Director of Public Prosecutions v Hasan
[2021] VCC 231
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 20-01683
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAWAR HASAN |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2021 | |
DATE OF SENTENCE: | 31 March 2021 | |
CASE MAY BE CITED AS: | DPP v HASAN | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 231 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty – one charge burglary – one charge arson – no prior criminal history – remorse – previous good character – substantial and enduring prospects of rehabilitation – circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: Brown v R [2020] VSCA 60
Sentence: 18 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr J. Dalziel | Ellinghaus & Linder |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1 The relationship between the parties the subject of this case began in 2008. They moved in together, but by early 2020 the relationship had deteriorated. By April 2020 one of the couple had secured the lease on a rental property. She told her partner she intended to move there by the end of the month of May. She did not say where that property was. On 27 May 2020 her partner, having found out the address of the property, went there in the early hours of the morning. He used a screwdriver to open the window and climbed into the apartment. He had with him a container of lighter fluid. He lit a fire in the corridor, under a smoke detector. Although the apartment was empty, there were people in the neighbouring apartments. One of them heard a noise and awoke. The fire brigade attended and put out the fire.
2 Sawar Hasan, you have pleaded guilty to one charge of burglary and one charge of arson. The maximum penalty for the charge of burglary is 10 years imprisonment and the maximum penalty for the charge of arson is 15 years imprisonment.
Circumstances of the offending
3 The Summary of Prosecution Opening sets out the circumstances of your offending; it was tendered on the plea and became Exhibit A. It is attached to and forms part of these reasons. I will summarise just some of the facts giving rise to your offending here.
4 First, I note that your counsel objected to the matters in paragraphs [4] –[10] of the Prosecution Opening, submitting that those matters which unfolded between 2008 and 2019 were not properly to be considered as part of the context of the offending before the court, which occurred on a single date on 27 May 2020.
5 This question was ventilated at the commencement of the Plea Hearing. In the end, I find that the matters that the Crown sought to achieve with the inclusion of those paragraphs (and these were set out in paragraph [4] of the Crown's Submissions on Sentence) were established, by the matters in the subsequent paragraphs, from [11] – [27].
6 That is, that the offences committed on 27 May 2020 arose out of a relationship that you could not accept was over, and in which you sought to exercise some form of control over your former partner. With that in mind, I regard paragraphs 4 - 10 only as background to the relationship, but the subsequent paragraphs as being the context of this offending. I quote very selectively from them in this sentence.
7 In 2008 you met your former partner and the two of you formed a relationship. Your former partner had a four year old daughter at the time.
8 In October 2019 you started having issues at work. In December of that same year you took extended personal leave and started seeing a psychologist.
9 During that same period your relationship with your former partner deteriorated, and on 24 February 2020 she told you she would be moving out. Your former partner had concerns that the situation was unhealthy for her daughter, and you agreed. You both agreed that your relationship had finished.
10 In early April 2020 your former partner started looking for a rental property for herself and her daughter. You begged her not to leave, saying you needed more time to sort out your financial affairs. Again, she stated she must move for the welfare of herself and her daughter.
11 Later on in April your former partner moved to the spare room of your shared property, later moving her clothes. You begged her not to do this. You panicked and asked for forgiveness. You stated a psychologist had helped you understand your previous behaviour had been wrong.
12 In early May she informed you she planned to move out by the end of that month. You continued to pressure her to stay, saying you needed assistance paying the rent until the end of June. She compromised and agreed to pay rent until the end of June, but said she would still be moving out in May.
13 In early May you told your former partner that your parents were unwell and you were facing homelessness. She offered some suggestions; this made you angry and you lashed out verbally at her.
14 Later in May you listened in on a phone call your former partner had with a male friend. You argued and told her that you always knew where she was. You also threatened her, stating that if she did have coffee with her male friend she would regret it. At this time you also made various other threats towards her.
15 Following this your former partner sought advice at Greensborough Police Station. She was worried about your behaviour. They advised her she could seek a Family Violence Intervention Order. I note that there was no Intervention Order in place at the time of this offending.
16 Later that evening you confronted her and her daughter when they arrived home. You demanded 'respect' from them. They both felt intimidated. Her daughter was so afraid she called the Police.
17 Police attended and later applied for an Interim Family Violence Intervention Order, listing you as the Respondent and both the victim and her daughter as Protected Persons. The application was listed for hearing in July, sometime after the events giving rise to your offending.
