Director of Public Prosecutions v Shaaya
[2021] VCC 359
•29 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBROUNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 20-00325
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RIMON SHAAYA |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 September 2020; 26 November 2020; 1 March 2021 and 29 March 2021 respectively |
DATE OF SENTENCE: | 29 March 2021 |
CASE MAY BE CITED AS: | DPP v Shaaya |
MEDIUM NEUTRAL CITATION: | [2021] VCC 359 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Pleas of guilty - One charge each of arson and reckless conduct endangering serious injury - No criminal history - Little insight into offending - Intoxicated at time of offending but also evidence suggestive of a serious underlying mental illness - Behaviour at the time of offending not purely alcohol related - Expert opinion - Alcohol use disorder, substance abuse and major depressive disorder - Believed to be psychotic at time of offending - Mental health symptoms masked by intoxication - Insufficient evidence to discern if psychotic symptoms solely secondary to drug use or a relapse of primary psychotic illness such as schizophrenia - Impact on judgment and rational decision making
Cases Cited:
Sentence:Convicted and sentenced to 142 days imprisonment together with a Community Corrections Order of 3 years’ duration with supervision, community work, drug and alcohol assessment and treatment and mental health assessment and treatment - 142 days’ pre-sentence declared as having already been served - s.6AAA Sentencing Act 1991 - Ancillary order - Disposal
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Solicitor for Public Prosecutions |
For the Accused | Ms C. Gomez-Vasquez | VLA |
HER HONOUR:
1Rimon Shaaya, you have pleaded guilty to one charge each of arson and reckless conduct endangering serious injury.
2Each of these offences has a maximum penalty of 10 years' imprisonment, the maximum penalty is one of the matters that I must take into account in sentencing you because these reflect the seriousness with which Parliament regards each of the offences that you committed.
3Having said this, in my view, there is a significant overlap between each of the offences that you have committed, so I must be careful not to engage in double punishment.
4You were 46 at the time of the offending and you are now 47.
5At the time of the offending, you were living in room 3 of a rooming house which provided emergency accommodation in Broadmeadows. It could house up to 10 people and was owned by a Ms Antionette Mikael[1].
[1]Statement of Antoinette Mikhail (pg.27-30)
6The residence was a two storey house with five bedrooms on the ground floor and five on the upper floor. Each bedroom had its own locked door and was furnished with a bed, bedside drawers and a refrigerator. Some rooms had personal televisions, desks and exercise equipment. There was a hallway running through the centre of the ground floor from the front door to a communal kitchen dining area and a single set of stairs to the top storey beside the front door. The parking area was at the back. Smoking was not allowed in the bedrooms and the house was fitted with smoke alarms.
7At the time the fire started, seven residents were asleep in their rooms. They were Amad Ayubi who is 46 in room 2, Albert Delcastillo, 39 in room 4, Moyne Zaffa who is 45 in room 5, Farid Unan, 47, in room 6, Peter Davis, 66, who was in room 8, Assam El-Hash who was 41, in room 9 and Marr Alakash who was 26 in room 10. Harney Polli was 43 from room 7 was not at the address at the time of the fire.
8In relation to the offending, at about 2.10 am, on Tuesday 27 August 2019, you started a fire in your bedroom by setting fire to your bed. There was no evidence to suggest that flammable liquid had been used, however, the use of a small amount could not be excluded.
9Mr Ayubi woke up to the sound of the fire alarms and saw flames and smoke coming from your bedroom. He heard you asking for help. He could not go into your room to bring you out because it was too dangerous, instead Mr Ayubi started yelling to wake up his housemates and knocked on their doors before running out of the house. He ultimately lost his belongings in the fire, including university books and a laptop in the fire[2].
[2]Statement of Ahmad Ayoubi (pg. 31-35)
10Mr Zaffa saw a blanket burning in large flames and thick black smoke in your bedroom. He heard you yelling and crying in Arabic but could not understand you. Mr Zaffa ran back to his room and grabbed what he could before running to his car and driving it to the street[3].
[3]Statement of Moin Zafar (pg.44-48)
11Mr Delcastillo also woke up to smoke alarms and observed flames in the far corner of your bedroom. He then ran into the kitchen and saw you holding a small, burning towel and spraying it with a deodorant[4]. Mr Delcastillo extinguished the burning towel with a bucket of water before leaving the address, as the fire started spreading[5].
