Director of Public Prosecutions v Hamit
[2020] VCC 1430
•10 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNESP CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01796
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYDIN HAMIT |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2020 | |
DATE OF SENTENCE: | 10 September 2020 | |
CASE MAY BE CITED AS: | DPP v Hamit | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1430 | |
REASONS FOR SENTENCE
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Catchwords: Sentencing – Criminal law – Arson and possession of drug of dependence – Contravention of a community correction order by reason of non-compliance and further offending – Immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr V. Murano | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Melasecca | Melasecca Kelly & Zayler |
HER HONOUR:
1 Aydin Hamit, you have pleaded guilty before me to one charge of arson, one charge of possession of a drug of dependence, namely diacetylmorphine and diazepam (which is a rolled-up charge) and a related summary charge, Charge 8, possess a Schedule 4 poison, namely cephalexin and naproxen.
2 You have also admitted your criminal record and there are six prior court appearances.
3
Your criminal history spans a period from 28 April 2014 to 8 May 2018. Your history commenced when you were in the Children’s Court and there were five appearances recorded. When you were aged 19 you appeared in the Melbourne County Court charged with theft, armed robbery, and reckless conduct endangering serious injury, for which you were convicted and on
8 May 2018, I sentenced you to a combination sentence, being an aggregate sentence of 112 days, (which was effectively time served), to be followed by a three-year Community Correction Order that had specific conditions. By reason of the offending the subject of the current indictment, you have contravened that order.
4 The subject of the contravention is set out in the report dated 22 June 2020 authored by Sally Lovenich, case manager at Moorabbin Community Correctional Services. Both the contravention of the Community Correction Order and the contents of the Contravention Report have been admitted by Mr Melasecca on your behalf.
5 Mr Hamit, your offending is serious and that is reflected in the maximum penalty prescribed by Parliament and that is 15 years' imprisonment for arson, one year imprisonment or 30 penalty units for possess drug of dependence and 10 penalty units for possession of a Schedule 4 poison. In respect to the contravention of the Community Correction Order the maximum sentence is three months' imprisonment. And other consequences also flow, and I will speak about that later.
6 You are now 22, and you have been on remand for these offences and there 558 days pre-sentence days to be recorded.
7 I will now proceed to sentence you on the basis of the prosecution opening. The written opening dated 9 January 2020 sets out in comprehensive details your offending.
8 You were 20 at the time of the offending.
9
I have viewed the CCTV footage that was provided that was taken on
3 February 2019 that shows in part your involvement in the commission of the arson offence. The offence took place on 3 February 2019 and concerns some commercial premises where the business of the Epping Smash Repairs is operated. The premises are located in an industrial estate in Epping.
10 The victim is Antonio D’Amico, who is the owner of the premises that was the subject of the arson.
11 The arson occurred in the early hours of 3 February 2019. You, together with two other unknown male offenders, attended the address. One other unknown male got out of the car with your whilst the driver remained in the car.
12 You and the other unknown male offender then jumped the fence at the front of the premises, walked up to the driveway, and gained entry into the building through a front door. You exited approximately three and a half minutes later. You are seen pouring a trail of flammable liquid from the front of the vehicle along the driveway, and some more flammable liquid was poured over the cars by the other unknown person. Those cars were parked in the driveway at the forecourt of building. The other unknown offender stood at the end of the trail of liquid and set it alight. You and the other unknown male offender are then seen quickly exiting the premises. You are seen jumping over the fence. Your feet had been engulfed in flames as a result of the fire. You then left the premises in the awaiting car. You sustained injuries as a result of the burns and I will speak about those later.
13 Laura Noonan, a Victorian police forensic officer, attended the premises, she made some observations. She observed that the fire was possibly ignited by a match or a cigarette lighter and the building suffered multiple areas of burning around the factory and adjoining car park, with the pattern of damage indicative of a flammable liquid having been trailed through some of the areas of the premises and that numerous vehicles located on the premises were damaged by fire. Fire damage inside the building included timber wall frames and ceiling beams. Other items, such as car seats, car doors and furniture were burnt and metal roof beams were warped. Mr D’Amico has been quoted $360,000, GST exclusive, to repair the damage caused by the fire.
14 Police arrested you on the morning of 2 March 2019, some four weeks after the fire. Following your arrest you were taken to the Royal Melbourne Hospital where you were treated for bilateral ankle burns. You underwent debridement of the ankle deep dermal burns, and a split thickness skin graft was applied to both ankles. Your graft was taken from your thigh region. You were kept in hospital until discharge on 14 March 2019, you were then remanded in custody.
