Director of Public Prosecutions v Kisi

[2022] VCC 1770

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01311

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSSEIN KISI

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JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2022
DATE OF SENTENCE:	11 November 2022
CASE MAY BE CITED AS:	DPP v KISI
MEDIUM NEUTRAL CITATION:	[2022] VCC 1770

REASONS FOR SENTENCE
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Subject:Causing injury intentionally – arson – possession of a drug of dependence

Catchwords:              Guilty plea - setting a motorist and his car alight with petrol – relevant prior convictions – remorse – reasonable prospects of conviction

Legislation Cited:      Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic).

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Astbury v The Queen [No 2] [2020] VSCA 158; The Queen v Gorgulu [2022] VSC 391; The Queen v Phillips & Liszczak [2017] VSCA 313; Director of Public Prosecutions v Semmens [2019] VCC 446; Director of Public Prosecutions v Ralph [2004] VSCA 158;

Sentence:                  Total effective sentence of 3 years and 6 months’ imprisonment, non-parole period of 2 years and 3 months’. Fine of $500 and disposal order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Norris	Office of Public Prosecutions
For the Accused	Mr J. McQuillan	Kaczmarek Grigor Lawyers

HIS HONOUR:

1Kisi Hussein, you have pleaded guilty to:

(a)   One charge of causing injury intentionally (Charge 1);

(b)   One charge of arson (Charge 2); and

(c)   Two charges of possession of a drug of dependence (Charges 3 and 4).

2Charges 1 and 2 carry a maximum penalty of 10 years’ imprisonment. Charge 3 carries a maximum penalty of 1 year’s imprisonment and Charge 4 carries a maximum penalty of 5 penalty units.

3You have also pleaded guilty to related summary charges of driving whilst suspended and possess an imitation firearm (gel blaster) (Summary Charges 11 and 15).

4Each of the summary charges carries a maximum penalty of 2 years’ imprisonment or 240 penalty units.

Circumstances of offending

5The circumstances of your offending are set out in the Summary of Prosecution Opening.[1] These are agreed facts.

[1] Exhibit A: Summary of Prosecution Opening dated 26 September 2022.

6Around 8 pm, on 9 December 2021, you were riding your dirt bike in the Narina Way park (‘the park’), at Epping, with friends. You were carrying a glass beer bottle filled with petrol in case someone ran out of petrol. You were also carrying a rag which you had used to wipe the beer bottle dry after you poured the fuel.

7Your victim, Zacharia Radi (‘Zach Radi’), was driving his is motorcar into Narina Way, near the park, when he saw a black BMW XS travel past him in the opposite direction. He drove over a speed bump at an angle to prevent the bottom of his car from scraping against the road.

8As he was going over a second speed bump, you rode out of the park, up over the hill and into Narina Way in front of him. You rode towards him, standing on your bike pegs. You swerved towards his car and then moved onto the correct side of the road. He beeped his horn at you.

9After he beeped his horn, you turned around and started following him for about 10 to 15 seconds. He stopped outside his brother’s house in Aranda Place.

10When he parked his car, you stopped your dirt bike next to his driver’s side window in the middle of the road. When he opened his driver’s side window, thinking you wanted to speak to him, you poured fuel from the beer bottle through the window onto him and then onto the roof of his car.

11As he wound the window up he saw the black BMW XS turn into Aranda Place. It stopped directly in front of his motorcar, in the middle of the road. After you emptied the bottle, you threw it at his car but you missed. You then said ‘I’m gonna torch this car’. It appeared you were speaking to the male driver of the black BMW XS, who you seemed to know. You then set fire to the rag with a small jet lighter and threw it onto Zach Radi’s car.

12The rag landed half on the roof, and half hanging over the driver’s side window.

13When Zach Radi opened his door the burning rag fell from the roof onto his jumper, setting it alight. As he ran towards his brother’s house, he struggled for 10 to 15 seconds to get the burning jumper off and thought he would burn to death. When he eventually got the jumper he off threw it onto the road and put out the flames to his legs with his hands. (Charge 1 – Intentionally cause injury; Charge 2 – Arson).

14His brother, Yousef, had seen you. He ran at you when you threw the rag onto Zach Radi’s car. He started punching you, hitting you in the jaw. He tackled you by the waist and threw you onto the ground. You kicked him to his face with your left foot.

15The unidentified man in the black BMW XS started attacking Yousef Radi. Yousef shouted, ‘What are you doing. He's only a kid! We don't know you guys, what the hell are you doing?’ The man grabbed you and said, ‘Come on, let’s go’ and you rode away.

