Director of Public Prosecutions v Abdirahman
[2017] VCC 2000
•21 December 2017
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01157
DIRECTOR OF PUBLIC PROSECUTIONS v MOHAMED ABDIRAHMAN ---
JUDGE: HIS HONOUR JUDGE HIGHAM WHERE HELD: Melbourne DATE OF HEARING: 19, 30 October 2017; 30 November 2017 DATE OF SENTENCE: 21 December 2017 CASE MAY BE CITED AS: DPP v Abdirahman MEDIUM NEUTRAL CITATION: [2017] VCC 2000 REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – conduct endangering life – arson – commit indictable offence whilst on bail – no prior convictions – traumatic childhood in Somalia – use of methamphetamine – schizophrenia – drug induced psychosis – impulsive offending – non-compliance with treatment prior to offending – homelessness – guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:Total effective sentence of four years’ imprisonment with a non-parole period of two years.
---
APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Ms P. Thorp (Plea)
Mr P. D'Arcy (Sentence)
Solicitor for Public Prosecutions For the Accused Ms Z. Broughton Victoria Legal Aid
HIS HONOUR:
1Mohamed Abdirahman, you have pleaded guilty to one charge of conduct endangering life and one charge of arson. You have also pleaded guilty to committing an indictable offence whilst on bail.
2The maximum penalty for reckless conduct endangering life is a term of imprisonment of ten years. The maximum penalty for arson is a term of imprisonment of 15 years. The maximum penalty for committing an indictable offence whilst on bail is three months' imprisonment.
3I now turn to the circumstances of your offending.
4At the end of March 2017, you were living on an abandoned couch in the common parts of the sixth floor on a twenty-one story public housing apartment building in Fitzroy. The building is operated by the Department of Health and Human Services (DHHS). You had effectively been homeless for many months and had, it seems, entered into a temporary arrangement with a tenant in that building, Mr Kyriacou, to sleep in the hallway on an abandoned couch.
5At the relevant time the block contained 200 apartments and housed approximately 460 tenants. Key aspects of the management had been outsourced to private contractors and there was no properly functioning fire alarm system. This is mere background to the factual scenario of your offending and has no relevance to my sentencing discretion.
6On 28 March 2017 you had used methamphetamine and had been drinking for the greater part of the day. At about 1.15 am on 29 March, whilst on your couch, you turned your music up to such a level as to wake up Mr Kyriacou who was also, for reasons not clear to me, sleeping on a couch in the hallway. He asked you to turn the music down and this led to an argument between the two of you. It ended with Mr Kyriacou telling you that you were banned from the apartment and he locked the door, thus denying you any further access.
7At some point thereafter you became angry and at approximately 4.35 am, using a cigarette lighter, you set fire to the cover of the couch on which you had been sleeping. Mr Kyriacou, who was by now asleep on the other couch, woke up to hear you yelling, "I'm gonna burn ya". In a matter of seconds, the couch was ablaze.
8The fire quickly spread to the common parts of the sixth floor. You left the building via the elevator some four minutes later. It must have been clear to you at that time that your actions had put people at risk, nonetheless it seems you did not think to raise the alarm.
9Mr Kyriacou promptly went to the ground floor where he advised security guards, Mr Bruno De-Appolonia and Mr Valentine Rozario, of the fire. Both guards then went immediately by elevator up to the sixth floor. When the elevator doors opened they were met with smoke and flame. The flames already were touching the roof of the hallway and the heat was intense. Both, however, were aware of the dangers to the occupants and determined to do their best to rescue them.
10Mr De-Appolonia turned right and banged on apartments doors, telling the occupants to get out immediately. By the time he reached the stairwell he was unable to walk and was struggling to breathe due to the effects of smoke inhalation. He was fortunately assisted by a resident and was escorted down the stairs where he was treated by paramedics who had arrived and was found to be suffering from severe smoke inhalation.
11Mr Rozario, coming out of the elevator, had turned to the left. He thus had walked directly into the fire and was overcome. At approximately 4.50 am, firefighters reached level six of the building where they were confronted by thick smoke and they observed a fire large enough to block entry to an apartment. They put the fire out, forced entry into the apartment and rescued the occupant who had been trapped inside.
12It seems that it was only after the occupants had been evacuated that Mr
De-Appolonia alerted firefighters on the ground floor that Mr Rozario was still inside the building. True to their duty, the firefighters conducted a second sweep of the floor where they found Mr Rozario on level six, leaning up against the wall in the hallway. He was immediately observed to have sustained significant burns, requiring urgent medical assistance. He was taken from the building via the elevator at 5.43 am, losing consciousness on numerous occasions. After initial treatment he was transferred to the Alfred Hospital with life threatening injuries.13The summary of prosecution opening tendered on the plea at paragraphs 12 to 20 identifies those residents who were immediately and particularly affected by the fire. I order that a copy of the summary be annexed to these sentencing reasons.
