Director of Public Prosecutions v Aciek

[2022] VCC 862

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00185

DIRECTOR OF PUBLIC PROSECUTIONS

V

DANIEL ACIEK

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2022
DATE OF SENTENCE:	8 June 2022
CASE MAY BE CITED AS:	DPP v Aciek
MEDIUM NEUTRAL CITATION:	[2022] VCC 862

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentencing

Catchwords:             Plea of guilty – Arson – Mental health – Reasonable prospects of rehabilitation – Reduced moral culpability – Verdins – COVID-19 pandemic.

Legislation Cited:     Sentencing Act 1991 ss 5; 6AAA; 18; 44.

Cases Cited:Boulton v The Queen [2014] VSCA 342; R v Verdins (2007) 16 VR 269; Rossi v The Queen [2021] VSCA 296; Worboyes v R [2021] VSCA 169.

Sentence:Imprisonment for a period of 215 days followed by a Community Corrections Order for a period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo (For Plea)	Office of Public Prosecutions
Ms V. Kambouropoulos
(For Sentence)
For the Accused	Ms C. Foot	Tyler Tipping & Woods

HER HONOUR: 

1Daniel Aciek you have pleaded guilty to one charge of arson.  You also agreed to the court hearing and pleaded guilty to the summary offence of committing an indictable offence whilst on bail. 

2The maximum sentence for arson is 15 years' prison and committing an indictable offence on bail is punishable by either 30 penalty units or three months' imprisonment.

Circumstances of the offending

3The full circumstances of your offending are set out in the summary of prosecution opening dated 9 May 2022.  Briefly, at the time of your offending you were living with your mother and your young twin siblings.  Your family had been living at the address at 8 Priestly Court, Traralgon since December 2012.  The house was owned by the State Government of Victoria and operated by the Department of Families, Fairness and Housing.  The property was a split-level, freestanding, three-bedroom brick-veneer house.

4At the time of your offending you were on bail for recklessly causing injury, which I was told is presently listed for a plea in the Magistrates' Court, along with driving matters, on 27 June. 

5At around 8.40am on 4 November 2021 witness Deng walked out the front door of his address and noticed a nearby house on fire.  He called out to a friend of his, Garang. Garang phoned Triple Zero requesting Fire Rescue Victoria to attend.  You were observed sitting on a chair in the middle of the court playing the guitar while the house burnt.

6Fire Rescue arrived and worked to extinguish the blaze.  You continued to play your guitar and watch on.  Police arrived at approximately 9.15am when the fire had been extinguished.  They approached you and you continued to play your guitar while speaking to them.  You openly admitted to lighting the fire, produced a blue cigarette lighter from your pocket.  You were arrested and transported to the Traralgon Police Station for questioning.

7An examination of the fire was conducted by arson chemist Noonan and her opinions are outlined at paragraph 12 of the prosecution opening.  The fire had originated on the bed, no other areas of the house were considered to be separate points of ignition.  The cause of fire was the ignition of combustible materials in the central bedroom and the most likely source of ignition was a match or a cigarette lighter. 

8Police were informed that none of the neighbouring properties were affected by the fire. 

9You were interviewed in the presence of an independent third person. You admitted to starting the fire with a lighter and setting alight various documents, including bills.  You had only intended for the mattress, bills and documents to burn.  You said that you were remorseful and sorry for what you had done. 

10You were charged and remanded in custody, where you have remained since.  The estimated cost to repair the fire damaged property was just under $115,000.00.

Gravity of the offending

11The seriousness of your offending, Mr Aciek, on the arson is reflected in the maximum penalty set by Parliament. The prosecution submit that your offending is in the mid-to-high range for this type of offending, whereas your counsel, Ms Cara Foot, submits that it more appropriately sits in the lower-to-mid range. Counsel were in agreement as to the factors relevant to determining the gravity of your offending. 

12It was agreed that the offending is serious.  The lighting of a fire in a house in a residential area is serious and inherently dangerous.  Fortunately the fire was quickly extinguished, no persons were injured and there was no damage or effect to any other neighbouring properties. The house itself was freestanding.  The fire was lit by you when you knew that no one was home and also during the morning hours when most people would be awake and could escape their homes should a risk have eventuated. 

13I accept that there was little to no planning involved in your offending.  You made no attempt to conceal your offending and in fact remained at the scene.  You made immediate admissions.  When you spoke to the firefighters at the scene you said that you had lit the fire because of 'the world' and soon after being remanded you were psychiatrically treated in custody.

