R v Hasan
[2004] VSCA 137
•5 August 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 216 of 2003
| THE QUEEN |
| v. |
| NIYAZI HASAN |
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JUDGES: | WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 August 2004 | |
DATE OF JUDGMENT: | 5 August 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 137 | |
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Criminal law - Sentence - Series of arsons committed by 53-year-old man of otherwise good character - Error in sentencing process conceded - Appellant re-sentenced to a term of 7 years, with non-parole period of 3½ years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Ekrem Avjioglu |
WINNEKE, P.:
The appellant, Niyazi Hasan, was sentenced in the County Court in July of last year to a term of eight years' imprisonment after pleading guilty to a presentment which alleged five counts of arson and one count of burglary; offences alleged to have occurred over a period of 38 days in May and June 2002. The victim of each offence was a home building company called Domaine Homes. The sentencing judge ordered the appellant to serve a period of four years before becoming eligible for parole.
It is apparent from the material put before the sentencing judge that the case before him had some rather sad and unfortunate aspects to it. They were commented upon by the sentencing judge and were not the subject of any real dispute.
The appellant is a 53-year-old man of Cypriot origin, who, despite conceding two old convictions for minor offences, has led an honest and honourable life. He came with his parents to Australia when he was three years of age and schooled himself through to the stage where he was able to do an electrical apprenticeship. He became a proficient electrical mechanic, responsible for the maintenance and repair of sophisticated equipment at major general hospitals. He married in the 1970s and he and his wife had two children, a boy and a girl, whom they supported and reared through school to adulthood, and each of those children now has tertiary qualifications and current employment. It was in or about 1993 that "the wheels of his life began to fall off". He was retrenched from his employment of some 20 years at a major public hospital, and that, of course, had a profound impact upon him. After being unemployed for a short period of time, he purchased a take-away food business with his wife and the two of them worked long hours in that business at Greenvale. According to references that were provided to the judge, they were not only hard workers but were generous to customers and fellow shopkeepers and they developed for themselves a fine reputation amongst those who knew them. Unfortunately, by the end of 1999 or thereabouts, their custom had fallen away, the rents had risen and the business had become a burden. The long hours and difficulties with the business appear to have caused a strain on the relationship between the appellant and his wife. By early 2000 they had in effect separated from each other's company but they lived under the same roof.
The pressures upon the appellant were such that in early January 2000 he disappeared from the family home for a period of some four or five days. His son reported him as a missing person to the police. He was eventually found in the Northern Hospital in the cardiac ward on 9 January in an amnesic state. He did not know his name or where he came from. He was identified from certain personal papers and his family was contacted and he was effectively retrieved.
It seems that, in 2001, his wife wished to live apart from him and eventually it was agreed - perhaps without any real wisdom - that they should each build a house. Domaine Homes was the builder of choice. In 2001 and extending into 2002, disputes arose between the appellant and the builder about the quality of the building work being done, the appellant apparently becoming more and more agitated as time went by; a state which, I suspect, was not assisted by his own parlous financial situation at the time. The appellant's perception of the attitude of the staff of Domaine Homes as 2001 turned into 2002 appears to have "tipped him over the edge" and into the criminal behaviour, of which it can be said, I think with some justification, was out of character. Nevertheless, it was that criminal behaviour for which he stood for sentence in this case in 2003.
In the 38 days between 5 May of 2002 and 12 June 2002, the appellant went on what can only be described as an "arson spree", setting fire to partially completed homes being built by Domaine. All in all, he set 15 fires, apparently using fire-lighters to start them, at various semi- or partly-constructed houses in the western suburbs of Melbourne. The fire that he set on 5 May to a partially completed home in Salisbury Avenue, Hillside, completely destroyed that home, causing damage in the vicinity of $193,000. Complete destruction also occurred of the two homes which he set alight at Sanctuary Lakes on 9 June 2002, causing damage of $135,500 and $118,000 respectively. Thus, the destruction of these three partially completed homes was the subject of counts 1, 3 and 4 on the presentment and the total damage to those three homes is estimated at some $447,000. In between the two dates to which I have referred, the appellant set 11 other fires at various sites of Domaine Homes. Those fires were either extinguished, or extinguished themselves, before any real damage was done. In respect of those 11 fires the total damage was estimated at about $17,000. Count 2, which was a "rolled up" count for the purposes of the plea, alleged arson in respect of these fires.
By 12 June 2002 it had become apparent to the police that there was a person acting as a revenge arsonist, targetting Domaine Homes. Domaine Homes apparently suggested that it could well be the appellant, and thus, on 12 June 2002, the police were watching him. He went to an almost completely constructed home in Taylors Hill on that evening. He forced his way in. He had with him fire-lighters, which he left in the house, but he departed from that dwelling without setting the home alight, saying later to the police that he had done so because he could not bring himself to set fire to a home which was clearly about to be occupied. This was, therefore, the burglary which was alleged in count 5 on the presentment. On the same night, after he had left Taylors Hill, he drove to another partially completed Domaine house in Deer Park and was observed by police. He used fire-lighters to set fire to that house. As he left the house he was arrested by police, who extinguished the fire. The damage occasioned by that fire was $50, and that was the subject of the arson alleged in count 6.
