DPP v Catania
[2006] VSC 189
•22 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1496 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN JAMES CATANIA |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 9 December 2005 and 7 March 2006 | |
DATE OF SENTENCE: | 22 May 2006 | |
CASE MAY BE CITED AS: | DPP v Catania | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 189 | |
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Criminal Law – Sentencing – Intentionally causing serious injury – Victim set on fire - Denunciation of act of wanton cruelty – Community protection – General and specific deterrence – Extreme personal disadvantage of offender – Some measure of remorse – Mental condition of offender – Length of term should not destroy prospects of rehabilitation – Identification of minimum term.
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APPEARANCES: | Counsel | Solicitors |
| For the Director or Public Prosecutions | Mr Bruce Walmsley SC | Stephen Carisbrooke Acting Solicitor for Public Prosecutions |
| For Mr Catania | Mr James McQuillan | Haines & Pilates Barristers and Solicitors |
HIS HONOUR:
Damian Catania, on 10 June 2005 you were found guilty by a jury of the offence of intentionally causing serious injury to John Ioannou at Werribee on 25 October 2003.
The crime of intentionally causing serious injury is one of the most serious known to the law. The maximum penalty prescribed by the Parliament for this crime is imprisonment for 20 years. The intentional causing of serious injury to another person is regarded by this Court as a matter of very serious gravity.
The circumstances of the offence that I will shortly describe show that your actions constituted a most serious example of this grave crime.
In the early hours of the morning concerned you were in bed asleep at your home in Werribee. Four other people – two males and two females – were also there at the time. They were having a private party. You had gone to bed earlier. You had been drinking heavily – without hardly eating - after finishing work at 1.00pm the previous day.
At about 4.00am, Mr Ioannou arrived. There is competing evidence about whether he barged in or was admitted after knocking, and also about whether he was screaming and shouting at the time. I am satisfied Mr Ioannou’s arrival was uninvited, unexpected and unwelcome. He was in a loud and agitated state. He frightened the two females with his behaviour.
Mr Ioannou came to your home that morning to see if you wanted to buy a kitchen. Mr Ioannou - a carpenter by trade - had partially disassembled a kitchen that had been installed in a new house next to the home of a friend not far from where you lived. Mr Ioannou had been working on cars with his friend and came up with the idea of stealing the kitchen and selling it to you. This idea was his alone. There was no prior agreement to sell you a kitchen. Mr Ioannou worked into the early hours of the morning partially disassembling the kitchen. He then drove to your house with his de facto wife, Shari Waka, who, incidentally, knew nothing about the stolen kitchen.
After Mr Ioannou’s arrival you were woken and came out to talk to him. He offered to sell you the kitchen for $2000. You said all you had was $400 and you were not going to pay $2000. Mr Ioannou asked to look at your bathroom because he had in mind stealing a vanity unit as well and wanted to see if it would fit. You showed him the bathroom. While you were both there, you asked him to fix your leaking shower for $80, which he agreed to do.
On the way back to his friend’s place, Mr Ioannou told Ms Waka about the kitchen. She persuaded him to put it back, which he started to do on his return. After about 20 – 30 minutes, he went inside for a coffee and then returned to his task. You arrived with your two male friends by car shortly afterwards and began looking for Mr Ioannou. This was about an hour after his visit to your home.
Mr Ioannou saw you and entered the driveway of his friend’s house up which you were walking. You both walked towards each other. You asked him where the kitchen was and he said “everywhere”, referring to its disassembled state. You then sprayed Mr Ioannou with flammable liquid (which I will call petrol) from a plastic bottle with a pierced lid which you brought with you for this purpose. You hid it up the sleeve of your right arm. You sprayed the petrol on his face, on his hands as he tried to cover his face and on other parts of his body. Mr Ioannou asked “you’re going to burn me?” You replied “I’ll fix you” and showed him the cigarette lighter you had in your left hand. Mr Ioannou grabbed that hand but you bent your wrist down towards his arm and flicked the lighter on to set him on fire. The clothing on his arm, which was doused with petrol, quickly caught alight. In an instant he became a ball of flames.
The terrified Mr Ioannou managed to get inside the house where he was assisted by the occupants, including Ms Waka. She placed Mr Ioannou in the bath and put the fire out by running water on him from the shower. Meanwhile you left the driveway with the other two men and drove back to your house with them. You did not offer assistance to Mr Ioannou.
