R v Masri

[2025] NSWDC 59

District Court

New South Wales

Medium Neutral Citation:

R v Masri [2025] NSWDC 59

Hearing dates:

14 February 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Custodial sentence. For orders see [70]

Catchwords:

Break and enter and commit serious indictable offence; arson;

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

R v McMahon; R v Robb [2017] NSWDC 476

Category:

Sentence

Parties:

Omar Masri (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
Mr B Murray (the offender)
Mr D Noll (the Crown)

Solicitors:
Mr L Abu-Ali (the offender)
Mr S Rose (the Crown)

File Number(s):

2020/199050

Publication restriction:

Nil.

REMARKS ON SENTENCE

1. On 15 July 2024 the offender pleaded not guilty to one Count on an Indictment as follows:-

1. On the 26^th day of June 2019 at Padstow in the State of New South Wales, did break and enter the building of Chang Huang at 6 Gwandalan Road, Padstow and did commit a serious indictable offence therein, namely, intentionally destroy property by means of fire.

2. On 23 July 2024 the jury returned a verdict of guilty. This is an offence pursuant to s112(1)(a) of the Crimes Act 1900 and carries a maximum sentence of 14 years imprisonment. There is no standard non-parole period prescribed.

3. The only issue in the trial was the identity of the person who committed the offence. The Crown relied on a circumstantial case, and the following are facts to be derived from the jury verdict for which they must have been satisfied beyond reasonable doubt that the only reasonable conclusion to be drawn from the evidence was that it was the offender who committed the offence.

4. Exhibit A at the trial comprised the following agreed facts pursuant to s191 of the Evidence Act 1995:-

1. The business Kim’s Kindy was a long day Child Care centre operating at 6 Gwandalan Road, Padstow. [It was owned by John Huang and Sally Chen who worked as carers at the premises].

2. The main building of Kim’s Kindy was a converted three-bedroom residential building constructed with timber framing and cladding, the front of which generally faced south to the street.

3. At the rear of the property were two other buildings; a detached garage and another brick building.

4. On the night of 26 June 2019, whilst the centre was closed and unoccupied, a person entered the premises by forcing open a locked gate on the eastern side of the building which gave them access to the backyard of the premises.

5. The person then forced open a closed, aluminium sliding door at the back to gain access to the main building.

6. The person then spread petrol in three areas of the main building and set the petrol alight.

7. The building was severely damaged by the fire, including the tiled roof collapsing into the building.

8. CCTV footage from a camera across the road showed a person walking up the eastern side driveway of Kim’s Kindy at approximately 8:47 p.m.

9. Five minutes later, at 8:52 p.m., a large flash of light can be seen coming from the rear of the building and a person is then seen running down the driveway on the eastern side of the business and then west along Gwandalan Street.

5. Consistent with the jury verdict, it was the offender who broke into and entered the building premises and committed the offence of intentionally destroying property by means of fire.

6. The evidence established that the emergency gate on the eastern side of the property adjacent to the end of the driveway was not used for access to the property generally but was used occasionally for taking rubbish out of the driveway. On the outside of that gate fingerprints were detected and following analysis were found to be the left index and middle finger of the offender. Consistent with the jury verdict the offender must have touched the gate in the process of breaking into the premises.

7. At the time of the fire the offender was working on a building site right next door to Kim's Kindy, on the western side at 4 Gwandalan Road.

8. That redevelopment was being undertaken by a man called George El Falak. At the time, Mr El Falak and the offender had a familial connection. Mr El Falak’s wife and the offender's partner were sisters.

9. Mr El Falak was building a new duplex that included a large basement area to accommodate underground parking for cars.

10. In the months before the fire, a dispute had arisen between Mr El Falak and one of the owners of Kim's Kindy, John Huang.

11. The excavation of the basement for the new duplex came very close to the boundary between 4 Gwandalan Rd (the building site) and 6 Gwandalan Road (Kim's Kindy).

12. During a spate of heavy rain, the land started to subside and the dividing fence between the building site and the childcare centre started to fall down.

13. This was a problem for Kim's Kindy as the western side footpath was the main entrance generally used by staff, children and parents to get into the centre every day. It had a gate with a PIN code lock on it. The PIN was known to workers and staff

14. Because of the subsidence, that entrance was not safe which caused a problem for Mr Huang as the operation of Kim's Kindy had to comply with strict safety rules due to the nature of their business.

