Director of Public Prosecutions v Lohani

[2024] VCC 955

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised
Not Restricted
 Suitable for Publication

CR-23-01451

DIRECTOR OF PUBLIC PROSECUTIONS

v

TULSI LOHANI

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2024
DATE OF SENTENCE:	6 June 2024
CASE MAY BE CITED AS:	DPP v Lohani
MEDIUM NEUTRAL CITATION:	[2024] VCC 955

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Intoxicated offender committed three separate arson offences over the course of nine hours – Significant damage caused to a Council building – Minor damage to the brickwork of a business premise and to a dumpster – Offending was situational and reactive rather than being driven by any underlying fascination with fire – Guilty plea – No criminal history – Reasonable prospects – Limb 5 of Verdins engaged – Likely deportation to Nepal at expiration of sentence.

Legislation Cited:      Crimes Act 1958, s 197; Sentencing Act 1991, ss 6AAA, 6B, 6D, 6F and 18.

Cases Cited:R v Verdins (2007) 16 VR 269.

Sentence:                  Convicted and fined on Charges 1 and 3; Convicted and sentenced to a term of 18 months’ imprisonment on Charge 2.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti (Plea) Mr E. Fryar (Sentence)	Office of Public Prosecutions
For the Accused	Mr W. Barker	Victoria Legal Aid

HIS HONOUR:

Introduction

1Mr Lohani, you have pleaded guilty to an indictment[1] containing three charges of arson.[2] The maximum penalty for arson is 15 years’ imprisonment.

[1] Indictment N12512751.

[2] Charges 1-3, pursuant to ss 197(1) and 197(6) of the Crimes Act 1958 (Vic).

2You committed these three offences within hours of each other on 26 June 2022. At that time you were aged 34 and in Australia on a student visa which has since been cancelled.

Circumstances of the offending

3The circumstances of your offending are set out in the typed prosecution opening[3] and were discussed during the plea hearing. For present purposes, the following brief summary will suffice.

Charge 1

[3] Exhibit A.

4At approximately 12:40pm on 26 June 2022, while at the rear of a strip of shops in Barnes Place, Werribee, you used a cigarette lighter to set fire to a pile of rubbish you had pulled from a nearby dumpster. You remained and watched the rubbish burn. The fire blackened the brickwork of an adjacent building occupied by an occupational therapy business, Everyday Independence. Your conduct as just described is the basis for the arson offence alleged in Charge 1.

5As a result of seeing you walk away from the fire, a civilian witness spoke to you briefly and took some photos of you while his partner called Triple Zero.

6You were still in the vicinity of the fire scene when firefighters attended and extinguished the fire at approximately 12:43pm. When police attended and spoke to you a short time later, you denied starting the fire. On conducting a search, police located a cigarette lighter in your possession.

Charge 2

7At approximately 6:38pm, you attended Kelly Park Centre in Werribee, a building owned by Wyndham City Council. It was closed and unoccupied at the time.

8

You walked to the south-western side of the building where there was a

veranda-style outdoor sitting area with lighting. Several pieces of furniture, including plastic chairs, were stacked against the wall under the veranda. You then built a pile from these items and used your cigarette lighter to start a fire. From a nearby park bench, you then watched the fire burn and grow. At one point, you returned to the fire and threw more chairs onto it causing it to grow even more.

9After you had been watching the building burn for a few minutes, you realised that you were being observed by a different civilian witness who was standing some distance away. In response, you ran down a nearby alleyway. CCTV footage from the area captured you fleeing and confirmed that there was no one else in the vicinity of the fire at the time. Your conduct as just described forms the basis for the arson offence alleged in Charge 2 on the indictment.

10The civilian witness then called Triple Zero and later made a police statement.

11By the time that the firefighters arrived at approximately 7:07pm, the fire had engulfed the whole building. When you later returned to the vicinity of the fire, you were recognised by a firefighter who had seen you at the earlier incident. The fire was eventually extinguished.

12After examining the fire scene on the following day, police forensic officers concluded that there was a single point of origin for the fire which was likely caused by a match or cigarette lighter without any use of accelerant.

