Director of Public Prosecutions v Kassem

[2023] VCC 2311

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-23-00179
Indictment No. N12093240

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSSEIN KASSEM

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	28 November 2023
DATE OF SENTENCE:	7 December 2023
CASE MAY BE CITED AS:	DPP v Kassem
MEDIUM NEUTRAL CITATION:	[2023] VCC 2311

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Arson; enter a private place without authority

Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269

Sentence:  177 days imprisonment

3 year CCO with conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Solicitor for the Office of Public Prosecutions
For the Offender	Mr G. Defteros	Defteros Lawyers

HER HONOUR:

1Hussein Kassem, you have pleaded guilty to offences that were committed at the Crown Entertainment Complex in Southbank.  You were 39 years of age at the time.

CHARGE	MAXIMUM PENALTY
Charge 1 – Arson	15 years’ imprisonment
Summary Offence – Enter a private place without authority	6 months’ imprisonment.

2Your plea of guilty to arson is a rolled-up charge.  A rolled-up charge is a collection of identifiable charges, bundled together in a single charge.  In this case, it relates to two offences of arson that were committed on the same night; the first in a bathroom located at Crown Towers; the second, at the alfresco area of Bistro Guillaume.

3The summary of prosecution opening has been tendered.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows.

4On 21 September 2022, you were banned from entering the Crown Entertainment Complex ('Crown'). On 27 September 2022, at approximately 11.58 pm you attended Crown, despite being banned.  Your movements on the night were recorded on CCTV footage.

5At 12.02 am on 28 September 2022, you entered a male bathroom located to the side of the lobby, at Crown Towers.  A Crown employee also entered the bathroom and observed you near the back of the cubicle, acting 'a bit frantic'.  You told the employee multiple times to 'stop peeing and leave'.  You loitered around him while he was in the bathroom.  He heard a loud bang come from the cubicle you had just left and saw smoke and burning toilet paper all over the floor.  You both then left the bathroom.  The employee observed you telling members of the public in the lobby to 'evacuate'.  You shouted that there was going to be a bigger explosion.  The employee alerted a member of the security team about your behaviour.  CCTV footage shows you loitering around the area.

6The fire in the bathroom was quickly extinguished by a sprinkler system, which caused major flooding to the bathroom, with water dropping down to lower level light fittings and to the roof area.  Fire Rescue Victoria and the police were notified and attended a short time later.  After the bathroom had been made safe, a crime scene was established.

7You left at 12.09 am and returned to your nearby accommodation at around 12.23 am.  Approximately seven minutes later you left your apartment, carrying a Jack Daniel's whiskey bottle.  You walked back towards Crown.

8At approximately 12.51 am you approached Bistro Guillaume, a Crown restaurant located along Riverside.  It was closed.  You threw the Jack Daniel's bottle at the window of the restaurant.  The bottle did not break the glass, but slightly shattered it.  The bottle landed on the outside patio of the restaurant.

9You removed your T-shirt and spent around seven minutes using matches to light your T-shirt, before throwing it into the area where the bottle had landed.  This attempt to set fire to the premises failed.

10You then used matches to set fire to vine leaves which climbed along the wall, into the patio area of the restaurant.  The leaves became alight, the patio started to burn and then the restaurant ignited.  At 1.03 am, you walked away.

11Security was alerted about the fire and subsequently notified Fire Rescue Victoria and the police, who were still at Crown.  Fire Rescue Victoria attended shortly afterwards and the fire was extinguished.  A crime scene was established.  

12Within a short time, you were located by police at the intersection of Flinders Street

and William Street.  They confirmed your identity and placed you under arrest.  You were transported to St Kilda police station where you participated in a record of interview.  You cooperated with police and admitted that:

·     You lit a fire in the toilet and got everyone out of the toilet.

·     You went home after the first fire and got a bottle of Jack Daniel's.

·     You threw a bottle at a window and hoped to set fire to the area.

·     You lit the leaves and they ignited.

·     If you had it your way, you would get everyone out and burn the building down.

·     It was never your intention to hurt anyone.

13On 29 September 2022, an officer from the Fire and Explosion Unit attended the scene.  At Bistro Guillaume, he observed moderate to severe burning across the south-western end of the alfresco area, as well as to the chairs and sides of the tables closest to the panelling.  He further observed a circular neck fragment of a clear glass Jack Daniel's bottle which had some partly burnt, black cloth material attached, which he believed was probably part of a 'Molotov cocktail'.  In his opinion, a single fire started along or beside the wall at the western corner of the outdoor area, which was caused by the ignition of available combustible materials, such as the hanging artificial garden or plant-type decoration.  The contribution of liquid from the 'Molotov cocktail' in spreading or fuelling the fire was likely to be minor.