[4]Photograph of BRUIT deodorant cannister (pg.163)
[5]Statement of Alberto Delcalstillo (pg.36-43)
12Mr Younan saw the fire coming out from your bedroom towards the door and the kitchen. He struggled to leave the house going down the stairs because he was scared. He lost his personal belongings in the fire to the value of less than $1,000 including his Syrian identification and his visa document[6].
[6]Statement of Fareed Younan (pg.49-53)
13Mr Davis was in his room collecting his belongings when the lights went off on the upper floor. It was pitch black. He had to feel his way down the stairs to find his way outside[7].
[7]Statement of Peter David (pg. 58-66)
14When Mr El-Hash opened his door, he could only see about 1 metre in front of him due to the smoke and fire. He could hear people screaming. As he moved downstairs he could not breathe, there was fire everywhere, he only too his phone with him.[8]
[8]Statement of Bassan El Hajje (pg.67-71)
15Mr Alakash woke up to the sound of other residents running and shouting. He immediately went downstairs as it was too unsafe. He lost all of his property to the value of about $5,000 including his laptop[9].
[9]Statement of Maher Alahash (pg. 72-75)
16Mr Polis who was not present at the time lost his belongings in the fire including his citizenship, his passport and around $800 he had for rent[10].
[10]Statement of Hani Poli (pg.54-57)
17The Metropolitan Fire Brigade attended with several trucks and began clearing the burning building. They started entering the room using force to open the doors and ensure people were not inside. By the time they reached the third room on the left the fire was a lot more involved and it could be seen in the roof.
18Multiple police members attended and assisted with evacuation of neighbouring properties. The address of 221 Widford Street was also a boarding house with approximately seven bedrooms housing residents and disabilities[11].
[11]Statement of S/C Melisa Scholte (pg. 115-121)
19All residents left the house without suffering any injuries. With the help of St Vincent's care some of them were moved to a temporary accommodation at the Meadow Inn Hotel.
20The fire was eventually extinguished but not before the house was totally destroyed. The sum of $890,735.47 was subsequently paid to the victim by her insurance company.
21The cost incurred by the Metropolitan Fire Brigade was $40,256[12].
[12]Cost of MFB Resources (pg.166)
Arrest and Interview
22You were located by the firefighters lying on the kitchen floor and removed from the burning house[13].
[13]Statement of Lyle Baillie (pg. 76-86)
23You resisted being removed repeatedly saying, 'leave me here, I want to die'. You were acting aggressively and erratically to the point where you had to be restrained on the ambulance stretcher bed.
24While in the ambulance, you told police that you were crazy, that you had started the fire because you wanted to kill yourself, that you stopped taking your medication and that you started the fire with your thoughts[14].
[14]Statement of S/C Melissa Scholte (pg. 115-122)
25You were taken to the Northern Hospital where you were assessed for possible injuries and a piece of glass was removed from your foot. You were also assessed under the Mental Health Act by the norther mental health crisis assessment team but you were not admitted for further psychiatric treatment.
26At approximately 2.12 pm you were arrested and taken to the Broadmeadows police station for an interview. On the way, police observed you banging your head on the side of the divisional van pod. They immediately stopped the vehicle and conducted a welfare check. They were able to get a verbal response from you so they continued on.
27You were assessed as unfit for an interview by the forensic medical officer[15].
[15]Statement of Dr Rose (pg. 107-108)
FURTHER INVESTIGATION
28A report prepared by a forensic chemist dated 13 September 2019 indicated that your bedroom had sustained the most fire damage, the ceiling had collapsed and plaster had fallen from the walls. The windows were broken as a result of the fire. The bed, the mattress and bedding sustained the most damage. Most of the combustible material had been consumed by fire. The floorboards had sustained minor damage.
29The remaining rooms on the ground floor of the house had sustained minor to moderate heat and fire damage mainly to the upper walls and ceiling.