16The motor car caught fire. Yousef, other family members and neighbours tried to put the fire out. The car was damaged beyond repair.

17Zach Radi was taken by ambulance to the Alfred Hospital for treatment of his burns.

18He suffered first and second degree burns to approximately three to 7 per cent of his body, including his hands, thighs, neck, face and ear. His beard, eyebrows, eyelashes, and chest, leg and arm hair were singed.

19He spent 9 days recovering in hospital where his wounds were dressed and he was given pain relief, antibiotics and a tetanus booster.

20He has required specialist outpatient follow-ups.

21Photographs[2] and video film[3] show his burns were severe and will extensive.

[2] Exhibit B.

[3] Exhibit C.

Victim impact statement

22Zach Radi’s victim impact statement[4] was read to the court.

[4] Exhibit G.

23His burns were extremely painful. For a time showers were unbearable. He was unable to work for 6 weeks. And he couldn’t go to gym. He has been left with scars on his thighs and white patches on his hands.

24He is suspicious and hypervigilant when he leaves the safety of his home. He feels anxious and uncomfortable when driving alone. He works with his brother. When he drives to his brother’s home, which was the scene of your crimes, his anxiety and discomfort are made worse, because of flashbacks.

Arrest and interview

25Coincidentally, police were in the area when you offended. They saw your motorbike travelling towards them toward them before it turned sharply to the left towards the Tarragon Creek Trail.

26Your driver license had been suspended due to accumulated demerit points (Summary Charge 10 – Drive while suspended)

27A few minutes later they saw emergency vehicles driving by. They attended the fire scene and, with information from a witness, identified you as the offender.

28Next morning, they went to your home in Narina Way where they found you hiding behind a door.

29They arrested you and, from your house, they seized:

(a)   a snaplock bag containing crystal methamphetamine (Charge 3 – Possess drug dependence)

(b)   a foil wrapper containing cannabis (Charge 4 – Possess drug dependence)

(c)   a “gel blaster” imitation AK-47 firearm (Summary Charge 15 – Possess imitation firearm

30At interview, you made full admissions of your offending.

31You said it was a case of mistaken identity.

32You said you believed someone was threatening and following your family and you. You said you were looking for another car which you believed was following you and, when Zach Radi beeped his horn, you thought he may have been involved.

33You said you poured fuel on him to scare him. You admitted you then set him and his car alight. You described it as a “stupid fucking thing”. You said he had told you he was simply going home and, when you saw his brother come out of the house, you realised your mistake.

34You said you told him you were sorry and would pay for the damage you caused but when others came out onto the street you left.

35You were charged and remanded in custody.

Criminal Record

36You have admitted a criminal record which includes convictions for damaging property, intentionally cause injury and make threat to kill.

37On 15 April 2004, at Heidelberg Magistrates Court, you were ordered to complete a nine-month community based order for criminal damage.

38On 27 August 2008, at the same court, you were ordered to complete a 12 month community-based order for intentionally cause injury.

39On 25 August 2016, at the same court, you were convicted of 2 charges make threat to kill and a charge of intentionally damaged property and sentenced to 6 months imprisonment.

40You also were convicted of the offence of driving while suspended on 23 April 2008, 27 August 2008, 27 August 2009, 20 January 2012 and 25 August 2016. On the last occasion you were sentenced to one months imprisonment.

41You were convicted of the offence of driving whilst disqualified on 7 September 2009 and sentenced to 3 months imprisonment.

Personal Circumstances

42You were born in September 1986. You were 35 years old when you offended. You are now 36.

43Your personal circumstances are set out in the psychiatric report of Dr Jacqueline Rakov who assessed you on 15 September 2022.[5]

[5] Exhibit 2.

44You are the oldest of 3 siblings born in Australia to Turkish parents.

45You described your childhood as “okay”. You said you “acted up” at school and did years 9 and 10 at TAFE before completing a 5 year powder coating apprenticeship.

46You have had several intimate relationships. You reported a close friend “tormented” you by sleeping with two of your former partners. You later had a relationship with one of his ex-partners.

47You said, in the months before this offending, your tormentor and his associates had threatened you and your family and you believed they had killed your dog.

48You said, when you saw a car pull up near your house, you jumped on your motorbike to see who was in the car. When it appeared to swerve in your direction, you thought it was probably your tormentor. You said you poured petrol on the car and lit a rag alight intending to scare him.