14The total cost of the damage caused by the two incidents of arson was $241,611.18.

15You were subsequently charged with several offences and remanded into custody. You were held in the Thomas Embling Hospital, as well as in the psychiatric unit at Ravenhall.  You received treatment and were prescribed medication, which had a positive effect on your mental health.  You made a successful bail application after 177 days in custody.  Your conditions of bail have required you to follow a strict regime, including taking a number of antipsychotic drugs to treat your schizophrenia.  Since your release on bail on 24 March 2023, you have been diligent about maintaining your treatment and your medication.  You have not reoffended.

16I turn now to your personal circumstances.

17You were born in September 1983 and are now 40 years of age.  You are not currently in a relationship and have no children.  You are second in a sibship of five.  You parents remain married.  You have a positive relationship with all of your family members, some of whom have been present when your case has been in court, including at your plea hearing.  You are most fortunate to maintain their love and support.

18You are someone of previous good character.  You have no criminal history and no outstanding matters.  You are entitled to call upon that good character on your plea.  You do not smoke and have never used illicit drugs.  You have never abused alcohol and have not consumed any alcohol for around three years.  You have never engaged in pathological gambling.

19You completed Year 12 at school and then studied at RMIT, successfully completing a diploma course in printing and graphic design.  You enjoyed a consistent work history when, unfortunately, you were involved in an extremely serious motor vehicle accident in 2006, when you were 25 years of age.  You fell asleep at the wheel as you drove home from work in the early hours of the morning.  You struck a pole and sustained head injuries, loss of consciousness and a fractured sternum.  This accident has changed the course of your life.

20You are now in receipt of a disability support pension and are not currently

employed.  You produce your own music and hope to be able to market your music in the future.

21In a report prepared by consultant psychologist, Mr Tim Watson-Munro, dated 22 March 2023, he describes that you presented with a complex clinical and developmental history which is characterised by a formal diagnosis of schizophrenia, subsequent to an acquired brain injury, resulting from the accident in 2006.  The diagnosis was confirmed by Dr Nicholas Mims, psychiatrist at the Alfred hospital.  Dr Mims noted that since you have been released on bail, you have been managed in primary care, with psychiatric support.  You have a case manager and psychiatrist at the St Kilda Road Clinic where you attend as a voluntary patient.  You currently receive a depot antipsychotic injection every two weeks, as well as antipsychotic drugs on a daily basis.

22This material was provided to Associate Professor Andrew Carroll, a consultant forensic psychiatrist, who undertook a detailed medical assessment of you on 30 May 2023.  He also had access to previous medical material relating to your clinical history.

23He has provided a report to the court dated 4 June 2023, which includes a summary of your personal and psychiatric history.  In the course of your assessment, it was immediately evident that you had a stilted social manner with poorly modulated eye contact.  You were cooperative but your rapport was somewhat shallow.  You were guarded at times, suggestive of a reluctance to disclose some of your abnormal experiences.  At times there was mild formal thought disorder, as you would lose the focus of the topic that was under discussion.  Your speech was quiet, clearly articulated but reduced in emotional modulation.  Objectively, you were limited in reactivity of mood, appearing to be persistently slightly tense.  You conveyed the sense of still being troubled by some residual mild psychotic symptoms.

24Associate Professor Carroll agreed that you suffer from chronic schizophrenia,

which is currently in incomplete remission.  You were first diagnosed in November 2006.  Your condition has been characterised by a number of several severe relapses and you have had extensive psychiatric treatment over the years.  The treatment has been significantly effective, but still has some residual symptoms and a significant degree of enduring psychosocial disability.  You have undergone periods as an involuntary patient under the Mental Health Act and had multiple psychiatric admissions to public health facilities, the most recent admission prior to 2022 being in 2015.

25You disclosed that in September 2022 you lived on your own in Southbank and were unemployed.  You had been taking depot medication, the dosage of which was varied as it caused you to 'feel sick'.  You then went without medication for a number of months, in the lead up to your offending conduct.

26Associate Professor Carroll made the following observations and provided his opinion:

·        At the time of the alleged offending, you suffered a severe relapse of your schizophrenia, characterised by delusions, hallucinations and disorganisation of thought, speech and behaviour.

·        There is a direct relationship between your condition and the offending.  Your condition is a sufficient and necessary causal explanation for the offending, which did not occur because of any rational instrumental motive.

