R v Dib
[2019] VSC 629
•17 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0329
| THE QUEEN | |
| v | |
| GEORGE DIB | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 30 August 2019; 12 September 2019 |
DATE OF SENTENCE: | 17 September 2019 |
CASE MAY BE CITED AS: | R v Dib |
MEDIUM NEUTRAL CITATION: | [2019] VSC 629 |
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CRIMINAL LAW — Sentence — Arson being reckless as to endangerment of life — Failed attempt to set fire to neighbour’s home — Mental and physical health of accused — Delusional disorder causally associated with offending — General deterrence — Moral culpability — Some moderation appropriate — Pre-sentence detention of 465 days — Time already served an appropriate sentence — Community correction order — Three year duration with conditions — Crimes Act 1958 (Vic) ss 197(2), (5)(b) and (6).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F Dalziel QC | Office of Public Prosecutions |
| For the Accused | Mr C Thomson | Slades & Parsons |
HIS HONOUR:
George Dib, on 7 August 2019, you pleaded guilty to one charge of arson being reckless as to endangerment of life.[1] The person you knew was more likely than not to be endangered by the damage you intended to cause at Coburg North on 8 June 2018 was your neighbour Seham Goubrial. Originally, you had been charged with attempted murder.
[1]Contrary to ss 197(2), (5)(b) and (6) of the Crimes Act 1958 (Vic).
On 30 August 2019, I heard an opening from the prosecution setting out the circumstances of your offending together with submissions from counsel on your behalf about the sentence that should be imposed on you. In addition, I received two victim impact statements.
The maximum penalty for the offence to which you have pleaded guilty is 15 years’ imprisonment.[2] It is now my responsibility to sentence you for this offence.
[2]See s 197(7) of the Crimes Act 1958 (Vic).
Background and circumstances of the offence
In June 2018, you were living at your family home at 44 Mashoobra Street, North Coburg with your brother. The victim of this offending, Mrs Goubrial, lived next door at 42 Mashoobra Street, along with her husband and two adult children.
The relationship between neighbours was harmonious until September 2015, when you and the Goubrial family had a disagreement in relation to an extension that you wanted to build onto your residence. It appears that, from that point forward, the relationship with your neighbours soured and became increasingly strained, all of which culminated in the offence you committed on 8 June 2018.
By way of background, in late April 2016, you approached Mr Goubrial in his driveway. You threatened him by saying that you were going to kill him and his family, and burn their house down. Mr Goubrial then sought personal safety intervention orders, which orders were granted on 23 May 2016 in the Broadmeadows Magistrates’ Court (“the intervention orders”). Those intervention orders were in force at the time that you committed the offence to which you have now pleaded guilty.
The Goubrials also decided to install CCTV security cameras on their property because of this incident. They subsequently recorded your conduct in this matter.
On 30 May 2018 at 8:48am, Mr Goubrial arrived home, having taken his wife to work. He found you waiting outside his residence. You told him to open the boot of his car and said, ‘If you don’t open the boot of your car nicely, I will attack you’. You then attempted to assault Mr Goubrial, but his brother intervened. Once you had been separated, you again repeated your threat to Mr Goubrial, saying, ‘I will kill you’. Police were ultimately called to attend. Charges arising from those matters are outstanding before the Broadmeadows Magistrates’ Court.
‘The events of 8 June 2018 began in the morning when you were seen by both Mr and Mrs Goubrial loitering around the front of their home. The CCTV camera recorded your actions. The Goubrials felt so uncomfortable by your presence that they contacted Mr Goubrial’s brother, Medhat Ghebrial, to attend. In the background, you could be heard making a commotion next door and banging on their fence.
You were next observed slowly driving your car in front of their address and looking down the driveway of their property. This could be seen on the CCTV footage.
That afternoon, Mr Goubrial went to work and his brother, Mr Ghebrial, left the residence shortly after as well. Mrs Goubrial was left on her own. At 4:55 pm, you walked to the front of the Goubrial property and again looked down the driveway towards the house before returning home. This activity was again captured on CCTV footage.
At around 5:00pm, you climbed over the fence between the two properties using a ladder and went into the Goubrials’ backyard. A minute or so later, Mrs Goubrial was alerted to a noise coming from the backyard and went to investigate. She found that you were standing at her back door using a cordless drill. From behind the door, she asked you what you were doing and you replied, ‘I’ll fix your door’. By the use of the drill and a screw — of some 100mm in length — you secured the security door so that it could not be opened.
Mrs Goubrial again rang her brother-in-law, Mr Ghebrial, and asked him to return to the house. He overheard Mrs Goubrial saying to you, ‘What are you doing?’ to which you again replied, ‘I’m fixing the door’. The incident was reported to ‘000’ by Mrs Goubrial.
