R v Rahman
[2021] ACTSC 257
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Rahman |
Citation: | [2021] ACTSC 257 |
Hearing Date: | 8 October 2021 |
DecisionDate: | 8 October 2021 |
Before: | Murrell CJ |
Decision: | Sentenced to a two-year good behaviour order with additional conditions |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – where offending was product of offender’s schizophrenia – where offences committed almost two years ago – where offender demonstrated commitment to rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 13, 35 Criminal Code 2002 (ACT) s 404 Mental Health Act 2015 (ACT) |
Cases Cited: | R v Beroukas [2021] ACTSC 172 R v Denniss [2021] ACTSC 15 R v Rahman [2020] ACTSC 319 |
Parties: | The Queen (Crown) Touhid Rahman (Offender) |
Representation: | Counsel M Howe (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number(s): | SCC 176 of 2021 |
MURRELL CJ:
Introduction
The offender is to be sentenced for the offence that, on 7 December 2019, he committed arson contrary to s 404(1) of the Criminal Code 2002 (ACT).
The maximum penalty is a fine of $240,000, imprisonment for 15 years, or both.
The offender pleaded guilty on 27 July 2021, at the fourth mention of the matter in the Magistrates Court. The appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 25 per cent.
Facts
On 7 December 2019, the offender was the sole occupant of cell 3 in the Crisis Support Unit (CSU) at the Alexander Maconochie Centre (AMC). He was classed as a high-risk detainee because of the risk of harm that he presented to himself.
At about 6:29PM on 7 December 2019, the offender placed blankets, bedding, and a quantity of paper cups on his mattress. He walked away from the mattress and ate something as he walked around his cell. The parties agreed that his conduct at this time could be described as 'odd'.
A short time later, the offender retrieved an item from his left pants pocket, stood over his mattress and set alight the items on the mattress. After standing over the flame for a short time, he placed a blanket over the fire to fuel it. The cell began filling with smoke as the fire continued to burn.
After watching the fire for a while, the offender began to walk around the cell. He then used the cell intercom system to alert corrections officers.
When a corrections officer responded, they observed flames on top of the mattress. The offender was standing at the front window of his cell.
Two additional corrections officers assisted to extinguish the fire using a fire extinguisher and a fire hose.
The offender was handcuffed and removed from the cell. All CSU detainees were evacuated.
ACT Fire & Rescue attended and set up a special ventilation system to remove remaining smoke and chemicals from the air.
The fire damage cost about $2,691.00 to repair.
The offender has not spent any time in custody in relation to this offence.
Objective seriousness
Having regard to the following matters, the offence is of relatively low objective seriousness:
(a)The offence was not pre-meditated and there was no obvious rational motive for the offence. Rather, it was the product of the offender's schizophrenia; he became distressed when officers told him he could not have a shower. Based on the offender's treatment at the time for schizophrenia and the symptoms that he displayed before and after the offence, his treating psychiatrist, Dr Garside opined:
It is likely Mr Rahman was experiencing psychotic symptoms at the time of the incident.
(b)The damage was of relatively little value, though the value of the damage was not trivial.
(c)The offence occurred in a custodial setting and therefore posed some risk—although a relatively low risk—of injury to others, including corrections officers and other inmates. However, it caused a disturbance and inconvenience to both officers and inmates.
(d)Public resources were expended because ACT Fire & Rescue were required to attend the scene.
Subjective features
The offender is 37 years old.
Other than for very minor matters, the offender's criminal history comprises of offences of violence. For an offence of reckless wounding committed in 2014, he received a 12-month good behaviour order. On 1 December 2020, I sentenced the offender for the offence of attempted aggravated robbery committed on 10 September 2019, to two years’ imprisonment, suspended after 15 months on a nine-month good behaviour order: R v Rahman [2020] ACTSC 319 (Rahman).
After committing the subject offence, in early 2020, the offender committed three offences of common assault for which, in December 2020, he was sentenced to concurrent terms of six months’ imprisonment, almost wholly suspended on entering 12-month good behaviour orders.
The offender's offending behaviour appears to be largely, if not exclusively, related to his mental illness.
The author of the pre-sentence report stated that during the good behaviour orders imposed in December 2020, the offender was “very diligent in his engagement with community supervision and took initiative in addressing his case plan objectives”.
The offender's subjective circumstances are summarised in the pre-sentence report and in Rahman at [17]–[32].
The offender is one of two children. He is of Bangladeshi and Zimbabwean heritage. He was born in Botswana and moved to Zambia when he was two years old, before moving to Australia at five years of age. From 11 years of age, he lived in Mozambique for two years, then returned to Australia. He had an unstable childhood because of the numerous destabilising relocations.
The offender’s relationship with his parents is complex. He received limited emotional support during his childhood as his father worked for extended periods away from home and his mother was employed full-time. However, he now enjoys a good relationship with both parents and with his brother.
The offender’s secondary schooling in Sydney was affected by his depression and anxiety. Later, he undertook Year 12 studies, but discontinued his studies after a drug induced psychotic episode. He then undertook Certificate III tertiary studies, including in health, hospitality, information technology and music through TAFE NSW and the Canberra Institute of Technology. Although he has a good work ethic, because of poor mental health the offender has worked only sporadically. Currently, he receives the Disability Support Pension. He hopes to return to the workforce.
Since May 2021, the offender has received social and day-to-day support through the National Disability Insurance Scheme. Prior to the current lockdown, he regularly attended a gym and he volunteered at the National Arboretum. He intends to resume those activities.