14The old, the very young and the vulnerable tell of their experience of feeling trapped, of seeing and/or hearing the fire, of the panic arising from smoke inhalation and being compelled to evacuate the building in the dead of night via the one staircase. All of these persons were innocent victims of your actions.
15A total of six residents and one firefighter were hospitalised as a result of the fire. Mr Rozario was taken to the Alfred Hospital with extensive and life-threatening burns that required prolonged hospitalisation and surgical intervention. His airways had both narrowed and become swollen. He was unable to breathe and attempts at intubation were unsuccessful. This required an incision to be made into his windpipe, so as to ensure that air was able to get to his lungs. He was admitted into ICU and placed in an artificial coma, in which state he remained until his discharge from hospital. He also underwent debridement and skin grafting for his burns.
16His injuries consisted in;
(1) Deep thermal burns to his face, scalp, anterior chest, forearms, and hands, and upper-back. These burns covered a total body surface area of 28 to 30 per cent. It is likely that he will require further surgery to deal with complications related to the scaring, such as limitation of movement.
(2) Grade 4 Ropper-Hall corneal burns. This indicates the most severe classification and a poor prognosis. It is possible that the burns and their effects are permanent, with consequent lifelong visual impairment.
(3) Inhalation injuries.
17Level six of the building sustained significant damage, including the elevator lobby area, the communal hallway, the front rooms of one apartment which were largely destroyed, extensive damage to the electrical wiring running along the roof of the corridor above the seat of the fire, and significant damage to the elevator. Ten apartments have been deemed uninhabitable, with residents requiring to be relocated for anywhere between three and six months.
18I was told on the plea that the estimated cost of repair were likely to be well in excess of $200,000 and rising.
19You were arrested on 30 March 2017 and interviewed. In the course of that interview you made full and frank admissions to the offending, stating that at the time you were drunk and that Mr Kyriacou was agitating you, telling you to ‘piss off’. He was on a couch and you were next to him, so you burned your couch. At the time you were feeling not drunk but angry. You stated you did not aim to burn him and that you did not aim to burn the house. You also accepted that thinking about it now, "Someone could have lost his life".
20There was a filing hearing on 31 March 2017 and the matter resolved on the first committal case conference on 8 June. I regard your plea of guilty as having been entered at the earliest opportunity.
21I turn now to the indictment.
22The particulars of Charge 1 are that you, without lawful excuse, recklessly engaged in conduct that placed Mr Rozario in danger of death. The particulars of Charge 2 are that you intentionally and without lawful excuse destroyed by fire a cream coloured couch belonging to Mr Kyriacou. That is the couch upon which you had been sleeping.
23On the plea I sought help from counsel as to how the two charges related one to the other. For the avoidance of doubt I proceed on the basis that the gravity of the offending in Charge 1 is to be found in your appreciation of the danger to
Mr Rozario's life, to which your conduct gave rise, not in the injuries that flowed as a direct and/or foreseeable consequence of your actions. You are not to be sentenced for the injuries that Mr Rozario, in fact, received, but those catastrophic injuries demonstrate how your conduct did, in fact, endanger the life of Mr Rozario in the circumstance in which they occurred.24The gravity of the offending in Charge 2 is informed both by your intended act, that is to say setting fire to the couch, and consideration of the injury, loss or damage resulting directly from your offending, and the direct impact of your offending upon any victims. You do not fall to be sentenced for intending any of those consequences.
25I turn now to your personal circumstances.
26You were born in Jilib, Somalia, on 4 May 1980 and are thus now 37 years of age and 36 at the time of this offending. You have no prior convictions.
27Shortly after your birth, your parents divorced and you moved with your father to your paternal grandparents’ home in Mogadishu, the capital of Somalia. Your parents both remarried and you have siblings from both sides. Your father then moved to Ethiopia and you were brought up by your paternal grandparents, whom you regarded, in effect, as your parents.
28They brought you up in an environment of love and security. That security and sense of wellbeing was shattered by the brutal and fratricidal civil war in Somalia which began in 1990. In that year, tragically, your mother died and your schooling ceased at Grade 4 level as a result of the developing civil war.
29As a result of the conflict in Mogadishu, you were forced to flee your home and move with your family to a house closer to the airport. From then on, your life was one of fear, avoiding soldiers and their bullets, and, in essence, trying to survive from day-to-day. Nonetheless, throughout that traumatic period you still had the love of your grandparents, however in 1997 you paternal grandfather died and in 1999 you lost your paternal grandmother.
