Director of Public Prosecutions v Musa
[2025] VCC 864
•23 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-24-01380
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HABIB MUSA |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2025 | |
DATE OF SENTENCE: | 23 June 2025 | |
CASE MAY BE CITED AS: | DPP v Musa | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 864 | |
REASONS FOR SENTENCE
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Subject:Criminal Law Sentence
Catchwords: Arson, theft of motor car
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Sunday Bol [2024] VCC 1465; DPP v Zeldis [2024] VCC 1378
Sentence: Three years and two months’ imprisonment, to serve a period of 22 months before eligible for parole. Convicted and fined $2000, any driver’s licence cancelled and disqualified for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mx C. Rattray | Office of Public Prosecutions |
| For the Accused | Mr. N. Goodenough | Victoria Legal Aid |
HER HONOUR:
1Habib Musa, you have pleaded guilty on indictment to charge of theft of motor car and one charge of arson. These offences occurred on 10 November 2023.
2
In sentencing you for your crimes I am obliged to consider the maximum penalty for each of the offences you have committed. The maximum penalty for theft of a motor car is 10 years' imprisonment. The maximum penalty for arson is one of
15 years' imprisonment. These maximum penalties reflect the seriousness with which Parliament regards your offending.
3The circumstances of your offending were set out in a document entitled 'Amended Summary of Prosecution Opening on Plea' dated 3 March 2025. This is an agreed document and represents your acceptance of each of the elements of the offences to which you have entered your guilty plea as well as the factual basis on which I am to sentence. I will reference some of the facts in these reasons for sentence but have had recourse to the entire document.
The offending
4Sometime on 9 November 2023 Mr Roger Ye had a friend make contact with him wanting to ‘hang out’ that night. That friend came to where Mr Ye was staying in Firth Street, Doncaster. They both then attended a nearby unit where you, your co-accused, Mr J. Mana, and a third person, known as 'Coco', were present.
5You, your co-accused Mr Mana and 'Coco' had met Mr Ye about 5 days prior and had had some interaction in the intervening period. Mr Ye was the owner of a 2002 gold coloured Mercedes C180 Sedan.
6
Mr Mana said that he wanted to go for a drive and, using money provided by
Mr Mana, Mr Ye’s friend purchased petrol from a nearby service station using two jerry cans. When he returned he put the jerry cans in the rear of the Mercedes, on the direction of Mr Mana. You and your two co-accused began placing other items in the Mercedes. 'Coco' placed a hammer in the vehicle. A dispute then occurred between Mr Ye and your two co-accused. Mr Ye was assaulted by Mr Mana in order to obtain the keys to the Mercedes. You were not said to be present when this took place.
7
Shortly thereafter, but by now the 10 November 2024, you, and Mr Mana, took
Mr Roger Ye’s gold C180 Mercedes Benz sedan and drove away, forming the basis for charge one, theft of motor car. 'Coco’ was already seated in the rear.
8Mr Ye contacted police and requested an ambulance.
9You, Mr Mana and ‘Coco' drove from Doncaster to Carnegie and then to Caulfield.
10At some point on that journey the three of you have obtained a concrete block and Mr Mana left the vehicle.
11
At approximately 4:07 am, you and ‘Coco’ are captured on CCTV footage in
Mr Ye’s Mercedes Benz heading in the direction of a Burgertory store located in Glen Huntly Road, Caulfield. You were driving.
12At approximately 4:16 am the Mercedes stopped in front of the Burgertory store.
13You, Mr Musa, are depicted on CCTV to leave the vehicle and open the rear driver’s side door taking out the large concrete block and a wrench. 'Coco' is seen to get out of the front passenger seat carrying a hammer. He is also carrying the two jerry cans full of petrol. You are both wearing hooded tops.
14You are then seen to smash the front window of the Burgertory store using the large concrete block. 'Coco' assists by smashing the window using the hammer.
15You both then enter the restaurant with the petrol, and you both can be seen to be spreading it throughout the store. You then both exit via the smashed window.