15. Mr El Falak installed a temporary fence, but the dispute escalated to the point where Mr Huang made an official complaint to the local Council. The Council stepped in with a Stop Work order on the entire building site - that was the site that the accused was working on at the time.

16. The childcare centre was burnt down on the day that Mr El Falak had a meeting at the Council to discuss the planning concerns that had come to light. There is no evidence that Mr El Falak was involved in the offence.

17. By its verdict the jury rejected the accused’s denial in his record of interview that he had ever been inside the childcare centre at 6 Gwandalan Road, Padstow and further rejected the evidence of Mr El Falak that the gate on the eastern side of that property had been used by his employees, including the offender, to access the property to effect repairs to the dividing fence between the two properties on its western side.

The sentence hearing

18. The sentence hearing took place on 14 February 2025. It had originally been listed on 25 October 2024 but was adjourned by consent to enable the offender to obtain a report from a psychologist.

19. The Crown Sentence Summary became Exhibit A. It noted that the offender had been arrested on 2 August 2021. Exhibit A included the offender’s criminal history which commenced in 2004 and included offences of affray and assault occasioning actual bodily harm in company for which he was sentenced to a s9 Bond for 3 years and periodic detention for 12 months with a non-parole period of 8 months, respectively. In 2006 the offender was fined for possessing prohibited drugs and subsequently he was convicted of two counts of supply prohibited drugs for which he was sentenced to two suspended sentences of 24 months.

20. In 2008 the offender was convicted of a number of traffic offences and an offence of dishonestly possess/interfered with unique identifier for which he was sentenced to 6 months imprisonment.

21. In 2014 the offender was convicted of offences of destroy or damage property, behaving in offensive manner, assault occasioning actual bodily harm and destroy or damage property. He received s9 Bonds to be of good behaviour in respect of the last two offences.

22. In 2019 the offender was convicted of an offence of dishonestly obtain financial advantage by deception for which he was sentenced to a custodial sentence to be served by way of an Intensive Correction Order for 14 months. An offence of participate in a criminal group was taken into account on a Form 1.

23. In 2023 and 2024 the offender was convicted of a shoplifting and a traffic offence for which fines were imposed.

24. Exhibit B was a Sentencing Assessment Report (“SAR”) under the hand of Ms S McLaughlin dated 18 October 2024. The author noted the offender was in stable accommodation with his parents and reported having a pro-social and supportive family network. Under the heading “Attitudes” the author noted that the offender did not accept responsibility for the index offence and maintained his own version of events. He acknowledged his fingerprints were at the property due to alleged work purposes but denied any involvement in the offence.

25. The author noted the offender expressed a willingness and ability to engage in both intervention and community service work and assessed him as being a medium/low risk of reoffending. He was assessed as suitable to undertake community service work.

26. The offender tendered a report from Mr S Albassit, psychologist dated 13 February 2025. The author took a background history noting that the offender had experienced a difficult and traumatic childhood. He was involved in a motor vehicle accident at age 11 in which he suffered significant injuries including a broken left arm and a large laceration to the forehead. He spent two weeks as an inpatient in hospital and required ongoing treatment.

27. The offender’s parents separated following the car accident and he had little or no communication with his father from the age of 14. The offender stated he felt abandoned, and that he had no-one to turn to for guidance as his brothers were in and out of jail.

28. The offender reported being bullied throughout high school which he left after year 10. He also suffered from trauma at the age of 13 when an older cousin who was a mentor passed away. He was traumatised by having to identify that cousin’s body at the morgue.

29. Mr Albassit took a history that the offender navigated towards an anti-social crowd, and commenced using prohibited drugs, graduating to cocaine at the age of 17.

30. The offender completed a plumbing apprenticeship however his drug use escalated, and he also began to gamble excessively. At age 22 he met his former wife who helped him resurrect his life and he managed to cease the use of drugs. That relationship ended in 2022 and there are two children. Following the breakdown of his marriage he relapsed into the use of illicit substances but has been abstinent from drugs and alcohol for approximately 12 months and is now working full-time for Sydney Rail.

31. Following psychological assessment, Mr Albassit opined that the offender presented with symptoms consistent with Post-Traumatic Stress Disorder (“PTSD”) and also presented with a history of substance dependence disorder which was now in full remission. He further opined that the offender’s long history of trauma dating back to his teenage years led to the offender developing a maladaptive pattern of substance use which led him to make impulsive and self-destructive decisions throughout his life.

