Director of Public Prosecutions v Tannous
[2016] VCC 835
•14 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00290
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE TANNOUS |
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| JUDGE: | HIS HONOUR JUDGE PILGRIM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 May 2016 |
| DATE OF SENTENCE: | 14 June 2016 |
| CASE MAY BE CITED AS: | DPP v Tannous |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 835 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. K. Heng | Office of Public Prosecutions |
| For the Accused | Ms. C. Foot | Emma Turnbull Lawyers |
HIS HONOUR:
1Mr Tannous, you have pleaded guilty to five counts of arson, one count of attempted armed robbery, one count of assaulting an Emergency officer or worker, and one count of affray, and one count of attempted arson. Further, pursuant to s.145 of the Criminal Procedure Act, you have consented to the summary offence of driving whilst licence was suspended, being dealt with by this court. You plead guilty to that count as well.
2Mr Tannous, you heard the learned Crown Prosecutor who was then Mr Ballek, tell this court that the maximum penalties for each of those offences were as follows;
3Arson, 15 years imprisonment; you have got five counts of arson.
4Attempted armed robbery, 20 years in prison as the maximum;
5Assaulting an Emergency officer or worker, maximum sentence of five years imprisonment;
6For being involved in affray, five years imprisonment; and attempted arson, 10 years imprisonment.
7The maximum sentence for the summary offence of driving whilst your licence was suspended is 240 penalty units or two years imprisonment. Those various maximum penalties, I would have thought, would have impressed on your mind, this is pretty serious.
8Mr Tannous, you have pleaded guilty and I will impose a lesser sentence of imprisonment than I otherwise would have imposed. In other words, you receive a discounted sentence for having pleaded guilty.
9Now briefly, the offending circumstances are as follows. Briefly, the background to your offending is that you had a girlfriend from your youth, or teenaged past that you had recently become re-acquainted with. You reacquainted with that young lady in mid-2015. Her name was Hannah Hakem.
10Ms Hakem became aware that you were struggling with mental health issues, and that things between you were not right. She could not manage those issues so she tried to distance herself from you.
11In August of 2015, while your father and stepmother were overseas, you attended at their home and took your step-mother's Mercedes Benz motor car. Some days later, on 24 August, I beg your pardon I think it was 26 August when you were arrested and charged with a number of offences that are said to have occurred in South Morang. It is further alleged at this time that you were then driving your stepmother's car. I will return to this alleged offending at South Morang a little later.
12It was at approximately 10.20 pm on Sunday 30 August 2015, that you drove your stepmother's Mercedes to Papworth Place , Meadow Heights intending to talk to your friend, Ms Hakem. You were drug-affected, having used the drug, ice, over the previous few days. You were sleep-deprived. You were also in a heightened state of anxiety, having been interviewed by the police four days prior over the South Morang incident, and you were concerned that your parole may be cancelled.
13At this time, you were driving while your driver's licence was suspended, it having been suspended on 3 August due to the accumulation of demerit points. That is the summary offence.
14As you drove along Papworth Place , your driving became erratic. You drove the Mercedes onto a grassed area adjacent to the road, and lost control and collided with a horizontal steel barrier, being horizontal to the ground. The car became wedged under the barrier at the base of the windscreen. The barrier was bent upwards due to the impact of the collision. Mr Tannous, you got out of the car and you took a five litre petrol can and axe from the car. You poured petrol from the can onto the car and set it alight with a cigarette lighter. The car became engulfed in flames causing extensive damage to the interior and exterior of the car. That is Count 1, arson.
15Mr Tannous, you then picked up the axe and the petrol can and walked down Papworth Place toward Hannah Hakem's house. After walking approximately 150 metres down Papworth Place , you stopped at the driveway entrance to a block of townhouses at 32 Papworth Place where Ms Hakem lived. At this time, Mohammed Karaogin and Deniz Erkul drove up in the their car and stopped at the driveway. They were arriving to visit friends who lived in one of the townhouses. You stood in front of their car, facing them and swinging the axe forwards and then backwards over your shoulder.