14I also accept that the reason for your offending remains unclear, which is likely because you were psychotically unwell at the time.  This was not offending borne from any misguided anger, revenge or other criminal purpose.  The damage was substantial, though I accept that it is more towards the lower end of damage for arsons within this jurisdiction.  I take into account that you destroyed government housing and that this represents a drain on limited public resources.  In all the circumstances, I regard your offending to fall within the lower-to-mid range for this type of offending. 

15I accept that your moral culpability is substantially reduced by reason of your psychotic illness at the time of your offending, which I will return to in a moment.

Plea of guilty and remorse

16Your case resolved at committal mention and is clearly an early plea which entitles you to a significant sentencing discount. I accept that your plea represents an acceptance of responsibility on your part and is indicative of remorse.  You expressed remorse to the police officers during your interview. 

17Your plea of guilty has significant utilitarian value, particularly in circumstances where there is still a large backlog of cases in the court.  I recognise the utilitarian benefit of the plea and I accept your counsel's submission that a real and tangible sentencing discount must follow.[1]

[1]Worboyes v R [2021] VSCA 169.

Personal circumstances

18In terms of your background, Mr Aciek, it was canvassed in detail in the report of Ms Sandra Cokorilo of 5 June 2022 and by your counsel Ms Foot.  Briefly, you are 27 years of age.  You were born in Kenya and lived there until you were ten.  You were exposed to significant conflict, instability and violence in your home country.  As a young child you lived in fear of civil arrest and you experienced the devastating impact of poverty and famine. Along with your mother and six siblings you escaped the civil unrest.  Your father did not join you but instead remained in South Sudan, where he continues to reside to care for other family members. 

19I was told that you are an Australian citizen.  Your transition and adjustment to Australia was a difficult one.  You were bullied due to your race and you found it difficult to integrate socially.  Also, you missed your father and his absence seriously impacted your family.  Your mother struggled with depression and the enormous task of raising a large family on her own in a foreign country.

20For a period of time as a young adult you lived in Sydney, though you returned to Melbourne to assist your mother financially.  Prior to your remand I was told that you most recently lived with your mother and family and also alternated between her address and the address of your current partner. 

21You successfully completed Year 12, notwithstanding the challenges of school.  You report being bullied and the subject of racial discrimination.  Consequently you were involved in fights and were suspended some 12 times.  Notwithstanding, you managed to develop some adequate friendships and report a positive relationship with teachers.

22After school you commenced a tertiary course in business management, but you withdrew after three months as you found the course work difficult.  You took a ‘gap year’ before commencing work.  You have previously worked in landscaping, factory work, warehousing and bricklaying, estimating that you had been employed around 50 per cent of the time.  You were unemployed for 18 months following a vehicle accident in 2017 and your other periods of unemployment relate to your drug use.  You last worked as a truck driver in Sydney until May 2021, when you decided, as I have already noted, to return to Melbourne.  You are currently working as a billet in custody.

23You have had one significant relationship, which has produced a three-year-old daughter.  While the relationship commenced casually, in more recent times you have committed yourself to each other.  I was told that you have regular phone contact with your partner and you intend to reside with her and your daughter, on release, in the Mentone area.  You expect that you will continue to try and support and be there for your mother also.

24You were first diagnosed with depression in 2017 by a general practitioner to whom you presented in the context of anxiety and depression following your motor vehicle accident.  As a result of the accident, where you were a passenger, you fractured your foot and sustained lacerations to your intestines, requiring surgery.  You were prescribed antidepressant medications until 2020, when you ceased treatment and began using methamphetamine.

25You were engaged in counselling through TAC up until around 2019, when the funding ran out.  You were apparently diagnosed with post-traumatic stress disorder (PTSD) and you found the counselling helpful. 

26In terms of your previous use of drug and alcohol, you started drinking alcohol at around the age of 16.  It became a daily problem from around the age of 22.  Since you were 16 you have also used cannabis daily but for a period of abstinence between 2014 and 2017.  Between May and November 2020 you smoked methamphetamine and you reported some experimental use of ketamine and cocaine.  You have never engaged with any alcohol or drug interventions.

Prior criminal history

27You have a relevant but limited criminal history.  On 22 May 2013 you were placed on a probation order in the Children's Court for charges of theft and recklessly cause injury.  In the same Court on 5 January 2015 for charges of robbery and fail to answer bail you were sentenced to a without-conviction good behaviour bond.  On 14 August 2013 you were convicted and fined by the Magistrates' Court for charges including recklessly cause injury, theft from motor vehicle and possess controlled weapon.