32. He further reported:-

“32. There appears to be correlation between Mr Masri’s offending behaviour, mental health issues. Mr Masri experienced significant physical and psychological trauma as a child which developed into PTSD later on in his adult life. When faced with the risk of experiencing future negative outcomes from his offending behaviour, he appeared oblivious to his actions and the consequences of his behaviour. His illicit substance use and low mood affected his decision making and judgment. At the time of the offences, Mr Masri was experiencing significant disturbance in his mental health.

33. Mr Masri had poor impulse control and struggled to manage his moods. His emotional disturbance was so considerably heightened, that his ability to appreciate the consequences of his actions throughout his life, were diminished. At the time of the offences, Mr Masri was experiencing significant symptomology pertaining from his mental health conditions, which markedly impaired his judgment.”

33. Under the heading “Prognosis” Mr Albassit opined that the offender’s prospects for rehabilitation are positive if he is given the opportunity to undergo ongoing therapy. He set out a detailed treatment plan whilst noting that trauma focused therapy cannot be delivered in jail.

The Crown submissions

34. The Crown relied on a written outline of submissions in which it set out the facts proved beyond reasonable doubt consistent with the jury verdict, with which counsel for the offender agreed and are reflected in my findings as set out above.

35. The Crown submitted that the offending fell within the mid-range of objective seriousness for an offence pursuant to s112(1)(a) of the Crimes Act, noting that the owners of the property and operators of the childcare business had not provided victim impact statements, but Mr Huang had given evidence at trial that the business was insured and that they had received an insurance payout following the fire.

36. The Crown noted that the predicate offence of destroy or damage property by fire pursuant to s195(1)(b) of the Crimes Act 1900 carries a maximum penalty of 10 years imprisonment. In assessing the objective seriousness of an offence under that section the Crown submitted that the Court would have regard to the following factors:-

1. Motive.

2. Extent of physical damage.

3. Nature of property destroyed.

4. Potential danger spread of fire and potential risk of injury, and

5. Degree of planning.

37. The Crown relied on R v McMahon; R v Robb [2017] NSWDC 476 where Sutherland SC DCJ said at [41]:-

“The act of damaging or destroying property by means of fire is known to the common law and in common parlance as arson. It has been described as an extremely serious and dangerous crime. The circumstances in which the crime may be committed are many and varied. There is a wide range of different aggravating or mitigating factors and enormous diversity of factual scenarios in offences involving the damaging or destruction of property by fire or explosives. The motive of an offender is relevant to an assessment of the objective seriousness of the offence. (see Newton v State of Western Australia [2006] WASCA 247 cited in Porter v The Queen [2008] NSWCCA 145).”

38. The Crown submitted there was no direct evidence of the offender’s motive but limited indirect evidence that would allow the Court to infer that the offender’s motive arose from his knowledge of a dispute between his employer, Mr El Falak and the owners of the childcare centre which arose due to the collapse of a boundary fence. The Crown noted that the main building of the business was destroyed, and the business never operated again, and there was a direct danger posed to firefighters and other emergency services who attended the scene and fought the fire as well as a danger of the fire spreading to neighbouring properties had it not been contained.

39. The Crown submitted that on its circumstantial case the Court could safely infer that the offence was deliberate and there was degree of pre-planning. The offender had gone to the property under cover of night, CCTV evidence showed that he went directly to the side door, and an accelerant must have been picked up by the offender on his way to the premises, all of which supported a finding of a limited degree of planning. The Crown submitted that the offending could not be described as impulsive or spur of the moment.

40. The Crown identified the following aggravating factors pursuant to s21A(2) of the Crimes (Sentencing and Procedure) Act 1999 (“the CSPA”):-

(d) the offender’s previous convictions, which it was submitted disentitled the offender to leniency.

(i) the offence was committed without regard for public safety,

(n) the offence was part of a planned or organised criminal activity.

41. The Crown submitted the following mitigating factors arose pursuant to s21A(3) the CSPA:-

(g) the offender is unlikely to re-offend.

42. The Crown submitted that the offender was granted conditional bail on the day of his arrest on 2 August 2020 and has spent no time in custody.

43. The Crown noted that the offender did not accept responsibility for the offending and maintained his innocence to the author of the SAR. He was assessed by the author of that report as a medium/low risk of reoffending, and as suitable for community service. He had not demonstrated any type of remorse.

44. The Crown submitted that the s5 threshold in the CSPA had been crossed and no other sentence other than full-time imprisonment was appropriate.