The police were called. Detective Senior Constable McDermott saw Mr Ioannou at his friend’s house at about 5.15am. He observed a shocking scene. There was a blue smoke haze hanging inside the house and he smelt burnt hair and petrol. He saw Mr Ioannou in the bath with the shower running over him. He was screaming with pain. His clothing was hanging in shreds from the top half of his body. There was molten skin hanging from his hands as he held them to his chest. Where skin could be seen, it had the appearance of raw flesh. The police forensic scientist also attended the house and observed burnt skin and charred material in various places.
After Mr Ioannou was taken to hospital, the police arrested you at your home. You have been in remand since the morning of the crime, a period of about 2 ½ years.
When interviewed by the police you said – and I accept – you had no memory of the incident because you experience mental blocks. I will return to your medical condition a little later. You said you understood something pretty bad had happened and you knew you were not eligible for bail. You said, and I quote, “I’m sorry for the person that got injured. I never meant it to go that far…”
It is extremely hard to understand why you set fire to Mr Ioannou. You have previously been before the courts on crimes of violence but there is nothing in your history to suggest you would do such a thing, and certainly nothing, until now, to suggest you would use fire as a weapon. Mr Ioannou’s attendance at your home in the early hours of the morning to try to sell you a stolen kitchen was a serious disturbance of your peace. Your actions appear to have been in retaliation, the object being to teach him some kind of lesson. But I do not know how anybody could set fire to a fellow human being for disturbing their peace. The best assessment I can make is that Mr Ioannou’s attendance at your home led you to commit a terrible act of violence towards him. You very nearly killed him. It hardly needs to be said that nothing done by Mr Ioannou that morning could even remotely justify such a response.
Your actions were not premeditated in the sense that you planned them for days. But you did have some time to think about what you intended to do and to carry your intentions out. You did not express anger towards Mr Ioannou at your home and in fact you invited him to fix your leaking shower. But after he left, you devised a plan to spray him with petrol. You obtained a plastic bottle, some petrol and a lighter. You pierced the lid of the bottle so it could be used as a spraying device. You drove to the house where he was and looked for him. You approached him with the petrol bottle hidden up your right sleeve ready to spray petrol on him. You then carried out the crime and returned home. This took about an hour and your crime was planned to this extent. However it was almost inevitable that you would be apprehended for this crime. If you had sufficient time to think about this, I think you would probably have come to your senses. Your crime does not fall into the category of one that has been committed after careful preparation over an extended period.
Medical evidence was presented in the trial about the impact of the fire upon Mr Ioannou. He had burns to 60% of his body, including his face, neck, both of his arms and hands, chest, abdomen and back. Of these burns, 35% were full thickness and 25% were partial thickness. A medical report from the Alfred Hospital described the extensive medical treatment he has received. During this treatment Mr Ioannou developed septicaemia, pneumonia and burn and graft site infections. He will require further treatment in the future.
Mr Ioannou supplied a victim impact statement in which he described the impact of the crime upon him. He explained how he was placed in an induced coma in the intensive care unit at the Alfred Hospital for five weeks. Then he went to the burns unit for about two months and had on-going skin grafts and countless operations. Then he underwent rehabilitation at Caulfield Rehabilitation Hospital. He was discharged in October 2004.
Mr Ioannou explained how he can’t go into the sun because he is prone to skin cancer. He is stressed about his public appearance. He can’t look at himself in the mirror because he thinks he has strange coloured skin. He hates how he looks. He can’t do day to day chores, let alone work. He experiences on-going discomfort, cannot sleep properly and finds it hard to dress in the morning.
Mr Ioannou has little social life and fears his troubles will never go away.
He supplied a physiological report from Kim Dowse, who also gave oral evidence. In her report of June 2004 she explained how Mr Ioannou thought he was going to die. He became depressed and contemplated suicide, although these thoughts were receding. He feels vulnerable to unexpected attack. He cries often and thinks of the attack every day. He suffers from nightmares.
Ms Dowse has diagnosed Mr Ioannou as suffering from chronic, moderate post-traumatic stress disorder and chronic, moderate major depressive illness. He will continue to suffer from these conditions for years to come, although the symptoms will reduce in intensity and frequency over time.
Mr Ioannou gave evidence at the trial. The physical and emotional impact of being set on fire was obvious. He is extensively scarred, has to wear skin-protective clothing at least some of the time and frequently shivers. He gave evidence in a calm, dignified and deliberate manner, without exaggeration. He is doing his best to get on with his life in the most difficult of circumstances.
