R v Tourni

[2023] NSWDC 136

District Court

New South Wales

Medium Neutral Citation:

R v Tourni [2023] NSWDC 136

Hearing dates:

27 April 2023

Date of orders:

02 May 2023

Decision date:

02 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1     Kosta Tourni is convicted.

2     Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 3 years with a non-parole period of 1 year to date from 5 May 2022. The non-parole period will expire on 4 May 2023 and the head sentence will expire on 4 May 2025.

3      The offender is to be released on parole on 4 May 2023.

Catchwords:

CRIME — Property offences — Break, enter and commit serious indictable offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Muldrock v R (2011) 244 CLR 120

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Kosta Tourni (Offender)

Representation:

Solicitors:
Office of Director of Public Prosecutions (Crown)
Legal Aid NSW South Wales (Offender)

File Number(s):

2022/108052

Publication restriction:

None

JUDGMENT

1. Kosta Tourni (the offender) appears for sentence after pleading guilty to one count of break and enter property and commit a serious indictable offence contrary to s 112(1)(a), Crimes Act 1900.

2. The maximum penalty for the offence is 14 years imprisonment.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the District Court and is entitled to a 10% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. Rocky Gorgees was the lessee of a premises in Revesby from which he ran a café (the premises). At the time of the offence, the premises were being renovated. A builder, Matthew Sciuriaga, was contracted to undertake the renovation work.

8. The offender suffers from schizophrenia, anxiety and paranoid delusions. At the time of the offence, he was on a Community Treatment Order (CTO) administered by the Bankstown Community Mental Health Team (CMHT). He was having regular antipsychotic injections and was prescribed a number of other medications to be taken on a daily basis.

9. At around 6.30am on 31 March 2022, Mr Sciuriaga attended the premises and unlocked one door. He left about 15 minutes later, locking the door behind him.

10. At about 7.47am, the offender was captured on CCTV surveying the premises. He walked up to the door, tried the door handle to see if it was open, looked side-to-side and then walked off the deck away from the premises.

11. The offender went home, changed his clothes, collected a jerry can full of petrol which he had filled two to three days earlier, and a hammer from the shed.

12. He returned to the premises at around 10.45am. He was wearing different clothes and carrying a green shopping bag. The offender used the hammer to smash the door handle before entering the premises.

13. Once inside, the offender poured petrol all over the floorboards and set the premises alight. When he did so there was a woman and a child using the public walkway next to the premises.

14. The offender ran to the back of the property and then returned home, leaving the premises ablaze.

15. At around 10.58am, the Fire Brigade was called and the fire was extinguished. The shops next door to the premises had to be evacuated.

16. There was extensive fire damage to the premises. The damage was estimated by the insurer to be approximately $200,000. The fire caused the completion of the renovations to be delayed resulting in consequential business losses for the lessor and Mr Gorgees.

17. The offender called “000” at around 11.45am. He told the operator that he was hearing voices in his head directing him to kill his neighbour.

18. Police attended at around 11.50am. The offender was shouting from behind his front security door and holding an angle grinder. He was repeating himself, shouting delusional thoughts and was highly agitated and distressed. Detective Senior Constable Cooper, who attended the scene, stated that it was “evident he was having a mental health episode”. The offender told police that he had “just burnt down a shop”.

19. Paramedics arrived at the offender’s residence at 12.20pm and the offender was transported to Liverpool Mental Health Unit. The offender was later transported to Bankstown Hospital and admitted for two weeks.

20. Detective Senior Constable Cooper found an orange-coloured lid, a hammer, matches and a burnt jerry can at the crime scene. A jerry can, fire starters and a lighter were also found at the offender’s residence shortly after his arrest. The offender was discharged from hospital into police custody on 14 April 2022.

21. The offender participated in an electronically recorded interview on that day. He told police that he had completed two to three days of work at the premises as part of the renovations, for which he was owed $300. His intention when going to the premises was to steal tools or anything worth $300 as compensation for his loss.