45. In his oral submissions the Crown referred to the opinion expressed by Mr Albassit set out above at [32] of his report and took issue with his opinion that there was a correlation between the offender’s mental health and his offending conduct. The Crown submitted that Mr Albassit’s opinion, based on the matters set out in his report fell well short of the basis for a finding of causation between the offender’s mental health and his offending conduct. Further, nowhere in his report did Mr Albassit deal with the offender’s denial of his offending conduct.

46. The Crown rehearsed his submission that there was limited evidence of any motive for the offending, but the Crown relied on the fact that the evidence established that the offender worked on the property next door for Mr El Falak, that he knew of the dispute with the owners of the property and an inference therefore arose that he had a motive for the offending.

47. Finally the Crown submitted that the Court could only consider an Intensive Correction Order if a sentence of less than 2 years was imposed.

Submissions on behalf the offender

48. Counsel for the offender also relied on a written outline of submissions in which it was conceded that the facts set out in the Crown’s written submissions were not in dispute as being established by the jury verdict. Counsel however disagreed with the Crown submission that the s5 threshold had been crossed and that no sentence other than full-time imprisonment was appropriate.

49. The offender submitted that the objective seriousness of the offence was “nearing the mid-range of offending” and that a sentence of imprisonment was warranted. However if the sentence did not exceed 2 years, then the Court could consider the imposition of an Intensive Correction Order. Counsel noted the author of the SAR had assessed the offender as being willing to undertake community service work, that a risk assessment had been carried out and that no conditions other than a supervision condition was required to implement the supervision plan set out in the SAR.

50. Counsel also referred to the JIRS sentencing statistics published for offences under s112(1)(a) of the Crimes Act which demonstrated that 62.9% of a sample of 35 offences had prison sentences imposed, 25.7% were dealt with by way of ICO and 11.4% by Community Correction Orders.

51. Counsel relied on the subjective material as set out in the report of Mr Albassit.

52. In respect of the Crown submissions regarding aggravating factors, counsel submitted that the Court would not take into account a disregard for public safety pursuant to s21A(2)(i) because whilst there was a danger of damage being caused by the fire the usual response by the fire authorities was doing the job of putting out fires. No firefighter was called at trial to attest to any particular danger posed or threat met by this fire. One side of the property was a vacant construction site and a dwelling at the back of the property was untouched by the fire.

53. Counsel also submitted that it was not an aggravating factor pursuant to s21A(2)(n) that it was a planned or organised criminal activity. It was submitted that the steps taken by the offender were basic to this type of offence and any planning did not extend to the use of gloves.

54. In respect of the offender’s prior convictions pursuant to s21A(2)(d), it was submitted that his prior offending was not in the same serious category as the index offence and had occurred many years prior to the index offence.

55. With respect to the question of community safety and the imposition of an ICO pursuant to s66(2) of the CSPA, counsel submitted that the Court must assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. It was submitted that incarceration may increase that risk and counsel noted that the offender was assessed as a medium to low risk of reoffending.

48. In his oral submissions counsel highlighted the opinions expressed by Mr Albassit in Exhibit 1 which revealed that the offender had suffered childhood trauma leading him to suffer the “expansive illness” of PTSD together with a substance dependency which was now in remission. This led to him making impulsive and self-destructing decisions throughout his life. It was submitted, based on Mr El Falak’s evidence at trial, that the offender had gleaned the dispute arising between his employer and the owner of the childcare centre which led to his impulsive decision to commit the offence, consistent with the jury verdict.

49. Counsel conceded that the Court would take into account no remorse but submitted that based on the future treatment plan set out by Mr Albassit a non-custodial order should be made by way of an ICO.

50. It was common ground that a finding of special circumstances was open to be made.

Determination

59. Section 3A of the CSPA sets out the purposes of sentencing as follows:-

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

60. In assessing the objective seriousness of the offending the motive of the offender is one factor to take into account. Here, the Crown submits that a motive can be inferred from the evidence at trial that the offender knew of the ongoing dispute between his employer and relative, Mr El Falak, and the owners of the childcare centre concerning the boundary to that property. Counsel for the offender submitted that the offender had “gleaned the dispute” which led to his impulsive decision to commit the offence. I am therefore satisfied beyond reasonable doubt that the offender’s knowledge of that dispute was a factor in making an impulsive decision to commit the offence. I further take into account the extensive damage caused to the property which was being used for the purposes of a childcare centre and therefore providing a community benefit as well as a business for the owners.