16You are seen to remove the grey runners you had been wearing, leaving them at the front of the store. CCTV then shows the Burgertory restaurant explode from within and to be engulfed in fire.
17A nearby resident heard the explosion and contacted Triple 0 before recording the fire on his mobile phone.
18You and 'Coco' then flee the area in the stolen Mercedes.
19Fire Rescue Victoria attended the scene where they found the Burgertory store completely engulfed in flames. It took 30 minutes to extinguish the fire.
20On attending the scene police observed the building to be completely destroyed. A pair of grey runners located on the footpath at the front of the store were seized and subsequently submitted for analysis.
21The fire was deemed 'suspicious' and further investigations were conducted.
22Arson chemists George Xydias and James Pratt also attended the scene. A hammer and wrench were located inside the premises. Mr George Xydias concluded that there was a single area of origin and seat of fire across the northern half of the main front of the store caused by the ignition of the various available combustible fixtures, furnishings and other contents. It was further opined that the fire was assisted by the spread of a significant amount of petrol. The source of ignition could not be determined.
23CCTV footage from various premises was of assistance in detailing what had occurred.
24On 10 November 2023, Mr Gary Murray was unable to exit his driveway at his address in McLaurin Road, Carnegie, as it was blocked by a gold Mercedes. He reported this to police who attended and recovered the vehicle the following day. It was subsequently examined and fingerprints and DNA were located.
25Mr Ye attended on police in Doncaster to report his vehicle stolen and the circumstances in which he says that occurred.
26DNA linked to you was subsequently identified on the grey runners which had been left at the front of the Burgertory store.
27You were arrested by police on 31 January 2024. On interview you made admissions to being involved but to not recalling the details due to the amount of drugs and alcohol you had been consuming. You told police that you were not given much information about why the restaurant was the target of the arson, but you were paid a small amount of cash (less than $2,000) for your role.
28Before being released on bail on 31 January 2024 a police covert operative was placed in custody with you. You told that operative that you and two associates had been paid $20,000 to set fire to a burger shop in Caulfield. You said that you had poured petrol from the jerry cans in the restaurant setting fire to the petrol using a jet lighter but that the gas from the kitchen may have ignited itself. You told the same operative that you had burnt the clothing you had worn that night and that you had left the jerry cans at the scene.
Offence gravity and victim impact
29In terms of offence gravity, I am less concerned about the offence of theft of motor vehicle in circumstances where it is put against you as use contrary to the interests of the owner. You do not have a recorded history for dishonesty. There is no victim impact statement from Mr Ye. Fortunately Mr Ye’s vehicle was ultimately returned to him but I have little doubt he was, at the very least, inconvenienced.
30The charge of arson has the focus of the sentencing task. Yours is extremely serious offending and has occurred at a time when arson is unfortunately an offence that has some prevalence, adding to the consideration of general deterrence and protection of the community in the sentencing task.
31There is no victim impact statement, but you completely destroyed a person's business with the obvious cost, inconvenience and distress that is likely to involve.
32Arson in an offence which carries significant dangers and risks in terms of damage to property as well as potentially placing the lives of the individual, emergency service personnel and members of the community in harm's way. In this particular instance, the premises were located in a densely developed area in Caulfield with numerous commercial premises close by. The risk of fire spreading to neighbouring properties and other amenities was considerable.
33It is submitted on your behalf that your offending was unprofessional for a number of reasons, set out in written submissions on your behalf, and which include:
(a) difficulty smashing the window to gain entry;
(b) spreading petrol in a way that posed risk to you;
(c) lack of immediate ability to find a source of ignition; and
(d) leaving your shoes behind.
Regardless of your skill set in lighting this fire, it is clear from the factual scenario that the premises were targeted and with an intent to cause as much damage as possible. Given it was committed in the early hours of the morning, I accept that minds had been turned to the likelihood that no one would be present in the store. Fortunately no one was present. Minds were likely also equally turned to that hour to decrease the risk of detection as was your use of hooded tops and your decision to burn your clothing afterwards.
