Director of Public Prosecutions v Boru
[2023] VCC 231
•14 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01228
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSSAN BORU |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2022 | |
DATE OF SENTENCE: | 14 February 2023 | |
CASE MAY BE CITED AS: | DPP v Boru | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 231 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy [2013] HCA 37; Verdins (2009) 16 VR 269; Craig Anderson v The Queen [2019] VSCA 42
Sentence: 18 months imprisonment in combination with 18-month Community Corrections Order upon completion of the 18 months imprisonment sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Direction of Public Prosecutions | Mr P. Raimondo | Office of Public Prosecutions |
| For the Accused | Mr N. Howard | Victoria Legal Aid |
HIS HONOUR:
1 Hassan Boru, you have pleaded guilty to the following charges which carry the following maximum penalties:
| Charge No. | Offence | Maximum Penalty | Additional |
| 1 | Criminal Damage by Fire (Arson) s pursuant to s 197(1) & (6) Crimes Act | 15 years imprisonment | |
| Related SC 6 | Commit indictable offence whilst on Bail pursuant to s 30B Bail Act | 3 months imprisonment | |
| Related SC 7 | Wilful damage pursuant to s 9(c) Summary Offence Act | 6 months imprisonment |
2 You have a relevant criminal history which you have admitted and I will return to this later in these sentencing remarks.
Circumstances of the offending
3 The Crown tendered the summary prosecution opening as Exhibit A. The summary for your offending is as follows.
4 On 3 February 2022, at around 3.40 pm, you were bailed from the Brunswick police station in relation to an unrelated charge. You attended at a police watch house, where you became angry with the police and punched the Perspex divider causing damage.
5 You then left the police station and around 4.05 pm and attended the Woolworths supermarket in Albert Street, Brunswick, entering the BWS liquor store.
6 You were observed muttering and you poured liquid onto the wine racks and floor. The duty manager told customers to get out of the store. You produced a lighter and set the ground alright and lit the shelving. The fire spread throughout the store.
7 You left the store and the fire brigade and police attended. The fire was extinguished and the incident was recorded on CCTV, and you were identified as the offender from the photo taken of you at the Brunswick police station, which was compared to the CCTV still and the BWS store footage.
8 The damage to the BWS store was assessed at $433,525.29 including the value of stock destroyed being $200,727.55. Police identified you from the CCTV footage. You were arrested by police and you were assessed by the forensic medical officer as unfit to be interviewed. You have been in custody since your arrest and you have now served 376 days on remand by way of pre-sentence detention excluding today.
Objective Gravity and Moral Culpability
9 I turn now to consideration of the effective gravity of your offending and an assessment of your moral culpability.
10 The seriousness of the offence of criminal damage by fire, being arson is marked by the fact that parliament has prescribed maximum penalty of 15 years’ imprisonment. The Court of Appeal case of Anderson[1] has emphasised the serious nature of this crime and the diversity of circumstances in which it may be committed. Moreover deliberately lit fires are invariably inherently dangerous because of the ability to spread; depending on environment in which they are lit.
[1]Craig Anderson v The Queen [2019] VSCA 42.
11 Your offending was objectively serious as you set fire to commercial premises during daylight trading hours with other people, both shoppers and staff being present in the premises. The victim impact statement speaks of the fear caused to a shopper by the fire.
12 It was made more serious by the use of an accelerant. Although it was somewhat rudimentary, you planned and prepared for your offending, that is by syphoning petrol from a car into a container, in order to start the fire. As a consequence your action has caused extensive damage to the targeted property and its stock of over $430,000, and also spread to the adjoining supermarket.
13 In the circumstances I assess your offending as objectively very serious in terms of both the danger it posed and the damage caused.
14 Your moral culpability must be assessed with the fact that you acted alone and you planned your actions. Nevertheless, I take into account your mental illness at the time of your offending and the fact that you were unfit to be interviewed by police when you were arrested.
15 I will say more about your moral culpability after I consider your personal circumstances and your mental health history and status.