Ms Waka has also supplied a witness impact statement. She stated the incident has changed her life in a most negative way. She has lost trust in people and become isolated. She has not been able to be a proper mother to her youngest son and has herself been reliant upon a carer.
Ms Waka also gave evidence at the trial. She did so in an honest and dignified manner. She appeared to me to have been traumatised by the experience of seeing her de facto husband on fire. Somehow she found the courage to put the fire out. If she, with their friends, had not done so, he would probably have died. I strongly commend Ms Waka for the courage she displayed.
Mr Catania, let me now turn to your own personal circumstances. You were born on 29 September 1975 and are 30 years of age. You were aged 28 on 25 October 2003.
Your own life has been extremely disadvantaged. Your mother and father separated when you were at a young age. Your father had a long history of attention from the police. Tragically, he committed suicide by shooting himself when you were only eleven years of age. This was the first of two traumatic experiences you have had to endure. After your father’s death, your life was almost completely dysfunctional. Your mother could not cope with the responsibility of parenthood and you were sent to live with various relatives. You began to behave in a delinquent manner at an early age.
You were raised in the western suburbs of Melbourne. You attended a number of different primary schools and the Werribee and Sunshine Technical Schools. Your education was disrupted, and you may have learning difficulties.
Despite your unfortunate history, you want to make something of yourself and I hope one day you will. After serving a prison term in 1996, you obtained employment driving overhead cranes and trucks. You commenced living with your girlfriend, a childhood sweetheart, in 1997, and lived with her and continued working for about 2 years.
In February 1999 you were subjected to a drive-by shooting while waiting to be picked up from work one morning. This is the second traumatic event. The unknown assailants could have killed you if they wanted to but they shot the bullets into your waist, groin and leg region. You believed they meant to put you in a wheelchair. You spent twelve months in hospital. The assailants have never been brought to justice. Unfortunately your girlfriend left you and this relationship is at an end.
You were the victim in this drive-by-shooting and the impact of it upon you has been considerable. You suffer from a paranoid fear that you will be harmed again. This condition is described in the reports of your psychologist, Ian Joblin, which I will return to later.
You bought a house in Werribee in which you were living at the time of your arrest on 25 October 2003. It was later sold by the banks with some modest equity remaining. However Mr Ioannou has made a compensation claim and you expect to loose this equity. You consider yourself to be impecunious. I will be hearing Mr Ioannou’s claim so I will say nothing about this matter.
Mr Joblin has supplied two psychological reports.
The first is dated 15 May 2003 and was prepared in relation to previous charges. It reviews your extremely unsettled family and personal history and your history of offending to date. It states that in May 2003 you were well motivated to avoid any repetition of past anti-social activity. It states you wanted to stabilise and continue to do the right thing.
Mr Joblin describes the impact on you of being shot in 1999. It had a marked effect on your psychological state. He describes you as extremely anxious and paranoid. This has been made worse by police questioning in 2002 about persons whom your former associates shot dead. You are fearful that criminal figures will believe you assisted the police when, in fact, you were unable to do so. Your paranoia leads you to avoid situations that might place you in jeopardy. Mr Joblin says you may have attempted to deal with the impact of this paranoia by self-medicating with alcohol.
When Mr Joblin interviewed you for this report, you told him that in the past you had identified as being a criminal and had a long history of involvement in very serious crime in Melbourne. These comments were very frank because this kind of criminal history is not fully reflected in your appearances in court. I believe you were frank with Mr Joblin because you wanted to lead a different life and the admissions were part of the process of wiping the slate clean.
Mr Joblin’s second report is dated 21 July 2005 and it was supplied in relation to the present matter. He stated your psychological state since being placed in custody is one of considerable difficulty. The report makes the point you have never used fire to injure anybody before. It states you feel considerable distress at having hurt Mr Ioannou in this manner.
In Mr Joblin’s view, your psychological problems – especially your paranoia – have got worse since May 2003. You experience psychological problems in jail because you feel you need protection but do not want to be labelled as weak. You do not want to see health professionals for the same reason. You believe you may attract negative attention from other prisoners in various ways.
Mr Joblin does not believe you are psychotic in the sense of having paranoid delusions but this diagnosis could be appropriate if your condition deteriorates. He does not consider that any neurological malfunction has any direct relevance to your offending.
