Director of Public Prosecutions v Mussa

[2018] VCC 1155

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01828

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUBAREK MUSSA

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JUDGE:	HIS HONOUR JUDGE MP BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 July 2018
CASE MAY BE CITED AS:	DPP v Mussa
MEDIUM NEUTRAL CITATION:	[2018] VCC 1155

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Wilson
For the Accused	Ms C. Terry

1HIS HONOUR:  Can you see and hear Mr Mussa?

2PRISONER:  Yes, Your Honour.

3HIS HONOUR:  This is listed for sentence.  Mr Mussa, I am going to impose a sentence - a total sentence - of three years and set a minimum term of 18 months before eligibility for parole. I have given you the courtesy of telling you that so you do not have to wait.  I would ask you to accord me the same courtesy and listen to the reasons I am going to impose that sentence, and then I will formally sentence you.  It will take ten to 15 minutes to do that.  I just want to ask some questions first.  I am pretty sure I am right about this.

4The suburb or the area Truganina is near Werribee, is that right?

5MR WILSON:  Yes, Your Honour, I believe so.

6HIS HONOUR: Yes, thank you. And the present s.18 pre-sentence detention period is 285 days?

7MR WILSON:  Yes, Your Honour.

8HIS HONOUR:  Thank you.  I will move to my sentencing reasons.

9Mubarek Mussa, you are to be sentenced for one charge of intentionally causing injury and one charge of arson under s.197(1) and (6) of the Crimes Act. The respective maximum sentences are ten and 15 years imprisonment.

10You pleaded guilty before me on 11 April.  When interviewed by police on 29 June 2017, you exercised your right to silence.  That interview was delayed because of your perceived intoxication.  It seems that concern, not only as to this, but also your mental state, caused medical examination and that an independent third person was present during interview.

11Committal went by hand-up brief on 8 September 2017, after which you entered pleas of guilty.  The matter was listed for plea in November of that year.  Ultimately, you were arraigned and pleaded guilty before me, as stated on 11 April 2018.

12You receive the benefit of your plea of guilty and that level of cooperation,  both from an early time.  Your plea and cooperation of proceedings has facilitated the interests of justice.  There is acceptance of what you did and I find genuine remorse.

13At your plea hearing, which ran on 11 April and yesterday, 5 July, Ms Lenthall for the Crown tendered a written Crown opening with a brief chronology of the proceeding, two booklets of photographs depicting the damage you caused to your brother's home and injury you caused to your sister, and the 7 May 2018 letter of insurer,  Comsure, stating that it has paid approximately $430,000 on your brother's claim.

14The circumstances of your offending are well set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. 

15You are 28 years of age.  The house you caused to be burnt was in Truganina near Werribee.  Your younger brother,  Ahmed Mussa,  had bought the land in 2014, built the house and moved in a year later.  You and your sister, Fatma Mussa,  were frequent visitors.  It was a four-bedroom home. 

16At evening time on 28 June 2017, both you and Fatma were there.  I find that you were affected by alcohol.  There was an argument about the volume of the television you were watching.  Ultimately, you went to the room where she was lying down and struck her to the back of the head with a vase.  You kicked and punched her.

17She left the house and came back to see you  throwing a burning object onto a couch, presumably in the living room area.  It set alight.  She attempted to put it out and also rang 000.  To some extent  to your credit, you took Fatma out of the house and danger; and soon after stopped her from trying to go back inside.

18Three CFA crews failed to put the fire out.  Measuring the danger to them,  at one point fire fighters entered the house but were called out shortly before part of the ceiling collapsed.  You remained at the scene and complied with police arrest.  The house was effectively destroyed.

19Perhaps curiously, bearing in mind your sister's description of what you did, upon which you will be sentenced, paragraph 10 of the Crown opening states as follows; citing part of the expert chemist opinion:

"The following day, the house was analysed by an arson chemist.  He concluded that the cause of the fire was 'the ignition of combustible material in the first floor rear bedrooms.  Probably the beds and/or beddings in the two eastern side bedrooms.  Possibly also a bed and/or bedding in the southern side centre bedroom'.  The source of the ignition was not determined but in the absence of any apparent source of accidental ignition, it was concluded that it was 'probably a match or cigarette lighter'.  There seems no evidence of an accelerant".

