IN THE COUNTY COURT OF VICTORIA
AT SHEPPARTON
CRIMINAL DIVISION	 Revised
(Not) Restricted
Suitable for Publication	

CR 22-01771

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
THOMAS FINDLAY		

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JUDGE:	HIS HONOUR JUDGE M.P BOURKE	
WHERE HELD:	Shepparton	
DATE OF HEARING:	17 July 2023	
DATE OF SENTENCE:	24 October 2023	
CASE MAY BE CITED AS:	DPP v Findlay	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1954		

REASONS FOR SENTENCE
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Catchwords: 	

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms N. Fedyszyn		
			
For the Accused	Ms H. Canham with
Mr L. Robertson		

HIS HONOUR:

1	Thomas Findlay, you are to be sentenced for one charge of false imprisonment; one charge of arson under s197(1) and sub-s(6) of the Crimes Act; and one charge of reckless conduct endangering serious injury.
2	Applicable maximum sentences are 15 years' imprisonment for arson and 
10 years' imprisonment for false imprisonment and the reckless conduct charge.
3	You pleaded guilty before me on 17 July 2023.  At time of arrest in early November 2021 you were found unfit for interview.  The matter resolved to a plea prior to committal in September 2022.  That proceeded by hand up brief on 29 September and you entered a plea of guilty.
4	You receive the benefit of that cooperation and early plea of guilty.  Your plea has accepted responsibility, expressed remorse and facilitates the interests of justice.  That utilitarian benefit is the greater given the perhaps lesser but still present ongoing impact of the COVID-19 pandemic upon the criminal justice system.
5	At your plea hearing which ran on 17 July, 4 October and 18 October, Mr Brown for the Crown tendered a written Crown opening and the victim impact statements of KW and Emma Menzies.  Ms Canham for you tendered the forensic psychological report of Dr Prashant Pandurangi,   the letter of your former partner, Jessica Griffiths,  and your own letter to the court.  Ms Canham also provided written submissions on sentence.
6	On 17 July I requested a report on your suitability for a Community Corrections Order to commence upon release from prison, but also with reference to the provisions of s44(1A) of the Sentencing Act, which allows,  in cases of arson, for a longer period of imprisonment before release on such an order than that restricted by the Act in respect of other offences.
7	I received the report of Walinda Bonne,  of Community Corrections.  I have been assisted by Veronica Walsh of Community Corrections, who appeared before the court on the 4th and 18 October.  I have also received the recent reports of Ms Walsh and Anna Minov,  of Forensic Intervention Services Corrections Victoria.
8	The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.
9	At time of offending you were aged 59 years.  During October 2021, you were residing in Norlane at the premises of Emma Menzies, who was staying elsewhere.  You had not long separated from your partner, Jessica Griffiths,  who is the mother of your young son, having been recently born.  Child Protection involvement meant that you were denied access to and/or custody of him.  Emma Menzies is the sister of Jessica Griffiths.
10	The victim of your offending is TK,  then aged nine.  You knew her and her parents.  You had looked after her before.  You did so on 24 October.  There was electronic messaging to Menzies and Griffiths consistent with things going well.  However, at some stage during the afternoon, you took her to her bedroom, bound her wrists and also then taped her mouth.  TK also remembers being blindfolded.  The child estimates that this lasted for almost an hour before you removed the tape and ties.  She remained in the bedroom.
11	You started a fire in another part of the house,  using petrol.  The smoke alarm went off;  neighbours and a passerby saw smoke.  TK was taken out a window.  You seem to have assisted this.  Although taken to hospital she did not suffer physical injuries.  You were helped out,  badly affected by smoke inhalation. 
12	 Expert evidence concluded that the fire was started in the front hallway of the house.  When they attended fire brigade members forced entry.  Both front and back doors were locked.  You state no real recollection of the offending.
13	The fire caused considerable damage, mainly internal to the house.  A rectification report provided to me states cost at $53,500.  There is a further notation of damage to furniture and personal items of $5,630.
14	The victim impact statement off her mother, KW, describes the effects of your offending upon TK.  How she,  the child feels hurt, anger and loss of trust.  She has nightmares and has developed a fear of men.  On some days she does not attend school because of her emotional state.  She has lost a sense of safety.  Her mother also feels a loss of trust.  The victim impact statement of Emma Menzies describes her painful reaction to the arson of her home.  There are effects on sleep and she has nightmares.  She experiences anxiety and depression.  She reflects upon the loss of personal belongings in the fire;  for example,  those related to her children.  Family and work have been affected.  