18 On 20 May 2020 your former partner inspected some rental properties. Upon her return you demanded she inform you of the day she intended to leave. You also demanded she pay you a phone bill you allege she was responsible for. After this conversation she felt intimidated and threatened. She later told you this via text message.
19 Later that evening she lodged an application to rent a unit in Ferguson Street in Macleod. Five days later she was informed that her application was successful and she accepted the property. The move in date was 30 May 2020.
20 She did not tell you that she had inspected or accepted the lease. Mr Timothy O’Brien is the owner of this property.
21 On 27 May 2020, at approximately 1.30 am, you drove to Ferguson Street, Macleod, and parked your car a short distance from the unit. You had with you a screwdriver and a small cannister of Zippo lighter fluid.
22 The unit was vacant at the time.
23 You used the screwdriver to force open the front lounge room window, cut the flyscreen with the screwdriver, reached in and removed the flyscreen before climbing inside the house. This constitutes Charge 1: Burglary.
24 You then walked through the lounge room into the kitchen, turned right and walked up two stairs into the hallway. You opened the cannister of lighter fluid, splashed it on the carpet at the top of the stairs before using a cigarette lighter to set fire to the carpet. You then exited the premises. The carpet caught fire and the smote activated the smoke detector. This constitutes Charge 2: Arson.
25 The occupants of a neighbouring unit were alerted to the fire by a loud noise and they called the Metropolitan Fire Brigade to respond. The fire was deemed to be suspicious.
26 After the conclusion of the hearing and before sentence, I received a series of photographs of the damage to the carpet in the hallway of the rental property caused by the fire. The area finally affected is small, though this may be the result of good fortune rather than anything else.
Arrest and interview
27 You were arrested at your home on 29 May 2020 and taken to the Heidelberg Police Station. You were interviewed by Police.
28 In essence, you made denials. You told Police that your former partner had not told you her new address. You told Police that you had been elsewhere with a friend at the time of the commission of the offending.
29 Following the interview you were fingerprinted. Your fingerprints were found to match fingerprints found on the broken flyscreen at the unit.
30 You were interviewed again and this time told Police that you had visited a neighbouring property for rent in Ferguson Street and while there happened to walk up and saw the window open and peeked inside. Presumably you meant to explain the presence of your fingerprint in this way.
31 Finally, during a third record of interview, you admitted to having seen paperwork from the real estate agent on the printer at home. You told Police that you had wanted to delay your former partner moving out for a week or so and, in an effort to do this, you went to the apartment, cut the fly wire and entered, and that you lit the fire under a smoke detector, calculating that this would cause less damage. You told Police that your expectation was your former partner would not be told what had happened, but rather that she could simply not move in for a few weeks. You told Police how you discarded the items used to start the fire.
Prior Criminal History
32 You do not have a criminal history. You come before the court aged 41 years, as a person of previous good character.
Procedural History
33 You were arrested and remanded in custody on 29 May 2020. Bail was refused on 4 June 2020 and 3 July 2020. A third application was successful and you were granted bail on 14 August 2020.
34 You pleaded guilty at the second committal mention of this matter. Your case was heard by way of a Plea in the County Court on 26 March 2021.
Nature and gravity of the offending: culpability and degree of responsibility
35 In sentencing you I must consider the nature and gravity of your offending and your culpability and degree of responsibility.
36 There are two perspectives to be considered in this analysis. The first is your intended effect on your former partner. The next is the danger that you put other residents at the apartment in and the actual damage caused there.
37
On any version, you committed this offending in order to try to prevent, or at least delay your former partner's departure from the relationship and the home that you had shared together. Although the unit where you set the fire was empty, and the damage caused by the fire ultimately very small, there is an aspect of serious manipulation in this behaviour. Your intention was to keep
your former partner in her shared house with you for longer than she wanted to be there. Acts done by men who fail to accept their partner’s decision to leave the relationship have attracted increasing attention from the Courts in recent years. It is significant in this case that your acts were done in this context.
38 I accept that you started the fire under a smoke detector in the hope that the ultimate fire would be contained. The Prosecutor urged a conclusion that this was aggravating, as it disclosed very considered actions. I have agreed that your attendance and the lighting of the fire was considered, but I also find that you did want the fire to be detected quickly. However it is looked at, it was still an extremely dangerous thing to do. There were residents sleeping in the nearby apartments. The fire was started in the early hours of the morning.
