Director of Public Prosecutions v Nachar

[2014] VCC 2146

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01361

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILAD NACHAR

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2014
DATE OF SENTENCE:	12 December 2014
CASE MAY BE CITED AS:	DPP v Nachar
MEDIUM NEUTRAL CITATION:	[2014] VCC 2146

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to one charge of arson and one charge of attempting to obtain property by deception – strong mitigating factors – accused was victim of torture in Lebanese civil war – good work history – PTSD and emotional distress – compensation paid – remorse.      

Sentence: CCO 2 years with unpaid community work and treatment conditions   

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Balek
For the Offender	Mr A. Lewis

HER HONOUR: 

1Milad Nachar, you have pleaded guilty to one charge of arson and one charge of attempting to obtain property by deception.  Put briefly, the circumstances were as follows.  As a tenant at a building at 180 Pillars Road, Bangholme, you had been given several months' notice to vacate the premises.  When the time came and you had not vacated the owner changed the locks and subsequently you set fire to the building.  You later made an insurance claim, having taken out a policy some months earlier.

2These events are better explained in the context of your background.  You were born in Lebanon to a Christian family, and your father was a soldier in the Lebanese army.  Your upbringing was disrupted by the civil war between the 1970s and the 1990s, and because of the turmoil it caused your family had to move several times.  Your schooling was therefore very limited and you left when you were 12.  You then joined the Lebanese Christian militia, involving combat activities, when you were about 14, and from there you joined the Lebanese National Army, which was aligned with the Christian militia.

3From 1986 - 1989, whilst still in the army, you worked with the security forces as a bodyguard for the president, before returning to the Christian militia.  In 1992, after a change of government, you were gaoled by the Muslim side of that National Army and you were kept captive and subjected to torture in horrific circumstances for nine days.

4In 1995 you left Lebanon for Australia and applied for refugee status.  On your arrival in Australia you were assisted to find employment and while working you met Rita, whom you later married, and so you obtained a spouse visa.  Your only child, Patrick, was born in 2000.  The marriage ended in 2007 and Patrick lives with his mother.  You have very little contact with him.  Most of your family of origin still lives in Lebanon and you regularly send them money.

5You and Rita managed a laundry for some years and you still work there, as well as in an ironing business.  In 2004 the laundry had been bought by Ms Moly Lok and after your marriage ended you began a relationship with Ms Lok, which lasted until 2012.  In 2008 you had moved in to the unit on the property at Bangholme, owned by Ms Lok.  She had bought the unit for $45,000 and had it placed on the property.  She and her husband lived in the main hose.

6In 2012 you and Ms Lok entered in to an agreement that you would purchase the unit for $60,000 and your understanding was that you were also purchasing the land on which the unit stood.  In September of that year you took out an insurance policy in anticipation of the purchase being finalised, but you had insufficient funds to do so.  You continued to live there rent free.

7In mid-2013, Ms Lok left the property and rented the main house to tenants.  She discussed with you the debts you owed her, amounting to about $8000, and she placed increasing pressure on you to pay.  When you could not pay she asked you to vacate by December.  You left Melbourne on 17 December on a cruise holiday, expecting to be accompanied by your son, but his mother did not allow him to go and you went alone.  By this time your relationship with your ex-wife had deteriorated and contact with Patrick had decreased significantly.  Ms Lok sent you a message that she would be changing the locks and so you did not know where you would be living when you returned.

8On the day of your departure, you asked the three tenants if they would assist you in burning down the unit, promising one of the tenants that you would buy her a car and pay her some money, although you dispute that any money was offered.  They refused to help you or to be involved in any way.

9On 1 January 2013, the night of your return, you found the locks had been changed and you could not gain access to the unit.  With the help of the tenants you opened the window and entered the unit, and retrieved a CCTV hard drive which had been connected to three external CCTV cameras on the building, and gave it to one of the tenants who placed it in the main house.  You obtained a spray bottle of some form of accelerant and sprayed inside the building.  You then sprayed a rag with the same substance, positioned it in the open window, and lit it.  One of the tenants called the fire brigade and while waiting for them the tenants tried unsuccessfully to douse the fire with a hose.