30In 2000 at the age of 20, arrangements were made for you to move to
Saudi Arabia where your paternal uncle was living and working. You lived in Saudi Arabia for the next seven years until 2007, working full time as a welder. You were an immigrant worker in a country that gave you neither status nor rights. I am told that it was whilst in Saudi Arabia that you began to abuse alcohol and use cannabis to excess.31In 2007 you arrived in Australia on a prospective spousal visa. Your proposed bride was your paternal cousin. This was not an arranged marriage and both you and your prospective bride realised that you did not like each other sufficiently to get married. In consequence, the marriage did not go ahead but you remained living in Australia. You ultimately obtained permanent residency.
32You sought and obtained assistance from the Red Cross to permit you to work and found employment and attended English classes. You lost your first job as a result of an episode of chicken pox.
33In 2009 you began work at the Cadbury factory as a machine operator, where you worked for the next five years. Initially, you had lived with your uncle but once in steady employment you lived in private rental accommodation in Preston and then in Reservoir.
34However, it was in 2009 also that you began to use methamphetamine. Prior to this, you had used and abused cannabis and alcohol as your drug of choice. Once introduced to methamphetamine, you used it over many years and slowly it began to fundamentally affect your mental wellbeing. Your life, not surprisingly, began to unravel.
35In October 2013, supported by your English teacher and your uncle, you presented at the Northern Area Mental Health Service (NAMHS) Clinic seeking treatment. You were then diagnosed with schizophrenia and a drug induced psychosis. You were prescribed the anti-psychotic drug olanzapine and were manifesting intermittent disturbed behaviour with apparent psychotic and manic symptoms.
36By March 2014 you had lost your job, you had lost your accommodation and you were living in your car with all of your worldly belongings. From that date on, you had intermittent contact with NAMHS, but no sustained period of either compliance with psychiatric medication or being drug free. There were further presentations at the clinic with psychotic symptoms, but also, and concernedly, active non-compliance in terms of your absconding from assessments and admissions under the Mental Health Act.
37In October 2016 you presented with the recurrence of psychotic symptoms and you were again prescribed olanzapine. Further clinical follow-up was thwarted again by your non-compliance. Your case was closed by NAMHS on
1 March 2017. The closure documents noted your "chaotic lifestyle". Throughout the material there is reference to your continued abuse of methamphetamine and alcohol, particularly cask wine.38At the time of this offending you had been homeless for many months, you were abusing alcohol, cannabis and methamphetamine, and you were showing symptoms of both mania and psychosis. In February 2017 you alleged that you had been assaulted and your car had been stolen by an associate of
Mr Kyriacou. You had thus lost your last home and your life had become reduced to sleeping either on the street or as a temporary refuge, on an old couch in the hallway of the sixth floor of the building in Fitzroy. Your story is a very unhappy one, but tragically an all too familiar one in this court.39A report from Associate Professor Andrew Carroll dated 2 October 2017 was tendered on the plea.
40Associate Professor Carroll could find no symptoms indicative of full-blown clinical post-traumatic stress disorder. However, he diagnosed you as having a schizoaffective disorder bipolar type. From his review of your clinical files, he stated that you had suffered from this condition since 2013. Associate Professor Carroll was of the opinion that your illness was not merely the result of substance abuse (and thus likely to resolve should you remain drug free), but rather was of a permanent nature.
41He was further of the opinion that at the time of your offending, your schizoaffective disorder was active with severe manifest symptoms. He cites in support of this opinion your diminished need for sleep, your pathological levels of irritability, your racing thoughts, your delusional thinking and your visual hallucinations and grandiose thinking. In short:
"His mental capacity and functioning were severely affected by a combination of his untreated schizoaffective disorder and his ongoing substance misuse. His severely disordered mental state was such that he was disinhibited, pathologically irritable and unable to make calm, reasoned decisions and appropriate judgements or to control his emotions".
42As to the immediate causes of the offending behaviour, Associate Professor Carroll refers to the pre-existing enmity between you and Mr Kyriacou arising from the loss of your car. The fire was apparently set as an act of impulsive revenge after conflict around you making too much noise and then being evicted by Mr Kyriacou. Undoubtedly that was the precipitating event; a motive confirmed by you in the course of your record of interview.
43As to any causal connection between your mental state and the offending,
Associate Professor Carroll stated:"His schizoaffective disorder and the associated substance misuse, therefore, made a very significant causal contribution to his offending behaviour. Although, it is not a full explanation for it".
44Associate Professor Carroll gave oral evidence on the plea. He confirmed and amplified upon his diagnosis of schizoaffective disorder bipolar type. He stated it was not possible now to determine whether your mental illness was a result of your substance abuse or a manifestation of a longstanding and latent underlying illness. He stated:
"He did not have an underlying antisocial personality and that he was able to understand the wrongfulness of his action".