Personal circumstances and psychological material
39 You are now 41, and you were 40 on the date of the commission of these offences.
40 You were born in Comilla, a small city in Bangladesh. You arrived in Australia when you were 20 years old. You had limited English and came to Australia to advance yourself through study and work. You are now an Australian citizen.
41 Your parents remain married. You are the eldest of three children. Your younger brother now lives in Finland and is undertaking a PhD in aerospace and electronics. Your sister has remained in Bangladesh and is a dentist.
42 In Australia you completed a number of tertiary courses including a Diploma and Bachelor of Business Administration, a Diploma in Marketing and a mortgage broker course.
43 Over 18 years you rose to being an assistant store manager in Woolworths. You had commenced work there on 'the shop floor'. During 2019 and 2020 you were on leave from Woolworths, in the context of an evolving dispute with your employer regarding your belief that you were being denied advancement in the organisation on the basis of racial discrimination. Your employment with Woolworths was terminated in February 2021. Whatever the truth of that dispute, it is clear that it was having a profound effect on you in the time leading up to your commission of these offences.
44
Prior to the offending you were referred for psychological treatment with
Mr Max Rutherford. You had been referred to him by your GP on
23 December 2019, in the context of your employment dispute. Three reports authored by Mr Rutherford were tendered on your plea and I take their contents into account.[1] Although you had no history of mental health problems you presented with severe depression and severe anxiety. You engaged in regular treatment sessions with Mr Rutherford and your progress in that therapeutic relationship is a credit to you.
[1] Exhibits 5,6,and 7.
45 Mr Jeffrey Cummins also prepared three reports that were tendered on your Plea and I take their contents into account. The Cummins reports indicate you were suffering a major depressive disorder with associated anxiety at the time of the offending. Mr Cummins is of the opinion that your mental state at the time of the offending was significantly and genuinely impaired. In addition to seeing Mr Rutherford you also consulted Mr Cummins on approximately 11 occasions after your release on bail. Mr Cummins talks of your above average intelligence and your enthusiastic participation in his sessions with you.
46 Mr Cummins’ conclusion was that you are not a pyromaniac and that you do not have complex underlying long-term psychological problems.
47 It was put on your Plea that general and specific deterrence should be moderated on the basis of the opinion of Mr Cummins that your mental state at the time of the offending was significantly and genuinely impaired, according to the principles in the case of Verdins. While I accept that you were suffering from a major depressive disorder and associated anxiety at the time of your offending, the degree of moderation must only be slight. The nature of the offending somewhat tells against a severely impaired thought process. You somehow found out the proposed new address. You thought through a plan to delay your partner’s leaving the house. You arranged equipment and visited the property in the early hours of the morning. This was contemplated and rather organised offending. I accept, though, that you were desperate, emotional and genuinely suffering in the context of ongoing difficulty in your work life. I find these things are mitigating without rising to the necessary level to significantly reduce your culpability on Verdins principles.
Impact on victims
48
I am obliged to consider the impact of your offending on your victims.
Mr Timothy O’Brien made a Victim Impact Statement, which was tendered on the plea and became Exhibit C. I take its contents into account. Although
your former partner did not provide a Victim Impact Statement, I think I can safely sentence you on the basis that it was inconvenient, frustrating and disturbing to her that her plans to establish a new home for herself were so carefully thwarted by you.
Matters in mitigation
Plea of guilty
49 You have pleaded guilty to the offending and this is a matter of great significance. I find that you are remorseful for what you did as a combination of your pleas of guilty and what are obviously sincere efforts to address the underlying causes of your offending through seeking the professional help that I have already referred to.
50 By your entering a plea of guilty the community, and particularly the witnesses in this case, were spared the costs - both human and financial - of a trial. Moreover, you pleaded guilty at a time when the trial backlog in this court is long. Your case will not join the long list of cases awaiting trial, so your plea has a special significance at this time.
Previous good character
51 You are a person of previous good character. You have not been before a court before. You have been both studious and gainfully employed for your whole life.
Prospects of rehabilitation
52 It is clear that your efforts at rehabilitation prior to this hearing are both substantial and enduring. You abided by strict bail conditions, participated successfully in the Court Integrated Services Program and sought, and kept seeking, psychological treatment.
53 A number of character references were tendered on the plea. Together they spoke of your hardworking nature, your loyalty and your remorse for what you did. You are clearly well regarded by your friends and your community.