The CCTV footage then shows you returning to the Goubrial home at 5:16 pm holding a red-coloured jerry can. This time, you went to their front door and began to pour petrol on the front door, windows, power box and front doorstep.
Mrs Goubrial could see this happening on the CCTV monitor and rushed to the front of the house. She yelled, ‘What are you doing, George? What are you doing?’. You replied, ‘I did what I was supposed to do for a long time’. You then lit the petrol and left with the jerry can. You returned home and dumped the jerry can near the front letterbox of your property and drove away.
Shortly after, the police and the Metropolitan Fire Brigade attended but, by the time they arrived, fortunately, the fire had self-extinguished within a short time.
The Goubrials provided the CCTV footage that captured the entirety of your offending to the police. That footage was played to the Court during your plea hearing.
Investigators had also located and seized the red jerry can from where you had left it on your property. The screw used on the Goubrials’ back door was of a similar type to screws found in your residence.
When you returned home the next morning, on 9 June 2018 at about 7:25 am, you were arrested by police in the driveway wearing clothing that matched what you had worn during the previous day as captured on the CCTV footage.
Your actions were obviously frightening for your neighbours, and your conduct is to be condemned. However, Mr Thomson, who appeared on your behalf as counsel, described your offending in written submissions as ‘crazy’, and I accept that as an appropriate description.
Victim Impact Statements
The Court has received two victim impact statements — neither of which were read to the Court. One is from Sehan Goubrial and the other is from Nashaat Goubrial.
Both of those statements reflect the effect of your conduct, in particular the creation of fear and interference with a peaceful lifestyle for both of the witnesses. The events have been imagined and re-imagined a number of times by these witnesses and both indicate they no longer feel safe in their home.
I have read both victim impact statements and have taken into account their impact on Mr and Mrs Goubrial and their family in fixing the sentence that I should impose on you.
Personal circumstances
You are now 51 years of age and, prior to your arrest, you lived in Coburg North with your brother in what had formerly been your parents’ home.
As was characterised by your counsel, you have lived an isolated life. You were close with your parents, but your mother died some years ago and your father now lives in a nursing home. You have no partner and have not had children.
You attended schooling up to Year 11, at which time you chose to pursue mechanical engineering at TAFE. You did not complete those courses in order to work in several jobs, including work in a restaurant, cleaning and shop fitting. More recently you have worked a little and spent time looking after your father.
You are supported by your brothers George Dib and Jon-Pierre Dib, your sister Luci Mokbel, and your nephews and niece. They have all written documents supporting you and attesting your value in the family.
Criminal history
For the record, I note that you have a criminal history which seems to have begun in 2015 with driving offences, and use and possession of methylamphetamine.
In December 2017, you were again convicted of a number of driving offences, including driving whilst suspended, possession and use of methylamphetamine, some offences involving personal violence, intentionally damaging property and possession of a weapon. All of those matters resulted in a community correction order for 18 months. It is an undesirable record and I take it into account.
Guilty plea
As I earlier indicated, you pleaded guilty on 7 August 2019. Your plea is of utilitarian value and acknowledges, to a degree, the responsibility you have for what occurred. It was not an early plea, as the prosecutor has argued, but you were originally charged with attempted murder, which may not have been viable. At all events, I take the plea into account in your favour.
Mental and physical health
In his submissions, Mr Thomson relied on evidence concerning your mental health (or the lack of it) in order to argue that the significance of sentencing factors such as general deterrence and moral culpability should be lessened in your case.
A consultant psychiatrist, Dr Nicholas Owens, has reviewed a file in relation to you from the North West Area Mental Health Service (“the NWAMHS”). Although Dr Owens has never met you, he prepared a brief ‘treating practitioner’s report’, dated 5 April 2019, summarising his findings.
According to your file, you have been registered as a patient with the NWAMHS on a number of occasions, commencing on 27 January 2016. Throughout 2016 and 2018, your interactions with NWAMHS included acute outreach and long-term case management. You have also been twice admitted to the Northern Hospital psychiatric inpatient unit as a compulsory patient – first, on 23 December 2016 and, later, on 25 January 2017.
Dr Owens provided brief details about the circumstances of these interactions. You had attended following disturbed behaviour and acute paranoid delusions. At times, you were brought by police. You reported to the treating services that you have a long history of using methamphetamine on a weekly basis which, along with failing to take antipsychotic medication, appears to exacerbate your psychotic symptoms.
Dr Owens noted that you have been diagnosed with methamphetamine-induced psychosis with a differential prognosis of delusional disorder, and also substance use disorder.
On your behalf, your counsel submitted that your behaviour is explicable by these diagnoses as you held paranoid delusions about your neighbours’ behaviour. By way of example, on 29 May 2018, you contacted the NWAMHS, reporting a relapse of paranoia in relation to the use of methamphetamine. The following day, you were involved in the altercation with Mr Goubrial regarding the boot of his car. As detailed above, the police were called and you were ultimately taken to the Northern Hospital for assessment. You reported believing that Mr Goubrial had your father held captive in the boot of his vehicle. You were later discharged by the Northern Hospital.