28Your last appearance was on 30 April 2015, when you were convicted and placed on a 12-month community corrections order (CCO) with work and treatment conditions for charges of burglary, theft and criminal damage.  The prosecutor Mr Raimondo informed me that the criminal damage charges on this occasion related to broken windows and were not concerned with any damage by fire.  You successfully completed your CCO and you have the one pending matter, as already noted. 

29Your prior history is relevant to my assessment of your rehabilitative prospects and the weight to be given to specific deterrence. 

Factors in mitigation

30I take into account, Mr Aciek, the additional factors in mitigation that were advance on your behalf by Ms Foot. 

Mental health

31In terms of your mental health I have already referred to the report of Ms Cokorilo.  She provides a detailed assessment as to the circumstances of your offending.  You reported a decline in your mental health from May 2020, when you began smoking methamphetamine.  You reported being 'delusional on ice' when you attended a hospital in September 2020, to request plastic surgery for a scar on your lip, and allegedly assaulted a doctor who declined your request, which relates to the pending plea that I have already referred to.

32You were placed on bail.  You stopped using methamphetamine but continued using cannabis and alcohol and your mental health significantly declined in 2021.  During this period of time you report hearing voices and receiving subliminal message from the TV concerning your assault on the doctor.

33In the week leading up to the offending you report that your uncle was making fun of you and had stolen your laptop and telephone.  You believed your mother and brother were in on it too.  The night prior to the offending you stayed with your relatives, who had gathered for your grandmother's funeral.  You believed they were all making fun of you due to the TV coverage of your assault on the doctor.  You report feeling angry, crazy and 'going off my head' when you left your relatives' home in the morning, attended your mother's home and set it on fire.  You felt like your 'whole world collapsed' and that you had no one.

34At the time of assessment Ms Cokorilo did not see evidence of a formal thought disorder or perceptual disturbances, though you persisted in some of your delusional thinking.  Since the commencement of antipsychotic treatment in custody your mood has stabilised and significantly improved. On formal testing you do not currently attract depression or anxiety diagnoses.  You continue to endorse all the criteria required for a diagnosis of PTSD and your symptomology is currently in the moderately severe range.

35Ms Cokorilo considers that you have described auditory and visual hallucinations, ideas of reference and delusions consistent with schizophrenia spectrum disorders.  She notes it is difficult to retrospectively provide an accurate differential diagnosis but states:

Regardless, there is no doubt that your experience of psychotic illness has compromised your functioning and impaired your ability to think clearly, respond calmly and make well-reasoned judgments, thereby contributing to your current offending.

36In all the circumstances she considers it unlikely that your psychotic symptoms were related to intoxication with illicit drugs.  She opines that there is usually a relationship between PTSD and psychosis.  She notes that you describe severe symptoms of depression and anxiety at the time of the offending, which are often comorbid with schizophrenia spectrum disorders and would have further undermined your functioning and increased your risk of behavioural dysregulation.

37At paragraph 62 of her report she states:

Whilst his alcohol and illicit drug use may have heightened his risk of engaging in impulsive and reckless behaviour, it is noted he was not intoxicated at the time of the offending.  His offending is primarily attributable to the positive symptoms of his untreated psychotic illness. While schizophrenia spectrum disorders are chronic in nature, with adherence to appropriate treatment and abstinence from alcohol and substances your risk of recidivism can be significantly reduced.

38As discussed at the plea hearing, I accept the unchallenged opinions of Ms Cokorilo concerning the likely effects of your untreated psychotic illness at the time of your offending and your current mental health.  I also take note of your behaviour, Mr Aciek, perhaps best described as bizarre, immediately after the offending and also the fact that after you were remanded you made a suicide attempt and were placed in a psychiatric unit for some two months and under special observations.

39You have continued to be psychiatrically treated in custody, including with antipsychotic medications olanzapine and aripiprazole, and your mental health has stabilised and you have responded well to such treatment.

40On the material before me I accept that limbs 1 through to 4 of Verdins[2] are enlivened in your case.  I accept that your illness at the time of your offending reduces your moral culpability and has a bearing on the type of sentence that should be imposed and the punishment that is just in all the circumstances.  I also accept that it calls for a moderation of the principles of general and specific deterrence. 