20Your sister suffered minor injuries in your assault of her.  These include a small haematoma and minor laceration to the head and cuts to her hands.

21There was substantial insurance cover of the house.  It is being rebuilt.

22No victim impact statements have been tendered.  Your family, despite its loss, remains supportive of you.  Statements to police reflect their concern about your mental health and that you need help for that.  Your brother  Ahmed states this, but also concern at the danger to his sister.

23You are, as stated, a 28 year old man, presently in remand custody awaiting this sentence.  You were born in the Sudan, although your parents are Eritrean and fled the war in that country.  You are the eldest of five siblings, having two younger brothers and two younger sisters.  The family came here when you were ten, under a United Nations humanitarian program.  Your father died soon after.  I was told that he had remained in Eritrea and was killed in the war there.

24Your family encountered language and cultural differences and difficulties.  Your schooling was affected.  Especially you had no English.  You left school at 16 with Year 10, starting an apprenticeship in building, but leaving after about eight months.  You then studied at TAFE in Perth for a short time and returned to Melbourne.  It seems there has been some labouring work in the construction industry.  Employment has been affected by your drug and alcohol use.  You were in a relationship with a woman 25 years of age.  That ended.  There are no children. 

25It has become clear to me that I have not cited, as I normally do, those exhibits tendered by the defence.  I think it was Mr Williams.  They included the report of Dr Zimmerman.  It will become clear that I refer to those materials in the course of my sentence.  My failure to describe them is an oversight.  I will go back.

26You describe yourself to psychiatrist, Dr Zimmerman, as the black sheep of the family.  Despite difficulties, your younger brothers and sisters have done well.  They are functional and pro-social people, working in trades, raising a family and the youngest, a student. 

27You became a heavy drinker in adolescence beginning at 12.  There was a two year abstinence in your mid-20s.  You have also smoked methylamphetamine since 2015.  You report that you were drinking heavily in the time leading to this offending.  You were using methylamphetamine but not, it seems, on the very day of the offences.  I note a preliminary breath test reading of 0.098 per cent at the police station after your arrest.  It is a relatively moderate reading,  but I was not told how long after the offending it was taken.  There have been periods of homelessness, but you have mainly lived with family in Flemington.  When you leave prison, you are able to live there with your grandmother and aunt.

28Your criminal record is not inconsistent with that description of your life in Australia thus far, and your battle with alcohol and, now, drugs.  To my reckoning, there are six court appearances between March 2008, in the Children's Court, and May 2016.  There are mainly offences of dishonesty and against property, but also drink and drug related offending.  You have received community correction orders on what seems two occasions.  You have not complied well.  This includes that, since your arrest and remand for these matters, you were sentenced on 21 February 2018 with three months' imprisonment in respect of breaching such an order.

29I have requested a report as to your suitability for a community corrections order on this offending; that is, the offending before me.  You are found unsuitable.  That report was the subject of further plea submissions yesterday, 5 July. 

30Despite your family's concern about your mental health, Dr Zimmerman reports no evidence of any sustained mental illness.  You meet, she states, the criteria for alcohol and methylamphetamine misuse disorder.  She also states as to your prospects for the future, I quote:

"It will be crucial for Mr Mussa to engage with treatment regarding his drug and alcohol problems in order to enhance his mental stability, social stability and to reduce the risk of recidivism.  One program that will be well-placed to deliver the service he needs would be the High Risk Offenders Alcohol and Drug Service, the acronym is HI ROADS, delivered by Kariniche in partnership with The Department of Health and Human Services.  It is a specialist forensic alcohol and other drug service designed to address the treatment needs of offenders with a high risk of recidivism and relapse into substance abuse".

31I am going to impose a sentence of imprisonment with a minimum term.  Doctor Zimmerman's opinion should be made available to the Parole Board. 

