STATE OF TASMANIA v ANTHONY RAY LAOUMTZIS 17 AUGUST 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Laoumtzis, you have pleaded guilty to one count of arson, one count of attempted arson and one count of assault. On a separate indictment, you have pleaded guilty to two counts of unlawfully setting fire to property and one count of attempting to unlawfully set fire to property. Additionally, by way of s 385A of the Criminal Code I am dealing with one count of stealing and one count of breach of bail. On 23 June 2020, you set fire to the unit in which you were living. You used a deodorant can, a lighter and some paper to light fires on the couch, the bed and in the bedroom cupboard. You also set fire to some toilet paper in the bathroom. You subsequently called 000 to report that your unit was on fire. An investigation by fire investigators confirmed that combustible material was set alight by a mobile ignition source in the areas of the couch, the bed, the bedroom cupboard and the top of the bathroom cupboard. Approximately $120,000.00 worth of damage was caused to the unit as a result of the fire. When police attended, they noticed you smelt strongly of smoke and appeared to have soot on your hands. You agreed to participate in a record of interview. You initially denied any involvement in lighting the fire but soon after completing the interview became upset. You told police you had not been truthful and sought to participate in a second record of interview. In that interview, you were fully co-operative and made admissions to police. You told police that you had been struggling to deal with issues in your life and felt no one was there to assist you. You said a voice in your head, who you referred to as Tony, “went crazy” in your head and you “could not say no”.
By 20 August 2020, you were living at another address at 28 Garden Road, Moonah. On 29 August 2020, you left that address and went to 19 Garden Road. This was the home of Mr Lotzer and his family, including three children. You entered a detached laundry/toilet building, which was located in the front yard. Once inside, you set fire to a pile of sheets, some clothing and a plastic bottle that were in the laundry area of the building. You then moved to the toilet area and set fire to a toilet roll. Mr Lotzer heard noises coming from the building and went to investigate. He could smell something burning. He looked through the laundry window and saw the sheets and clothing on fire. He estimated the height of the flames to be about chest height. Fortunately, Mr Lotzer was able to grab the burning sheets and clothing and extinguish them using a bucket of water. Mr Lotzer could still hear noises coming from the toilet area. He armed himself with a knife with the intention of scaring off whoever may be there. He looked inside the toilet area and saw you. Initially, you froze but then ran towards Mr Lotzer. Mr Lotzer grabbed hold of you to try and detain you. A struggle ensued. You hit Mr Lotzer several times to the back of the head. This behaviour amounts to the crime of assault. Eventually, Mr Lotzer was able to detain you on the nature strip. Police subsequently arrived and arrested you. You were in possession of a cigarette lighter, an aerosol can of deodorant and had a sock on your right hand that had an obvious burn mark upon it. As a result of the assault, Mr Lotzer sustained a small bump on the back of his head and had scratches on his hands. His injuries did not require medical attention.
You subsequently participated in a record of interview with police. You told police you had been at home throughout the evening drinking alcohol and listening to music. You said you had no memory of events until you were on the ground with Mr Lotzer. When confronted with the suggestion that you had set fire to the toilet/laundry area at 19 Garden Road, you became visibly upset and concerned that someone may have been hurt. You said “I’m not like this. I wouldn’t do this.” You said you wished you could remember what you had done, but could not. Your attendance at 19 Garden Road was in breach of bail conditions. I am now told your behaviour at 19 Garden Road, happened after you came home and found your roommate absent. You were in a heightened emotional state that day as you had been to the wake of the father of your ex-partner, and for reasons relevant to your intellectual impairment, which I shall discuss shortly, you reacted badly to these stressors.
Following this incident, you were remanded in custody for a period of 305 days. As a result of forensic examinations which took place in respect to the matters I’ve just described, your DNA was matched to a sample that had been taken following investigation of an incident that had occurred overnight on the 22nd to 23rd June 2019. The DNA results suggested sometime during that night you had entered a vehicle that was parked on Melville Street in Hobart. You took from the vehicle a packet of popcorn. That is the stealing charge to which you have pleaded guilty. You opened the bag of popcorn and dropped some in the front passenger footwell of the vehicle. You then set fire to an umbrella and some brown cardboard that was on the back passenger seat of the vehicle. The flames self-extinguished, but some fire damage was caused to the seat and floor of the vehicle. This is the first count of unlawfully setting fire to property to which you have pleaded guilty. You then walked towards Barrack Street and onto Brisbane Street in Hobart, dropping some popcorn as you went. In Brisbane Street, you entered a grey Hyundai Getz vehicle, which was parked in a driveway. This vehicle was parked approximately 200 metres from the scene of the earlier fire. You opened the fuel cap of this vehicle, inserted a rag into the fuel tank and set it alight. You also set fire to a piece of paper inside the vehicle. This piece of paper self-extinguished, as did the rag in the fuel tank. The incident caused minor damage to the interior of the vehicle. This behaviour amounts to the count of attempting to unlawfully set fire to property to which you have pleaded guilty.
You then continued to walk down Brisbane Street and approached a grey Toyota Corolla, which was parked in another driveway. This vehicle was approximately 50 meters away from the second vehicle with which you had interfered. You entered the vehicle and opened the fuel cap. You again placed a rag inside the fuel tank and set it alight. This time the fire took hold, the vehicle was ignited and destroyed. This is the second count of unlawfully setting fire to property. Your DNA was subsequently found on the popcorn bag, which was located by Police 25 metres down the road from the scene of the second fire. Popcorn left behind, together with the close proximity, linked the three incidents. You were interviewed about these matters on 5 March 2021. You denied any involvement in the crimes and said you had no recollection of the night in question.