45At the time of this offending you were in the manic part of a bipolar episode. Whilst recognising it was a matter of speculation, he posited that your alcohol abuse on this day was probably the most relevant driver of your offending. He spoke of the perfect storm of contributing factors for your actions; the theft of your vehicle and homelessness, and your subsequent eviction by Mr Kyriacou, giving rise to a legitimate sense of grievance. Your acts were to be viewed in part as the manifestation of your pathology, but only in part. Setting fire to the couch was an instinctive reaction, unplanned and unsophisticated.
46He pointed, in addition, to your improved state of health whilst in prison due to:
(i)The ordered regime under which you are now living;
(ii)Your being drug free;
(iii)The fact that you have received regular depot medications.
Your current treatment within the prison context “has been very effective indeed", and it appears that from approximately June 2017 you have been symptom free.
47In Associate Professor Carroll’s opinion, you will require ongoing treatment with a mood stabilising antipsychotic medication, such as olanzapine, for at least two years and possible indefinitely. He concludes that:
"Overall, I would consider his prospects of rehabilitation to be good, provided that he can remain in mental health treatment and desist from illicit drug use. Further, the likelihood of re-offending will be low, provided his mental health remains stable".
48I turn now to the submissions of counsel.
49Ms Broughton, counsel on your behalf, submitted firstly, in reliance upon the opinion of Associate Professor Carroll, that a clear causal link between your mental illness and your offending had been established. In consequence, your moral culpability is significantly reduced and general and specific deterrence should play a lesser role in the sentencing exercise in your case. I broadly accept this submission and I note the prosecution concession that a causal link between your mental illness and your offending has been established.
50Ms Broughton pointed to the impulsive nature of your act in lighting the couch. I accept that your behaviour was an instinctive and unprocessed reaction to a perceived challenge to your wellbeing.
51Ms Broughton relied upon your early plea of guilty as representative, not merely of utilitarian value, but also as an indication of true remorse for your actions. She referred me to the frank admissions made both in your interview with police and in your assessment with Associate Professor Carroll.
52Ms Broughton submitted that your prospects of rehabilitation were good. A submission based upon your lack of prior convictions, notwithstanding the challenges with which you have been presented in your life, and also upon the apparent stabilisation of your mental health, which has been corroborated by Associate Professor Carroll. I do not share such optimism at this stage and view your prospects for rehabilitation at this point as guarded, dependent upon both treatment and abstinence once you are released from custody.
53Ms Broughton further submitted to me that in light of your non-citizenship status, the prospect of deportation and enforced return to Somalia at the conclusion of any sentence, in addition to the cultural and linguistic isolation that you would encounter in prison, would render any term burdensome for you. I give that submission appropriate weight, although I note Associate Professor Carroll’s conclusion that there is no evidence to suggest that your mental health condition will be adversely affected by imprisonment, nor that imprisonment would be more difficult for you than for a person without your condition.
54Ms Broughton urged upon me the support that your uncle and that your community leaders were now able to offer you upon release as protective factors. I accept that upon release into the community you would have the support of your uncle and the wider Somali-Australian community, and that this represents a protective factor.
55Ms Broughton urged upon me the insight and victim empathy that you were beginning to demonstrate now that your mental health has stabilised, and again, as reported by Associate Professor Carroll. I give appropriate weight to this submission. She submitted that a sentence of a term of imprisonment of no more than 12 months, combined with a community correction order of considerable length with conditions attached, and with no declaration as to pre-sentence detention served, could meet all sentencing purposes given the particular circumstances of your offending.
56I turn now to the submissions of prosecution counsel.
57Ms Thorp, counsel for the prosecution, accepted that in light of Associate Professor Carroll's evidence, a clear causal link between your mental illness and your offending had been established. She accepted that your moral culpability for your offending was reduced, and that the role of general and specific deterrence was comparably reduced. However, she emphasised that reduction was not elimination and she forcefully submitted that there remained, in this case, a clear role for general and specific deterrence and protection of the community to play in the exercise of my sentencing discretion.
58Ms Thorp submitted that the objective gravity of your offending was high. This was very serious offending, creating a self-evident danger, with a significant impact on both property and on those people whose lives had been affected by your action. She urged upon me caution in any assessment of your prospects for rehabilitation. She submitted in the light of the gravity of the offending a combination sentence such as that advocated for by your counsel, Ms Broughton, was simply not open to me. She also called for some degree of cumulation of the sentence on Charge 2, upon the term of imprisonment to be imposed upon Charge 1.
59On the plea a victim impact statement from Mr De-Appolonia, one of the security officers, was read. He states that every time he hears a fire engine he thinks of that day and can see himself in the elevator. He wrote:
"My whole life passed before me and I thought, 'This is it, I'm going to die'. I know now that I could have died from that smoke and that I could not have saved my partner as there was no air up there. I wanted to go back but there was no oxygen. I felt like it was my fault, even though I know it is not true. I feel sad to see him scarred for life and that could easily have been me".