22. The offender confirmed that he was depicted in the CCTV footage and made full admissions. He stated that prior to committing the offences, he had been hallucinating for two weeks after ceasing his medication. The offender stated that prior to the offence, he had called the Bankstown CMHT but did not speak to anyone about his renewed symptoms.

23. The offender stated that on the morning of the offence, he had had five or six pre-mixed alcoholic drinks, some Xanax and another prescription medication, Cogentin. The offender stated that he did not want to go back to hospital.

The Offender’s Case on Sentence

24. The offender tendered the following documents:

1. report by Dr Christina Matthews (psychiatrist) dated 16 September 2022;

2. report by Dr Christina Matthews dated 15 February 2023;

3. letter from Mariam Elkhaddam (social worker, Bankstown Mental Health Service) dated 19 April 2023;

4. affidavit of George Tourni (brother) dated 20 April 2023;

5. certificate of completion dated 5 April 2023; and

6. letter from Kosta Tourni dated 14 April 2023.

25. The offender was called to give short evidence to confirm the veracity of the statements made to Dr Matthews and the content of his letter to the Court. The offender struck me as being mentally well and coherent. I was left with the impression that his mental health has improved significantly from the date of the offence and even to when he first saw Dr Matthews.

26. The following is a precis of the evidence relied upon by the offender.

27. The offender is 50 years old. He was born in Sydney to a father with Lebanese heritage and a mother with Greek heritage.

28. He has five siblings. His parents separated when he was 10 years old. His childhood was extremely difficult due to the behaviour of his father. His father was an alcoholic and would emotionally and physically abuse the offender on a regular basis. The family often went without food so that his father could buy alcohol.

29. Following his parents’ separation, his father re-partnered. His father’s new partner sexually abused the offender on several occasions.

30. At age 12, the offender became homeless as a result of conflict with his mother and his refusal to live with his father. He lived on the streets or with acquaintances for about two years. His mother then assisted him by renting premises in her name for him to live in. He has lived alone from that time onwards.

31. The offender had difficulty concentrating at school and was often in trouble for being distracted or talking too much. He left school at age 12. About 10 years ago, the offender completed a basic literacy and numeracy program, but he continues to be illiterate.

32. The offender trained as a tiler and has worked in the industry for 30 years, predominantly as a sole trader. He was working inconsistently in the lead up to the offence. He hopes to return to work as a tiler upon his release from custody. He found that regular work was a protective factor for his mental health and provided him with purpose. At times when he does not work, he receives the Disability Support Pension.

33. The offender has had only one intimate relationship, at age 20. The relationship lasted for about four years. He has been single mainly as a result of his mental health issues. He has a positive relationship with his mother and siblings and remains in contact with them.

34. The offender was diagnosed with schizophrenia in 1999 at age 27. Since this time, he has had voluntary and involuntary admissions to hospital on more than 40 occasions, usually following symptoms of psychosis The longest of these admissions was for three months.

35. The offender attempted to take his own life on three occasions in the early 2000s, as a result of severe psychotic symptoms.

36. The offender has had periods of non-compliance with his treatment regime in the past.

37. George Tourni, the offender’s brother, deposed that when the offender is taking his medication, he functions well in society. Since being in custody, he has been taking regular medication and, to George’s observation, his mental health has significantly improved. George is willing to continue supporting the offender, including by providing him with work. The offender also expressed the same sentiment in his letter to the Court and in his oral evidence.

38. The offender denied using drugs since his arrest. The offender reported a long history of cannabis use, commencing at age 27 and ceasing upon his arrest. He smoked an average of one to two sticks of cannabis per day. He denied use of any other illegal substances. In 2015-2016, he was able to remain abstinent from cannabis for about 18 months.

39. The offender has a criminal history, including multiple driving offences, larceny, resist arrest, enter enclosed land without permission, damage and destroy property, assault, and stalk and intimidate. Mr Tourni reported that prior assault offences had occurred in the context of psychotic symptoms, and in particular auditory hallucinations. This is the offender’s first time in custody.

