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Court of Criminal Appeal 7 December 2007

REGINA v KARIBIAN

[2007] NSWCCA 334

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE ACCUMULATION OF SENTENCES MALICIOUS DAMAGE TO PROPERTY.

Citation: Regina v Karibian [2007] NSWCCA 334
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2007
Judge(s): McClellan CJ at CL, Hall J, Price J

Background

The respondent, a civil engineering consultant in his early fifties, was convicted of four offences arising from a targeted campaign of property damage against a dentist and an unrelated household. The offences took place in the early hours of 7 November 2005, when the respondent used mortar-style firework devices to damage the dentist's home and surgery, and detonated a further device at a neighbouring street address as a deliberate decoy. He was acquitted by the jury of a fifth charge, which alleged he had intended to cause bodily injury.

Police stopped the respondent nearby and found his vehicle loaded with additional mortar devices, petrol-filled bottles, protective equipment, and homemade garments designed to shield him from blast injury, including a protective device worn around his groin. The background to the offences was a grievance against the dentist arising from a dispute over dental treatment.

In the District Court at Campbelltown, Judge Sides sentenced the respondent to two groups of concurrent sentences, wholly accumulated against one another, with the respondent released to parole on 6 August 2007. The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate.

  • Whether the total sentences imposed by the District Court were manifestly inadequate, having regard to the objective seriousness of the offences
  • Whether the degree of accumulation between the sentence groups was insufficient, particularly given that separate premises and separate victims were involved
  • Whether the head sentence adequately reflected the applicable maximum penalties under the Crimes Act 1900

Decision

Hall J (with whom McClellan CJ at CL and Price J agreed) dismissed the appeal. The Court held that the Crown had not established the sentences fell outside the permissible range of the sentencing discretion.

The sentencing judge had correctly characterised the explosive devices as instruments of intimidation and fright rather than instruments intended to kill or cause serious injury. This finding was consistent with the jury's verdict of not guilty on the charge requiring proof of intent to cause bodily harm.

On the accumulation question, the Court accepted the respondent's submission that the sentencing judge had in fact wholly accumulated the two sentence groups, producing a genuine increase in total time served. That structural approach was open to the sentencing judge as a proper exercise of discretion.

The Court was also satisfied that the District Court had correctly identified all relevant factors bearing on objective seriousness, including the amount of damage caused (repairs exceeding $11,000), the use of explosive materials, the disregard for public safety, the degree of planning, and the respondent's motive. The Crown had additionally acknowledged that the respondent's release to parole was itself a complicating hurdle for the appeal. No sentencing error was identified, and none could be inferred from the sentences actually imposed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a sentence will only be found manifestly inadequate where it falls outside the permissible range of the sentencing discretion, not merely because the Crown might have preferred a heavier penalty.
  • Where a sentencing judge correctly identifies and weighs the relevant objective and subjective factors, an appellate court will not readily infer error from the outcome alone.
  • Full accumulation of sentence groups, even without additional partial accumulation between individual counts, may be a proper and sufficient structural response where offences span multiple victims and locations.
  • A jury's acquittal on a charge requiring proof of intent to harm is a relevant consideration that shapes the sentencing court's characterisation of the offences, limiting the weight that can be placed on a harm-oriented aggravating analysis.
  • The respondent's release to parole prior to the hearing of the Crown appeal was acknowledged as a practical impediment to the Crown's case, reflecting the courts' general reluctance to disturb sentences already being served.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 195(b), 196(b), 200(a)

Cases
- Regina v Campbell [2000] NSWCCA 157
- Regina v Hayes [2001] NSWCCA 358
- 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