30The fire burnt the support frames from the floor to the upper level which made the floor unstable and unsafe to walk on. From the top of the stairs, it was possible to observe that the fire damage appeared to have been mainly in the roof space, causing the roof and ceiling to collapse throughout the area. There were ducts running through the ceiling for both the ground and first floor. The fire entered the ducting in your bedroom and spread through the rest of the ceiling and the upper level through the ducting[16].
[16]Photograph Binder Book containing 245 photographs
31Mr Shaaya, your offending is most serious and deserves a punishment which is just in all of the relevant circumstances. Your conduct must be appropriately denounced in all of the relevant circumstances. You deliberately set fire to your bed knowing that you shared premises with a number of other people. They were all entitled to feel safe in their rooms and not be subjected to the terror that your actions caused them. Not only did many of them lose their accommodation but they also lost their personal possessions which they could ill afford to lose. There are no victim impact statements but it takes no imagination to know that it would have been terrifying for many of the people who were at the premises at the time.
32It is very sad that you apparently wanted to end your life on that particular occasion. No one would want you to do that, but even if you were determined to take that sad course, there was no need to subject all of the other people to your death wish. Having said this, I accept that your state of mind at that time was far from rational and that there was no direct intent to harm anyone else when you started the fire.
33I allow for a significant discount in the sentence that I would otherwise impose due to your early pleas of guilty as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. However, largely, due to your state of mental health, you have little insight into the seriousness of your conduct and you are also lacking in remorse. You have given various conflicting accounts and explanations in respect of your offending which is of concern. I hope that you develop appropriate insight and remorse with the help of appropriate treatment and expert counselling in the future.
34I have considered some expert material in respect of your state of mind at the relevant time. The evidence appears to indicate that you were intoxicated at that time but there is also evidence which tends to suggest that you were also suffering from a serious underlying mental illness.
35In his report, forensic psychiatrist, Dr Nicholas Owens said:
'It is probably the case that he was suffering from a mental impairment at the time of the offence which was most likely a psychotic episode with auditory hallucinations and possible delusions about his housemates. It is also possible that his mood was abnormally elevated (he was manic). It is unknown whether this episode was triggered by illicit drugs or alcohol'.[17]
[17]Psychological report of Dr Nicholas Owen dated 16 February 2020 [79]
36In these circumstances, I directed that a further expert report be obtained. In his report, dated 23 February this year, Forensicare psychiatrist,
Dr Keng Chuan Soh was of the view that you would meet the criteria for alcohol use disorder and substance abuse. He also said that your symptoms would have met the criteria for a diagnosis of major depressive disorder.37He said:
'I am inclined to believe that he would have been psychotic at the material time, though this was masked by his intoxication. This would help to explain why the psychotic features only appeared to have emerged at subsequent assessments at the point when his intoxication would have resolved.’
He said:
There is insufficient evidence to discern if his psychotic symptoms were solely secondary to drug use or a relapse of a primary psychotic illness such as schizophrenia.’
He said:
The alcohol consumption alone and the absence of a primary psychotic illness is unlikely to result in psychotic and manic features which he presented with. While ice was identified to have precipitated his psychosis in 2017, there is no evidence to identify whether he was using drugs in the lead up to the material time which could have aggravated or even precipitated his psychosis.”
38Although you have a history of drug use, there is no evidence that you were using methamphetamine at the time of the offending; in fact, I understand that your instructions were that you were not, although I also note that you instructed your legal representatives that you had not consumed alcohol since your mother's death. You told Dr Soh that you still consumed alcohol at family gatherings about three times a year. You also told him that you used ice for about a month or 50 days after your mother died, having consumed cocaine and heroin to a fairly limited extent in 2003.
39I understand that you may well have been concerned to give a good account of yourself in respect of alcohol consumption due to the strictures of your Muslim faith. In light of Dr Soh's opinions, however, and factoring in the views of
Dr Owen, I am satisfied on the balance of probabilities that at the relevant time you were labouring under a psychosis; however, the symptoms of this were somewhat masked by your alcohol intake. Clearly you were acting in an irrational way at the time of the offending, unlikely to be explained purely by your alcohol intake. I am prepared to infer that the underlying psychosis that you were labouring under had an impact upon your judgment and your ability to reason and to make calm and rational decisions.40In the circumstances, I make a fairly solid reduction in your moral culpability, although not as great a reduction if there had not been the contributing factor of intoxication.