There are prison health records to which counsel, on your behalf, has referred. They indicate you have been assessed by two psychiatrists who each provided differing diagnoses, including delusional disorder, paranoia, psychotic illness and schizophrenia. It is put on your behalf that, given that these paranoid delusions have continued in custody whilst you have been drug free, it follows that there is an underlying mental illness that ought to lessen your moral culpability.
The records indicate that you have hypertension, high cholesterol and insulin-dependent diabetes, and are prescribed a number of medications in relation to your conditions. Your diabetes has had a profound impact on your visual function, being legally blind in the right eye, and suffering from recurrent vitreous haemorrhaging in the left eye. As a result of your conditions, eating and moving through the jail has made your time in custody more difficult than it would otherwise have been. It was argued on your behalf that your physical and mental health make imprisonment a harsh and unusual punishment for you, and I accept that submission.
As a result of discussion during the plea with your counsel, a report was requested and obtained from Dr Danny Sullivan. Dr Sullivan saw you on 7 September 2019 and gave evidence on the further hearing of your plea on 12 September 2019. After speaking to you and reviewing the material available in a detailed and very helpful report, he reached the conclusion that, at the time of the offending, you suffered from a delusional disorder and still do so. He observed the following:
I consider that Mr Dib at the time of the offending was influenced in his actions by delusional disorder [sic], which was causally associated with his actions. It impeded him from reflecting sensibly upon those actions. He was unable to think clearly and make calm and rational choices, but instead acted in response to his perceptions of persecution, and animosity to his neighbours. I consider that his ability to consider the wrongfulness of the conduct was impaired, as he considered his actions “a warning”. The intent was not obscured.
I note that the genesis of his delusion disorder was likely, in substantial part, associated with methamphetamine use, although it has persisted and would not be regarded as simply methamphetamine-induced.
Dr Sullivan confirmed that conclusion in his evidence, which I accept and which was not really in serious contention. Some moderation of general deterrence and the assessment of your moral culpability is appropriate given that evidence.[3] Such moderation is not amenable to mathematical identification. As the prosecutor submitted, that moderation is limited due to the link to the consumption of methylamphetamine, but it is clear from the evidence that the delusion disorder has persisted in custody and in the absence of methylamphetamine. I note that Dr Sullivan did not conclude that the disorder would make your time in custody more onerous.
[3]See R v Verdins (2007) 16 VR 269.
Submissions of the parties
On your behalf, it was submitted that your offending is connected with your mental health, and you likely held paranoid delusions about the Goubrials, which drove your actions. I am inclined to agree with that.
As was pointed out, the offending occurred during the day and you spoke to Mrs Goubrial whilst trying to block the back door by inserting a screw and again whilst you poured petrol on the premises. The damage was, fortunately, minor, as was the risk of danger to life.
Section 5(1) of the Sentencing Act 1991 (Vic) (“the Sentencing Act”) provides that the only purposes for which sentence may be imposed are, in shorthand, just punishment, specific deterrence, general deterrence, rehabilitation, denunciation and protection of the community.
It was submitted on your behalf that your delusional disorder means that general deterrence should not be a significant role in the sentencing process nor should specific deterrence for that reason. The report of Dr Sullivan seems to support that conclusion.
Conclusion
Having been originally charged with attempted murder, you have been in custody since your arrest on 9 June 2018.
There is no question that offending such as this is serious, but I accept the submission made on your behalf that this offending was in a very low-range category. I am persuaded that there is little benefit in requiring you to serve any further time in custody. The prosecutor, very fairly, does not cavil with that conclusion.
In addition to the above, I have now been provided with an outcome report for a pre-sentence assessment for a community correction order conducted 12 September 2019. That report indicates that you are suitable for a community correction order and I propose to direct that the order last for a period of three years. I also propose that the order contain conditions concerning supervision, unpaid community work, drug, alcohol and mental health assessments, and relevant area exclusion zones. I will require you to sign a consent to this order being made.
I propose to sentence you on the basis that you be imprisoned for a period of one year, three months and eight days excluding today, being the period already served and that that sentence be combined with a three-year community correction order.
Pursuant to s 18 of the Sentencing Act, I declare that your pre-sentence detention, excluding today, is 465 days and that that period is reckoned as time you have already served under this sentence. I direct that that be entered in the records on the Court.
Pursuant to s 6AAA of the Sentencing Act, I declare that, had you not pleaded to guilty to this charge but had stood your trial on this charge and been found guilty by a jury, I would have sentenced you to a period of imprisonment of two years and directed that you serve a period of one year and six months before becoming eligible to apply to be released on parole.
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