Personal Circumstances
16 You are 36 years old being born on 1 January 1987 in Ethiopia.
17 You have nine siblings and you had loving and supporting parents. When you were aged four your mother was imprisoned in Ethiopia. You witnessed tribal violence as a small child and experienced chronic hunger. You received very little formal education because of your tribal background and you left school in Year 5.
18 In 2005 at age 18, you and your family fled to Australia on protection visas. You were granted Australian citizenship. You obtained a citizen - Certificate I in English Language from RMIT. You have never worked and you receive a disability pension.
19 You have a 12 year old son with your ex-partner. You have not had contact with him for about three years. Since the age of 11 you have used cannabis daily, you have also had difficulties with alcohol but you have been abstinent for over a year prior to your remand.
20 You have a relevant criminal history. In 2021, you were sentenced to an adjourned undertaking with conviction for criminal damage and lawfully damaging property.
Mental health report
21 I received the report of Dr Clare McInerney, Consultant Forensic Psychiatrist dated 23 June 2022.
22 Dr McInerney reviewed the documentation concerning your arrest and also a large number of your mental health records. Dr McInerney reported that against the background of a highly disruptive childhood in Ethiopia, Kenya and Nairobi, you were diagnosed as suffering a serious mental illness at a young age.
23 Your mental illness has been exacerbated by your constant drug use also from a young age. Your history of mental illness is marked by aggression and delusions including a recent delusion of your perception of desiring to return to your perception of an idyllic life in Ethiopia.
24 Dr McInerney set out your history and assessed you as suffering from severe and enduring schizophrenia marked by persecutory beliefs, second person hallucinations (voices telling you to do things) and third person hallucinations (voices talking about you in a negative way) and formal thought disorder. Your illness has only been partially responsive to treatment. You have been hospitalised on about 20 occasions and on occasions you have threatened nursing and medical staff. Your functioning on community treatment orders has likewise had limited success.
25 Your level of functioning in the community has been severely limited. Your unstable family life, unstable accommodation and drug use, have contributed to your diminished functioning. At the time of your offending you were subject to a community treatment order and three months of Depot antipsychotic injections.
26 Community health records show that you were becoming increasingly agitated by this regime and wanted to do 'something' in order to be deported to Ethiopia, even though you are an Australian citizen. Custody health records after your arrest report that you remained angry, hostile delusional and suffering persecutory beliefs. In short, that you were psychotic until almost the end of March 2022.
27 At the time of your assessment by Dr McInerney in June 2022, you were no longer suffering psychosis.
28 Dr McInerney reports that you were using cannabis at the time of your offending, however she concludes:
I am satisfied that his presentation cannot be explained only by intoxication… I believe that his psychotic symptoms were at the time primarily the result of either a relapse of psychosis (either the combined effect of a reduction in treatment caused by the depot delay and his substance use) or simply an indication that he always has baseline psychotic symptoms, even when on treatment.
…
At the time in question, Mr Boru was, in my view, unable to reason with a moderate degree of sentence composure about whether his actions, as perceived by reasonable people, were wrong…
Should he choose not to rely on a mental impairment defence, I am also of the view that at the time of the alleged offending, his symptoms of mental illness would have substantially contributed to his actions by impairing his judgement and decision-making and reducing his inhibition and ability to consider the consequences or risks of his actions.
29 I note that you have not relied on a mental impairment defence as such. Interestingly, Dr McInerney notes that whilst on remand, you have been held in mainstream but that you have been assaulted. It is possible that your mental illness renders you more vulnerable to assault than others.
30 I note also from the ACSO report dated 14 February 2023, that you have been able to work and at least reasonably effectively with the forensic case worker, Paul Johns from Readystart and that Readystart are prepared if you remain suitable to offer you support for a period of time on your eventual release from custody.