15 Dr Alex Marceglia prepared a forensic medical report. He confirms you suffered mixed partial thickness burns to your left hand, both feet and ankles, and that you had sustained burns to 2 per cent of your total body surface. The signs of healing and the presence of infection when you were admitted to the Royal Melbourne Hospital indicated that the burns were not recent.
16 He confirmed treatment in the nature of the skin grafts, removal of infected and dead tissue, antibiotics, blood thinners and painkillers. The mixed nature of the burns – that is both superficial and deep partial thickness burns – was in his view consistent with burns resulting from a thermal injury; that is, an injury resulting from a flash fire or contact with flame.
17 You were formerly interviewed by police but gave a 'no comment' interview.
18 Later investigations confirmed that your DNA matched the DNA from the inner surface of a blue glove that was seized from the premises.
19 When police executed the search warrant at your home, they seized a plastic bag containing a light brown rock substance (which is the heroin or diacetylmorphine) and a plastic bag containing Valium and Antenex (which is diazepam) and the paper bag also contained Proxen (which is naproxen) and cephalexin and they constitute the charges in relation to the drug matters on the indictment.
20 The matter resolved at a further committal mention on 19 July 2019. The prosecution accept you are entitled to a discount for your early plea of guilty.
21 I note that none of the other unknown co‑offenders have been identified.
22 Mr D’Amico was requested to provide a victim impact statement but has declined to do so. Notwithstanding that, common sense dictates, that he would have been very inconvenienced and upset by your criminal actions.
23 Mr Hamit, arson is a very serious offence, and that is reflected in the 15 year maximum penalty. This is a serious example of arson involving the lighting of a fire at a commercial premises, following which significant damage was caused. There was a degree of planning involved. You acted in company with two other unknown male offenders. The arson was committed by you for financial gain: that is, to satisfy a large drug debt. And it is fortunate that no further damage flowed from the fire to neighbouring properties. That is always a potential whenever people engage in the deliberate lighting of fires.
24 In sentencing you, denunciation, general deterrence and specific deterrence and the protection of the community are all important sentencing considerations.
25 Your offending was committed at the time you were on the Community Correction Order and that is a factor that I must take into account. It reflects poor behaviour on your behalf and an ongoing disobedience of the law.
26 You are still relatively youthful and it is important that you be encouraged to pursue your rehabilitation prospects in the future, notwithstanding the serious nature of the arson charge.
27 I accept that you are a person who comes from a very difficult family history and background. You are the eldest of four children. Both your parents have struggled over the years with substance abuse and that impacted dramatically upon your childhood. You come from a family that has been the subject of significant trauma. Your maternal grandfather was accidentally shot and killed by his brother-in‑law, your mother was the subject of sexual abuse by her stepfather, a maternal uncle shot himself following many years of addiction and drug-related offending.
28 Both parents have spent time in gaol and I accept that your early childhood and now early adolescents was marred as a consequence of these disruptive features of your life.. Your parents separated when you were very young and their relationship continued off and on for many years. Your childhood was characterised by transience. You attended many different schools, and you were exposed to your parents’ chronic substance abuse from an early age. At times you were cared for by your maternal grandmother and stepfather. You suffered bullying at school, and isolation.
29 You also tragically witnessed your mother being the victim of domestic violence and you have experienced emotional abuse in the form of neglect, and chronic enmeshment in the past. Your father was involved in a serious transport accident when you were in early high school, following which he was in a coma. Your mother has had many traumatic incidents happen in her life which led to her mental health decline. As a young person you began associating with an entrenched criminal peer network, and to an extent your past criminal record and also your addiction to illicit drugs is indicative of your past history. Over the years you have experienced some mental health difficulties and you have never had any mental health treatment.
30 In formulating the appropriate sentence I have applied the principles of Bugmy, where the High Court of Australia recognised that the effects of profound depravation do not diminish over time with repeated offending and it is right to speak of giving full weight to an offenders deprived background in every sentencing decision.[1]
[1]Bugmy v The Queen [2013] HCA 37; [40] [42] [43] [44].
31 I have reduced your moral culpability and I have given full weight to your deprived background.
32 You have a documented history of chronic substance abuse, commencing when you were in your early teen years, aged 13, initially with cannabis, then cocaine. You graduated to using ice at around 18 years and as a consequence of your drug habit that led to escalating drug debts that were a significant motivator for your committing crimes during adolescence and early adulthood, including the current offending.