·        At the time of the offending, your severe psychosis would have very severely impaired your judgment, your capacity for rational thought and your ability to know that the behaviour would be considered wrongful by others.

·        Your mental state has now much improved.

·        You will require lifelong medication and, even on medication, you will

continue to have a significant level of psychosocial disability over the long term.

·        You continue to be prone to episodic relapse, particularly if you cease taking your medication.

·        Your impaired social functioning would make it especially stressful for you to navigate the complex social milieu of prison.

·        Your mental state is fragile and you would be extremely ill-equipped to cope with imprisonment, particularly in the mainstream setting.

·        Even if you remain on medication, it is more likely than not that your mental state would deteriorate, perhaps to the point of florid psychosis again if you are imprisoned.

·        Optimising your treatment of schizophrenia will also optimise your risk management in terms of reoffending.

·        You are currently under the care of the St Kilda Road Clinic.  It would be helpful if you could remain under case management by area mental health services over the longer term, given the fragility of your illness and your level of disability.

·        You are likely to qualify for some degree of support under the NDIS funding arrangements.

27Your counsel relies on Associate Professor Carroll’s psychiatric evidence, which I have set out in these reasons.  It is submitted that all limbs of Verdins[1] are enlivened.  Accordingly, the reduction in your moral culpability is significant, as your mental impairment impacted your capacity to exercise appropriate judgment.  Further, you are not an appropriate vehicle for either general or specific deterrence.

[1]R v Verdins & Ors (2007) 16 VR 269

28I have found Associate Professor Carroll’s report and opinion to be of great assistance in this sentencing exercise.  I accept that the principles of Verdins have a significant effect in light of the causal nexus between your psychosis-related schizophrenia and your offending.  Your mental illness will have an effect on the disposition that is ultimately imposed in court.

29The prosecution does not take issue with this submission in light of the psychiatric evidence relating to Verdins Limbs 1 to 4.  The prosecution concedes that Limbs 1 to 4 of Verdins apply in the current matter.

30With respect to Limbs 5 and 6, the prosecution says while these limbs are applicable, the weight of their relevance is unclear, as you denied having any difficulty with other prisoners in the past.  I note that you did not spend any time in mainstream prison while you were on remand.  There is no guarantee that this would continue if you return to custody.  I accept that a normal custodial environment would elevate your chances of deterioration of your symptoms.  In those circumstances, I accept that a custodial sentence will weigh more heavily on you than for someone without your mental conditions and that there is a risk that there may be an adverse effect on your mental health while in custody.  I accept that the fifth and sixth limbs of Verdins are enlivened and I take these factors into account.

31At the time of your offending, the full extent of your psychiatric condition was unclear.  Consideration was given as to whether your case would be suitable for a Crimes (Mental Impairment and Fitness to be Tried) Act hearing.  You did not conduct a contested committal hearing and on 10 February 2023, pleaded not guilty to the charges, by reason of mental impairment.  Ultimately, this defence was not proceeded with.  On 13 April 2023, your counsel offered to plead guilty to the current offences, which was accepted by the prosecution two weeks later.  Your plea of guilty was entered on 8 May 2023.  There is no suggestion that there was a deliberate delay in the resolution of this case and there is no dispute that your plea was entered at an early opportunity.

32You are entitled to receive a substantial benefit for your guilty plea.  It has a highly significant utilitarian benefit.  You have saved the court the time and expense of running a trial and spared community members from giving evidence at any stage.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.  The utilitarian benefit of your plea is to be enhanced by the fact that Worboyes[2] considerations were engaged at the time.  This results in a more pronounced amelioration of sentence than at another time.

[2]        Worboyes v R [2021] VSCA 169

33There is no dispute that the offence of arson is a serious crime.  The prosecution acknowledges that this offence can occur in a variety of circumstances and for a variety of reasons.  In the current matter, the Crown accepts the opinion of Associate Professor Carroll that your offending was unlikely to be an act of revenge against Crown Casino for your earlier expulsion but rather 'a bizarre act of desperation' while in a 'severely psychotic state'.[3]   'Nonetheless, [you] expressed significant regret and guilt in respect of the relevant conduct'.[4] You also expressed regret for your misconduct to Mr Watson-Munro.

[3]        Paragraph [99]

[4]Paragraph [111]

34Three character references from family members were tendered on your behalf.  They describe you as a kind-hearted, supportive and much-loved family member, whose life changed significantly after your car accident.  Your brother writes that he was eventually able to provide you with subsequent employment, although you were made redundant due to the COVID-19 pandemic.  This had a negative effect on you and may have contributed to the relapse in your mental health issues.  They were surprised that you committed these offences, yet they believe that you will 'pull through' and work towards becoming the best version of yourself. 