60Mr De-Appolonia went onto describe how he was prescribed asthma medication and had to use this daily until mid-August. His eyes were checked as they were covered with black soot and slight damage to the cornea was detected. He needed eight counselling sessions for his anger and hurt. He suffers from disturbing dreams, in which he dies because the elevator is stuck. He gets anxious as a result of his breathlessness and continues to feel stressed and uptight.
61There was no victim impact statement from Mr Rozario, but it is clear,
Mr Abdirahman, that your offending has left a lasting impact upon many of those who were in the building on that night.62Mr Abdirahman, fires by their very nature can get out of control very quickly. To set fire to a piece of furniture in the common part of a multiple occupancy building in the middle of the night when people are at home, even if is done on the spur of the moment, is to create a self-evident and appreciable risk of death because of the very unpredictable nature of fire. It is in the level of the risk of death that your conduct created, that the objective gravity of this offending in Charge 1 is to be found. It must have been obvious to you that, given the location and the nature of the building with its multiple occupancy status, should the fire which you had started take hold then security officers and indeed, other rescue personnel, would attend.
63You are not to be sentenced for the injuries that Mr Rozario tragically received. However, those injuries demonstrate how your conduct did in fact endanger the life of Mr Rozario in the circumstances in which they occurred, and for which circumstances you were responsible.
64In relation to Charge 2 I have regard to the impact, loss and damage, which resulted directly from your setting fire to the couch that had been so clearly detailed in the prosecution opening.
65In sentencing you, Mr Abdirahman, I must have regard to a range of different factors. I must give effect to principles of both general deterrence and specific deterrence, which in my view, although reduced, still have a clear role to play. That means I must deter others from behaving like you did and I must deter you from any repeat of such behaviour. Insofar as is necessary, I must protect the community from any such repetition by you of this behaviour. I must express the community’s denunciation of your conduct and I should promote, if possible, your rehabilitation. I take into account the effects that your crimes have had upon your victims and have regard to current sentencing practices for the kind of offences that you have committed.
66In short, I must try to balance your personal circumstances with the circumstances of your offending.
67In my view, principles of general and specific deterrence remain key sentencing considerations in this case, but perhaps primacy is afforded to protection of the community.
68You have in the past failed to respond to clinical intervention. As has been made clear by Associate Professor Carroll, your future recovery depends upon your compliance with regular medication and in your remaining drug free. I have paid very close attention to the able submissions made by your counsel and I have considered in detail and at length the evidence both oral and written by Associate Professor Carroll.
69I give a full effect to the mitigatory factors to which I have been referred and for the avoidance of doubt, I have paid particular regard to –
(i) The causal link between your mental illness and the offending, and the principles that are thus enlivened;
(ii) Your early plea of guilty, which I accept is evidence of remorse over and above the utilitarian value that it represents;
(iii) Your cultural and linguistic isolation in prison, in addition to the uncertainty of deportation will make prison term more burdensome;
(iv) The insight and victim empathy that you are now beginning to display;
(v) The support that you clearly have both from your uncle and from the wider Somali-Australian community;
(vi) The impulsive nature of the act, which had no element of premeditation or planning;
(vii) Your prospects of rehabilitation, which I consider to be guarded, dependent as they are upon your remaining drug free and medication compliance. I accept the progress that you have made whilst in prison on remand. However, you will need to bring that resolution and insight to bear when you are again in the community.
70I have considered the CCO assessment report dated 11 December 2017. In my view, that your current presentation is too complex to be managed effectively by any community correction order. Your prospects for rehabilitation depend upon your remaining drug free and receiving medication. It is, however, my intention to set a shorter than normal non-parole period so as to facilitate your continued rehabilitation, both whilst in custody and then, should you obtain parole, within the community.
71If you could stand up, please, Mr Abdirahman.
72On Charge 1, reckless conduct endangering life, I sentence you to a term of imprisonment of three years and six months.
73On Charge 2, arson, I sentence you to a term of imprisonment of two years.
74I direct that six months of the term on Charge 2 run cumulative to the term of imprisonment imposed on Charge 1.
75This makes a total effective sentence of four years' imprisonment.
76I fix a non-parole period of two years.
77Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have served 266 days of the sentence that I have imposed upon you and direct that this be recorded into the records of the Court.
78Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty you would have been sentenced to a total effective term of imprisonment of five years and six months with a non-parole period of three years and nine months.
79In relation to the summary charge of committing an indictable offence whilst on bail, you are convicted and discharged.
80Ms Broughton, are there any particular custody management issues?
81MS BROUGHTON: They have been noted. They would be his mental health concerns.
82HIS HONOUR: Yes, thank you, they will be noted.
