Akram Karoumi v The Queen
[2017] VSCA 375
•15 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0125
| AKRAM KAROUMI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, TATE JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2017 |
| DATE OF JUDGMENT: | 15 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 375 |
| JUDGMENT APPEALED FROM: | [2017] VCC 38 (Chief Judge Kidd) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Common law assault – Applicant instigator of grievance-driven confrontation – Head-butting and punching – Total effective sentence of 3 years and 11 months’ imprisonment – Non-parole period of 2 years and 4 months – Whether manifestly excessive – Whether proper weight given to utilitarian value of early guilty plea after application to withdraw plea – Whether judge erred in assessment of gravity of offence – Whether personal mitigating factors properly taken into account – No error – Application for leave to appeal refused – Director of Public Prosecutions v Meyers (2014) 44 VR 486 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Emma Turnbull Lawyers |
| For the Crown | Mr B F Kissane QC | Mr J Cain, Solicitor for |
| Public Prosecutions |
MAXWELL P
TATE JA
BEALE AJA:
On 27 July 2016 Akram Karoumi (‘Karoumi’) pleaded guilty to one charge of aggravated burglary and one charge of common law assault. He was sentenced on 3 February 2017 as follows:[1]
[1]DPP v Karoumi [2017] VCC 38 (‘Reasons’).
Charge on Indictment Offence Maximum Sentence Cumulation 3 Aggravated Burglary (Person Present)
Crimes Act 1958 s 77(1)
25 years’ imprisonment 3 years and 8 months’ imprisonment Base
5
Common Law Assault
Common Law and Crimes Act 1958 s 320
5 years’ imprisonment 12 months’ imprisonment 3 months Total Effective Sentence: 3 years and 11 months’ imprisonment Non-Parole Period: 2 years and 4 months Pre-sentence Detention Declared: 393 days Section 6AAA Statement: 5 years and 4 months’ imprisonment with a non-parole period of 3 years and 9 months Other relevant orders: Nil
Karoumi now seeks leave to appeal on the single ground of manifest excess:
The sentence imposed on the charge of aggravated burglary, the sentence imposed on the charge of common law assault, the total effective sentence and the non-parole period fixed are each manifestly excessive.
Altercation at the spare parts business
On 15 October 2015 Karoumi and his friend, Mr Daod Hanna-Ishmoni (‘Hanna-Ishmoni’), went into a spare parts business in Campbellfield to enquire about a carburettor. Karoumi had been to this business before on two occasions to ask about car parts and a mechanical problem and there had been no difficulties in the interactions. On this occasion, a dispute arose between Karoumi and the owner about a car part not being available for sale. The dispute became heated and there was a push and shove between them. Two staff members, one a Mr A, separated them. As Karoumi and Hanna-Ishmoni were leaving, Karoumi made a general threat to return.
After leaving the business, Karoumi telephoned his son, Sanar Ghanim (‘Sanar’) and told him he had been assaulted and humiliated.[2]
[2]In Karoumi’s second interview, and on the plea, he said he had called his wife, not his son. The judge found that Karoumi did speak to his son. In any event, had he spoken to his wife the message was relayed to his son and it was accepted that it was Karoumi’s grievance and initial telephone call that led to the commission of the aggravated burglary.
About 45 minutes later, three cars containing seven males arrived at the business premises. Sanar was driving the first car with his adolescent brother as passenger. Riko Tomas (‘Riko’) was driving the second car (although he was unlicensed) with three passengers, Edmon and Rimon Hurmez (‘Edmon’ and ‘Rimon’), who are brothers, and Karoumi. The third car arrived shortly after the offending, driven by Hanna-Ishmoni.
Karoumi was aged 54 at the time of the offending,[3] Hanna-Ishmoni was aged 53, Sanar was aged 25, his adolescent brother was aged 16, Riko was aged 36, Edmon was aged 28 and Rimon was aged 33. Sanar was on bail at the time of the offending, as were Edmon, Rimon and Riko. Edmon and Riko were also on Community Correction Orders at the time of the offending.
[3]Karoumi was born on 15 November 1961.
Sanar and his adolescent brother got out of their car. Sanar drew a small black handgun from the front of his shorts and racked the slide ready to fire. He ran into the premises holding the gun, with his adolescent brother walking in behind him.
The owner of the spare parts business was sitting on the edge of the open boot of a car parked inside the premises facing the road. On seeing Sanar running towards him with a gun pointed forwards, the owner fled into the kitchen area of the premises. Sanar ran in through the large open roller door and demanded to know who was fighting with his father. He fired a shot into the premises and went into the kitchen area.
Karoumi, Edmon, Rimon and Riko arrived at the premises a matter of seconds behind Sanar after he had fired the first shot.
Sanar saw the owner fleeing towards the rear of the premises. Karoumi tried to hold Sanar back preventing him from running in pursuit and as a consequence Sanar tripped over a car tyre on the ground. Karoumi, on seeing Mr A standing next to a hoist, approached him aggressively with a clenched fist before head-butting him to the face. Mr A moved backwards attempting to avoid further confrontation.