10The following day you commenced making an insurance claim, but the insurers commenced an enquiry and liaised with the police and subsequently you were charged.  The three tenants had initially made statements which did not implicate you, but they made further statements which included the allegations that you had asked them to burn the building.

11You were arrested on 14 January 2014 and told the police that you did not know how the fire had started and had been asleep at the time.  Fortunately no one was in the building, it was isolated from the other building, and was in a rural area.  Only a small amount of flammable liquid was used.

12You pleaded guilty at an early stage and so you are entitled to a discount on your sentence as it has avoided a trial and saved considerable expense and inconvenience.  I also accept it as an indication of remorse, which you have expressed to others as well.  Your payment of compensation in the sum of $42,456 to the victim is a further indication of remorse which carries considerable weight.  An order is sought for that amount and even though you have paid it, the making of the order is not opposed, and I make that order.

13Your state of mind at the time was one of considerable stress, faced with debt you were unable to pay, and unable to see your son with the expected holiday with him having been cancelled.  You did not know where you were going to live and apparently you resolved to burn the property even with your own items inside it, so there could be no financial gain through insurance.  You had not completed the purchase and the title had not passed from Ms Lok.  You knew that one of the tenants was a member of the CFA and yet that knowledge did not constrain you.  You had told the tenants you intended to burn the unit.  It was irrational behaviour that was perhaps consistent in some way with your distressed state of mind.

14You have been diagnosed with post-traumatic stress disorder, with mood related and behavioural difficulties thought to be related to this condition in part, and for which you have been receiving treatment.  Psychological testing has shown high levels of anxiety and major depression with some suicidal ideation.  Professional opinion is that you need ongoing specialist psychological care and periodic psychiatric care to manage these conditions and you have already demonstrated your willingness to undertake this.

15Prison is considered to be likely to be detrimental to your mental health, because of your experience of torture in a gaol-like setting.  You have no prior convictions and evidence was given that you have a good reputation in your community.  You have worked hard ever since you came to Australia and have built up some assets.  Until this incident you had made a sound contribution to society.

16Ms Carla Lechner, the clinical psychologist who assessed you in October, noted that you understand the impact your behaviour has had but you are easily overwhelmed by social and emotional factors that undermine your judgment and decision making.  As long as these factors are dealt with your prospects for rehabilitation are good and you are unlikely to offend again.

17The unusual circumstances of your background mean that the need for both general and specific deterrence is somewhat reduced.  Arson is a serious crime, as is the crime which sometimes accompanies it, an attempt to defraud an insurance company.  Neither of the offences in this case were executed with any sophistication or any real attempt to hide your involvement, making it more likely that the motivation was prompted by your fragile mental state.

18For all these reasons, a sentence of imprisonment is not necessary and indeed would likely hinder your recovery.  It was urged upon me by your counsel that a community corrections order is appropriate and that was also considered by the learned prosecutor to be open, even though arson would normally warrant a term of imprisonment.  Indeed, the maximum penalty for arson is 15 years' imprisonment, and for attempting to obtain property by deception, five years.

19Would you stand now, please, Mr Nachar?  You have been assessed as suitable for a community corrections order and I shall make an order in the following terms.  The order will start today and will last for 12 months.  It applies to both the charges.  You will be under supervision and you must perform 80 hours of unpaid community work over six months.  You must submit for mental health testing and as to suitability for offence related programs.  You must report to the corrections office at Box Hill by 4 pm on 16 December.  The address there is 703 Station Street.  That order will be ready for you to sign shortly, but first of all do you agree to be bound by its conditions?

20If you had pleaded not guilty to these charges I would have sentenced you to a two year community corrections order with 140 hours of unpaid community work.

21The prosecution has applied for an order for a forensic sample to be obtained under s.464ZF of the Crimes Act and you do not oppose that but through your counsel have queried whether it is necessary. My conclusion is that while there is little risk of you re-offending, the offence is a very serious one, and so in the circumstances I shall make that order. It means that police will take a sample of saliva from you and the legislation says that I am obliged to warn you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary. Are there any other matters that I have neglected, Mr Balek?

22MR BALEK:  No, Your Honour.

23HER HONOUR:  Mr Lewis?

24MR LEWIS:  No, Your Honour, thank you.

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