REGINA v KARIBIAN

Court of Criminal Appeal (NSW)|2007-11-13|Before: McClellan CJ, Hall J, Price J, Clellan CJ

CITATION: REGINA v KARIBIAN [2007] NSWCCA 334

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 30

CATCHWORDS: CRIMINAL LAW - Sentencing - Crown appeal - whether sentence manifestly inadequate - accumulation of sentences - malicious damage to property.

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

Regina v Campbell [2000] NSWCCA 157 Regina v Hayes [2001] NSWCCA 358 CASES CITED: Regina v Rushby (1977) 1 NSWLR 594 Pearce v The Queen (1998) 194 CLR 610 Regina v Wall [2002] NSWCCA 42 Regina v Hallocoglu (1992) 29 NSWLR 67

PARTIES: REGINA v Guy KARIBIAN

COUNSEL: Crown: M Hobart SC Resp: S Kluss

SOLICITORS: Crown: S Kavanagh Resp: S E O'Connor

IN THE COURT OF CRIMINAL APPEAL 2007/3278

McCLELLAN CJ at CL HALL J PRICE J

FRIDAY 7 DECEMBER 2007 REGINA v GUY ALAN KARIBIAN Judgment 1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: On 26 July 2007, the Director of Public Prosecutions gave notice of his desire to appeal to this Court against a sentence pronounced by his Honour Judge Sides in the District Court of New South Wales at Campbelltown on 16 July 2007 on the ground that the sentence was manifestly inadequate. 3 The appeal is brought pursuant to the provisions of s.5D of the Criminal Appeal Act 1912. 4 The respondent was charged with the following offences:- 1. On 7 November 2005 at Fairfield Heights, he maliciously damaged a window with intent to cause bodily injury to Sabah Aziz, by means of explosives, contrary to the provisions of s.196(b) of the Crimes Act 1900 . The maximum penalty for the offence is imprisonment for 14 years.

On 7 November 2005 at Fairfield Heights, he maliciously damaged a window, the property of Sabah Aziz, by means of explosives, contrary to the provisions of s.195(b) of the Crimes Act 1900 . The maximum penalty for the offence is imprisonment for 10 years.

On 7 November 2005 at Fairfield Heights, he maliciously damaged the door, the property Sabah Aziz, by means of explosives, contrary to the provisions of s.195(b) of the Crimes Act 1900.

On 7 November 2005 at Fairfield Heights, he had possession of an explosive article with intent to maliciously damage the property of another person contrary to the provisions of s.200(a) of the Crimes Act 1900 . The maximum penalty for the offence is imprisonment for seven years.

On 7 November 2005 at Fairfield, he maliciously damaged a window, the property of another, namely, Alex Abraham, by means of explosives contrary to the provisions of s.195(b) of the Crimes Act 1900 . 5 On 4 June 2007, the jury found that the respondent was not guilty of Count 1 and guilty of each other offence. 6 On 16 July 2007, his Honour sentenced the respondent as follows:-

(a) On each of Counts 4 and 5, concurrent non-parole periods of nine months commencing on 7 November 2005 and expiring on 6 August 2006, with a balance of term of nine months commencing on 7 August 2006 and expiring on 6 May 2007.

(b) On each of Counts 2 and 3, concurrent non-parole periods of 12 months commencing on 7 August 2006 and expiring on 6 August 2007, with a balance of term of 18 months commencing on 7 August 2007 and expiring on 6 August 2009. 7 The sentencing judge directed that the respondent be released to parole on 6 August 2007. A finding of special circumstances was made by reason of the accumulation of the sentences.