13The quantum of damage caused to the building was assessed as $583,100.

Charge 3

14At 9:40pm, so approximately three hours after you started the second fire, you returned to the vicinity of the first fire at Barnes Place. While at the rear of a café, you pulled out the contents of a dumpster belonging to JJ Richards & Sons and placed them at the front of the dumpster. You then used your cigarette lighter to set fire to the rubbish, causing some damage to the dumpster. You then remained in the vicinity and watched the fire burn. The incident was captured by CCTV cameras in the area. Your conduct as just described forms the basis for the arson offence alleged in Charge 3 on the indictment.

Arrest and interview

15At 9:47pm, you were arrested by police as you attempted to flee from the scene of the third and last fire. You were taken to hospital for medical assessment. Police seized your cigarette lighter and clothing.

16On the following day, 27 June, you were declared fit for interview and questioned about these fires. During that interview, you denied starting the fires and gave police a version of events that was not consistent with the available evidence.

17Following the interview, you were released pending summons.

Pre-sentence detention

18You were charged on 7 November 2022 and released on bail. A warrant was issued when you failed to appear at a filing hearing on 21 November and executed on 23 December. A further warrant was issued when you failed to appear at the committal mention hearing on 21 February 2023 and executed two weeks later on 8 March. You have remained in custody since that date. The total period of pre-sentence detention for this matter is therefore 458 days, up to but not including today’s date. A formal declaration to that effect will be made shortly.

Guilty plea

19I note that you pleaded guilty after a contested committal hearing but before trial.

20For taking that course as and when you did, you are entitled to and will receive a commensurate sentencing discount, about which I will say more later in these sentencing reasons.

No criminal history

21You have no previous or subsequent findings of guilt or criminal convictions.

Personal circumstances

22Your personal circumstances have been helpfully summarised by your counsel[4] and also referred to by the psychologist, Gina Cidoni.

[4] See defence written submissions dated 22 May 2024 (exhibit 1).

23You were born in Nepal in June 1988 and will turn 36 in less than a week. Two of your sisters still reside there while another sister and both of your parents currently live in the USA. You also have a younger brother who is currently living in Canada. Since being remanded for this matter, you have only had contact with one of your sisters. Your family are aware of what you have done and are disappointed and angry. It remains unclear how that will affect your relationships with them in the future.

24When you were aged 5, you moved to stay with your aunt as she lived closer to your school. From age 8 until 21, you lived under strict conditions while on campus at boarding schools.

25You then went on to complete a Law Degree in Nepal, after which you moved to London at the age of 21. While there, you completed part of a Masters Degree. On your own account, you were not committed and spent most of the time working and enjoying the lifestyle. After spending 7½ years living in London, you returned to Nepal to see your family.

26But, within a year, you wanted to continue travelling and so came to Australia on a tourist visa.[5] At that stage, you intended to study and pursue job opportunities. Once here, you obtained a student visa and studied automotive mechanics at Ashton College in Northcote.[6]

[5] In his written submissions, defence counsel submitted that Mr Lohani came to this country in 2019 (para 31 of exhibit 1). However, the course certificate from Ashton College suggests that Mr Lohani’s studies there commenced in 2018.

[6] See exhibit 3.

27You worked at Spot On Motors in Hoppers Crossing, initially as a labourer and then in more substantial roles as you became more qualified. However, when the COVID-19 pandemic caused business to slow, you lost your job.

28After that, you worked on a casual basis at a grocery store for nine months, at a lesser pay rate. This was your last job before being remanded in custody for this matter.

29At the time of your offending, you were living in a share house in Hoppers Crossing.

30You have not been in any romantic relationships previously and do not confide in any of your friends about emotional topics.

31You have spent your entire period on remand at MRC where you worked in the woodwork section for 12 months and, more recently, in the kitchen.

32Your counsel informed this Court that you expect to be deported to Nepal after serving your sentence in this matter. As I have already noted, you have two sisters but no other family living in that country. You are not expecting any support from your family in the future.