15	There is significant victim impact caused by your offending which must be taken into account in my sentence of you.
16	You are now a 60 year old man,   presently awaiting this sentence in remand custody.  You have been in custody since arrest on 1 November 2021, a period of almost two years.  You came to Australia with your family from Scotland when aged eight, the oldest of six children.  Your father was a drinker and left the family.  Your mother raised the children alone, settling in the Shepparton area.  As the oldest you took on greater responsibility.  You have had a good relationship with your mother,  who died in 2016 of a brain tumour.
17	You left school to work after Year 10.  You seemed to have been consistently employed, first in Victoria as a factory, then farm hand, security guard and cleaner.  You worked in New South Wales for some time, where you suffered the loss of sight in your right eye in a workplace accident.  You were sentenced to a term of imprisonment in New South Wales.  More recently you worked in a leather tanning factory in Geelong.  You lost that job during the COVID pandemic and its restrictions.  
18	You have been married twice.  You have two adult children to your first wife,  who moved to Western Australia,  and a son in his mid-30s to your second wife.  You lived with him for a time in 2018.  I was told that he has reacted adversely to this offending and your imprisonment.  In another third relationship, you lost two children in and very soon after birth.  You are supported by Ms Griffiths, a more recent partner, whose letter is tendered.  She is the mother of four children, one being your son, aged two years.  There is Child Protection involvement with that child who lives with Ms Griffiths’ aunt.
19	Your Victorian police criminal record states a limited history.  There are four appearances between 1985, now almost 40 years ago,  and 1991.  They are offences of dishonesty.  There is what is termed a local law offence in 2007 leading to no conviction.  However, in New South Wales there is an April 2010 sentence,  of what seems a head term of 10 years,  for serious violent offending.  You violently attacked a former partner and her new partner in her home using weapons,  including a knife. The minimum term seems to have been six years.  I have been provided with the New South Wales District Court sentence of 23 April 2010.  I was told that you were granted parole to Victoria but breached that and returned to Victorian prison.  You were ultimately released in 2018 and lived with your son in Geelong.
20	You have a significant mental health history.  Dr Pandurangi's report notes several contacts with mental health services from 1997.  Difficulties began in the context of the end of your first marriage.  There are a number of self-harming events and attempts at suicide, psychiatric treatment in prison,  and hospitalisations after suicide attempts in 2020.  Your mental health deteriorated during a relationship in which you and your partner lost infant children.  You both began to use the drug, methylamphetamine.  It deteriorated again when imprisoned in New South Wales.  In the months leading to this offending there are a markedly increased number of hospitalisations.  Your life and relationship with Ms Griffiths appears to have become chaotic.  You ceased prescribed medication.  
21	You have not used drugs for a number of years.  But you have been a heavy drinker throughout your adult life.  You joined AA in New South Wales.  
22	When your son was born in June 2021 you state that you were denied access to him.  A number of psychiatric hospitalisations followed.  
23	Over time there have been a number of diagnoses including personality disorder, adjustment reaction, anxiety and depression.  Dr Pandurangi's likely diagnosis is personality disorder.  He also states this,  I quote,
'The months leading up to the offending were marred by unstable relationship with his pregnant partner,  lack of stable accommodation and involvement of Child Protection Services.  He was hospitalised to the psychiatric units on several occasions following suicide attempts which is reflective of the significant emotional turmoil, maladaptive coping strategies and impulsive and problematic decision making which are aspects of his personality disorder.'
24	There is no finding of mental health disorder which would impact upon your ability to think clearly or make reasoned decisions, such that those principles stated in Verdins become relevant.  Consistent with Dr Pandurangi's opinion, I find that your mental health has and will continue to make prison harder.  Thus far you have engaged in hunger strikes, been placed in both restricted environments and mental health units.  Deterioration in your mental health is likely to be a continuing risk.
25	You are assessed,  broadly speaking,  as at moderate risk of violent reoffending.  You require long-term psychological treatment.  
26	A particular focus of Dr Pandurangi's assessment is the attempt to explain your lack of recollection of the offending.  One possibility is the effect of post-incubation delirium,  I take it arising out of the impact of smoke inhalation upon you.  You spent nine days in hospital.  There is no concluded opinion on this.