54 I note that you are ambitious and have plans for business in the future. You obviously have capacity in this regard. You have plans for continuing a labour hire business (the documentation confirming this company's registration with ASIC was tendered on the plea), and for a mortgage broking business.
55 Further, I note that your religious practice at mosque is very sustaining for you.
56 Assessments by Mr Cummins, and by the ultimate Community Correction assessment report, both found that you are a low risk of re-offending and, all in all, I conclude that your prospects for rehabilitation are excellent.
Restitution
57 On 18 March 2021 you, through the Police informant, sent a cheque in the sum of $2,436.90 to Mr Timothy O’Brien, with it was a letter of apology. This was the value of expenses Mr O’Brien had incurred as a result of the fire. An application for compensation in this case was therefore abandoned. Your willingness to compensate Mr O’Brien further indicates your acceptance of responsibility and I take that into account.
Relevant sentencing principles
58 Given that your offending occurred in the context broadly described as 'family violence', I accept that the role for general deterrence in this case is significant. I have not been overwhelmed by the phrase 'family violence' in your case. I am conscious that no particular physical violence was imposed on anyone in your family. I have already described these events as manipulative and to be understood in the context of your failure to accept the end of a relationship. General deterrence has a significant role to play in this context. Attempts to control a partner after they have expressed a desire to leave a relationship will not be tolerated and the sentence I impose on you must discourage others from doing so and denounce this conduct. Given how you have responded to both imprisonment, and how you have sought significant psychological help, I find that the role for specific deterrence is much reduced in your case. This sentence must denounce your offending and through me the community makes it clear that it is never acceptable to impose this kind of conduct on a person who has declared they wish to end the relationship. You must be punished for what you did. I have considered the disposition most appropriate for the protection of the community in all the circumstances.
59 I am obliged to have regard to current sentencing practices for similar offending and I have done so. I am aware of the authorities that suggest that the starting point for cases of arson is imprisonment. No case is particularly like yours, but I sentence you in the landscape of similar offending.
60 Ultimately the Prosecutor, in her written submissions, noted that a therapeutic community corrections order, or indeed a 'combination sentence', was open on the sentencing discretion.
Impact of COVID-19 Pandemic
61 You have no prior convictions and spent time in custody - 78 days to be precise - during the height of the COVID-19 pandemic and its consequent restrictions. It was your first time in custody. The significance of this has been acknowledged in the case of Brown v R [2020] VSCA 60. Your time in custody was no doubt very onerous for you; not only as the result of your complete unfamiliarity with the criminal justice system but then overlaid with the anxiety and additional stress caused by the pandemic.
62 Notwithstanding all this, you did participate in a 'Coping in Jail' certificate, which was documented on the plea.
63 I note that you were refused bail twice in the Magistrates' Court before being successfully bailed on the third occasion. I have taken into account, in an informal way, the time you spent in custody and the circumstances of that.
Conviction/non-conviction
64 I have considered the matters in s.8(1) of the Sentencing Act 1991. It was submitted that I ought to impose a non-conviction penalty in your case. I have given thought to the matters in s.8(1)(a) to (c). Emphasis was placed on the impact of the recording of a conviction on your future economic or employment prospects, though the precise mechanism for this was unable to be identified. In the end I find that the nature of the offending, notwithstanding your lack of prior convictions, weighs in favour of my recording a conviction in your case.
Disposition
65 On Charge 1: burglary, and Charge 2: arson, you are convicted and sentenced to a Community Corrections Order of 18 months duration.
66 I note, but do not declare as part of this sentence, 78 days of pre-sentence detention in your case.
S6AAA Sentencing Act
67 Pursuant to s.6AAA of the Sentencing Act I indicate that had you not pleaded guilty, but had been found guilty, I would have sentenced you to 12 months imprisonment with a non-parole period of six months.
68 You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 18 month period. Let me be clear about this; if you do, you will be brought back to court before me and re-sentenced for these offences. Absent very powerful reasons, you might expect that that could involve your imprisonment.
69 You must report to the Reservoir Community Corrections Service within two days of today by telephone.
70 You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
71 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections officer. You are not to leave the State of Victoria without their permission and that is for the entire 18 months.
Special Conditions
72 The special conditions that I will attach to the order are as follows.
· You will be required to complete programs to address your offending;
· You must report for supervision with your case manager, as directed; and
· You are required to submit to mental health assessment and treatment.
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