[2]R v Verdins (2007) 16 VR 269

41Upon your release it is anticipated you will continue to engage in active case management. I was told by Ms Foot, helpfully, that she spoke to your allocated case worker, Mr Gerald Chiwamira, enquiring as to whether future case management and care will be required in the long-term given there does not appear yet to be a fixed or final diagnosis of your conditions.  She was informed that such treatment may not necessarily be required for the rest of your life, but obviously it will depend on your recovery process.

Time in custody

42You have been in custody since your arrest, which is now over some seven months.  You have served your time in custody during the currency of the pandemic.  You have been subjected to greater restrictions and deprivations than in normal times because of the impact of the pandemic and I accept that it has made your time on remand more onerous.  This is particularly so given this is your first experience of custody.  You have seen your brother in person on one occasion and otherwise are limited to phone contact with your partner and other family members.  I take this into account.

Prospects of rehabilitation

43Both counsel agree that your prospects of rehabilitation really depend on you receiving treatment for your mental health.  Ms Cokorilo notes that you lack insight into the nature and extent of your mental illness, though importantly you do recognise the benefit of your current antipsychotic treatment.  You also acknowledge the negative impacts of alcohol and cannabis on your functioning.

44For many, mental illness can be difficult to accept and understand.  I appreciate that you have only recently in custody started to receive proper treatment for your mental health.  It is hoped that your insight and understanding will develop.  Ms Cokorilo assesses you as a moderate risk of reoffending but clearly states that if you continue to engage in appropriate treatment and stay off drugs then your risk of reoffending will be significantly reduced. 

45She recommends that you continue with your treatment in the community, engage in therapy for your PTSD, counselling for your drug and alcohol issues and continuing education around your mental health.  If you address these issues, Mr Aciek, you have the capacity to live a full and productive life.

46The Court has some confidence that you will continue to engage with treatment given your recent attitude and positive engagement.  I received a letter from Forensicare indicating that you are currently enrolled in Forensicare's Community Integration Program. This is a voluntary assertive outreach program that assists their clients with a serious mental illness or complex needs in their transition from prison back into the community.  You have engaged well in the discharge planning process and express willingness to remain compliant with treatment and to engage with community mental health services.  You have been referred to Midwest Area Mental Health Services for long-term case management and they will continue to support you until you are allocated a caseworker.  They have also booked a GP appointment for you to see a doctor at the Mentone General Practice this Thursday, which is tomorrow, 9 June at 1.30pm, while they await your assessment by Midwest Area Mental Health Service.

47You also have the continuing support of your family.  Your relationship with your mother was obviously strained because of your offending and its consequences for her.  I was told, however, that you have repaired your relationship and that she now understands that your mental health was compromised at the time of your offending.  You are motivated to rebuild the broken relationships with your older siblings.  You have a very close relationship with your younger brother Ajek, who works in insurance.  I was told all your family are law-abiding community members and that you felt great shame for your conduct and in disappointing them.

48You have a reasonable employment history, which suggests that you have the capacity and motivation to work.  It may take some time to rebuild some of your relationships and achieve stability in your life, but it seems you will be in a good position to do this if you remain healthy and drug free.  Ms Cokorilo did not find any evidence of pro-criminal orientation or attitudes on your behalf and indicated that you have demonstrated a positive attitude towards interventions and continuing treatment.

Sentencing principles

49The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  As I have already noted, I consider it appropriate in your case to moderate general deterrence, which is otherwise a significant consideration in such cases.  Also the application of Verdins principles, as I have previous canvassed, reduces your moral culpability and bears upon the appropriate sentence to be imposed.  Specific deterrence still has application, though I also note in this respect that you have a relatively limited prior criminal history and that your time on remand represents your first experience of custody, which I am told has had a salutary impact.  On the evidence before me I regard community protection as best promoted through your ongoing rehabilitation.

50I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 where relevant to your case. I have also had regard to the current sentencing practices for arson. I note generally that the sentences for arson can vary widely depending on the particular circumstances of the offence and the offender.

51There was no dispute between the parties in your case that a term of imprisonment is warranted for your offending. On your behalf Ms Foot submitted that a sentence combined with a CCO was appropriate and, further, that the period on remand that you have served, in the circumstances of your case, is sufficient to punish and deter you.

52I had you assessed for a CCO and you were assessed as suitable.  I note that Corrections did not support a judicial monitoring condition and also recommended a program condition.  You expressed remorse and displayed considerable insight during that assessment.  You also expressed a willingness to comply with therapeutic interventions.