33You were assessed by the psychologist, Gina Cidoni, on 13 and 20 May 2024.

34In her report,[7] Ms Cidoni notes that you presented as somewhat guarded with limited insight into the need for professional help regarding your alcohol abuse and feelings of anger, each of which contributed to your offending.

[7] Dated 20 May 2024 (exhibit 2).

35In her view, while you have a major depressive disorder, your alcohol intoxication was most likely the main factor producing disinhibition, anger and reckless actions, which impacted on your decision-making.

36To her mind, you are unlikely to light fires for pleasure and do not present as a pyromaniac. Rather, your fire-setting behaviours appear to have been a response to emotional triggers, exacerbated by alcohol intoxication, anger and frustration, rather than an inherent compulsion to start fires. Accordingly, these incidents are to be seen as more situational and reactive rather than being driven by an underlying fascination with fire.

37In that context, Ms Cidoni considers your main risk factor to be alcohol as it causes self-regulation issues. To that end, she recommends AOD counselling to improve your insight regarding the severity of your alcohol problem.

38In her view, the prison environment poses additional challenges for you and the time you have spent in prison to date has placed a significant burden on your mental health, exacerbating your depression and putting you at risk of further deterioration. Your everyday functioning has been impacted and you have found it difficult to cope with the daily demands and pressures of prison life.

Matters in mitigation

39Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Lohani.

40You pleaded guilty to these offences after running a contested committal but before trial. As your counsel properly acknowledged, it should be viewed as neither an early nor a late plea and is still deserving of a sentencing discount, including by way of a modest Worboyes allowance.

41You are clearly an intelligent man who is capable of further study.

42You also have a good work history and would have little problem securing further employment once free to do so.

43You are a person of previously good character who has no prior or subsequent findings of guilt or convictions whatsoever. In light of Ms Cidoni’s opinion that you are not a pyromaniac, your current offending appears to have been out of character and explained by the context of your life at that time and your alcohol problems.

44For a number of reasons, you have found the custodial experience very difficult. In light of the opinions expressed by Ms Cidoni,[8] I am prepared to accept that limb 5 of Verdins is engaged in your case and I will take that into account when determining the appropriate sentence.

[8] See [76] and [84] of her report (exhibit 2).

45The fact that you have likely lost the opportunity to settle in Australia as hoped, while a relevant consideration, is not a significant factor in this case given the relatively short period that you had been in Australia by the time of your offending and your lack of any significant ties, including family ties, in this country. You told Ms Cidoni that your visa has been cancelled, that you will be deported, and that you want to go home even though you don’t expect to receive any support from your family.

Gravity of the offending

46This court must also have regard to the objective gravity of your offending, Mr Lohani.

47In light of the applicable maximum penalty, the offence of arson must be viewed as inherently serious.

48In this case, there is a vast difference in the seriousness of the offence in Charge 2 as compared to those in Charges 1 and 3.

49Whilst I accept that you had a reckless state of mind in relation to the causing of damage to the Council building,[9] the amount of damage caused by that fire was significant. You chose to commit that offence despite having been spoken to by police at the scene of the first fire. All relevant matters considered, it represents a relatively serious example of this type of offence, in my view.

[9] As to which, see s 197(4)(b) of the Crimes Act 1958 (Vic).

50

The other arson offences are considerably less serious and fall at the lower end of the spectrum of seriousness for this type of offence. However, the offence in Charge 3 is somewhat troubling as it occurred after you had a further opportunity to reflect on your conduct in the immediate aftermath of the earlier fire at the

Kelly Park Centre. In my view, the offences alleged in Charges 1 and 3 can be appropriately dealt with by way of fines, albeit that a more severe fine is warranted for Charge 3 as compared to Charge 1.

Sentencing principles

51In this case, the sentencing principles of general deterrence and denunciation assume some significance.

52Specific deterrence and protection of the community are also relevant.

53Whilst you fall to be sentenced as a serious arson offender for Charge 3, s 6D of the Sentencing Act 1991 (‘the Act’) has no application since I have ultimately determined that a sentence of imprisonment is not justified for that offence.