Sentencing Submissions
31 Mr Howard who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:
(a) The plea of guilty at the earliest possible reasonable opportunity was made and it was made during COVID-19 conditions;
(b) Your time in custody has been one where you have had to endure the isolation and limitations faced on movement, work, vocational courses and visits because of the pandemic where you spent five weeks in isolation and that you were assaulted in mainstream; and
(c) Mr Howard generally submitted that the limbs of Verdins one to five were enlivened by your condition.
(d) And fourth, that I must take into account in mitigation your disadvantaged childhood, which has become and affects the enlarged Bugmy[2] submission.
[2]Bugmy [2013] HCA 37.
32 Mr Raimondo who appeared for the Crown submitted that a sentence of imprisonment in combination with a Community Corrections Order is appropriate in the circumstances, alternatively Mr Raimondo submitted that a head sentence and non-parole period is in range.
33 The Crown concedes the following matters are relevant as mitigating considerations:
(a) The Crown accepts your plea was entered in an early stage, and the principles enunciated in Worboyes[3] are applicable;
(b) That the COVID-19 pandemic has caused difficulties in custody and made your time in custody more onerous;
(c) Your early plea of guilty shows remorse and you have accepted responsibility for your offending;
(d) Your childhood and personal circumstances and schizophrenia enliven Verdins limb 5; and
(e) Your prospects of rehabilitation are guarded and directly tied to your ability to comply with your prescribed medication and continued professional intervention to gain greater insight into your mental health issues.
[3]Worboyes v The Queen [2021] VSCA 169.
34 Ultimately, the Crown did not concede that your moral culpability should be reduced. Essentially Mr Raimondo submitted that your mental illness cannot be disentangled from your drug use on the day of the offending. It was submitted that your high level drug use should disentitle you from relying on the first and second limbs of Verdins.
35 Although Mr Raimondo considered that a combination sentence was open in this case, he submitted that a longer period of imprisonment than time served to the date of the plea hearing (that is 17 November 2022), was required to satisfy the objective principles of sentencing.
36 Mr Raimondo submitted in argument that I should consider that if some limbs of Verdins has been satisfied as I say.
Analysis
37 It is useful to set out the five limbs that Verdins relied on in this case and they are:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[4]
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
[4]See, for example, Payne (supra) at [43].
38 I am satisfied that the first limb of Verdins has been made out in your case, and that your moral culpability for the offending should be somewhat reduced because of your mental illness. In this respect, I would rely on the Crown opening, the depositions which set out the circumstances of your offending, and the fact that you were unfit to be interviewed after your arrest, the community records relied upon setting out your condition, both before the offending and after your arrest, and for the time you were on remand, and for the uncontradicted expert opinion of Dr McInerney.
39 Further, given your longstanding mental illness, I am satisfied that your offending is not an appropriate vehicle for expressing general deterrence. Finally, in this respect I am satisfied that your illness has made you more vulnerable and your time in custody more difficult and burdensome than the general prison population.
40 I accept your counsel's submissions that your plea of guilty should mitigate your offending and that the offer of your plea of guilty and the time imprisoned is served during the currency of the COVID pandemic, should be recognised as enunciated in Worboyes.
41 I recognise also your deprived, disrupted and dysfunctional childhood living through tribal conflict, the imprisonment of your mother and the extreme disruption of multiple relocations which in effect have deprived you of an education.
42 I consider your prospects for rehabilitation remain at best guarded. The CCO assessment report assesses your risk of re-offending as high. Your reason for committing the offence of arson shows the very great difficulties you have in complying with your medication whilst in the community.
43 It will take a great deal of professional support and some real commitment from you to remain drug-free if you are to make progress and manage your mental health issues. Your deprived childhood and your mental health issues together with your plea and the Worboyes principle, must operate to mitigate your sentence.
44 I have decided that a combined sentence is appropriate in this case but even taking into account these factors, I consider that the objective gravity of your offending requires you to serve further time in prison. I have looked at some of the cases where charges of arson have been considered in the Court of Appeal, such as Anderson [2019] VSCA,[5] which I mentioned before and some sentences from this court where judges have taken into account the fact that the act of arson was committed whilst the accused was suffering from psychotic episodes.