27	This was serious, highly dangerous offending, placing at risk a young child entrusted to your care.  It is clear that she was very frightened indeed.  There has also been considerable damage to the premises.  There is no basis,  under Verdins,  for mitigation of culpability arising out of your mental instability in the time leading to the offending.  The level of risk maybe seen as the greater because of it. However, I remain cautious and refrain from positively finding that. The objectively seen circumstances of themselves state the risk.  Your prior offending in New South Wales was of serious violence which has some relevance to the offending against TK here.
28	The circumstances make important sentencing considerations and purposes of your moral culpability, deterrence, that is,  both general and specific deterrence, the need to strongly condemn the offending and proportionately punish it.  The bizarre,  inexplicable nature of your offending together with your unstable mental health also gives importance to the sentencing purpose of community protection.  There is clearly the need for a term of imprisonment significantly beyond what you have served. 
29	 However, I also take into account matters mainly personal to you which go to moderate the length of sentence and perhaps the way in which it is structured. 
30	 (1)  Your plea of guilty.  I also accept a level of personal remorse (somewhat strangely expressed in your letter to the court)  albeit you state no recollection of your offences.  
31	(2)  Your personal history and circumstances.  This includes your mental health history and to some extent your situation leading to the time of offending.  Although not mitigating (for example.  under those Verdins principles, it offers some explanation for what you did.  Your mental health generally and the sadnesses of your life are also a proper part of the personal context for my sentence of you.
32	(3)   It is hard to be optimistic about your prospects for rehabilitation.  However, I do not utterly discount them.  The sentence I intend to impose will give you the opportunity of therapeutic and rehabilitative support.  
33	(4)   I bear in mind the difficulties you have faced in custody thus far, including those brought about by the effects of the COVID-19 pandemic upon prisoners.  That will to some extent persist.  The delays since arrest and remand and your circumstances in custody over that time are relevant.  
34	(5)  As Ms Canham has raised,  there has been an element of extra-curial punishment, being the effects of smoke inhalation upon you,   As stated,  you were hospitalised for nine days because of that.  
35	(6)   I apply  the  principle of totality.  Each of the three offences are closely connected in time and circumstances.  However, they also represent separate offending. 
36	The critical question arising in your plea proceeding has related to the application of the provisions of s44, particularly sub-ss(1A) of the Act.  As stated I have received the earlier identified reports by Community Corrections and have been assisted by Ms Walsh of Community Corrections on the 4th and 18 October.  This has led to my request for a further report which more directly deals with issues raised in this case by s44(1A).  As stated I have now received further reports by Veronica Walsh of Community Corrections and by Anna Minov of Forensic Intervention Services.
37	I have previously also been referred by Ms Canham to the Court of Appeal judgments of Hatch v The Queen [2018] VSCA 196 and more particularly Tannous,  v The Queen [2017] VSCA 91.  On 18 October I heard further submissions by Ms Canham for you and by Mr Brown for the Crown.  Ms Walsh also assisted the court again. 
38	The report of Ms Minov  (I was advised a social worker and clinical services manager at Rivergum Residential Treatment Centre within Corrections Victoria) runs some 16 pages.  As I understand, Rivergum Residential Centre is a secure facility, attached to Hopkins Correctional Centre at Ararat, which houses very serious sexual and violent offenders.  The report, or her report, finds you not suitable for a Community Corrections Order.  Negative aspects of the report relevant to that include your reluctance to accept presently available transitional accommodation upon release from prison and, as described, a somewhat glib, superficial and grandiose presentation to the assessor.  I accept that these features are likely or to some extent the product of your psychological condition of personality disorder.  You are described as having minimal insight into the causes of your offending.  There is some factual background material stated, to some extent unfavourable to you, beyond what has previously been before me.  I feel obliged to be guarded about that.  It is to me surprising that the report places you in a low-risk category for violence, I quote, 'relevant to other service users.'
39	The critical question raised has become a difficult one.  However, ultimately, I have decided, despite the recommendation described in that recent report, to impose a combined sentence in accordance with s44(1A) of the Act.  Matters relevant to that, additional to those factors already raised as relevant to your sentence, include the following.  
40	(1)   The circumstances of this offending, your mental health and background indicate to me that you present at least a significant risk to the community.  The question becomes how best to address that,  consistent and balanced with other sentencing considerations.  
41	(2)   You have failed at parole.  You indicate,  at least at present, an intention not to apply for parole on this sentence.  Although I am mindful of s5(2AA)(a) of the Sentencing Act, I see you as not well-suited to parole and perhaps unlikely to achieve that on a head sentence.  I note remarks in the case of Tannous at paragraph 67 as to that accused.