35Your plea of guilty shows that you have accepted responsibility for your criminal conduct.  It is consistent with your answers given in your record of interview, although your capacity to fully recall the reasons for your offending may be limited. I accept that you have remorse for your misconduct which is consistent with your guilty plea.  You have demonstrated an understanding of the potential risks associated with your criminal conduct and over the past eight months, have complied with treatment to manage your mental health issues.  I take these factors into account in your favour.

36I am aware that bail was granted on strict conditions, including a curfew, a residential condition, and reporting to police three days per week.  You have not been permitted to use any unprescribed medication or alcohol and required to comply with all treatment.  These conditions may have assisted you in your rehabilitation, yet they also amount to a substantial imposition on your liberty and are a form of punishment already occasioned.  The conditions of undertaking your bail are punitive and I take them into account.

37There is no dispute that at the time of your offending you were unwell and your motivation for this incident is found in your psychosis.  I will sentence you on the basis that your mental illness is substantially causally connected to your offending.  I accept that the relevant Verdins principles have application and significantly moderate the relevant sentencing considerations.  Your moral culpability is diminished.  The need for general and specific deterrence is also diminished.  You are not a suitable subject for the punitive impacts of general or specific deterrence or denunciation.

38However, protection of the community and rehabilitation remain important considerations.  Ultimately, I am obliged to impose a sentence that is proportionate to the gravity of your offending.

39Following submissions by both parties that a community correction order (CCO) in combination with a term of imprisonment would be within range, I requested that you be assessed for such an order.  You were found to be a medium risk of reoffending.  You expressed motivation to engage in a CCO, to continue to access treatment and to move on with your life.  You were found suitable for a therapeutic order.

40A mental health advice and response service assessment found that you would benefit from ongoing psychiatric treatment.  Your mental health would not impede your capacity to comply with an order.

41I accept that at the time of offending, you were a florid schizophrenic.  Mental health treatment is critical to improve protection of the community and to assist your rehabilitation.  I take into account the maximum penalty for these offences and current sentencing practices.  Balancing all of the above factors as best I can, I have concluded that just punishment does not require you to serve any further time in custody.

42I will sentence you as follows:

43In relation to Charge 1, you are convicted and sentenced to 177 days' imprisonment.

44In relation to Charge 1 and the Summary offence, you are convicted and sentenced on a three-year therapeutic community correction order.

45In relation to that order, you are required to attend at the Melbourne Justice Service Centre within two working days. So that means, by Monday afternoon at 4 o'clock, you need to attend either in person or on the phone to sign up for the order.

46I then order that you be

·     under the supervision of the Office of Corrections;

·     undergo any treatment and rehabilitation as required for your mental health; and

·     participate in any programs to reduce reoffending as directed by the Corrections office. 

47Mr Defteros, I will just ask if your client can come and take a seat behind you.

48MR DEFTEROS:  Yes, of course, Your Honour.

49HER HONOUR:  Then could you just take him through the mandatory circumstances and then the specific circumstances, and then if he agrees he can sign the order.

50MR DEFTEROS:  Yes, I will, Your Honour.  Thank you.

51HER HONOUR:  Just while that is being checked, Mr Tamburro, are there any other orders being sought?

52MR TAMBURRO:  There are no ancillary orders sought, Your Honour, but I believe the 6AAA declaration has not been read out.

53HER HONOUR:  Yes, you are right.  Thank you.

54MR TAMBURRO:  If the court pleases.

55MR DEFTEROS:  Yes, thank you, Your Honour.  He has signed that and agrees with the terms and conditions.

56HER HONOUR:  All right, thank you.  I confirm that the CCO was with conviction, and that Mr Kassem has agreed to comply with the 3 year therapeutic CCO.  I will enter in the records of the court that you have served 177 days by way of pre-sentence detention.

57The declaration I make under s6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of imprisonment of nine months and a community correction order, in combination.

58MR DEFTEROS:  If Your Honour pleases.

59HER HONOUR:  Thank you.  I will just sign the order and then I will leave the bench, unless there is anything further to raise.

60MR DEFTEROS:  Nothing further.

61MR TAMBURRO:  No, Your Honour.

62HER HONOUR:  Can I thank you both very much for your assistance in putting the plea together and I hope it all goes well for you, Mr Kassem.  Thank you, I will leave the bench.

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