61. In setting fire to the premises the offender did cause a potential danger to first responders however no evidence was called at trial to attest to any particular danger or threat met by this fire. Having regard to all of the circumstances, I find that the offending fell within the mid-range for an offence pursuant to s112(1)(a) of the Crimes Act 1900. It constituted serious offending for which the offender exhibited a high degree of moral culpability.

62. I find the following aggravating factors pursuant to s21A(2) of the CSPA:-

(d)    The offender has a record of previous convictions, but not for a similar offence. The offender’s record disentitles him to leniency in the sentencing process.

(i)    The offence was committed without regard for public safety in the sense that arson of residential premises gives rise to a potential risk for first responders and other homeowners which did not manifest here.

(n)    I find that there was little planning involved demonstrated by the offender approaching the premises on foot, obtaining the fuel to perpetrate the indictable offence of arson and using his knowledge of the premises to gain entry. However I do not find this was part of an organised criminal activity.

63. The offender was found, following assessment, to be a medium to low risk of reoffending. Such assessments are notoriously unreliable however the Crown has submitted that it is a mitigating factor pursuant to s21A(3)(g) of the CSPA that the offender is unlikely to reoffend. Given his previous record, this is not a matter which will be given much weight in the sentencing process.

64. I note that the offender has demonstrated no remorse for his criminal conduct and does not accept responsibility for the offence.

65. I have taken into account the subjective case called on behalf of the offender. The Crown did not take issue with the history provided in the report of Mr Albassit that outlined the offender had experienced a difficult and traumatic childhood in which he suffered significant injuries in a motor vehicle accident at age 11. His parents separated at a young age, and he was bullied in high school, and he was further traumatised by the death of a relative who was a mentor, when he was 13 years of age. I accept Mr Albassit’s findings that the offender presented with symptoms consistent with PTSD and also had a history of substance dependence disorder which is now in full remission. I further accept the offender had developed a maladaptive pattern of substance use which had led to him making impulsive and self-destructive decisions throughout his life. I do not accept that the offender’s mental health or substance dependence disorder was causative in any way of his criminal conduct, and I reject the opinion of Mr Albassit that there appears to be a correlation between the offender’s offending behaviour and his mental health issues.

66. Notwithstanding that finding, long-standing mental health issues are relevant to any sentence to be imposed. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, the Court held:-

• “Where the state of person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

• It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

• Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24].”

67. General deterrence is a significant factor in sentencing for offences pursuant to s112(1)(a) where the serious indictable offence is that of arson. A clear message must be sent to the community that Parliament has prescribed a maximum penalty of 14 years imprisonment for such an offence which reflects its seriousness. The maximum penalty is a guidepost in sentencing and the Courts will impose condign punishment in appropriate cases. The mental health issues suffered by the offender here does diminish the significance of general deterrence in sentencing but not to a large extent. Specific deterrence also remains relevant, although somewhat diminished, given the offender’s criminal history.

68. I have had regard to Mr Albassit’s opinion regarding the offender’s need for treatment in the community which may not be available in a custodial setting. This will impact on his prospects of rehabilitation. However I am mindful that such subjective features must not outweigh the objective seriousness of the criminal conduct here, the need for adequate punishment and protection of the community from the offender together with the other purposes of sentencing as set out above. I do however find that a custodial sentence will weigh more heavily on the offender if he does not receive the treatment recommended for him.

69. Having regard to all of those matters I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I intend to sentence the offender to a term of imprisonment of 3 years from today. I make a finding of special circumstances pursuant to s44 of the CSPA as it was not in dispute. I therefore intend to sentence the offender to a non-parole period of 18 months to commence today and to expire on 13 September 2026.

Orders

70. I make the following orders:-

1. You are convicted of the offence pursuant to s112(1)(a) of the Crimes Act 1900 that you did on the 26th day of June 2019 at Padstow in the State of New South Wales, break and enter the building of Chang Huang at 6 Gwandalan Road, Padstow and did commit a serious indictable offence therein, namely, intentionally destroy property by means of fire.

2. I sentence you to a non-parole period of 18 months commencing today and expiring on 13 September 2026.

3. The balance of term will be a period of 18 months commencing on 14 September 2026 and expiring on 13 March 2028.

4. Your parole eligibility date will be 13 September 2026.

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Decision last updated: 14 March 2025