33 Prior to the commission of the offence you stated, when you were interviewed by Mr Luke Armstrong, consultant psychologist, that you had accumulated a drug debt of between $16,000–$18,000, and that threats were being made against your family, such that you participated in the offending so as to avoid those threats becoming an eventuality. Whilst providing a context to your offending it no way excuses your offending and your actions must be condemned.
34 I have had regard to the extra curial punishment that you have suffered by reason of the burn injuries. You did not immediately attend for treatment because you were concerned about being apprehended. You experienced nightmares almost daily leading up to the time of your arrest and remained hypervigilant and suffered disturbance of sleep.
35 Mr Armstrong, whose report was tendered on the plea, confirms that you fulfil the criteria for post-traumatic stress disorder. He considers that you are young, and in the absence of any intensive treatment that your trajectory of personality disturbances would place you at significant risk of a borderline personality disorder.
36 He assesses your intelligence at the average range of cognitive functioning and considers you fulfil the criterion for stimulant cannabis-use disorder in sustained remission.
37 I note that you have been drug free since you have been in custody.
38 He believes that it is highly probable that your previous history of offending is entwined with your drug-abuse problem and recommends drug treatment and abstinence and states the risk of offending would decrease if you adhered to abstinence and I endorse his comments.
39 He noted that you did in the past actively engage with treatment and recommends for the future that you receive extensive psychiatric and psychological interventions to address your underlying mental health issues, as well as your addiction to illicit drugs.
40 I recommend that the authorities have regard to his expressed opinion, so as to assist them to direct you to appropriate future programs that will enhance your rehabilitation prospects.
41 In sentencing you, I have had regard to all the matters put in mitigation on your behalf by Mr Melasecca. I have taken into account the plea of guilty entered at an early stage and that is one of real utility. The utility of your plea is even greater during these times of the pandemic. You have spared the state the cost and expense of a trial and you have facilitated justice, so your sentence will be discounted accordingly.
42 I accept that you now have insight, you acknowledge the seriousness of your wrongdoing, you have expressed appropriate remorse and accept full responsibility.
43 You remain a relatively young man and ultimately your rehabilitation is in the best interests of the community, as well as to you individually. You do require directed treatment and support upon your eventual release to make good your desire to remain drug-free and offence-free.
44 You have plans to marry your girlfriend Eve (in the future), with whom you have been in a relationship for three years. She remains supportive of you, notwithstanding your further serious offending.
45 You are also anxious to support a younger brother, Tre, who is now 12. You have expressed a desire to want to be a better role model for him in the future.
46 Those are strong protective factors which do enhance your prospects of rehabilitation.
47 Overall, I am, however, somewhat regarded about your rehabilitation prospects unless you can make good your expressed desire to remain drug free and offence free.
48 I have read your undated letter that you addressed to the court. The contents of the letter shows that you are capable of insight and that you understand the seriousness of your offending.
49
It is very unfortunate that you did not continue to pursue the rehabilitation program and build on the progress that you made following your release on very strict bail conditions by the Supreme Court of Victoria on
25 October 2016. By relapsing into heavy drug use, you repeated the pattern of criminal behaviour involving serious offending, mixing with serious criminal offenders, as a consequence of which you are now back in gaol facing another gaol term.
50 I have read and had regard to all the references provided Teneille Zampogna, your aunt; Nick Athas, your business associate; Eve Skaf, your girlfriend; Karen Bevilacqua, your grandmother. Those references all demonstrate that you are a person who is one that does have potential to lead a more law-abiding life. They are all there to support you upon your eventual release.
51 I have had regard to the fact that you have now spent a total of 558 days on remand and that you would have suffered as a consequence of the declaration of the COVID‑19 pandemic and the emergency procedures and restrictions that every prisoner has been placed under since that declaration.
52 It is accepted and recognised that the impact of those restrictions has increased anxiety for prisoners and their families and I have taken that into account. It has also impacted on the types of programs that can be offered and there are severe limitations now in place in every prison in this state and I have taken that into account.
53 A positive feature of your incarceration is that you have been abstinent and you are now in a position to properly address your underlying offending behaviours through your commitment to change and also your undertaking to undergo treatment.