41In all the relevant circumstances, I assess your prospects of rehabilitation as guardedly good. On the one hand you have committed a serious offence, have very limited insight, little remorse and have had struggles with mental health and alcohol and substance abuse. On the other hand, you had reached the age of 46 without any criminal history, you have had the salutary experience of being in gaol for a substantial period and you have complied with fairly onerous bail conditions for some time. And you now appear to be accepting of the need to be appropriately treated for your mental health and substance and alcohol issues.
42In the absence of Verdins' considerations, I would have placed strong weight on general deterrence and on the need to punish you and denounce your conduct. I would have placed fairly minimal weight on specific deterrence in view of your lack of criminal history, although factoring in the matters relevant to my assessment of your prospects of rehabilitation.
43However, in view of my findings in respect of Verdins, I make a fairly solid reduction to the weight that I would otherwise apply to general deterrence, specific deterrence, denunciation and punishment. I must place some weight on protection of the community.
44I also accept that the expert evidence supports the conclusion that your time in custody has been and would be harsher than for someone without your mental health issues.
45I take into account your background which has been somewhat traumatic:
46You were born in Iraq and you are the third eldest of the 11 children in your family. You were 46 at the time of the offending and you are now 47.
47As I have already said, you fled Iraq and lived in Syria between 2009 and 2014. You lived there alone as your family members fled to various different countries.
48You arrived in Australia as a refugee in December 2014 where you reunited with most members of your family.
49You are a permanent resident and I was told that you are eligible for Australian citizenship. I was not told whether the offending will have any impact on your ability to stay here. Much might depend on the outcome of these proceedings.
50You are single and have no children. You live with one of your brothers and your father in a suburb of Melbourne. Sadly, your mother passed away in 2018. I understand that your relationship with your father has been a troubled one in the past but you are managing to get along these days.
51You went to school in Iraq until you were 13, then commenced working as a shoemaker. You were trained in this skill by your uncle. You worked as a shoemaker in Syria for the five years that you lived there and you also worked in this field in a factory in Melbourne for several months before the offending. You also worked in this area for about 10 days in May this year but you had to stop due to aggravation of pre-existing injuries.
52When you were still in Iraq in 1992 you suffered injury when you were hit by a car. Both of your legs were fractured and you spent two years in hospital recovering. In 2016 you had surgery on your right hip due to an injury sustained in Syria during the civil war conflict.
53On 29 May 2020, after slipping over at work, you had an operation on the same hip and on your legs again, which meant that you needed to use crutches for mobility. I was told that you now need to use a walking stick.
54Apparently, you have had problems with your liver due to alcohol consumption. I was told that you are to have an operation to address this problem.
55I understand that you are presently taking appropriate medication for your mental health issues, however, I note that Dr Owens was unable to confirm this with your GP who had been prescribing it. If you are prescribed medication for your mental health, you must be sure to take it.
56At the original plea hearing, the prosecution agreed with your counsel that a sentence of imprisonment in combination with the community corrections order was within the range of available sentences. As I was concerned about the state of the evidence in respect of your mental health, I adjourned the matter to obtain a Forensicare report but also to obtain an extended community corrections order assessment.
57You have been deemed suitable for a community corrections order.
58The prosecution submits that time served and a community corrections order is at the very bottom of the range but is still open. They make this submission even though they argue that most of the Verdins principles have not been established. I have found otherwise. But I have some serious concerns about you, especially in view of some of the things that are contained in the expert reports and the community corrections order assessment. However, the best way to address your issues and to protect the community in your case is to impose a sentence which will hopefully help you to address your mental health issues and other issues once and for all.
59In my view it is appropriate to accede to your counsel's submission in respect of sentence but let me make it very clear, if you do not cooperate with all of those involved in your supervision and treatment whilst you are subject to the community corrections order, you face the very real prospect of being breached on the order and I may have very little option but to send you back to gaol.
60Please stand up.
61You are convicted of each of the offences.
62I make the disposal order which is sought by the Crown and which is not opposed by you.
63In relation to each of the charges, you are sentenced to an aggravate term of 142 days of imprisonment which I declare has already been served. In addition, in relation to all of the charges, you are to undertake a community corrections order for a period of three years.
