R v Karnib

IN THE COURT OF CRIMINAL APPEAL 60143/03

Hidden J Barr J Newman AJ

Tuesday 23 September 2003 R v Ahmed KARNIB Judgment 1 HIDDEN J: I ask Barr J to deliver the first judgment. 2 BARR J: Ahmed Karnib seeks leave to appeal against sentences imposed upon him by Kinchington DCJ QC on 16 August 2002.

3 In August 2001 police were inquiring into the large-scale theft of laptop computers from various commercial enterprises. They began to suspect the applicant and listened to his telephone conversations. As a result, they arrested him and searched his house and business premises. They found a number of stolen goods. The applicant was taken to the police station and took part in a recorded interview. He admitted criminal complicity with regard to some of the goods. He admitted that for a period of about eight months he had been purchasing stolen computers from a man called Stephens and selling them on to a man called Senior. He was charged with a number of offences and eventually committed to the District Court for trial.

4 On his first appearance in that court he indicated an intention to plead guilty. There was an indictment containing four counts as follows: 1. Between 1 February and 19 September 2001 conspiring with Peter Alexander Stephen (sic) to commit an indictable offence, namely receiving laptop computers and accessories previously stolen, the stealing of which amounted to serious indictable offences of larceny knowing when he intended to receive them that they had been stolen. 2. During the same period of time, conspiring with John William Senior to dispose of a quantity of laptop computers and accessories in the same circumstances. 3. Between 15 and 21 September 2001 receiving two laptop computers before then stolen, the stealing of which amounted to the serious indictable offence of larceny, knowing when he received them that they had been stolen and, 4. Between 1 January and 21 September 2001 receiving one steam cleaner before then stolen, the stealing of which amounted to the serious indictable offence of larceny, knowing at the time of receiving it that it had been stolen.

5 The applicant asked the court to take into account two further offences, namely that on the day of the search he had in his custody goods reasonably suspected of having been stolen, namely various computer parts and one stereo sound system.

6 Kinchington DCJ was supplied with a resume of the facts giving rise to the charges and the matters required to be taken into account. He was informed of the applicant's early pleas of guilty and his undertaking to give evidence in the trial of Stephens in accordance with the facts he had admitted.

7 The applicant had a minor criminal history which was of no consequence for sentencing. He had a good work history. His Honour accepted that he had accepted an offer to participate in this unlawful enterprise when his retail business fell on bad times and he found himself unable to repay borrowed money. His Honour allowed a reduction of forty percent from the sentences to take account of the early pleas of guilty, the offer of assistance and the other subjective features, particularly the applicant's contrition, of which there was good evidence.

8 On each of the first two counts in the indictment his Honour sentenced the applicant to imprisonment for a fixed term of three years to be served by way of periodic detention. On each of the two remaining counts his Honour sentenced the applicant to a fixed term of eighteen months' imprisonment, also to be served by way of periodic detention. All sentences were to commence on the same day, 24 August 2002. His Honour took the two scheduled matters into account in imposing sentence on the first count. The effective sentence for the totality of criminality was therefore three years' imprisonment to be served by way of periodic detention.

9 The applicant submits that he has a justifiable sense of grievance by comparing his sentence with that imposed upon the man Senior. Senior was sentenced before the applicant and particulars of the sentence were put before the sentencing judge. Senior was dealt with on 7 May 2002 by Judge Blackmore. He was arrested on 20 September 2001 and his premises were searched. He was found in possession of stolen goods and soon admitted his part in the arrangement with the applicant to purchase from him computers and computer parts which he knew to have been stolen. There were early admissions and an early plea of guilty.

10 Senior gave an undertaking to the authorities to give evidence in proceedings against the applicant and Stephens. There were strong subjective features. His Honour regarded him as a good worker in a self-employed business whose income had fallen and who had opportunistically sought to receive and sell the computers at a time when his business was going through a slump and his wife was off work having their first child. He was a law-abiding citizen generally, having a minor record that was of no consequence in sentencing. There were good references showing that Senior assisted the elderly in the community. There was a satisfactory report from the Probation and Parole Service. His Honour allowed a discount of fifty percent from the sentence that would otherwise have been appropriate and sentenced Senior to imprisonment for eighteen months' imprisonment to be served by way of periodic detention.