34Yours was a crucial role in support of your co-offender. I see no basis to distinguish between the two of you in terms of your roles. Whilst I could not form the view that your involvement or intent was much in advance of the events themselves, there was clearly some planning and you were prepared to commit this offence for financial reward and with scant regard to the risk to others or the impact on the owner of the restaurant and the local community.
35You now maintain that you have little recollection of events and that you were under the influence of cocaine and ice, and had little sleep. I find your now reported lack of memory to be in some conflict with your ability to set out some of the circumstances of your offending in your interview with police and, when you did not believe you were under scrutiny, to set out events with some considerable clarity when speaking to the covert operative.
36You have simply provided no detail as to the circumstance of your offending. In my view this makes it difficult to assess the gravity other than that which can be gained from the agreed overt circumstances. It also impacts on the ability to assess your prospects for rehabilitation and how best to protect the community as I am unaware of the circumstances that contributed to your willingness to offend in such a grave way.
37I can only assess your moral culpability as high. Sentencing principles of denunciation, protection of the community and general deterrence do loom large.
Plea of guilty
38In terms of your plea of guilty, the Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty plea.
39It is accepted that you have pleaded guilty at an early stage being at the third committal mention held in the Magistrates' Court on 16 August 2024.
40Your plea has saved the community the costs of contested proceedings and witnesses of the need to give evidence.
41I accept that you have expressed some remorse and that you take responsibility for your actions.
42These factors will be taken into account in your favour.
Personal circumstances
43I turn now to your personal circumstances which were set out in documents filed on your behalf as well as in helpful written submissions.
44You are now aged 28 years.
45You were born in Sudan, the eldest child from a sibship of four.
46As a result of ongoing civil war your family relocated to Egypt when you were aged around four years.
47Your family migrated to Australia in 2004. You found assimilation difficult due to differences in culture and limited English language skills. Your spoken English developed and you became more comfortable. You completed your high school education although experienced some academic difficulties with reading and writing which did require the assistance of a Teacher's Aide.
48You have obtained Australian citizenship.
49You particularly enjoyed playing soccer and after completing your secondary education, you played professional soccer for two to three years. You ceased after sustaining knee injuries in 2017 and 2019. You then commenced a sports science diploma at Victoria University but were unable to complete the qualification as by this stage, you were using illegal drugs.
50You began smoking cannabis in Year 9 and from there your substance use progressed to cocaine and methamphetamine. You ceased using cannabis about five years ago. Your primary drug of choice was methamphetamine which you commenced using in 2015. It was from 2017 that you added cocaine into that mix. You were using cocaine and methamphetamine at the time of your offending. You use your drug addiction to explain your offending. Apart from the lure of payment which you could then use to purchase drugs, I find that your drug use provides limited context for your criminal actions.
51In 2018 your then partner gave birth to your son, Luca. You moved to Adelaide to be with her and your child. This relationship deteriorated in the context of your drug usage. You separated in 2021 and you returned to Melbourne in 2022. You do speak to your son on a regular basis and have visits during holiday periods.
52
In terms of paid employment, you completed a two-year carpentry
pre-apprenticeship period. You have otherwise held positions in roofing, tiling, and fruit-picking. You are currently dependent on government benefits and since April of 2024 you were undertaking voluntary work with the Salvation Army. You would like to return to complete your carpentry apprenticeship.
53Your parents were each factory workers. Yours was and is a religious household and you and your family attend 'True Worship Church' where your father is a pastor. You describe your relationship with your parents as 'good'.
54Your three younger sisters are now aged 21, 19 and nine years of age. You enjoy a good relationship with your siblings.
55You currently reside with your family as you did at the time of your offending.
Prior criminal record
56Your prior criminal record does form part of your personal circumstances. Your prior criminal record commences in the year 2022 in the state of South Australia.
57On 20 July 2022 you appeared at the Elizabeth Magistrates' Court for driving related offences. You were convicted and fined and orders were made against your license.
58
On 15 December 2022 a warrant of apprehension was issued by the
Elizabeth Magistrates' Court for charges of money laundering.
59On 16 December 2022 a second warrant of apprehension was issued by the Adelaide Magistrates' Court relating to charges of damage a building or motor vehicle, and assault.