64I intend to place you on a community corrections order but I can only do this with your consent, so please listen carefully to the order that I propose.
65The community corrections order would run for a period of three years.
66The conditions of the community corrections order would be as follows.
67Firstly, the mandatory terms that apply to all community corrections orders which are,
68You must not commit another offence for which you could be imprisoned during the time that the order is in force.
69You must comply with any obligation or requirement prescribed by regulation 17 of the sentencing regulations 2011.
70You must report to and receive visits from the Secretary of the Department of Justice (or his or her delegate.)
71Just in relation to the reporting condition at Coolaroo, you must report to the Coolaroo justice service centre, before 4 pm within two clear working days of today but I understand that a particular appointment has been obtained for you tomorrow to ensure that you have the help of an interpreter. Madam Associate, what is the time of that appointment please.
72ASSOCIATE: Your Honour, tomorrow at 1 pm.
73HER HONOUR: At 1 pm.
74ASSOCIATE: Coolaroo Community Corrections (indistinct words).
75HER HONOUR: Thank you- the appointment will be at 1 pm at the Coolaroo community corrections centre. Sorry, Mr Interpreter, that is not in there, all right, so you have said that, yes, all right, so it is at 1 pm tomorrow at the Coolaroo community correction - Coolaroo justice service centre.
76You must let a community corrections officer know within two clear working days of you changing your address or job.
77You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate.)
78You must obey all lawful instructions from and directions of the Secretary of the Department of Justice (or his or her delegate.)
79There will be further conditions that apply in addition to the mandatory terms listed which are:
Community work
80Although there is no recommendation for community work, in my view you should undertake some. It might be that you can teach others your special skills in respect of shoemaking or do something for someone else to help structure your day and as a further punishment for your offending. You must undergo 100 hours unpaid community work within three years. Up to 50 hours of this requirement may be satisfied by the successful completion of the equivalent period of any of the treatment and rehabilitation conditions of this order.
Supervision
81Also you must be under the supervision of a community corrections officer for a period of three years.
Treatment and Rehabilitation
82You must undergo assessment and treatment including testing for alcohol and drug abuse or depending as directed by the regional manager.
83You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager.
84I require community corrections to closely supervise you and intensively apply the treatment and rehabilitation conditions for the duration of this community corrections order.
85Now, do you agree to the terms and conditions of the order that I have just explained?
86OFFENDER: (Through Interpreter) (Indistinct words).
87HER HONOUR: Thank you. I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me, you will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol. I would regard a breach of the community corrections order as a most serious matter whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this Mr Shaaya?
88OFFENDER: Yes.
89HER HONOUR: Do you still consent or agree to the order?
90OFFENDER: (Indistinct words).
91HER HONOUR: Therefore, in relation to the charges, you are convicted and sentenced to the community corrections order in the terms and conditions that I have just set out, that is in combination with the gaol term that I have previously announced and have declared has already been served.
92If not for your pleas of guilty, I would have convicted you and sentenced you to four years' imprisonment with a non-parole period of three years.
93I will now ask your counsel to help you with the signing of the community corrections order and the assistance of you, Mr Interpreter. Also,
Ms Gomez-Vasquez if there is anything that your client wished to raise by way of clarification he can do that at this stage. All right.94MS GOMEZ-VASQUEZ: Thank you, Your Honour.
95HER HONOUR: All right, thank you. We might need to use the hand sanitiser, I am not sure what the - there we are, we have got all the arrangements in place, thank you. I am sorry, it is for everyone, we are not implying anyone is unclean, it is just the steps we have to take now. We will get that back from you in a moment, Mr Interpreter, thank you. All right, you can take a seat
Mr Shaaya. All right, is there anything further you wish to raise,
Ms Gomez-Vasquez?96MS GOMEZ-VASQUEZ: No, Your Honour.
97HER HONOUR: Thank you, all right then. All right, Mr Shaaya, all the best. I hope you look after yourself and do everything that you need to under the order, all right? Yes, thank you, anything further, Madam Prosecutor?
98MS MALOBABIC: No, as Your Honour pleases.
99HER HONOUR: All right, thank you, we will now adjourn.
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