40. In the lead up to the offences, the offender had run out of one of his antipsychotic medications and he had disengaged with the Bankstown CMHT. Prior to this, his mental health had been stable and he had not been suffering any psychotic symptoms although he continued to smoke cannabis on a regular basis.

41. One week prior to the offence, the offender began experiencing auditory and visual hallucinations. The auditory hallucinations were commands and referred to his neighbour of seven years and a builder who had contracted the offender to complete tiling work at the premises, but allegedly had not paid him upon completion of the work. These hallucinations increased in frequency and intensity in the lead up to the offence.

42. On the day of the offence, the offender was overwhelmed with the intensity of the auditory hallucinations. He consumed four alcoholic drinks and 10 cones of cannabis. He felt compelled to obey the “voices” and decided to burn down the property. He knew that there was nobody at the property. Afterwards, the offender continued to hear the “voices”, which were then compelling him to kill his neighbour. He became so concerned that he decided to contact emergency services.

43. Prior to the offence, he was living alone in Revesby in public housing. This lease was terminated following his arrest. On his release, he plans to live with his mother in Bankstown, while he finds independent accommodation.

44. The offender told Dr Matthews that his mental health has significantly improved since his arrest, although his mood was slightly lower than normal because he was “lonely” in prison. His psychotic symptoms settled in about April 2022 following recommencement of his medication.

45. The offender has completed the Dialectical Behaviour and Resilience Program whilst in custody.

46. Dr Matthews opined that the offender’s symptoms support a diagnosis of schizophrenia and cannabis use disorder. She opined that the offender presents with a high load of historical risk factors for future violence and that these are unlikely to change in the future. However, the offender’s clinical risk factors for future violence can and have reduced with optimal treatment.

47. Dr Matthews supported the offender’s intention to live with his mother as appropriate. She also recommended that he be referred to CMHT for ongoing psychiatric assessment, that he remain compliant with his current psychotropic medication regime, and that he receive appropriate psychotherapy.

48. The offender gave evidence that steps have been taken by Justice Health to apply for a CTO for the offender, and he is willing to agree to the imposition of a CTO and to comply with it. I would recommend that Community Corrections continue with the application for the CTO on the offender’s behalf if that is possible. In the meantime, the offender accepts that he must submit himself to the Bankstown Community Mental Health Team as a voluntary patient and I expect that his supervising parole officer will ensure that he does so.

49. Ms Elkhaddam confirmed in her letter to the Court that Bankstown Mental Health Service would accept the offender as a client upon his release.

50. The offender expressed remorse to Dr Matthews. He told Dr Matthews, his brother and also the Court that his current medication plan had been effective in controlling his symptoms.

Consideration

Objective seriousness

51. The offence is objectively serious.

52. The offence involved some limited planning, in that the petrol used was purchased two or three days prior, there was reconnaissance of the premises on the morning of the offence and the offender returned home to change his clothes and obtain the hammer and the petrol used to set fire to the premises. Against that, it should be remembered that the offender was suffering from auditory hallucinations that influenced his behaviour at all material times.

53. The door handle of the premises was broken with a hammer to gain access to the premises.

54. The serious indictable offence committed in the premises was the destruction of the property by fire causing more than $60,000 in damage.

55. Once the fire was lit, the offender left the premises to burn. Fire is often difficult to control, and the fire posed a threat to neighbouring businesses, requiring those premises to be evacuated. The fire in fact caused substantial loss with an estimated repair cost of $200,000.

56. The offender had a deprived upbringing marked by his father’s alcohol abuse, physical and emotional abuse by his father, sexual abuse by his father’s partner and homelessness in his early adolescence. He had learning difficulties and his schooling was prematurely terminated. His mental health has limited his ability to engage in relationships and he has endured a degree of social isolation.

57. At the time of the offence, the offender was suffering from auditory and visual hallucinations. He felt compelled to act as he did as a result of the symptoms of his severe mental illness. He was less able to appreciate the wrongfulness of his actions and had limited capacity to reason or to control his impulses to act.