The offender has a history of problematic gambling, but he has taken voluntary measures to reduce the risk, including self-exclusion from clubs in the ACT and adhering to a budget that means that essential expenditure is met prior to expending money on entertainment.
The offender has a long history of polysubstance abuse. He began to use methylamphetamines regularly in about 2014 and became a heavy user. In 2014 and 2018 he made three unsuccessful attempts to complete a residential rehabilitation program.
Since January 2021, the offender has engaged strongly with Directions Health Services in relation to substance abuse issues. He has attended many sessions, remained sober for some months and is “working towards maintaining sobriety, coping skills, relapse prevention, and lifestyle change”. His progress has been excellent.
After experiencing depression and anxiety for some years, in 2005 the offender was admitted to the Mental Health Unit at Hornby Hospital and first diagnosed with paranoid schizophrenia. After he moved to Canberra in 2015, the offender’s continuing mental illness was exacerbated by drug use, especially by methamphetamines. From 2016 to 2020, he was hospitalised on many occasions with psychotic symptoms. When unwell, he became agitated and aggressive.
From November 2018 to May 2021, the offender was subject to a psychiatric treatment order for treatment-resistant schizophrenia complicated by polysubstance abuse. While in the community, he often failed to adhere to his medication regime.
When assessed by Justice Health Services in November 2020, just before I sentenced him in December 2020, the offender displayed significantly impaired insight into the presence of a mental illness. It was recommended that he receive mandatory treatment under the Mental Health Act 2015 (ACT) to minimise the risk of relapse.
Since then, the offender’s situation is much improved, resulting in the termination of the most recent psychiatric treatment order in May 2021. Since then, the offender has engaged voluntarily with Assertive Community Outreach Services (ACOS). Every three days, he has a medication review. He receives regular mental health assessments and quarterly psychiatric reviews. When reviewed in July 2021, his mental health was stable, he was cooperative with treatment, and he was engaging well with the supervision team.
Dr Garside treats the offender through ACOS. He said that, as at February 2021, the offender had “a complex, well crystalised delusional system as well as perceptual disturbances consistent with him having a diagnosis of schizophrenia”.
Since mid-December 2020, the offender has participated in the Detention Exit Community Mental Health Outreach Program, which provides intense case management to offenders with mental illness for up to 18 months post-release. The offender has worked closely with his case worker, regularly attended group sessions and program activities, accepted responsibilities and diligently attended parole meetings and mental health appointments, including through the recent COVID-19 lockdown.
The author of the pre-sentence report assessed the offender’s general risk of re-offending as low. They noted the protective factors of secure accommodation, supportive family and engagement with health and social support workers. During the recent good behaviour order (December 2020 to September 2021), the offender diligently attended all meetings, and was cooperative and respectful.
Other sentencing considerations
The limitations of sentencing statistics are well-known. The ACT Sentencing Database indicates that, of 51 offenders sentenced for offences of arson between July 2012 and November 2020, 4 per cent received a good behaviour order, 23.5 per cent received a fully suspended sentence, 18 per cent received a partially suspended sentence, 10 per cent received an intensive corrections order and 45 per cent received a sentence of full-time imprisonment.
The Crown submitted that, while a sentence of imprisonment was appropriate, sentencing purposes do not require that the term be served by way of full-time imprisonment. When I proposed to the Crown that a sentence of imprisonment may not be the only appropriate sentence, the Crown conceded that the position was borderline.
The Crown referred me to several relatively similar cases in which an offender had been sentenced for arson after lighting a fire at the AMC.
In R v Beroukas [2021] ACTSC 172, the fire was extinguished relatively quickly and caused damage valued at $2,300. He was sentenced to 10 months’ imprisonment (reduced from 12 months), suspended after two months.
In R v Howsan [2020] ACTSC 172, the offender was an inmate at the AMC when she lit a fire. The damage was not significant. The offender was sentenced to 12 months’ imprisonment (reduced from 16 months) and the sentence was wholly suspended.
In R v Denniss [2021] ACTSC 15, the offender was an inmate at the AMC when he lit a fire. He tried to prevent corrections officers from extinguishing the fire. The damage was minimal. The offender had a significant criminal history. He was sentenced to 12 months’ imprisonment (reduced from 16 months).
The mental health component is a prominent consideration in the present case.
At the time of the offence, the offender was being treated for mental illness in the CSU. He was experiencing psychotic symptoms, which influenced his irrational behaviour. He has a limited criminal history, which is largely reflective of a history of mental illness. Consequently, he is an inappropriate vehicle to convey a message of general deterrence or denunciation. In the circumstances of the case, the principal sentencing purpose is rehabilitation. Since last December, the offender has made huge strides in addressing mental illness and the associated issue of polysubstance abuse.
The offence was committed almost two years ago and is of relatively low objective seriousness. Having regard to the offender's strong subjective circumstances and the great achievements in recovery that he has made on recent good behaviour orders, I am not convinced that a sentence of imprisonment is the only available sentencing outcome. I consider that the sentencing purposes, particularly the dominant purpose of rehabilitation, would be best achieved by the imposition of a further good behaviour order.
Sentence
I convict the offender and impose a good behaviour order under s 13 of the Sentencing Act requiring the offender to sign an undertaking to comply with his good behaviour obligations for a period of two years from today.
The good behaviour order is subject to the additional conditions that:
(a)the offender accept the supervision of Community Corrections for a period of at least nine months and thereafter such further period of up to the full two years as Corrective Services deem appropriate.
(b)the offender accept all directions of Community Corrections.
(c)the offender continue to take all medications that are prescribed by his health care practitioners.
(d)the offender report to Community Corrections by 4PM today by telephone, with the assistance of defence counsel.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: |
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