Mr Catania, you have come before the courts for various criminal matters since 1993. These include two charges of causing injury intentionally and recklessly in 1993, charges of resisting arrest and assaulting police in 1994 and two charges of causing injury intentionally and recklessly, two charges of unlawful assault and one charge of assault with a weapon in 1996. On these later charges you were imprisoned for a total period of eighteen months with a minimum period of nine months before being eligible for parole. No doubt mainly because of Mr Joblin’s report of May 2003, in that month you avoided a prison sentence on serious road traffic charges. Only six months later you committed this most serious offence against Mr Ioannou.
You experience paranoia, as I have mentioned. You also experience memory blockages. These may be due to head injuries suffered in motor cycle accidents and a period when you were a boxer and got knocked out on a number of occasions. You remember nothing of setting Mr Ioannou on fire, which you put down to a blockage of this kind, made worse by the large amount of alcohol you consumed beforehand.
I accept you have demonstrated some measure of remorse for your crime. When interviewed by the police on the day of the crime you said you were sorry for the person who was injured, as I have already mentioned. You expressed to Mr Joblin distress at hurting Mr Ioannou with fire, which I have also mentioned. I note you offered to plead guilty to the charge of which the jury found you guilty, but only if the charges brought against the other two men present were withdrawn. Such a conditional offer is only weakly indicative of remorse. There are indications of both remorse and the lack of it in tapes of your prison telephone conversations and I have found it impossible to reach any satisfactory conclusions by reference to this body of evidence. I am most persuaded that you suffer from some measure of remorse by what you told the police and Mr Joblin.
Your paranoid mental state has made your stay in prison more difficult than most, and will continue to do so. You have spent a significant period confined in high security units where the restrictions are much greater than in the normal prison environment. You have been in the mainstream prison system since April 2005.
In the future, you want to pack up and travel out of Melbourne. You want to try to put your life back together when you get out of prison. Your counsel has submitted that a significant period of parole would assist you to do so, which would benefit both you and the community.
I turn now to an assessment of the relevant sentencing considerations.
Mr Catania, as you intentionally caused serious injury to Mr Ioannou by setting him on fire, the most significant sentencing consideration must be the denunciation by the court of the nature and gravity of your crime. Setting a man on fire is an act of such wanton cruelty that it warrants a severe penalty. The impact of your crime, especially on Mr Ioannou, has been terrible.
General and specific deterrence are important sentencing considerations. Those who would commit such crimes as this, and you, need to understand there will be severe penal consequences.
The protection of the community is an important sentencing consideration. The term of imprisonment must, to an appropriate extent, reflect your propensity to engage in acts of violence. The community is entitled to a measure of protection from such violence.
I take into account in your favour your extreme personal disadvantage. Your most difficult family history – especially the tragic death of your father when you were only eleven years of age – has clearly robbed you of important social, economic and educational opportunities. In all likelihood, it has impaired your capacity to develop a proper understanding of the nature and consequences of your own actions.
I take into account in your favour the measure of remorse you have expressed.
I take into account your mental condition, as described by Mr Joblin, as a factor in your favour to an appropriate extent. I accept that, by reason of your condition, you are more vulnerable than most persons to a loss of self-control. On the other hand, you are not suffering from a serious psychiatric condition. You knew what you were doing and there was some planning involved in how you did it.
Your mental condition will make your time in prison more difficult than for many other prisoners.
You are thirty years of age and still a relatively young man. There are signs you are starting to come to terms with the course of your life and intend to try to rehabilitate. Your success in doing so will depend upon you developing a capacity to act upon this intention. You must eventually return to the community. The length of the prison term must not be so great as to destroy your prospects of rehabilitation, and I take this into account in the identification of both the head sentence and the length of the of the minimum term of imprisonment. This will enable the parole authorities to assess your suitability for parole at the appropriate time.
Mr Catania it is now necessary for me to bring these sentencing considerations together and pronounce your sentence.
For intentionally causing serious injury to John Ioannou you are sentenced to be imprisoned for 9 years. I fix a minimum of 6 years before you become eligible for parole. Pursuant to s. 18 of the Sentencing Act I declare the time you have spent in custody in relation to theses proceedings is 940 days (exclusive of today) and I direct it to be reckoned as a period of imprisonment already served under the sentence imposed. I have made the relevant disposal orders and the order under s. 464ZFB(1) of the Crimes Act 1958.
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