By way of antecedents, you were 26 to 28 years of age at the time you committed the various crimes. You are now aged 30. You have no relevant prior convictions for property damage. There is a matter of common assault from 2016 which was dealt with by way of undertaking and no conviction. You suffer from a mild to moderate intellectual disability. I have been provided with a psychological assessment, undertaken by Dr Jordan in November 2020. He was originally tasked with assessing your fitness to plead in respect to these various matters. Dr Jordan confirmed that you suffer from an intellectual disability in the arena of mild/moderate. He described your level of impairment as significant. Dr Jordan described you as functionally illiterate and noted that you would have significant difficulty following court processes. Indeed, it has only been because you have been extended the assistance of an intermediary that this matter has been able to proceed. I am satisfied your intellectual impairment places you in a position of considerable disadvantage. You need assistance in day to day living including undertaking domestic activities, financial management, social support, community access and participation and problem solving. Dr Jordan also described you as having a history of auditory hallucinations, poor coping skills and suicidal ideation. Given the extent of your disability, I am satisfied that your limited cognitive capacity impaired your judgement and your ability to think through the consequences of your actions. I do not consider that any of the acts were planned or premediated but rather spontaneous reactions to the circumstances that were prevailing at the time, reflective of your reduced capacity to reason and poor coping skills. In respect to the arson in your own unit, I accept it was, in part at least, a reaction to an auditory hallucination. Whilst there is no suggestion that you have a mental impairment defence, I am satisfied your cognitive capacity contributed to the commission of the crime such that your moral culpability is reduced and general deterrence ought to be afforded less weight in the sentencing exercise. It is not necessary to identify with particularity in my view the nexus between your impairment and the offending. The reality is your intellectual impairment permeates all facets of your life. In light of your reduced moral culpability the emphasis to be placed on punishment and denunciation in the sentencing process is also lessened. (See Muldrock v R [2011] 244 CLR 120 pars [53]-[54]).
Your level of cognitive functioning is also relevant to the type of experience you have in a prison environment. As I noted, you have already spent ten months remanded in custody for these matters. Your experience in the prison environment was very difficult indeed. You were constantly bullied and threatened. Your intellectual impairment renders you most vulnerable in that environment and makes incarceration more onerous for you than for a person who does not suffer from such cognitive limitations.
You have had a difficult upbringing. You were raised by your mother and a step-father. Your step-father mistreated you badly because you were not his biological child. I am also told that you were asked to leave the family home by your mother because of your sexuality. You live a fairly isolated life. The only positive familial relationship you enjoy is with a great aunt. You have very few friends.
There is no question your offending was very serious. The arson in June 2020 caused significant damage to your unit. Your unit was co-joined to other units. There were considerable risks involved in lighting the fire. Others may have been harmed. The fire may have spread to other buildings. Similarly, in respect to the attempted arson at 19 Garden Road, it was a matter of good fortune that Mr Lotzer was able to extinguish the fire before it gained hold. Nevertheless, the risk to both him and his nearby family was obvious. The motor vehicles that you set fire to in June 2019 were all parked in residential areas. Again, there were obvious risks associated with what you did. It would not have taken much for the motor vehicles to have exploded, causing fire to spread to nearby structures or resulting in harm or injury to persons that may have been in the area. Your actions have caused significant loss to the owners and/or their insurance companies, not to mention, of course, the ever present risk to fire fighters and emergency services whenever they have to attend to matters of this nature. I have taken into account the victim impact statement provided by the landlord of your unit. She has experienced stress and adverse financial consequence.
To your credit, since your release from custody in June 2021, you have made a number of changes. You have obtained NDIS funding and are now well supported. You receive assistance on a regular basis from Mr Lillas, a psychologist. I have received and considered a report from him. It indicates you have engaged well with therapy and have expressed a wish to make a new start in life and not return to past behaviours which have led to the commission of crime. The report indicates you have expressed remorse for your past behaviours and I accept that. You also receive regular support from Life without Barriers. They provide support with day to day living 5 days per week. Since your release from custody, there have been no further difficulties. It seems you have been willing to accept support and guidance from a number of sources and remain committed to making change. Your commitment to improving things for yourself is confirmed by the pre-sentence report. I have regard to the contents of that report generally.
Taking into account all of the circumstances I have outlined, I am satisfied this matter warrants an individualised sentencing approach. There is no question that objectively the offending was most serious, but it occurred in the context of the defendant’s significant intellectual impairment which changes, in my view, the weight that ought to be attributed to many of the usual aims of sentencing.
I make the following orders:
You are convicted of all matters to which you have pleaded guilty. In respect to the stealing offence and breach of bail offence, I make no further order. In respect to all other matters I impose one sentence. You are sentenced to ten months’ imprisonment backdated to commence on 17 October 2021 to take into account the ten months you have already served in custody. You have therefore served that sentence of imprisonment.
I also make a community correction order for a period of 18 months. The core conditions of that order will be set out in a written document provided to you and they will be explained to you, given your literacy difficulties. Importantly, you must comply with the condition that you must not commit an offence punishable by imprisonment for a period of 18 months from today. There is a special condition that you must submit to the supervision of a probation officer for that period of time, that is 18 months, and you must participate in programmes and/or engage in counselling as directed by a probation officer; you must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer; and you must undergo assessment and treatment for drug or alcohol dependency as directed by a probation officer.
I direct that you report to Community Corrections in Hobart by close of business Thursday, 18 August 2022.
I make compensation orders in favour of the following, the assessment as to the amounts to be adjourned sine die:
- Anne-Marie Jayatilake;
- Luisa Fitzpatrick;
- Brett Knevett;
- RACT Insurance;
- Kim-Marie Backhouse; and
- Benjamin Lotzer