32Arson is a serious crime.  Here, you effectively destroyed the product of your brother's hard work and ambition.  Despite your difficulties you were welcomed there.  Firefighters, as I have noted, were put at risk.  You assaulted and hurt your sister, a person who cares about you and still supports you.  You have, whilst not specifically relevant, prior convictions.  Past offending has reflected substance abuse as does this offending.

33There are the subjectively mitigating factors pointed to on your behalf.  The arson was apparently spontaneous or without premeditation.  It had neither the motivation of financial benefit nor of physical harm.  However, the objectively viewed seriousness and consequences remain as very considerable.

34Such circumstances make relevant the sentencing purposes and considerations of deterrence, both general and specific, moral culpability, the need to condemn the offending, and proportionately punish it.  There must be a sentence of imprisonment.

35In deciding the length of that and its minimal term, I take into account the following moderating factors.

36Your plea of guilty and cooperation;

37The very marked disadvantages of your early life.  It is relevant that you have lapsed into alcohol abuse in that context and when very young.  I bear in mind your age at ten, and oldest of the family's children, when you came to Australia;

38To some extent there are factors which mitigate the circumstances of the arson offence.  I accept that in protecting your sister, for example, you demonstrated something like early remorse;

39One cannot realistically feel confident about your rehabilitation; however, I do not discount it.  For example, you have good family support.  Much will depend on whether you can address,  on parole and beyond, your alcohol and drug abuse.  Parole may be a better structure for that than the previous community corrections orders;

40The principle of totality is relevant, given the three months sentence you received on 21 February this year.

41It has been put on your behalf that I should impose a combined sentence of imprisonment and a further community corrections order.  I was referred to s.44(1A) which allows a prison component of that beyond 12 months.  Ultimately, I have found that such a sentence does not meet the relevant sentencing considerations here.

42After considering and weighing what I see to be the relevant matters, I sentence you as follows. On Charge 1, intentionally causing injury, you are sentenced to six months imprisonment. On Charge 2, arson, you are sentenced to two years and nine months imprisonment. I direct that three months of the sentence for Charge 1 be served cumulatively upon the sentence for Charge 2. That is a total effective sentence of three years. I set a minimum term before eligibility for parole of 18 months. I declare under s.18 of the Sentencing Act, 285 days of pre-sentence detention already served.

43Under s.6AAA, I indicate that had you not pleaded guilty I would have imposed a sentence of five years with a minimum term of three years.

44Is a forensic sample order sought?  I think you said yesterday.

45MR WILSON:  Yes, Your Honour, and a draft order has been prepared.

46HIS HONOUR:  All right.  Is that it?  There is nothing else?

47MR WILSON:  Yes, Your Honour.  That's the only order.

48HIS HONOUR:  All right.  If you hand it up I will sign it.  Thank you.  I usually sign more than one.  Yes.  Thank you. 

49Now, I am making an order that you supply a sample of your saliva.  It will be done in prison and as I understand it, you place a cotton swab inside your mouth and supply it that way.  It does not sound difficult.  If you cooperate in that, that is the end of it.  You do not?  A sample of blood may be taken and reasonable force used to do that.

50The reasons why I am making this order, are the seriousness of this offending and your prior criminal record.  I understand that it has not been opposed.  I will sign that order now.  What will happen, Mr Terry, it will be delivered to him in prison, will it?

51MS TERRY:  I believe so, Your Honour.

52HIS HONOUR:  Yes.  All right.  Can you get your instructor to ‑ ‑ ‑ 

53MS TERRY:  Yes, Mr Sturgess will explain it to him.

54HIS HONOUR:  Yes, all right.  Thank you.  I have signed that order and I will hand them back.  You will get a copy of the order forwarded to you, Mr Mussa.  I am going to turn you off in a moment.  You may not be able to see, but both your mother and your uncle have been present in court today as they were the other day, and other members of your family were present in the earlier hearing.  They present to me as decent and very forgiving people.  I will turn you off now.

55MS TERRY:  Thank you, Your Honour.

56HIS HONOUR:  Thank you, Ms Terry.

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