83Thank you to counsel and your instructors for your assistance.
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Court Reference: CR-17-01157 Indictment No: H10897913 |
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
Prosecution of MOHAMED ABDIRAHMAN
SUMMARY OF PROSECUTION OPENING
Date of Document:
Filed on behalf of:
Prepared by:
JOHN CAIN
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000
11 October 2017
Director of Public Prosecutions
Solicitors code: 7539
Reference:
Telephone:
File Number:
Maximum Penalties:
Charge 1 – Reckless Conduct Endangering Life – s22 Crimes Act – Max 10 years
Charge 2 – Criminal Damage by Fire – s 197(1) Crimes Act – Max 15 years
Charge 5 (summary Offence) – Commit an indictable offence whilst on bail –
s 30B Bail Act – Max 30 P.U. or 3 months
Background
1. The defendant, Mohamed Abdirahman (4/5/1980) was 36 years old at the time of the offending and was residing temporarily with Michael Kyriacou in Fitzroy.
2. Mr Kyriacou lived in a twenty-one story building which is operated by the Department of Health and Human Services. It contains 200 apartments and houses approximately 460 tenants.
3. The following residents and security personnel of the building were affected by the fire started by the defendant:
·Michael Kyriacou , Ayen Majok Akot and Shafie Hersi
·Hodon Ahmed, Satka Fodor, Angeth Ariik, Pei Quong Li
·Bruno De-Applonia and Valentine Rozario (security guards)
·Troy Mackenzie, James Keritz, Maxwell Greenway, Joseph Saliba and Mike Suban (fire fighters);
The incident
4. On Wednesday the 29th of March 2017 at approximately 1.15 am the defendant turned his music up to a level which disturbed Michael Kyriacou (KYRIACOU) who was asleep on a couch in the internal hallway on level six. KYRIACOU asked the defendant to turn the music down and this began an argument with the defendant.
5. The argument continued for sometime and resulted in KYRIACOU telling the defendant that he was not permitted back inside the apartment and locked the door preventing the defendant from gaining access to the apartment in which he had been residing.
6. The defendant became angry about this[1] and at approximately 4.35am set fire to the cover of a cream coloured couch that was located in the foyer of level 6 near apartment 65 with a cigarette lighter (Charges 1 and 2).
[1][1] ROI Q/A 312
7. At this time KYRIACOU was asleep on another couch in the hallway not far away from the cream coloured couch. He woke up and heard the defendant yelling: “I’m gonna burn ya.” The fire spread quickly and the couch was engulfed by flames. The defendant escaped from the building via the lift at 4.39pm.[2]
[2] Video footage from lift
8. KYRIACOU screamed out for help and then used the lift to go the ground floor where he advised security guards Bruno DE-APPOLONIA (DE-APPOLONIA) and Valentine ROZARIO (ROZARIO) that there was a fire in the building.
9. ROZARIO and DEAPPOLONIA immediately took the lift up to level 6 to put out the fire. However, on arriving at level 6, the lift doors opened and a big gush of smoke came in. The flames were touching the roof at this time and was very hot. [3] They left the lift and DEAPPOLONIA turned right and ROZARIO turned left directly into the fire.
[3] Statement of Bruno De-Appolonia p. 42
10. DE-APPOLONIA ran towards the stairs at the end of the hallway and banged on apartment doors telling them to get out. [4] He eventually reached the stairwell where he was unable to walk and was struggling to breathe. Hodon AHMED (AHMED) assisted DE-APPOLONIA in moving him down the stairs, where he received initial treatment from Ambulance members, suffering from severe smoke inhalation.[5]
[4] Statement of Bruno De-Appolonia p. 42
[5] Statment of Bruno De-Appolonia p. 42
11. ROZARIO received burns to 30% of his body when he walked toward the fire. After being burnt he sought shelter in apartment 62 and at some point cut himself.
12. At this time, Ayen Majok Akot was inside her apartment and observed the flames outside her apartment door. She tried to get out but was prevented from escaping as the flames were too big. She stayed in the apartment until the fire fighters arrived, kicked in the door and removed her from the apartment. [6]
[6] Statement of Akot p. 37
13. Pei Qiong Li, who was 81 years old at the time, heard the fire alarm being activated and the sound of plastic burning and went into a bedroom and opened a window so she could breathe. Fifteen minutes later a fire fighter knocked on his door and took her outside.[7]
[7][7] Statement of Pei Qiong Li p. 47
14. Afrah Younis was asleep in her apartment with her three children aged: 11, 9 and 6. She could hear the sound of burning and smelt smoke. They immediately evacuated from the apartment.[8]
[8] Statement of Afrah Younis p. 49
15. Linh Doan was at home with her three children aged 20, 18 and 9. She awoke to the sound of a man yelling “help me, help.” She opened the front door and could see smoke and the feel the heat of the fire. She hid in her apartment with her husband and children while some smoke came into the apartment which caused them to cough. 5 to 10 minutes later a fire fighter arrived and they were evacuated.