54 I consider that you are remorseful and you have expressed appropriate remorse in the past. I am cautiously guarded about your future. Nonetheless, you do have positive role models in your life and people who are willing to support you. So that does provide some cause for optimism in the future.
55 Your counsel, Mr Melasecca, sought a term of imprisonment equivalent to time served, to be followed by a Community Correction Order, as an appropriate disposition. The prosecution submitted that a head sentence with a non-parole period was appropriate in all the circumstances.
56 In so far as the contravention of the Community Correction Order is concerned, Mr Melasecca submitted that you have substantially complied with the conditions of the order, and therefore the order should just be confirmed. I do agree that there has been substantial compliance. I have taken into account the fact that you did engage well initially and you appeared to be highly motivated and were demonstrating some insight into your offending and expressing great remorse, and that you made lots of positive connections through work and also through your involvement with the Glen Iris Soccer Club. Overall, your engagement with supervision was deemed to be positive. However, it was during the currency of the order that you committed this very serious offending.
57 I note that of the 250 hours community work that was ordered you completed 192 hours. So that is very satisfactory and I have taken that into account.
58 The recommendation was, despite you being a young offender, that the order be cancelled and you be re-sentenced to an alternative disposition, taking into account the extent of compliance. I propose to re-sentence you.
59
Overall, having regard to the serious gravity of the offending the subject of the current indictment, I do not consider the disposition that was suggested by
Mr Melasecca is open and such a disposition would not reflect just punishment. You committed a serious arson offence within 10 months of being sentenced by this court to the Community Correction Order for other very serious offending. Therefore, I propose to sentence you in respect to the indictment and summary charges and the I will sentence you in relation to the Community Correction Order.
60 The formal court orders are as follows:
61 In relation to Charge 1, the arson, you will be convicted and sentenced to three years’ imprisonment;
62 Charge 2, possess drug of dependence, convicted and sentenced to six months’ imprisonment;
63 Summary Charge 8, possession of a Schedule 4 poison, convicted and discharged.
64 Those sentences are to run concurrently. The total effective sentence is three years’ imprisonment.
65 In relation to the Community Correction Order that I imposed on 8 May 2018, I find the contravention proven and make no further order in relation to the contravention. I cancel the order and I re-sentence you as follows:
66 On Charge 1, theft of motor vehicle, convicted and sentenced to six months’ imprisonment;
67 Charge 2, armed robbery, convicted and sentenced to two years’ imprisonment.
68 And Charge 3, conduct endangering a person, convicted and sentenced to one year imprisonment.
69 I make the following orders:
70 The armed robbery sentence, which is Charge 2, is the base sentence. I order that three months of Charge 1 and six months of Charge 3 are cumulative upon the sentence imposed on Charge 2. Making a total effective sentence of two years and nine months, is that correct? Yes, two years and nine months.
71 I order one year of that sentence is to be cumulative upon the sentence imposed in respect to the indictment K10616333; therefore, the total effective sentence imposed this day is four years' imprisonment, and I fix a non-parole period of two years and six months.
72 I declare 558 days pre-sentence detention and I direct that that be entered into the records of the court.
73 In relation to the indictment No.K10616333 I make the following s.6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of five years, to serve a non-parole period of three years.
74 I make the disposal order sought.
75 I believe that covers everything I need to, Mr Murano.
76 MR MURANO: Yes, Your Honour.
77 HER HONOUR: Thank you. All right and, Mr Melasecca. The outcome, the total effective sentence today that I have ordered is four years' imprisonment, with a non-parole period of two years and six months. With the declaration of PSD of 558 days.
78 MS MELASECCA: May it please, Your Honour.
79 HER HONOUR: Thank you. I will just go back to Mr Hamit. Mr Hamit, can you speak to me so that you come up on screen. Just say something to me and you will come up on screen in court.
80 OFFENDER: Hello.
81 HER HONOUR: All right, so do you understand the sentence I have imposed today?
82 OFFENDER: Yes, Your Honour.
83 HER HONOUR: Thank you. All the best for the future, I hope on this occasion when you are released from prison that you do make the most of the supports and opportunities that are provided by all the friends and your business associates and stay away from the criminal associates who will just lead you down the same path again.
84 OFFENDER: Yes, Your Honour.
85 HER HONOUR: All right, all the best.
86 OFFENDER: Thank you, Your Honour.
87 HER HONOUR: Thank you. All right, we shall now complete the proceeding and disconnect from the WebEx. Thank you very much everybody.
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