[5]Craig Anderson v The Queen [2019] VSCA 42.
Orders
45 Accordingly, I make the following orders:
| Charge No. | Offence | Maximum Penalty | Sentence | Cumulation |
| 1 | Criminal Damage by Fire (Arson) s pursuant to s 197(1) Crimes Act | 15 years imprisonment | 18 months imprisonment & 18-month CCO | |
| Related Summary Charge 6 | Commit indictable offence whilst on Bail pursuant to s 30B Bail Act | 3 months imprisonment | 1 month | |
| Related Summary Charge 7 | Wilful damage pursuant to s 9(c) Summary Offence Act | 6 months imprisonment | 1 month |
46 Now, in order to impose the CCO, I must read to you the conditions with which you must comply and I must ask you if you are willing to do so? I note that you have already indicated to the assessment officer that you are willing to undertake a CCO, but Mr Boru, would you listen to the following conditions.
47 You must not commit another offence for which you could be imprisoned during the time the order is enforced, that is 18 months. You must comply with any obligation or requirement, proposed by the sentencing regulations. You must report to and receive visits from the Secretary. You must report to the Community Corrections Centre that is the Melbourne Community Correction Centre at Franklin Street Melbourne, within two clear days of your release from prison. You must let a Community Corrections officer know within two clear working days, if you are changing your address or job. You must not leave Victoria without getting permission from the Secretary to do so and you must obey all instructions from the Corrections staff. Do you understand those conditions Mr Boru?
48 OFFENDER: Um, yes.
49 HIS HONOUR: And are you willing to comply with them?
50 OFFENDER: Yes.
51 HIS HONOUR: In addition to those conditions, I intend to impose the following special conditions.
52 First, that you'll be under the supervision of the Community Corrections officer for a period of 18 months.
53 Second that you undergo treatment and assessment including testing for drug abuse or dependency directed by the Office of Corrections.
54 Third, that you undergo assessment and treatment for alcohol use or dependency. And next that you must undergo any mental health assessment and treatment that may include psychological and neuropsychological or psychiatrical treatment in a hospital as directed by the Office of Corrections, and that you participate in programs and courses that address factors relating to your offending.
55 Now, I might ask Mr Boru do you understand those special conditions,. Alcohol, drugs, mental health and offender specific programs, do you understand that?
56 OFFENDER: Yes.
57 HIS HONOUR: Thank you.
58 OFFENDER: Yes.
59 HIS HONOUR: Are you willing to comply with the CCO in those terms?
60 OFFENDER: Yes.
61 HIS HONOUR: Thank you. Well in the circumstances, Mr Howard the order will be on Charge 1, Mr Boru is convicted and sentenced to 18 months' imprisonment.
62 And Summary Charge 6, one month.
63 And on Summary Charge 7, one months' imprisonment.
64
Alternatives to be served concurrently. After the completion of the sentence,
Mr Boru is to undertake the Community Corrections Order for a period of
18 months; special conditions are that you undergo assessment and treatment for alcohol, drug and mental health issues and offender specific programs. So very much in terms of the assessment order provided and of course the mental health assessment report provides the structure for the mental health condition.
65 The period of 376 days not including today is reckoned as already served.
66
The 6AAA declaration, is but for the plea of guilty to these offences I would have imposed an overall sentence of three years with two years to serve.
Mr Raimondo, is there any other matters, for me or - - -
67
MR RAIMONDO: Just with the 6AAA declaration Your Honour, does
Your Honour just seek three years' imprisonment, no - or a non-parole period or not?
68 HIS HONOUR: Yes, I set a non-parole period. I think I said two years but I've actually got written down, two years and three months to serve, so it would've been three years, but for the plea of guilty I would have imposed a sentence of three years, with two years, three months to serve.
69 MR RAIMONDO: Thank you, Your Honour.
70 MR HOWARD: Thank you.
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