16. Angeth Arik, who was 29 week pregnant, at the time of the incident was asleep in her apartment with her 3 year old child and woke up to see smoke coming inside. She woke up her son and carried him out of the apartment. She fell over on level 5 and was coughing very badly. [9]
[9] Statement of Angeth Arik p. 55
17. Lang Van Bui was in his apartment at the time of the fire. He could smell smoke and feel the heat of the fire. Smoke came into his apartment when he opened his door so he covered his face so he could breathe. He was very scared. He woke up his wife and they ran out of the building.[10]
[10] Statement of Lang Van Bui p. 58
18. Tony Tran, another resident of the apartment opened his front door and saw the flames. He woke up his girlfriend and his parents and they all left the building.[11]
[11] Statement of Tony Tran p. 61
19. Satka Fodor who was 62 years old and suffers from bad asthma and sleep apnoea , was asleep in her apartment with her husband Victor Fodor at the time of the incident. Smoke came inside the apartment and caused Satka to have difficulty breathing. Victor assisted Satka out of the building via the lift. Satka was very scared during the fire.[12]
[12] Statement of Satka Fodor p. 64
20. Hodon Ahmed was at home in his apartment with her 5 children aged: 14, 12, 9, 8 and 6 at the time of the fire. She woke up and discovered smoke in her apartment. She woke her children up and walked in the dark through thick smoke out of the building. She helped Bruno out of the building. When outside, she feinted and then vomited and had trouble breathing. [13]
[13] Statement of Ahmed Hodon p, 68
21. At approximately 4.50 am Fire Fighters James KERITZ (KERITZ), Maxwell GREENWAY (GREENWAY), Joseph SALIBA (SALIBA) and Mike SUBAN (SUBAN) attended level six of the building, where they were confronted by thick smoke and observed a fire large enough to block entry to apartment 65. They put the fire out and then forced their way into apartment 65 and found Akot trapped in her apartment. GREENWAY removed his mask to provide oxygen to AKOT which resulted in both AKOT and Greenway inhaling smoke. Greenway then carried her out of the apartment.[14]
[14] Statement of Maxwell Greenway p. 74
22. While DE-APPOLONIA was receiving medical treatment on the ground level, he informed the fire fighters that ROZARIO was still inside the building. A second sweep was conducted by fire fighters Troy MACKENZIE (MACKENZIE) and Max RAMPLING (RAMPLING), and they found ROZARIO on level six, leaning up against a wall in the hallway.
23. ROZARIO was observed to have sustained significant burns requiring urgent medical assistance. He was extracted from the building via the lift at 5.43 am, losing consciousness on a number of occasions[15]. Initial treatment was provided by Ambulance members, before ROZARIO was transported to the Alfred Hospital in a life threatening condition.
[15] Statement of Troy Mackenzie p. 91
Injuries
24. A total of six (6) residents and one (1) Fire Fighter were hospitalised as a result of the fire:
a. AKOT suffered from smoke inhalation while she was trapped inside of apartment 65. She was treated by Ambulance members and did not require hospitalisation.
b. Fire Fighter GREENWAY suffered from smoke inhalation sustained while providing his oxygen mask to AKOT. He received treatment from Ambulance members and was transported to the Royal Melbourne Hospital. He was released the same day and has since returned to work, with no ongoing medical concerns.
c. AHMED suffered from smoke inhalation while evacuating from the eighteenth level, resulting in vomiting and ultimately fainting. She was transported to St Vincent’s Hospital and requires the ongoing use of Ventolin to treat an aggravated asthma condition.
d. Satka FODOR suffered from smoke inhalation while evacuating from the fifteenth level and received treatment at St Vincent’s Hospital. She aggravated an existing respiratory condition and was released on the same day. FODOR requires follow up appointments to monitor her condition.
e. Angeth ARIIK suffered from smoke inhalation while evacuating from the premises. She received treatment at the Royal Women’s Hospital due to concerns as she was heavily pregnant. After being held for observation she was released later the same day with no ongoing medical complications.
f. Pei QUONG LI suffered from chest pains and anxiety, receiving treatment at the Monash Medical Centre in Clayton on the 5th of April 2017. LI was released from hospital, however now suffers from ongoing anxiety and is no longer able to live alone.
g. DE-APPOLONIA suffered from significant smoke inhalation and received treatment at St Vincent’s Hospital. He was hospitalised overnight and is required to attend follow up appointments due to both eye and respiratory concerns. He has not returned to work.