49You admitted you had a problem with methamphetamine.

50You said you started smoking the drug when you were 17 years old and your use escalated. You said you gave up for 5 to 6 years while you were in a stable relationship but relapsed when your partner miscarried, around 6 months prior to your arrest. You said you had used methamphetamine on the day you offended.

51You acknowledged if you weren’t “on the shit” you might not have been so short fused.

Opinions

52Dr Rakov wrote you are remorseful for your offending.

53She could not determine whether the threats, which you say motivated you, were real or perceived.

54However, in her opinion, the accumulation of “immense” stress, together with methylamphetamine use, would have significantly impaired your judgement.

55Prior your offending you had been prescribed medication for your anxiety but were not taking it.

56In prison, you are taking medication and find it helpful.

57She recommends ongoing medication and psychological therapy for your mental health together with counselling to address your drug problem.

58In her opinion, if you fall back into methylamphetamine use, your risk of mental health relapse and reoffending is high.

59I received several references on your behalf.

60You were living with your father and a younger sister when you offended.

61You support your father, who is elderly and unwell, and your sisters,[6] and have maintained the family home.

[6] Exhibit 5.

62Your family was devastated when your mother was diagnosed with stage four lung cancer in 2015. They wrote it hit you especially hard and you lost your way. According to them, you understand the considerable “hurt and suffering” you have caused and they believe you are “ready to make amends”.

63A long time neighbour[7] described you as hard-working, kind and caring. She is a widow. You have mowed her lawns and done odd jobs around her home. She confirmed, after your mother’s death in 2017, you became “the man of the house” for your family. Aptly, she wrote you “would never intentionally go out of (your) way to hurt or cause harm to anyone in the right state of mind.”

[7] Exhibit 3.

64Your employer[8] has known you for nearly 20 years. You had worked for him for a number of years until your arrest. He described you as “by far one of (his) best workers.” He wrote, after you have served your prison sentence, you will return to your family home and to work with him. He described you as “extremely remorseful” for your wrongdoing and is confident you can “redeem” yourself.

[8] Exhibit 4.

Defence Submissions

65Mr McQuillan, who appeared on your behalf, in comprehensive written[9] and oral submissions, acknowledged your offending was serious.

[9] Exhibit 1.

66He told me, about an hour before you offended, you had smoked a point (0.1 g) of methylamphetamine which likely increased your fear you were being followed and threatened.

67He sought to categorise your crimes as a very stupid mistake, made on the spur of the moment, which resulted in very serious consequences.

68He submitted, as soon as you realised your mistake, you tried to put out the fire with your shoes and were immediately remorseful.

69He also submitted your full and frank admissions to police show you were immediately accepting responsibility for your actions.

70He submitted your recognition your methylamphetamine use contributed to your offending demonstrates you have an insight into your wrongdoing.

71He acknowledged you have a relevant history of threatening and violent offending, although for offences less serious than the index offences.

72In mitigation of penalty he relied on;

(a)   your early guilty plea,

(b)   the Worboyes[10] consideration,

(c)   the additional hardship of prison during the public-health pandemic,[11]

(d)   your remorse and insight, and

(e)   the contribution of the stress, from threats, whether real or perceived, to your offending.

[10] Worboyes v The Queen [2021] VSCA 169.

[11] Astbury v The Queen [No 2] [2020] VSCA 158, [33].

73He submitted, considering:

(a)   your supportive family and partner,

(b)   the availability of stable accommodation and employment, and

(c)   your current medication compliance and drug abstinence,

your prospects of rehabilitation are good.

Prosecution submissions

74Mr Norris, who appeared for the prosecution, in written[12] and oral submissions, submitted the objective gravity of your offending is high considering your conduct was unprovoked, perpetrated against a stranger, who was younger than you, in a public street and was extremely dangerous.

[12] Exhibit H.

75He submitted that you mistook an innocent young man for your tormentor is not a mitigating circumstance. He characterised your offending as “a failed attempt at vigilante justice”.

76He accepted you possessed the methamphetamine and cannabis in small quantities for your personal use.

77He also accepted there is no evidence you had the imitation firearm for any criminal purpose.

78He acknowledged your guilty plea was made early.

79He submitted some comments you made to Dr Rakov qualify the degree of your remorse.

80He submitted, considering your history of threatening and violent offending, and drug use, your prospects of rehabilitation are guarded. And, it follows, specific deterrence and protection of the community are important in sentencing considerations.