58. As a result of the combination of his deprived upbringing and the severity of his mental illness, the offender’s moral culpability for the offence was substantially reduced.

59. I have taken into account the maximum penalty for the offence.

Deterrence

60. General deterrence is an important purpose of sentencing, particularly in relation to serious break and enter offences.

61. General deterrence can be afforded less weight when the offender suffers from a mental condition because he or she may not be an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. In this case there was a causal connection between the offender’s psychotic symptoms in the form of the auditory hallucinations and the commission of the offence.

62. Specific deterrence remains of some importance in this sentencing exercise. I am satisfied that the offender has good insight into his mental illness and that he understands the need to maintain a strict treatment regime to ensure that he does not present a danger to the community. The penalty imposed on him must bring home that, if he fails to keep his mental illness under control, he will meet with significant consequences. However, I am satisfied that the offender now has significant insight into the need to keep up with treatment for his mental condition and that he has demonstrated that he can do so.

Aggravating factors

63. Whilst the offender has a record of previous convictions, I am not satisfied that the aggravating factor provided for by s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 is made out. The bulk of his prior convictions are for driving related matters which are irrelevant to this sentencing exercise and the rest of the matters are relatively minor offences with a clear causal connection to his mental illness. His record disentitles him to some leniency.

64. The damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

65. The offence was committed while the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. At the time of the offence the offender was the subject of a 12 month Community Corrections Order for an offence of assault occasioning actual bodily harm committed on 15 November 2021. The offender consented to being called up for the breach of this bond in these sentence proceedings and I have taken into account the facts of that offence.

Mitigating factors

66. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Imprisonment has had a positive impact on the offender’s mental health. It has ensured that he is compliant with his medication and provided stability. It has also been a salutary experience for him. It is his first time in custody for an extended period and I am satisfied that it has encouraged the offender to take care of his mental health by remaining compliant with medication and treatment, in order to avoid the possibility of gaol in the future. He also has strong family support to assist him to live productively in the community.

67. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions and expressed remorse to his brother, Dr Matthews and the Court. I accept that he is sincerely contrite. His plea of guilty also indicates remorse.

68. The offender was not fully aware of the consequences of his actions because of his mental illness: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999. The offender was suffering from severe psychotic symptoms at the time of the offence that impacted his impulse control and his recognition of right and wrong. The need to denounce the crime is reduced and it is appropriate to reduce the sentence that would otherwise have been appropriate.

69. With his mental health stabilised, the offender poses a much-reduced risk of reoffending. I note that he has stable accommodation available with his mother and an offer of work from his brother. It is unlikely that further incarceration will assist the offender and conversely, it could exacerbate his mental illness and thereby diminish the gains he has made.

66. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions have made the offender’s time in custody more onerous.

Call-up

71. By reason of the commission of the principal offence, I find that the Community Correction Order made on 10 December 2021 has been breached because the offender has committed a further offence during the term of the order.

72. The orders I make on the breach of the Community Correction Order are as follows:

1. The Community Corrections Order made at the Downing Centre Local Court is revoked.

2. For the offence of assault occasioning actual bodily harm (H83590220), the offender is sentenced to a fixed term of imprisonment of one month to date from 14 April 2022 and to expire on 13 May 2022.

Penalty

73. Kosta Tourni is convicted.

74. I have had regard to s 5 Crimes (Sentencing Procedure Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

75. I make a finding of special circumstances. The offender’s mental illness requires an extended period of treatment that will be best provided for in the community and this will best assist him to avoid reoffending.

76. Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 3 years with a non-parole period of 1 year to date from 5 May 2022. The non-parole period will expire on 4 May 2023 and the head sentence will expire on 4 May 2025.

77. The offender is to be released on parole on 4 May 2023.

78. I recommend that the offender be directed by his supervising officer to accept all reasonable directions from the Bankstown Community Mental Health Team for the treatment of his mental condition, including taking all medication as prescribed and attending all appointments as arranged between the offender and the Bankstown Community Mental Health Team.

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Decision last updated: 03 May 2023