53Weighing up all matters, in my opinion the applicable sentencing considerations are able to be met by the imposition of a combination sentence pursuant to s 44 of the Sentencing Act 1991.  I consider that a term of imprisonment combined with a CCO will provide for adequate punishment, structure in treatment and supervision. The conditions of such an order can be tailored to your circumstances and the causes of your offending and will largely be focused on maximising your rehabilitative prospects.

54In all the circumstances, Mr Aciek, I consider that you have served a sufficient period of time in custody and that this has served as a significant punishment.  You will now be transitioned into the community with the ongoing support of Forensicare for an initial period and structured support and supervision that will be offered to you through Corrections.

55I therefore impose the following sentences with conviction. 

56On Charge 1, arson, you are convicted and sentenced to 215 days' imprisonment with an 18-month community corrections order. 

57On Charge 2, breach of bail, you are convicted and sentenced to seven days' imprisonment, which is to be served concurrently on the sentence imposed on Charge 1. 

58Pursuant to s 18 of the Sentencing Act I declare that you have served 215 days in pre‑sentence detention. 

59Pursuant to s 6AAA I state that the sentence I would have imposed on you but for your plea would have been a sentence of some two years and two months' imprisonment with a non-parole period of 14 months.

60In terms of the community corrections order, Mr Aciek, so that you understand, I have sentenced you to the time that you have served, which is about seven months.  So you have been sentenced to 215 days, but that has wholly been declared as served.  So you will today be released pursuant to the community corrections order, which will be for a period of 18 months.  Do you understand?  Can we unmute Mr Aciek.  Sorry, do you follow?  Do you understand that, Mr Aciek?

61OFFENDER:  Yeah, I do.

62HER HONOUR:  All right. 

63OFFENDER:  Yes, I follow.

64HER HONOUR:  What I am required to do is I need to go through the various conditions of the order and advise you of what they are and what the consequences of breaching such an order also are, all right? 

65OFFENDER:  Okay.

66HER HONOUR:  So in terms of the conditions there are mandatory conditions that attach to a community corrections order.  Now, first of all, you will be required to report to the Moorabbin Community Corrections Centre within two days, within two working days, all right? Mr Aciek, you need to contact them within two working days by telephone to initially report in, all right? 

67The mandatory conditions of the order include that you must not commit any offence during the period of the order, that is 18 months from the day it commences, which is today, for which you could be imprisoned.  You must notify a Corrections officer of any change of address or employment within two clear working days after the change.  You must not leave Victoria without first getting permission to do so from a Corrections officer.  And you must obey all lawful directions of a Corrections officer.

68All right, do you understand those mandatory conditions?

69OFFENDER:  I understand.

70HER HONOUR:  All right.  In addition to those mandatory conditions you must - you will be and must engage and be under the supervision of Corrections.  You must undergo assessment and treatment for your mental health as directed.  You must undergo assessment and treatment for both drugs and alcohol as directed and you must engage in treatment and rehabilitation and any programs designed to reduce your risk of reoffending. 

71Mr Aciek, do you understand those conditions?

72OFFENDER:  Yes, Your Honour.

73HER HONOUR:  Very well.  They are the conditions that I am imposing and you can clearly see, as I have told you, that I consider in particular, you are still subject to supervision and this will be hanging over your head for 18 months, but clearly the focus here is on your rehabilitation and ongoing treatment, all right? 

74OFFENDER:  Okay.

75HER HONOUR:  But it is very important that you engage with this order and you comply.  You must make sure that you comply with the order.  I must tell you that if you do not comply with the requirements of the order or if you commit a further offence punishable by imprisonment during the period of the order, which is 18 months, then you are likely to be breached on the order by Corrections, the matter will be brought back before me.  You will then be dealt with for breaching the order and you will be exposed to the possibility that you will be resentenced for the original offences and may face a term of imprisonment.

76Mr Aciek, do you understand the consequences of breaching the order?

77OFFENDER:  Yes, Your Honour.

78HER HONOUR:  All right.  Now understanding, as you do, the conditions of the order, understanding the potential consequences of breaching the order, Mr Aciek, do you consent to the making of the order?

79OFFENDER:  Yes, I - I consent.

80HER HONOUR:  Thank you.  Is there anything else required of me?

81MS FOOT:  Don't think so, Your Honour.

82MS KAMBOUROPOULOS:  Nothing, Your Honour.