16You yelled at them to get out of the car. You then walked to the driver's side window and Mr Karaogin wound down the window. You then said, "Sorry mate, I thought you were Jacks. You're all right, go through." Mr Karaogin and Mr Erkul then drove up the driveway and went into their friend's house. Shortly after they heard a loud banging noise coming from the front door. Mr Karaogin opened the front door and saw you standing there holding the axe. You asked Karaogin if they were calling the police, to which Karaogin replied that they were not. You then said to him, "Give me $400." Mr Karaogin said he had no cash. You then replied, "Give me $200 then." Karaogin again said he had no cash. You said all right then, you've got your car out here and walked over to Karaogin's car. Mr Karaogin asked you not to do anything to his car, and you then walked away.
17The occupants of this house were all fearful of you as a result of this incident. That makes up Count 2, the attempted armed robbery. I must say when compared to other armed robberies, it is at the lesser end of offending.
18Having left Mr Karaogin and Mr Erkul, you then walked toward Ms Hakem's house and stopped at the house next door. You poured petrol into the rear tray of a Toyota Hi-Lux ute which was parked outside. You used a cigarette lighter to set fire to the contents of the tray causing minor damage. That is Count 3, arson.
19You then walked over to a Holden Commodore sedan, belonging to Hannah Hakem's sister, Jasmin. Jasmin Hakem and her three month old son were inside Hannah's house. Hannah was not home. Jasmin heard noises coming from outside and heard you say, "Unless you want to get hurt, stay out of my way."
20At this time, Mr Karaogin was watching you from the second floor balcony of his friend's house. Karaogin saw you hit the windscreen of Jasmin's car with the axe. You then poured petrol over the car and set it alight. That is Charge 4, another count of arson.
21By now, Jasmin had walked up to the upstairs balcony and screamed out to you, "Who are you? What are you doing?" You did not reply and Jasmin realised it was you, Mr Tannous, and watched you walk casually away down the driveway holding the petrol can and the axe. The fire caused significant damage to Jasmin Hakem's car. That car was not insured. As I understand it, both the Mercedes Benz and the Commodore were total write-offs.
22Mr Tannous, you then walked up to a townhouse at Unit 3/32 Papworth Place and poured petrol onto a front wooden window frame and set it alight. The fire engulfed the front window and frame and caused extensive damage to the building and furniture and smoke damage throughout the house. The house was furnished, but unoccupied at the time. That is the fifth count of arson. You did not know, of course, that the house was unoccupied, but nevertheless that is what happened.
23Around this time, firefighters, Stephen Mack, Ray Griffiths, Andrew Taylor, Noel Marshall, Francis Gresch, Brendan Edwards and Matthew Kent had arrived at the block of townhouses in two fire trucks. They had been called to extinguish the fire burning the Mercedes car. Having dealt with the Mercedes, they were now responding to the fires in the vicinity of the townhouses. Upon arrival they immediately attended to the burning townhouse at Unit 3/32 Papworth Place .
24As they were doing so, they observed you silently and rapidly approaching them. You were holding the axe and the petrol can and had a menacing look on your face. Fearing for their safety, the fire fighters immediately dropped their hoses and gear and retreated behind their nearby fire trucks.
25Mr Tannous, you then walked over to a fire truck and poured petrol along the driver's side steps and panel. You set fire to a long piece of paper and tried to ignite the fuel on the truck, but you were unable to do so. You opened the driver's side door and climbed up the steps, you poured petrol inside the cabin and then used the paper to light the fuel. The cabin immediately caught fire causing minor damage. That is Count 6, arson.
26Not content with all of this, you then got down from the truck and walked back up the driveway. As you did this, firefighter, Matthew Kent, began to extinguish the flames in the fire truck. Upon seeing this, you returned to the fire truck in an agitated state while brandishing the axe. You walked towards Mr Kent, who sprayed you directly in the body and face in an attempt to impede you. This had no effect on you, other than to make you more agitated. You continued to approach Kent in a threatening manner.
27Fearing for his safety, Kent dropped the hose and ran across the street. You followed and as Kent was running, he looked back over his shoulder and ran into a tree allowing you to catch up to him. You then swung the axe which connected with Kent's ankle, hooking his left leg up and causing him to stumble forward. Kent managed to keep his feet and ran behind one of the fire trucks. That is Charge 7, assaulting an Emergency worker.