Facts 8 The factual circumstances were accurately summarised in paragraphs (6) to (8) of the Crown's written submissions which it is convenient to reproduce:- "6. … In October 2004 Dr Sabah Aziz who was a dentist, filled a tooth for the respondent at his surgery; on two later occasions in 2004 he performed minor corrective work for the respondent without further charge; the respondent asked Dr Aziz to remove a sound tooth and Dr Aziz refused to do so. On 19 March 2005, in an aggressive mood, the respondent returned to Dr Aziz's surgery, opening the door forcefully, and argued with Dr Aziz, complaining about his workmanship and Dr Aziz's lack of professionalism. He threatened Dr Aziz saying something like 'You wait and fucking see, you will not get away with this'. Count 2: Some time before 3 a.m. on Monday 7 November 2005 while Dr Aziz and his family were asleep upstairs, the respondent taped to the window of a downstairs sitting room a mortar device, which was a firework designed for use in the pipe. If set off when not in the pipe, its behaviour was unpredictable, and people nearby could suffer serious injury, including losing a limb, and people within 5 metres would suffer temporary, and perhaps permanent, hearing loss and perhaps damage to their eyes. Between 2.45 a.m. and 2.55 a.m. that day the respondent lit the device and it exploded, breaking two panes of glass and waking the family. The police were called, and, because the family feared that someone was downstairs inside the house, they waited in an upstairs bedroom until the police arrived. Count 5: The respondent then went to 10 Polding Street North, less than 2 kilometres from Dr. Aziz's house and taped another mortar device to a bedroom window in a home occupied by the Yurchenko family and at about 3 a.m. or a few minutes past exploded it; no damage was done to the window. The respondent set off the mortar device there as a decoy to allow him time to place and set off a larger device at Dr Aziz's surgery, and possibly in an attempt to shift suspicion from himself. Count 3: The respondent then drove to Dr Aziz's surgery in The Boulevard, Fairfield, about 500 metres from Dr Aziz's home where he attached another larger mortar, 75 millimetres or larger, to the door and exploded it; the explosion caused damage to the surgery door. Count 4: The respondent entered his Porsche car and sped off down Station Street, heading towards Sackville Street. Police officers pursued the car and saw it pass through a red light as it turned into Sackville Street; he was stopped in Polding Street. Police officers saw a jerry can in the car and arrested the respondent. During a search of a car police officers found two 65 millimetre mortars in a plastic bag behind the passenger's seat and next to it a plastic bag containing four drink bottles of petrol. On the back seat police officers found fire blankets and homemade protective devices including a cap lined on the inside with foil and other items made out of foil; he had the fire blankets and protective devices to protect him from the possible consequences of setting off the mortar devices. Police officers also found gloves, which the respondent had for protection and in order not to leave fingerprints. When he was searched, police officers found that the respondent was wearing a homemade protective device around his groin, to protect his genitals from damage should anything go wrong while he was committing the offences. At a search at the respondent's home that afternoon, police officers found mortars similar to those found in his car and protective devices, including a vest like device which he had designed to test as a protective device when letting off the mortars at his home. About two weeks before the commission of the offences a neighbour had heard explosive like sounds from the respondent's home and on one occasion saw a flash occur there; the respondent had set off some mortar devices at his home before the commission of the offences. 7. The offences were committed at a time when the respondent must have appreciated that people were likely to be inside each of the two houses but he chose a time when there would be few people out and about in the streets, in order to avoid detection. 8. Extensive amounts of debris were found after the explosions; repairs to Dr Aziz's house and surgery cost over $11,000."

Subjective circumstances 9 The respondent was born in France on 20 August 1956. He was aged 50 years at the date of sentence. He had migrated to Australia when he was nine years old. He had had a supportive family and obtained a degree in Civil Engineering from the University of New South Wales. At the time of the commission of the offences he was working as a consultant project manager in the building industry. 10 The sentencing judge found that, at the time of the offences, there was no credible evidence that he was suffering from any mental illness. His Honour accepted that, during his time in custody, the respondent had learned a salutary lesson and that his prospects of rehabilitation were reasonable and that it was likely that he would not re-offend. 11 The respondent had a moderate criminal history, including a conviction for maliciously destroying property and he was at conditional liberty for that offence at the time of the commission of the offences in question in these proceedings.

Crown submissions on appeal 12 The Crown submitted that:-

• The offences were of considerable gravity involving explosive devices capable of causing significant damage.

• The offences involved a considerable amount of planning and preparation.

• The explosive devices were described as mortar devices, a form of fireworks (described by senior counsel for the Crown in this appeal as each being in the nature of a salute or large rocket with a wick). The devices could not be purchased legally in New South Wales without appropriate authority.

• The offences were aggravated and rendered more serious by reason of the fact that they were committed whilst the respondent was on conditional liberty: s.21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 .

• The respondent's record of convictions including the conviction for maliciously destroying property. It was said that this demonstrated a continuing attitude of disobedience to the law. Retribution, deterrence and protection of society indicated a more severe penalty was warranted (s.21A((2)(d) of the above Act).

• The offences involved planning and organised criminal activity in the respondent having purchased the mortar devices and experimented with such devices at his home.

• He committed the offence at the house occupied by the Yurchenko family as a decoy to allow him time to place and explode a mortar device at the surgery of Dr Aziz.