60It would appear that these warrants of apprehension remain outstanding. Otherwise, you have a single court appearance in July 2022 for driving-related offending. This has limited relevance to the matters before me.
61
In Victoria you have a prior criminal record for unlicensed driving and state false address for offending which occurred in 2019 but was not dealt with until
9 January 2024 when you were fined by the Sunshine Magistrates' Court. It would appear that you failed to attend at the early stage of those matters but that they ultimately caught up with you.
62Apart from a concern about you avoiding court hearings, that has not occurred in the matter before me and your criminal history remains limited and of little relevance to the sentencing task.
Expert report
63
The confidential psychological report dated 23 January 2025 authored by
Marlese Bovenkerk, Forensic Psychologist, has been tendered on your behalf.
64Ms Bovenkerk outlines much of your personal history.
65In terms of your circumstance at the time of your offending, you told Ms Bovenkerk that you were residing with another substance user and were using illicit substances yourself, although had not used an illicit substance the evening prior or on the morning of the offence. You were not working at the time and were not in a relationship. You told her that you were not aware that the vehicle you were travelling in on 10 November 2023 was stolen and otherwise maintained that you could recall nothing about the arson and that you were not sure how it came about. As previously indicated, I would find your reported lack of memory difficult to accept.
66
At the time of her assessment of you, you reported stable mental health.
Ms Bovenkerk did not identify any symptoms of depression or anxiety. You have no identified personality disorders or mental health conditions. This augurs well for your future rehabilitation. Perhaps unsurprisingly you did meet the criteria for a substance use disorder. You told Ms Bovenkerk that, given your abstinence from drugs, you did not see alcohol and drug counselling as necessary.
67You were assessed, however, as having a moderate risk of general offending. This level of risk was linked to your unemployment, history of substance use problems and antisocial companions. This risk was seen by Ms Bovenkerk to be capable of mitigation with your continued pursuit of identified positive pursuits, psychological assistance and drug treatment. Whilst the evidence before me at the time of your plea hearing on 17 March 2025 indicated that you had stable accommodation, volunteer work and had re-engaged in soccer, you were yet to undertake any rehabilitation in terms of drugs or psychological treatment.
Prospects for rehabilitation
68In terms of your prospects for rehabilitation, you did not spend any time on remand in relation to this matter but say through your counsel that your arrest was a turning point and that you ceased drug use and association with negative peers.
69As referred to earlier you reside with your family with whom you have a good relationship.
70Your father has provided a reference which outlines positive changes in your behaviour and your contribution to family. He says that you are respectful and family-orientated. Your sister, Nancy, has also provided a character reference and also describes positive changes. She says that you are trustworthy, loyal and family orientated. Family members have attended the hearings before me and I accept that your family is a supportive base for you. Your father is present for your sentencing today.
71I am told that you have contact with your six-year-old son in South Australia and have physical contact at holiday time. I appreciate he is also a motivator for you.
72You have a new partner who is present here today, and you are again heavily involved in the soccer community.
73Mr William Francis, Youth Leader at the True Worship Church, has provided a character reference. He believes that you are remorseful and otherwise describes you as a person of honesty and integrity. Mr Francis speaks of your community work with the church.
74
Wills Mana, Chaplain at the Eastern Bridge Salvocare AOD rehabilitation has previously been your soccer coach. In his reference dated 24 February 2025, he speaks of reconnecting with you and to you having a great heart and being a decent person. Mr Mana has helped you obtain volunteer work with the
Salvation Army. Whilst on a Salvation Army letterhead his reference comes from his personal knowledge of you, not from a treatment perspective, it would appear that you could have accessed his assistance in this regard but have determined not to do so.
75I have taken into account all reference material tendered. You would appear to be well supported by your local community and are contributing to it. I have already commented on the support you have from family.
76
There has been some delay in this matter being able to finalise. Your offending occurred in November of 2023 and you were charged in late January of 2024. You were committed to this court on 16 August 2024 but your initial plea date of
6 February 2025 was adjourned due to the late filing of relevant documents. At your plea hearing on 17 March 2025 that matter was adjourned to today’s date to give you the opportunity to further your rehabilitation. I accept that the 21 months' post being charged would have been a source of stress for you. That period is also one in which your prospects of rehabilitation can be assessed.