28Then, Mr Tannous, you menaced a number of other fire fighters while brandishing the axe. Fire fighter, Stephen Mack, climbed through the cabin of one of the fire trucks in order to escape from you. Mr Mack later stated he had never been so scared in his life. Andrew Taylor said he feared for his life, as he could not run with all the gear on, that fire fighters wear, he felt vulnerable. Noel Marshall stated he received injuries to his hip and ankle as he had tripped over when running away from you. They were all geared up and of course it is not easy for them to run as they might otherwise, unhindered.
29Ray Griffiths was also chased by you and he said he feared for his life and did not know what to do or where to go. Francis Gresch said he was in fear for his life and felt emotionally traumatised. All of this outrageous behaviour constitutes the offence of affray.
30You then approached the driver's side door of the fire truck and you poured fuel from the petrol can along the side of the truck and the steps to the front cabin.
31You used your lighter to light a long piece of paper which you then threw onto the truck in an attempt to set fire to the truck. The truck did not catch alight and there was no damage caused. That constitutes the attempted arson, Count 9.
32Mr Tannous, you then walked away from the fire trucks and disappeared from the view of the fire fighters at the end of Papworth Place which is a court. The court also has a path leading to a nearby reserve. By this time, police had arrived and a thermal imaging device was utilised to locate you. You were now hiding behind a fence at the end of the court. A police dog was employed to arrest you. Thereafter a violent struggle ensued, which resulted in injuries to yourself and you were later conveyed to St Vincent's Hospital where you remained for two nights.
33Mr Tannous, you grew up in Brunswick. You have eight brothers and one sister. Your parents separated and divorced when you were a young lad of 7 years of age. You then lived with your father and stepmother. Unfortunately, and unhappily, your mother is burdened with schizophrenia. You have memories of your mother's battles when she was psychiatrically unwell and your family's issues attempting to look after your mother and gaining hospitalisation for her.
34Professor Warwick Brewer, a consultant clinical neuro-psychologist, on pp.3 and 4 of his report, records a lengthy list of your development history. This report dated 10 May will be exhibited to these sentencing comments. Your young life has been traversed upon a long and unhappy, rocky road.
35Dr Leon Turnbull, a consultant psychiatrist, also provides a most informative and helpful report. That report is dated 25 November 2015. Professor Brewer, among other things in his report said this, and I quote from his report. It is him speaking of you:
36"Mr Tannous stated in a logical manner, though with halting speech, how his understanding of the need for an assessment was that he suffered an acquired brain injury after being hit over the head on at least two occasions, one of which involved being hit with a sledge-hammer."
37You go on to explain to Professor Brewer that you had spent 31 days in Intensive Care following that injury. You then stood up and demonstrated three knife wounds to your left trunk and right arm following a stabbing around 2007. "He stated he had been left with 35 per cent function of his left lung."
38I have referred to Professor Brewer's chronology of your life. Briefly, you completed Year 11 at High School before then working at McDonald's when aged 16. You then moved to your family's business, that is, re-stumping, I assume, older buildings. You were then a hardworking young man and by age 18, you had purchased your own home.
39At this time, you enjoyed playing football with Glenroy. Unfortunately when aged 19, you encountered serious injuries that substantially interfered with your young life. Those injuries are the ones I have already spoken of, where you were struck with the sledge hammer.
40That was whilst at a reception. You were assaulted by gate-crashers; as I said, being hit on the head at least twice with a sledgehammer. You were also stabbed. As a result of this assault you found yourself hospitalised and you spent 31 days in an Intensive Care Unit. Obviously the injuries were serious. The effect of this dreadful event finished your playing of football and affected your ability to work. No doubt your acquired brain injury relates to that serious assault.
41At age 23, you had married. Unfortunately, this marriage failed. Significant problems were emerging when you found yourself incarcerated for intentionally causing serious injury and assault-related matters.