• The devices were exploded at a time when people were likely to be inside both houses (s.21A(2)(n) of the above Act). 13 The Crown also relied upon the fact that the offences were committed at night and that two of the offences were committed at the homes of the victims who had a right to feel safe, particularly in their own homes at night: Regina v Campbell [2000] NSWCCA 157 at [22] per Dunford J. 14 The Crown also pointed to the motivation for the offences in Counts 2 and 3 as ill-will which was described by the sentencing judge as "irrational". 15 The Crown submitted that the matters of aggravation meant that the offences were of significant gravity and that his Honour was in error in finding them to fall at the lower end of the range of seriousness. 16 The Crown contended that the sentencing judge gave too much weight to the respondent's subjective circumstances and, accordingly, failed to impose sentences that properly reflected the objective seriousness of the offences: Regina v Hayes [2001] NSWCCA 358 at [51] per Sully J and Regina v Rushby (1977) 1 NSWLR 594, 597D-598E per Street CJ. The objective circumstances were, in the Crown submission, given disproportionate weight to the objective circumstances. 17 Finally, the Crown submitted that the sentencing judge failed properly to fix an appropriate sentence for each of the offences for which the respondent fell to be sentenced or to properly consider questions of cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610 at [45]. It was also contended that his Honour failed to take into account that there were more victims than one and a failure to take into account the total criminality of the offences.

The respondent's submissions 18 It was submitted on behalf of the respondent that the sentencing judge was entitled to determine that the offences fell towards the lower end of the range of seriousness. 19 The respondent contended that the sentencing judge had heard extensive evidence concerning the fireworks from specialists during the course of the trial and was aware that no person was likely to have been present at the dentist's surgery. Further, reliance was placed upon the fact that the actual danger presented by the ignition of the fireworks, given that it was at a time of day when few people, if any, would be likely to be in the vicinity, accordingly, limited the actual danger arising from the timing of the explosions. 20 On the question of accumulation of the sentences, it was submitted that, in all the circumstances and given the two groups of "victims", that it was open to the sentencing judge to structure the sentences in the way that he did. The overall total accumulation of the first group of offences upon the second, it was said, reflected the appropriate principles and criminality and also reflected appropriately the totality in all the circumstances.

Consideration 21 The common law principles application to Crown appeals are well known and were summarised by Wood CJ at CL in Regina v Wall [2002] NSWCCA 42 at [70]. In general terms, the discretion of the sentencing judge will only be interfered with in a compelling case. It is not sufficient that this Court would have imposed a more severe sentence: Regina v Hallocoglu (1992) 29 NSWLR 67 at 78. In the present appeal, it is necessary for the Crown to establish that the sentences imposed by Sides DCJ were outside the permissible range of the exercise of the sentencing discretion. 22 Senior counsel for the Crown on this appeal acknowledged that the sentencing judge had appropriately said in his remarks on sentence that the explosive devices in question were used to frighten, rather than to kill. The jury had clearly found, in relation to the first count, in relation to which they returned a verdict of not guilty, that they did not accept that there was an intention in the respondent to harm any person. 23 The respondent was released to parole on 6 August 2007. Senior counsel for the Crown acknowledged that that was, in itself an issue, or "a hurdle" that the Crown was required to overcome. 24 In relation to the contention by the Crown that there was a lack of accumulation in the sentences, reliance was placed upon the fact that there were different people involved in the premises in Polding Street and the residents at Throsby Street. 25 The Crown contention was, having regard to the maximum penalty in respect of the offence under s.196(b) of the Crimes Act (10 years), that the head sentence was too low and the accumulation was insufficient. 26 In relation to the question of accumulation, it is, as was submitted by Ms Kluss of counsel on behalf of the respondent, the fact that the sentencing judge did wholly accumulate the two groups of charges. 27 I am of the opinion that the approach adopted by the sentencing judge in structuring the sentences in the manner he did was one that was open to him as a proper exercise of the sentencing discretion. 28 In considering the individual sentences imposed, it is, as Ms Kluss on behalf of the respondent submitted, the case that his Honour identified each of the relevant matters in determining the objective seriousness of the offence, including, in particular, the amount of damage done, the cost of repairing the damage, the means used (explosive materials), the disregard for public safety, the element of planning and the motive of the respondent. Having done so, the experienced sentencing judge made an evaluation which I consider was one well within the range of the discretion available to him. I do not consider that any sentencing error has been identified. Nor do I consider that error should be inferred from the sentences imposed. 29 Accordingly, I am of the opinion that the appropriate order is that the appeal be dismissed. 30 PRICE J: I agree with Hall J. **********

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