54Of course, the law requires that you be justly punished for your offending having regard to all of the circumstances relevant to that offending and to you personally. In light of the seriousness of the offence in Charge 2, any such punishment must be relatively significant, in my view.

55This court must also have regard to your age and prospects of rehabilitation, which I have concluded are reasonable.

Sentencing submissions

56In the course of his sentencing submissions, your counsel understandably sought to contrast the relative seriousness of the offence in Charge 2 with that for Charges 1 and 3.

57In respect of the offence in Charge 2, he submitted that while it caused significant loss, it involved a commercial rather than a residential building, which was closed and unoccupied at the time. And further, you should be seen to have acted recklessly rather than with any specific intent to damage the building. It was also pointed out that your offending was not financially motivated and lacked sophistication as well as any significant pre-meditation.

58As your counsel put it, the reason for your offending lies in the feelings of anger and frustration that you were experiencing in the wake of the downward spiral that your life had taken due to the COVID-19 pandemic. It was, however, as he acknowledged, a very selfish way to vent those feelings. Your offending is also to be explained, at least in part, by the level of disinhibition you experienced from your consumption of alcohol.

59Ultimately, your counsel submitted that the appropriate disposition was a fine for Charges 1 and 3 and a term of immediate imprisonment for Charge 2 that did not exceed the time that you have served on remand to date. By way of an alternative submission, he submitted that any additional time in custody should be minimal.

60In either instance, your counsel submitted that any such sentence would not be one where the court would be required to fix a non-parole period and that in the particular circumstances of this case, a straight sentence would be appropriate and not likely to cause you any unfairness.

61As best I could gauge, the prosecution agreed that a fine was open for Charge 1 and that a term of imprisonment was the only appropriate disposition for Charge 2. In respect of Charge 3, I took the prosecution to be submitting that it was a matter for the court as to whether a fine or a term of imprisonment was imposed.

Analysis

62In my view, the sentencing submissions made by Mr Barker on your behalf were sensibly pitched and I agree that the less serious examples of arson in Charges 1 and 3 can be appropriately dealt with by means of fine. And, whilst I don’t share his view that the sentence on Charge 2 should not exceed the time already spent on remand, I have concluded that the sentence to be imposed should not require you to serve much longer in prison.

Sentence

63Mr Lohani, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case, I have decided to sentence you as follows.

64On Charge 1, arson, you will be convicted and fined the sum of $750.00.

65On Charge 2, arson, you will be convicted and sentenced to a term of 18 months’ imprisonment.

66On Charge 3, arson, you will be convicted and fined the sum of $1250.00.

Pre-sentence detention

67Pursuant to s 18 of the Act, I declare that you have served 458 days of pre‑sentence detention, not including today’s date. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the court records.

Section 6AAA indication

68Pursuant to s 6AAA of the Act, I indicate that but for your plea of guilty to the offence alleged in Charge 2, you would have been sentenced to a term of 2½ years’ imprisonment with a non-parole period of 2 years for that offence.

Section 6F declaration

69And, pursuant to s 6F of the Act, I direct that the fact that you have been sentenced as a serious offender (more particularly as a serious arson offender) for Charge 3 be entered in the records of the court.[10]

[10] In the Sentencing Act 1991, ‘serious offender’ is defined in s 6B(3) and ‘serious arson offender’ is defined in s 6B(2).

Disposal order

70Finally, I grant the disposal order for the Bic lighter in the terms sought by the prosecution, pursuant to s 78(1) of the Confiscation Act 1997.

Other matters

71Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Barker?

72MR BARKER:  No, Your Honour.

73HIS HONOUR:  Mr Fryar?

74MR FRYAR:  No, Your Honour.

75HIS HONOUR:  Mr Barker, once I leave the Bench you will be permitted to have a brief conversation with your client using the current video link, if you wish.

76MR BARKER:  I'm grateful, Your Honour.

77HIS HONOUR:  Please now adjourn the Court sine die Mr Tipstaff.