42You have many motor traffic-type offences arising from five separate court appearances and numerous traffic infringement notices. I have already spoken of those. That is how you acquired the points where you lost your licence.
43Your first encounter with the criminal justice system was when you were charged before the Broadmeadows Children's Court in July of 2007 for recklessly causing injury. In the Children's Court you received a good behaviour bond. You later returned to the Melbourne County Court on separate offences on 6 July 2011. On that day you were convicted and sentenced to three years and two months imprisonment for intentionally causing injury and common law assault. You were to serve 12 months imprisonment before then becoming eligible for parole.
44I will stop there for a moment, but I will come back to it in a minute. Returning to the brief circumstances of your life, up until this time, as I mentioned a moment ago, you were married to Natalie, as I said, when aged 23. This young woman was a great support to you. Natalie understood that you were not well relating to the injuries you have suffered.
45It was Natalie that called the CAT team that ultimately saw you admitted to the Orygen Youth Health Organisation where you spent approximately 31 days as an inpatient at the Footscray Hospital. On discharge from the hospital, you fell back into using and abusing meth-amphetamine which escalated. That escalation led to what comes next.
46Mr Tannous, you were breached relative to your parole that you were then serving, reflecting, so there is no misunderstanding, the County Court had sentenced you to three years and two months to serve one year before being eligible for parole. You served that one year sentence. You were then on parole. You were paroled but were breached as I have just said, and you then served a second one year term in prison for breaching the parole. You report that you were then again paroled, still owing one year.
47You report to Dr Turnbull, psychiatrist, and Professor Brewer, that when paroled on this occasion it was your belief that your parole officer was very happy with your performance on this occasion.
48You had set-up a home handyman business and you were running that successfully working approximately 15 hours per week. At this time you had formed an association then with Ms Hakem. It was whilst visiting Ms Hakem's residence that these current offences were committed and I have just spoken of them.
49At the time of this offending, that is, 30 August 2015, you were again on parole having been released on parole on 17 October 2014. In addition to being on this parole you were also on bail for the offences of unlawful assault and possessing a weapon that related to the South Morang issues. You committed those offences allegedly on 24 August.
50Dr Turnbull in his report, dated 25 November 2015, said this of you and I quote: This is Dr Turnbull speaking of you:
51"He denies being present regarding the charges of 24 August 2015 and believes he was set-up. In response to being notified of the alleged offending, he became particularly stressed, didn't sleep and having achieved significant period of abstinence from drugs, went and purchased a large quantity of ice. He used heavily, felt alone, his parents were overseas leaving him with little support, and his ex-partner Hannah made contact with him via text message. He interpreted her text as significant and went to see her as his phone had no credit for him to then ring her."
52On the day, 30 August, you had smoked 8 grams of ice.
538 grams of ice in one day. That's huge. You cannot remember half of what happened. I am not surprised.
54You vigorously deny the offences of 24 August and your response to these current matters, however, you do not deny. To put it in the vernacular, "you went on a bender and the rest is history."
55Mr Tannous, the offences before this court are all very serious matters. It is unfortunate that the fact is that two of the motor vehicles that you set alight have been written-off. They were totally destroyed. In addition, you set fire to two of the fire trucks that attended on this day. Both of these trucks suffered minor fire damage.
56The housing unit that you set alight suffered significant damage, more serious damage to this unit had to have occurred, had it not been for the immediate presence of the fire fighters. As you know, and as I said earlier, they were present when you torched this unit. They were able to quickly extinguish this fire despite that significant damage still occurring. If they had not have been there, goodness knows what the result was, because as I understand, it's a unit and it may well have spread, but it did not happen, but serious damage occurred and you were not to know that the place was empty. Certainly had furnishings, but no people living there.
57Mr Tannous, in assaulting fire fighter, Matthew Kent, your actions in committing this assault are atrocious. All Emergency workers put their lives on the line in protecting the community. To assault such people is totally obnoxious. Your counsel, Ms Foot, has conceded that an immediate term of imprisonment is warranted in this instance. The further aggravating feature of your offending, as I have already mentioned, is that not only were you on parole at the time of committing the offences, you had also been released on bail in respect of the alleged offences of 24 August. That was only six days earlier.