11 It was submitted on appeal that the facts upon which Senior was sentenced involved his indicating to the applicant that he had buyers lined up to purchase computers that he intended to purchase from the applicant, that Senior admitted to the arresting police that three laptop computers found on his premises had been stolen according to arrangements made between him and the applicant and that over the previous three months he had disposed of up to forty laptop computers. He claimed to have made a profit of ten thousand dollars altogether.

12 It was submitted that despite the fact that the applicant was sentenced for three counts in the indictment which involved stolen computers compared to Senior's single count, their objective criminality was indistinguishable. It was further submitted that there was nothing of a subjective nature to distinguish the two. Although the sentencing judge was obliged to take into account the criminality contemplated by the offences which did not involve Senior, it was implied that that was minor and did not justify a doubling of the sentence imposed upon Senior. 13 It does not seem to me that the matter is susceptible of such a simple analysis. Although a substantial part of the applicant's criminality was objectively indistinguishable from Senior's there were other serious features that showed that the applicant was systematically involved in other enterprises as well.

14 The third count in the indictment, one of receiving stolen goods comprising two laptop computers, had nothing to do with the arrangement he had with Stephens and Senior. He first told the police that he had bought them from a man, and then from a man and a woman together. He named the woman, though whether the name he gave would have enabled the police to identify her is not known. He gave them an address or other means by which she could be contacted. He said she was a drug addict who hung around the station with her sister. He gave a description which would not have assisted the police. He said he paid one thousand dollars made for the laptops. He said he had known the woman for four or five months.

15 The fourth count in the indictment related to a steam cleaner. All the applicant said about this item in his interview was that he had lawfully bought it from a well-known hardware company a few years earlier. His plea of guilty acknowledged that that was a false explanation, but no explanation was ever put before the Court when or from whom he had received the item.

16 The first item on the schedule comprehended various stolen computer parts. The applicant said that he had bought them from the woman from whom he had bought the two laptop computers.

17 The second scheduled item concerned a stereo sound system. All the applicant told the police about that item was that it had been given to him by a former girlfriend of his. Once again, his plea of guilty acknowledged the falsity of that story but no explanation was ever given about the source of the goods.

18 It thus appears that the criminality which his Honour was obliged to have in mind when fixing a total effective sentence was considerably more than that apprehended merely by the movement of stolen goods in the arrangements between him, Stephens and Senior. In fact there were up to three other sources of stolen goods found in the possession of the applicant.

19 No attack has been made on the allowance of forty percent which the sentencing judge made for the subjective features. His Honour was bound, when considering the case of Senior, to take into account in addition to the different criminality the fact that his sentencing judge had allowed a discount of fifty percent for subjective features. 20 In my opinion, there is nothing about the facts of the respective cases which could be shown to support an argument that the difference between the two assessments was unfair to the applicant. It seems to me that these matters combine to provide a substantial reason why his Honour was entitled to differentiate between the effective sentence to be passed upon on the applicant and that which had been passed upon Senior. In my opinion, the applicant has failed to demonstrate that he has any justifiable sense of grievance. 21 During oral submissions, Mr Stewart, counsel for the applicant, referred to a Crown submission that the structure of the sentences did not strictly accord with the principles set forth in Pearce v The Queen (1998) 194 CLR 610. Accordingly, it was submitted, error had been disclosed, so the applicant was entitled to have this Court set aside the sentences and impose appropriate sentences. I do not apprehend that the Crown raised the matter in order to found any such submission. The Crown's purpose in doing so was to point out that sentences not imposed in accordance with the principles in Pearce, may lead to a masking of error and in turn, to artificial claims of disparity. That, the Crown submitted, was what these claims really were.

22 Although the sentences imposed by his Honour may not have accorded with the principles required it seems to me that there is no case for concluding that the total effective sentence is anything other than a proper sentence. If I were to restructure the sentences I would impose a combination of sentences the total effective length of which was no less than that of the sentences appealed from.

23 I would grant leave to appeal but would dismiss the appeal.

26 HIDDEN J: The orders of the Court will be those as proposed by Barr J.

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