81He referred me to several cases, including Gorgolu,[13] an intentionally cause serious injury case, where an offender poured and set alight petrol on a friend who was seated in a car, and Phillips & Liszczak,[14] an arson case, and Semmens,[15] an intentionally cause injury case, where the offenders had mistaken the identity of their victims, as comparators.

[13] The Queen v Gorgulu [2022] VSC 391

[14] The Queen v Phillips & Liszczak [2017] VSCA 313.

[15] Director of Public Prosecutions v Semmens [2019] VCC 446.

Consideration

82You attacked a young man, not known to you, in a public street.

83You had the petrol and rag by chance. I accept you decided to set fire to Mr Radi and his car only moments before you lit the cigarette lighter. Your actions were spontaneous and unplanned.

84Nevertheless, you sought to intimidate him, believing he was some threat to you. That you mistook him for someone else is no excuse.

85He suffered significant physical injuries and endures ongoing anxiety.

86Deliberately setting fire to an innocent person is a serious example of the offence of intentionally cause injury.

87You also destroyed his car.

88Arson is also a serious crime.[16]

[16] Director of Public Prosecutions v Ralph [2004] VSCA 158, at [12].

89Setting fire to a motor car, while someone is in the driver’s seat, is a serious example of arson.

90There are mitigating factors which I will take into account to moderate the sentences I will impose.

91I accept you are remorseful. You very quickly realised your mistake when Yousef Radi said, “He’s just a kid, he doesn’t know you” and you immediately tried to put the fire out with your shoes.[17] When police interviewed you, you made full admissions and you have made an early guilty plea which attracts additional weight during the public-health pandemic.

[17] Statement of Zach Radi dated 12 December 2021.

92I accept prison has been harder for you, as for all prisoners, during the pandemic, because of the removal of visits, restrictions on programs and imposition of lockdowns.

93Your rehabilitation is also a relevant sentencing consideration..

94You admitted you have a drug problem which contributed to your offending. I accept the accumulated stress of threats, whether real or perceived, to your family and you also contributed to your offending.

95In prison, you are managed with medication and are in enforced drug remission.

96A supportive family, who will have you home, and a supportive employer, who will offer you work, are protective factors upon your release from prison.

97While you have a relevant criminal history of threatening and violent offending, provided you look after your mental health and remain drug abstinent, I consider your prospects of rehabilitation to be reasonable.

98The seriousness of the intentionally cause injury and arson offences demand sentences of imprisonment.

99Allowing for similarities and dissimilarities between the circumstances of the comparative cases,[18] and the circumstances of your case, I have used them, along with the maximum penalties, as a yardstick against which to measure your sentences.

[18] The offending in each of those cases was objectively more serious than yours.

100Given your poor driving record, I consider a sentence of imprisonment is appropriate for the drive whilst suspended charge.

101Because you are to be sentenced for a number of offences, I must have regard to the totality principle, in fixing the individual sentences and making orders for cumulation, to ensure your total effective sentence is a proper measure of your overall criminality.

102I will impose a monetary penalty for the drug possession offences, because they involved small drug quantities for your personal use, and the imitation firearm possession offence, because there is no evidence you had it for any criminal purpose.

103Mr Kisi, please stand.

104By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

105Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on the charge of causing injury intentionally (Charge 1), you are sentenced to 3 years imprisonment.

(b)   on the charge of arson (Charge 2), you are sentenced to 2 years imprisonment.

(c)   on the summary charge of driving while suspended (Summary Charge 11), you are sentenced to 2 months imprisonment.

106The sentence on charge one is your base sentence.

107To reflect the additional criminality of setting fire to Mr Radi’s car, as well as him, I direct 6 months of your sentence on charge 2 be served cumulatively on your base sentence.

108Your total effective sentence is 3 years and 6 months.

109To mitigate or punish in favour of rehabilitation through conditional freedom, I direct you serve 2 years and 3 months of your sentence before you are eligible for parole.

110I declare you have served 336 days by way of presentence detention.

111On the two charges of possess a drug of dependence (Charges 3 and 4) and the summary charge of possess an imitation firearm (Summary Charge 15), you are convicted and fined and aggregate sum of $500.

112Pursuant to section 78 (1) of the Confiscation Act 1997, I order the disposal of the methamphetamine and cannabis seized from you.

113While there is some artificiality to the process, I declare, but for your plea of guilty I would have sentenced you to 4 years 9 months imprisonment and fixed a minimum non-parole period of 3 years and 4 months.