42	(3)   The presence of s44(1) and (1AA) in the Sentencing Act clearly states a particular focus upon arson offenders and the desirability of a longer period of imprisonment not precluding release upon a Community Corrections Order.  The case of Tannous is strongly consistent with this in consideration of the sentencing purpose of community protection.  For example, I refer to paragraphs 48 and 49.
43	 (4)   Bearing s44(1AA) in mind, it is surprising that the Corrections system does not seem to more specifically provide a program or programs meeting that, both within custody and after.  Nevertheless, I sentence you with some expectation that there will be appropriate program or therapeutic work with you in custody before release, that work to continue after.
44	(5)   Your period of custody will continue for some time.  The question of suitable accommodation can be addressed.  I note the limitation to that assistance on remand as opposed to after sentence. 
45	(6)   I see it as in the community interest that there is the certainty of not only assistance to you but also appropriate supervision of you after you leave prison. 
46	(7)   Also consistent with Tannous v The Queen I shall not impose a minimum term in prospect of parole.
47	Having considered what I see to be the relevant matters in a difficult sentencing situation, I impose this.
48	On Charge 1, false imprisonment 18 months' imprisonment.
49	On Charge 2, arson, four years' imprisonment.
50	On Charge 3, reckless conduct endangering serious injury, two years' imprisonment.
51	I direct that six months' of the sentence for Charge 1 and Charge 3 be served cumulatively upon the sentence for Charge 2 and upon each other.  That is a total effective sentence of five years' imprisonment.
52	I meant to ask what the updated s18 period is, can you help me Mr Robertson?  Is there sort of a delay?
53	MR ROBERTSON:  Sorry, Your Honour we'll just have to look that up.
54	HIS HONOUR:  Yes, all right.
55	MR ROBERTSON:  Unless my friend has that at hand?
56	HIS HONOUR:  Ms Fedyszyn do you have it?  He was placed in remand on 
1 November 2021, so we're very close to two years, but it has to be expressed in days.  So, if that can happen, and I'll come back to it.
57	I also impose on all three charges with a conviction a Community Corrections Order of three years' duration to commence after release from prison.  The usual terms apply.  The additional conditions are that you be under supervision, that there be mental health assessment and treatment, that there be an assessment and treatment for alcohol dependence and that there be - that you participate in programs specific to your offending as you are directed.
58	Had you not pleaded guilty, I would have imposed a sentence of eight and a half years, with a minimum of six and a half years.
59	Now, are there other - Ms Fedyszyn before you tell me what the s18 period is, are there other orders that need to be made?  I note that there's a damage of something like - is there a compensation application?
60	MS FEDYSZYN:  Yes, Your Honour.  The draft order has been sent to you, your chambers, and I understand that it's not opposed by defence.
61	HIS HONOUR:  Yes, when did that happen?  When was it sent?
62	MS FEDYSZYN:  Before the - a while ago, it would have been before it was at plea the first time.
63	HIS HONOUR:  Yes, all right.
64	MS FEDYSZYN:  I can send it again, I can send it again, I can send it the work form to your associate.
65	HIS HONOUR:  I think you should send it again and I'll sign.  Mr Robertson?
66	MR ROBERTSON:  Yes.
67	HIS HONOUR:  Yes, is that 722 days is it, just let me - - -
68	MR ROBERTSON:  Calculation Your Honour from 1 November 2021.
69	HIS HONOUR:  Well, that sounds about right.
70	MS FEDYSZYN:  I've got 721, that's not including today.
71	HIS HONOUR:  Well, I usually include - although, I usually include the day of sentence, and I think that's.  So, 722 days is what I'll declare under s18.
72	MS FEDYSZYN:  Yes, Your Honour.
73	HIS HONOUR:  Otherwise, I'll sign the order for compensation.  In what sum is it Ms Fedyszyn?
74	MS FEDYSZYN:  I'm just pulling it up if you'll bear with me, Your Honour?
75	HIS HONOUR:  You've got it there?
76	MS FEDYSZYN:  Yes, it was for $3,000 I understood, that was what was - - -
77	HIS HONOUR:  Say that again?
78	MS FEDYSZYN:  Three thousand.
79	HIS HONOUR:  No, I don't think it would be.  There's a rectification report that I referred to in my reasons, that stated a figure of about $53,000.