58Kellam AJA in the case of DPP v Derby [2007] VSCA 92 quoted Winneke J, then the President of the Court of Appeal in Mazur's case. That is to be found at [2000] 113 ACR where the President of the Court of Appeal said this. This is Winneke J.
59"Courts imposing sentences for offences of arson will except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate."
60In another case in which Chernov J was then the judge making the determination, the case being DPP v Bright [2006] 163 ACR , and Kellam J quoted Chernov, and this is what Chernov J said:
61"This court has recently emphasised that those apprehended for this offence, that is, arson, must generally expect to receive a stern sentence of imprisonment. Not only is the offence serious, as I have mentioned, and the offending grave, but the sentencing principles of general deterrence and specific deterrence and denunciation were of considerable importance in the sentencing disposition."
62Mr Tannous, there are two matters that I must refer to before I move on. One is this, and I must take this into account. It is not your fault that you have acquired this acquired brain injury and Professor Brewer, in his report dated 10 May 2016, among other things, said of you as to your mental deficits and he goes through what they are. I am not going to go through them again, they are all within his report and that has been exhibited to these sentencing remarks.
63But what the Professor did say:
64"Mr Tannous's clinical history and current cognitive and emotional presentation and the underlying organic and functional compromise detailed above" - that is where he detailed what happened to you, "presents sufficient explanatory weight to warrant a consideration and mitigation of Mr Tannous's responsibility to a mild moderate extent, for facing the consequences of his actions."
65Now just before I move on, I must indicate to you that there were a number of victims involved in this. Some of the victims have chosen to file Victim Impact Statements. I am not going to read them in full, but I am quoting from some of them. In this case, four victims have made Victim Impact Statements relative to your monstrous behaviour on this day.
66Your previous lady friend, Hannah Hakem is devastated by your actions. She is now scared and frightened in her own home. She finds it very difficult to relate to friends, indeed Hannah is finding it hard to relate to anybody, in particular mental health professionals where she is seeking help. Hannah has now had to relocate, as she is afraid to remain in her present accommodation. Hannah did not leave her home for two weeks after the incident. She is now unemployed and dependent on Centrelink benefits.
67Three of the firefighters, Mr Kent, Mr Griffiths and Mr Gresch all filed Victim Impact statements. All of these men have been dramatically affected by your violent actions. Each of these men have to frequently return to this area in their capacity as rescue and firefighters and rescue team officers. They have bad and frightening memories when they revisit this particular area. Despite firefighter Kent's blasting you with the pressure hose at the time, he, Mr Kent, was endeavouring to quell the fire you ignited in the fire truck, Mr Gresch observed that when he, Kent, was firing the hose at you, and Gresch said this in his Victim Impact Statement and I am reading directly from his statement:
68"There are numerous recurring things such as I should have done more to help my crew. I was standing just behind firefighter, Matt Kent, when the accused charged us with the axe. I still have a clear memory, picture in my head, of the accused's eyes. He seemed manic and unstoppable even though firefighter Kent was blasting him with the high pressure hose. This should have stopped him in his tracks. Instead, he became more enraged which I could see in his eyes. In that moment, I feared for my life. I feared for the lives of the other firefighters with me, but especially for firefighter Kent, as he was the closest to the accused and did get hit by the axe. Countless times since then, I have thought that I should have done more. I should have charged the accused to protect myself and the others. I thought that I was a coward for not trying to stop him because I ran away."
69All of the firefighters in their Victim Impact Statements express similar emotions. They were truly fearful of you and no doubt you were in a manic state. Mr Tannous, each firefighter has difficulty in coming to terms with your volcanic violence. They are in accord with one another in now lacking in trust when dealing with members of the public or the community, being called to firefighting positions or rescue positions, because this scene revisits them. Again, your behaviour towards these men and all others at Papworth Place, Meadow Heights on this day was appalling.
