s 309 of the Crimes Act 1900 (ACT) and was only discharged from treatment on 29 April 2019.

11 The author of the pre-sentence report expresses the following opinion:

Mr Thomas is a 43 year old Aboriginal man who has been assessed as a medium to high risk of general reoffending. His criminogenic needs relate to his mental health, substance dependency issues, accommodation and lack of prosocial influences. He appears to have minimal protective factors in the community.

12 I accept the submission made on behalf of the offender that, on the balance of probabilities, the offender was suffering the effects of his schizophrenia at the time of the offending. I make that finding on the basis of the terms of the Agreed Statement of Facts, the clinical notes of his attendance at the Canberra Hospital following his arrest and the demonstrated past history of chronic schizophrenia. That conclusion reduces the offender's culpability and makes him less suitable as a vehicle for general deterrence.

Criminal history

13 The offender has a criminal history in Victoria, Queensland, New South Wales and the ACT as well as South Australia and the Northern Territory. The most significant offending has been in New South Wales and the ACT. He has received custodial sentences in New South Wales for manufacturing a prohibited drug in 2010, destroying or damaging property in 2011 and two offences of breaking and entering a house in 2013. In the ACT he received a total head sentence of four years and one month for offences which included two counts of aggravated robbery committed in August 2014. He also subsequently received a custodial sentence for two very old failures to appear.

Plea of guilty

14 The offender pleaded guilty to the offence in the Magistrates Court on 30 August 2019. That date was the seventh mention of the matter in the Magistrates Court and was before the provision of a brief and prior to the matter being committed to this court. The plea of guilty was entered following negotiations between the parties and the downgrading of a count of intentional arson to one of reckless arson. Although the Crown case was a strong one, I accept that a reduction of 20% of the sentence that would otherwise have been imposed is appropriate in the circumstances.

Time in custody

15 The offender...