80	MS FEDYSZYN:  There might have been an updated one after that Your Honour.  So I'll just find it, it was on the brief.
81	HIS HONOUR:  Yes.  What was that?
82	ASSOCIATE:  The compensation order filed is for $5,630.
83	HIS HONOUR:  I see now, there's one filed, an application for compensation for $5,630.  That on my understanding is damage to furniture and personal items.  The rectification report stating for want of a better term, cost of rectification to internal structural damage was - it was stated to $53,500.  At the moment I will make the order for compensation of $5,630.  There may be some significance in the fact that this was a Department of Housing - Office of Housing premises.
84	MS FEDYSZYN:  Yes, Your Honour.
85	HIS HONOUR:  As I best recollect.  So, but I'll make the other order that's sought.
86	MS FEDYSZYN:  That's correct, Your Honour.
87	HIS HONOUR:  Mr Robertson, do you want to say anything about that?
88	MR ROBERTSON:  No, Your Honour just that that order that you've referred to in relation to damages from Ms Menzies, that's via consent, and I don't recall receiving any other application for - - -
89	HIS HONOUR:  You're consenting to the $5,630.
90	MR ROBERTSON:  Yes.
91	HIS HONOUR:  Well, that might be right.  There may not have been an application made by the Department, but the cost of rectification measuring the damage caused are still relevant to my sentence and that's why I included it.  So at the moment I will only make an order for compensation of $5,630.  Yes, now what else?
92	MS FEDYSZYN:  Your Honour, there's also an application for disposal.  I believe that there was a draft disposal order with the court also, that was - - -
93	HIS HONOUR:  What's being sought, what is it?
94	MS FEDYSZYN:  That was exhibits, disposal and destruction of - - -
95	HIS HONOUR:  These were tapes and other thing Fire's found.
96	MS FEDYSZYN:  Yes, the cigarette lighters and some clothing and carpet and (indistinct words).
97	HIS HONOUR:  Yes, well I'll make those.  If you send that again, I'll make that order.
98	MS FEDYSZYN:  Yes.  Thank you, Your Honour, I will do that.
99	HIS HONOUR:  Now we need to deal with the order for - the Community Corrections Order.  All right, now this is directed to you, Mr Findlay.  As part of my sentence, I am making a Community Corrections Order which commences upon completion of your imprisonment term.  It will run for three years after that.  Contact will be made with you by Community Corrections as the time comes up.  The usual terms are that you don't commit another offence for which you could be imprisoned over that time.  
100	That you comply with a regulation that you do not attend any program or appointment affected by alcohol or drugs or in possession of illegal drugs.  That you report to receive visits from Community Corrections.  That you report to the relevant Community Corrections centre, it is noted here as Geelong, but that may need to be updated depending on where you are going to reside when you leave prison.  You need to report to that Community Corrections centre within two clear working days of leaving prison.  You must let them know, Community Corrections, within two days of a change of address or job.  You must not leave Victoria without getting their permission to do so.  
101	You must obey all lawful instructions and directions of Community Corrections.  The additional conditions are that you be under supervision of a Community Corrections officer, that you undergo assessment and treatment for alcohol abuse or dependencies.  You undergo a mental health assessment and treatment as directed and that you participate in programs and/or course that address factors relating to this offending as directed.  Do you understand all of that?
102	OFFENDER:  Yes, Your Honour.
103	HIS HONOUR:  And do you agree to it?
104	OFFENDER:  Yes, Your Honour.
105	HIS HONOUR:  Good.  All right, well I'll sign it and then it will be sent to you.  Where are you placed at the moment?
106	OFFENDER:  Hopkins Correctional Centre, Your Honour.
107	HIS HONOUR:  Hopkins.  And that's in Ararat, is that right?
108	OFFENDER:  Correct.
109	HIS HONOUR:  Yes, all right.  So, that will be sent to you there for your signature.  All right.  Now, is there anything else I need to say or do Ms Fedyszyn or 
Mr Robertson?
110	MS ROBERTSON:  No nothing, nothing from our end, Your Honour.
111	HIS HONOUR:  All right.  Mr Robertson?  Nothing from you?
112	MS ROBERTSON:  No, Your Honour.  No thank you Your Honour.
113	HIS HONOUR:  No all right.  Well, I thank you for your assistance in this matter and I recognise the other people who have attended on link today, the various victims and people associated with Mr Findlay past and present.  I wish you all the best.  All right, we'll turn people off now.
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