70Mr Tannous, I assure you that I have taken into account all that has been said on your behalf by Ms Foot. I take into account your early plea of guilty. That plea is indicative of your remorse. Ms Foot again, on your behalf, expresses your remorse to this court. As to your rehabilitation, if you are to successfully rehabilitate yourself, you must conquer your drug addiction. Ice has become a plague within our society and you are dramatically affected by it. You have also had a number of prior convictions and I have touched upon those in these sentencing remarks. I do not propose to revisit them. Would you stand up please.
71So that there is no misunderstanding, I will quickly identify which arson matter I am speaking of so there is no doubt in your mind, Ms Foot, when you come to speak to your client, and of course, when you are marking your brief.
72HIS HONOUR: In relation to Count 1, which is the arson count touching upon the Mercedes car, your stepmother's car, you are convicted and sentenced to be imprisoned for a period of three years;
73In relation to the attempted armed robbery, you are convicted and sentenced to be imprisoned for two years, one year of that sentence to be served concurrently with the sentence imposed on Count 1.
74In relation to Count 3, which is the arson on the ute where there was no damage, it was simply petrol poured into the back of the ute, you are convicted and sentenced to one year's imprisonment, that sentence to be served concurrently with the sentence imposed on Count 1.
75In relation to the arson of Jasmin Hakem's car, Count 4, convicted and sentenced to three years' imprisonment, two years of that sentence to be served concurrently with the sentence imposed on Count 1.
76In relation to the arson offence, that being the unit - housing unit - Count 5, convicted and sentenced to three years' imprisonment, two years of that sentence to be served concurrently with the sentence imposed on Count 1.
77In relation to the arson of the fire truck, you are convicted and sentenced to one year's imprisonment, that sentence to be served concurrently with the sentence imposed on Count 1.
78On Count 7, which is the assaulting the Emergency Service employee, convicted and sentenced to one year and six months' imprisonment.
79In relation to the count of affray, convicted and sentenced to one year's imprisonment, that sentence to be served concurrent with the sentence imposed on Count 1, and the last count, the attempted arson of the fire truck, convicted and sentenced to one year's imprisonment, that sentence to be served concurrently with Count 1.
80The last remaining offence is the offence of driving whilst licence was suspended. Convicted and sentenced to one month's imprisonment, that sentence to be served concurrent with Count 1. That totals seven and a half years' imprisonment. The minimum term to be served is five years.
81I further make this announcement. The sentence imposed this day is commencing from this day and is to be served commencing from this day, concurrently with the sentence now undergoing so the concurrency starts from today.
82Pursuant to s.18 of the Sentencing Act the prisoner is to be given credit for having served three days of imprisonment.
83As a result of the sentence imposed on Count 1, having been convicted and sentenced to a term of imprisonment, Mr Tannous is to be sentenced as a Serious Arson Offender.
84On Count 3, Count 4, Count 5, Count 6 and Count 9 he has been sentenced as a Serious Arson Offender. Taking into account, and I specifically say this so there is no misunderstanding, the mental deficits which are no fault of this man for having been struck on the head with a sledgehammer, I do not propose to impose a disproportionate sentence. I may have otherwise.
85Will you please explain what that means to your client.
86Further, pursuant to s.6(F) of the Sentencing Act I am bound to make this announcement.
87You can sit down.
88In relation to s.6(F) I am bound to make this announcement. That is, in that section it is provided, that having been sentenced as a serious offender, this court must cause to be entered in the records of the court, the fact that the prisoner was sentenced as a serious arson offender.
89Further, there will be a disposal order made. I am not going to list the various items that are to be disposed of, but simply say that pursuant to s.78(1) of the Confiscation Act, those goods are to be forfeited to the State and I further direct that they be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings when it may be tested or analysed and then destroyed. Those goods are as set out in the Schedule to that disposal order.
90Last, but not least, I am bound to make an announcement in relation to s.6AAA. Had it not been for a plea of guilty and had it not been from what fell from Professor Brewer, I believe I would have imposed a term of imprisonment of at least 10 years with a minimum of 8.
91Any other matters?
92MS FOOT: Just to clarify, Your Honour. In relation to Charge 7, the assault Emergency worker, that's entirely cumulative.
93HIS HONOUR: Yes.
(See psychological report attached.)
DPP v Bright [2006] 163 ACR - - -
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