When he was questioned by the police the appellant admitted to them that he had entered the house at Taylors Hill and had attempted to set fire to the house at Deer Park on 12 June, but denied any association with the other fires. Nevertheless, at an early stage in the committal hearing, the appellant announced that he would plead guilty to all charges which are now on this presentment. He said that he could not recall the offences other than those alleged in counts 5 and 6 - a claim about which the judge said he was unable to express a view.
All the matters to which I have referred so far were before the sentencing judge, who was concerned to have some information about the appellant's state of mind at the relevant times. His Honour therefore called for a report from Dr Walton, who, in line with opinions which had been referred to his Honour from other psychologists and psychiatrists, was of the view that the appellant was suffering from an "adjustment disorder", which, as I understand it, does not stem from a psychotic disturbance but, rather, is the product of an inability to cope psychologically with problems encountered. However, it seemed to be accepted by all concerned that the chances of repeat conduct were low or non-existent, and that evidence was accepted by his Honour.
It is quite apparent from what I have said that the appellant's conduct was at the serious end of the scale and warranted an immediate custodial sentence of some length. That much was conceded by the appellant's experienced counsel on the plea, when he said:
"He has catapulted himself with a great deal of force into a situation where he is not simply looking at a custodial sentence, but a custodial sentence of some years and of some length."
In the long run, his Honour sentenced the appellant as follows:
Count 1 (the destruction of the property at Salisbury Avenue) - 2 years' imprisonment.
Count 2 (the rolled-up count involving 11 instances of damage to property by arson to which I have referred) - a term of five years' imprisonment.
Count 3 (destruction of the property at Sanctuary Lakes) - four years' imprisonment.
Count 4 (destruction of the other property at Sanctuary Lakes) - three years' imprisonment.Count 5 (burglary) - one year's imprisonment.
Count 6 (involving the setting of the fire at Deer Park resulting in $50 of damage) - three years' imprisonment.
His Honour ordered that two years of the sentence on count 3 and one year of the sentence on count 4 should be cumulated upon the five-year sentence imposed on count 2. Thus the total effective sentence was one of eight years' imprisonment. His Honour initially said that he considered that cumulation should be "very limited". Notwithstanding, he had initially ordered that one year of the sentence on count 6 should also be cumulated. When counsel pointed out that that made nine years, his Honour removed that last cumulation order.
On the hearing of the appeal, counsel for the appellant argued that the sentence on count 6 was manifestly excessive and that, if that was accepted, it re-opened the sentencing discretion. Mr Hillman was constrained to agree with that. Indeed, it is obvious that the three years imposed for the comparatively minor incident charged in count 6 is out of kilter with the other sentences imposed, and is manifestly excessive. Thus, we have heard, in effect, a new plea on behalf of the appellant.
Mr Holdenson submitted on behalf of the appellant that the principle of totality should be borne in mind by the Court. It was put that the appellant is a man of advanced years of otherwise exemplary character, who had pleaded guilty to the offences. Counsel effectively reinforced the matters to which I have already referred in the course of this judgment. Mr Holdenson conceded, as I understood him, that the emphasis which had been placed on the appellant's remorse before the sentencing judge had been somewhat overstated.
Mr Hillman for the respondent made the submission that these were very serious offences. I do not think anybody can dispute that. He indicated that the total amount involved by way of damage was nearly half a million dollars, and submitted that the offences called for sentences in the order of those imposed by the judge because they were so serious. Of course, Mr Hillman conceded that the sentence imposed on count 6 was too high having regard to the nature of the offence alleged, but he said that the sentence of two years imposed on count 1 was manifestly too low for the destruction of a house which caused damage of something like $193,000.
Having listened to counsel and taking all matters into account, I would re-sentence the appellant in the following way.
On count 1: I would order a sentence of three years' imprisonment.
On count 2: I would order a sentence of four years' imprisonment.
On count 3 and on count 4: I would order sentences of three years' imprisonment on each of those counts.
On count 5 and count 6: I would order imprisonment of one year on each count.
I would direct that twelve months of each of the sentences imposed on counts 1, 3 and 4 be served cumulatively upon each other and upon the sentence imposed on count 2, but that otherwise all the sentences be served concurrently. That would result in a total effective sentence of seven years' imprisonment. Having regard to what I regard as the appellant's otherwise good character and adopting the view which was adopted below, that he is most unlikely to re-offend, I would direct that he serve a period of three-and-a-half years' imprisonment before becoming eligible for parole.
CALLAWAY, J.A.:
I agree with the orders proposed by the learned President for the reasons his Honour has given. There is only one point I wish to add. The learned sentencing judge was not told that the damage the subject of count 6 amounted to a mere $50, but it would occasion a miscarriage of justice if we did not take that into account, if necessary relying on the authorities referred to by Brooking, J.A. in R. v. Babic[1].
BUCHANAN, J.A.:
[1][1998] 2 V.R. 79 at 80, ll 40-45.
I agree.
WINNEKE, P.:
The formal orders of the Court will be as follows:
The appeal is allowed.
The sentence imposed below is quashed and in lieu thereof the appellant is sentenced in the form of the orders that I have proposed in the course of delivering my judgment.
It is to be noted that the appellant is sentenced for the offences the subjects of counts 2, 3, 4 and 6 as a serious arson offender within the meaning of that term in the Sentencing Act, and it is ordered that that fact be entered in the records of the Court.
Pursuant to s.18 of the Sentencing Act it is declared that the period of 786 days be reckoned as already served under the sentences imposed and it is ordered that there be noted in the records of the Court the fact that that declaration has been made and its details.
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