77In April of 2024 you commenced volunteer work with the Salvation Army. The week before your initial plea hearing in February of 2025 you had ceased this volunteer work to commence job training in the meat industry, something you wish to pursue.
78An application was made on your behalf on 17 March 2025 for a deferral of sentence pursuant to s83A of the Sentencing Act 1991, that application was granted. This was for you to continue your involvement with your sports club and community and also for you to take up the offer of paid employment or training.
79
Further material now tendered on your behalf includes a Certificate of Enrolment with the Jesuit Community College in a Certificate I in General Education for Adults. This was scheduled to commence on 10 June 2025 and to conclude on
1 August 2025. It is designed to assist your literacy and numeracy skills.
80A letter dated 17 June 2025 authored by Anthony Caldwell Provisional Psychologist confirmed a referral to 'Voice Psychologists and Allied Professionals' to address your non-vocational barriers to employment. You had attended two appointments as at the date of that letter.
81You did not end up exploring the other offer of employment.
82I understand that you have continued to play soccer and train regularly with the Greater Dandenong Football Club and can earn $250-$300 per match. I accept that this is a positive pursuit which you enjoy and you appear to have the requisite skills.
83You say that you have ceased drug use but it would appear to have achieved that without any formal rehabilitation assistance.
84In my view, you are still yet to do any work in relation to recovering from your long-term drug addiction or seeking psychological assistance. They were two of the factors that Ms Bovenkerk opined would be of assistance in mitigating your future risk.
85I accept that you appear to have turned your back on past associations and have been trying to keep yourself occupied with positive pursuits since your arrest. I accept that you have a support base to assist you with this.
86
Whilst I accept you are on a pathway to positive change it is difficult to fully assess your future prospects without understanding all that contributed to your decision to offend in this way. In relation to the only named contributor, drug usage, it is
self-reported that it is no longer an issue for you.
87Whilst your prospects appear to be positive, there is still need to give weight in your sentencing to the principles of specific deterrence and protection of the community.
Sentencing submissions
88In terms of sentencing submissions, the Crown submitted that your offending demands the imposition of a head sentence with a non-parole period at your plea hearing on 17 March 2025. I was provided with a list of comparative cases to which I have had regard and they were of some assistance.
89Your counsel also provided me with comparative cases, namely DPP v Sunday Bol [2024] VCC 1465 and DPP v Zeldis [2024] VCC 1378 which were of some assistance. Each of course had notable differences. It is submitted that your continued engagement in more positive pursuits, limited prior history and lack of reoffending provides a basis for a longer period of supported transition for your return to the community.
90I do not have any particular difficulty with that submission nor did the Crown take issue with it.
91Now I'll just check with counsel that I haven't made any factual errors along the way, or are there any matters that you need to bring to my attention before I - - -
92MX RATTRAY: Nothing from the Crown Your Honour.
93MR GOODENOUGH: Nothing that I've noted Your Honour.
94HER HONOUR: Thank you. I forgot to warn you that I do that.
Sentencing
95The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
96I must balance the interest of the community in denouncing criminal conduct, with the interest of the community clearly has in seeking to ensure where possible, that offenders are rehabilitated and are safely reintegrated into society.
97I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.
98In relation to Charge 1, that of theft of motor car, you are convicted and fined the amount of $2,000. Pursuant to s89(4) of the Sentencing Act any driver's licence is cancelled and disqualified for a period of 12 months.
99In relation to Charge 2, that of arson, you are convicted and sentenced to three years and two months' imprisonment. You are to serve a period of 22 months before you are eligible for parole.
100Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your plea of guilty you would have received a sentence of five years' imprisonment with a minimum of three years and six months' before being eligible for parole.
101I thank counsel for their assistance. If there's nothing further, I'll stand down until 3 pm.
102MR GOODENOUGH: Thank you, Your Honour.
103HER HONOUR: Thank you.
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