h. ROZARIO was transported to the Alfred Hospital with extensive and life threatening burns that required prolonged hospitalisation and surgical intervention, He presented to the Emergency Department with increasing difficulty in breathing caused by swelling and narrowing of his airways. After two failed attempts at intubation he underwent an emergency cricothyroidotomy and an operative tracheostomy (an incision made in the wind pipe) to ensure air was getting to his lungs.[16] He was then admitted to the intensive care unit and placed in an artificial coma, a state in which he remained until he was discharged from hospital. He also underwent debridement and skin grafting for his burns. In summary as a result of the incident, Mr. Rozario received the following injuries:
[16] Statement of Dr. Sanjeev Gaya p.122
i.deep thermal burns to his face, scalp, anterior chest, forearms and hands and upper back. The burns covered a Total Body Surface Area (TBSA) of 28% to 30% . He will likely require further surgery to deal with complications related to scarring such as limitation of movement.
ii.Grade IV Roper Hall corneal burns (grade iv being the most severe classification and indicates poor prognosis). The burns are possibly permanent vision threatening corneal burns.
iii.Inhalation injuries.
Damage caused by the fire
25. Level six of the building sustained significant damage[17] including:
[17] Statement of John Kelleher p. 127.
a. Areas including the lift lobby area, the communal hallway and the front rooms of apartment 65 being largely destroyed.
b. Extensive damage to electrical wiring, which ran along the roof of the corridor above where the fire commenced.
c. Significant damage to lift two, utilised by ROZARIO to attend the level sixth level, which is now nonoperational.
d. Ten apartments have been deemed uninhabitable with residents of these apartments requiring to be relocated for anywhere between three and six months.
26. Initial repair estimates have been estimated at approximately $150,000.[18]
[18] Statement of Foti Margiolakis p. 135
Police Interview with the defendant
27. The accused was arrested on the 30th of March 2017 and interviewed at the Richmond Police Station in the presence of a Somalian Interpreter
and Independent Third Person.[19]
[19] P.252 of police brief.
28. During interview the accused stated:
a. Q/A 166: Yeah I- during that time, I was drunk and – and I – burned a couch...........The guy- the guy- at that time I was drunk and the guy was agitating me. He was making me to piss off and what happened was he was – he was in a couch and I was next to him, so I burn- I burned my – my couch that I was asleep.
b. Q/A 194: I was sitting this side and I start burning the other side of the couch and was small fire.
c. Q/A 196 Yes, there is a small sheet material that the cuff of the – of- of the couch, so that’s where I started, the cuff of the- I lit the corner of the sheet so that’s where the fire starts.
d. Q/A 312 That’s come from anger. I didn’t plan it.....
e. Q/A 366: Q. How much had you had to drink? A. About six to five cups.
f. Q/A 367 Q. How were you feeling at the time you lit the fire? A Angry, not drunk, angry.
g. Q/A 373: Q. Thinking about it now, what do you think could have happened with the fire on the couch? A. Someone could have lost his life.
h. Q/A 377: Q why didn’t you tell the security about the fire? A. He has to do his job. I already done my job, you know, yeah. My job was started the fire..........
i. Q/A 439: I didn’t aim to burn- to burn him and I didn’t want- I didn’t aim to burn the house as well and .....something I don’t know whether that would go right or wrong, I don’t know.
j. Q/A 442: I didn’t burn the house to kill people or kill him.
k. Q/A 503: Do you think what you did could have cost someone their life? A. Yeah, yeah, fire, yeah, why not. Yeah, fire is fire, yeah, so fire- fire is fire. Everywhere is fire.
29. At the time of the offence the defendant was on bail.(Summary charge 5)
ANCILLARY MATTERS
Pre-sentence detention
1.The defendant was remanded in custody from the date of his arrest on the 30th of March 2017 to the date of the plea hearing: 19th of October 2017. By the plea hearing he will have spent 203 days in custody.
Prior convictions
2.The defendant does not have any prior convictions.
Early plea and s 6AAA of the Sentencing Act 1991
3.Having regard to the chronology at the end of this opening, the Crown accepts that the defendant entered a relatively early plea of guilty.
4.Although not entered at the first reasonable opportunity, the timing of the plea spared a contested trial, and the utilitarian benefit alone entitles the defendant to an appreciable discount in sentence.
5.Pursuant to s 6AAA, the Court should record the sentence which would have been imposed but for the plea of guilty.
Forensic sample order
6.A forensic sample order is sought pursuant to s 464ZF(2) of the Crimes Act 1958.
Chronology of Key Dates
Offence Committed: 29/3/17
Filing Hearing: 31/3/17
Committal Case Conference: 8/6/17 (resolved to a plea of guilty and the defendant was committed to the County Court for a plea hearing.
Plea listed: 19/10/17
Penelope Thorp
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PLEA PROSECUTOR
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