Sanar got up off the ground and, still holding the gun in his right hand, approached Mr A.
Karoumi held Mr A by the scruff of the neck and punched him several times to the face while standing in front of him.
Sanar stood to the right of Mr A and held the gun to the right side of Mr A’s head while punching him to the throat and face with his other hand. Mr A pleaded with Sanar not to use the gun. Sanar fired a shot when Mr A tried to move Sanar’s hand away from his head. The bullet grazed the right side of Mr A’s head above the ear causing an open wound which immediately started to bleed.
Edmon, Rimon and Riko stood close by while this was happening.
Sanar threatened to return and burn down the building if anyone reported it to police. Sanar drove off with his adolescent brother and Karoumi. The other offenders left in the remaining vehicles.
The entire incident lasted about one minute.
Once all the offenders had left, an ambulance was called for Mr A. He was taken to the Royal Melbourne Hospital for head scans. There was no information before the Court about his injuries.
Arrest and committal
The day after the altercation Karoumi was arrested, interviewed and charged. He was granted bail. He was arrested again 11 days later and further charges were laid. He was interviewed a second time and remanded to his committal where his matter resolved on the two charges identified above. He was again granted bail until the plea hearing.
Karoumi did not re-offend while on bail.
Plea hearing and Karoumi’s application to change his plea
At the outset of the plea hearing[4] Sanar pleaded guilty to aggravated burglary, possessing a firearm, prohibited use of a firearm, reckless conduct endangering life and the summary offence of committing an indictable offence while on bail.
[4]This occurred over two days, on 27 and 28 July 2016.
Edmon and Rimon both pleaded guilty to aggravated burglary and the summary offence of committing an indictable offence while on bail.
Riko pleaded guilty to aggravated burglary and the summary offences of committing an indictable offence while on bail and unlicensed driving.
Karoumi pleaded guilty to aggravated burglary and assault. After the plea hearing but before sentencing Karoumi made an application to withdraw his plea of guilty with respect to the aggravated burglary (but not the common law assault).[5]
[5]Reasons [48].
The co-offenders were sentenced on 9 September 2016.
On 1 December 2016 the sentencing judge refused Karoumi leave to withdraw his plea and held a supplementary plea hearing on 1 February 2017. Karoumi was sentenced on 3 February 2017.
There is no challenge to the refusal of leave to Karoumi to withdraw his plea.
Sentencing judge’s reasons
The judge noted that Karoumi had given varying accounts of what had occurred and his role in the offending. These accounts included, in the first interview, a claim that earlier in the day he had been assaulted by five people at the spare parts business and when Sanar arrived (unarmed) ‘they’ started shooting at him. In the second interview Karoumi said the owner pulled a revolver on him.
The judge considered that confrontational aggravated burglaries can occur in a workplace, and not just in a residential setting. He observed that the defining characteristics of ‘confrontational’ aggravated burglary are that the burglary is ‘essentially grievance-driven; it involves confronting the person against whom the grievance is held; and it is typically accompanied by violence or threats of violence.’[6] He said:
A workplace confrontational aggravated burglary meets this description. It involves an invasion of the workplace where the offenders seek to punish, by threats of violence or by violence, someone employed or working within the premises, because of a belief that the person has done something wrong. Like citizens in their homes, citizens in the workplace are entitled to feel safe and secure in their working space, free from being subjected to a menacing invasion by outsiders. A workplace aggravated burglary committed to exact retribution for a perceived grievance, through violence or threatened violence, is a serious form of aggravated burglary, in my view.[7]
[6]Ibid [32]. See DPP v Meyers (2014) 44 VR 486, 495 [37] (‘Meyers’), applying Hogarth v The Queen (2012) 37 VR 658.
[7]Reasons [33].
He also noted that in Meyers this Court identified the considerations that would ordinarily be relevant in assessing the seriousness of an instance of aggravated burglary:
In our view, the following considerations will ordinarily be relevant to such an assessment:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
·the mode of entry (eg, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.
The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence. Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender’s conduct once inside the premises will usually enable inferences to be drawn about the intent on entry.[8]
[8]Meyers (2014) 44 VR 486, 498 [48]–[49], quoted in Reasons [37].
The judge assessed the objective seriousness of the offending here by observing that:
(1) at the point of entry, Karoumi’s intent was that his group would engage in an assault by way of ‘payback’ for the earlier conflict;
(2) the incident was intended to be a frightening and violent confrontation;
(3) by the overt aggression of the large male group it was intended that there be a ‘menacing encounter’ — the intrusion was ‘both aggressive and purposeful’;[9]
[9]Reasons [38].
(4) Karoumi was the instigator — it was his grievance and his initial phone call that led to the aggravated burglary;
(5) there were a number of people present and Karoumi would have known this;
(6) once inside the premises Karoumi gave effect to his aggressive intention upon entry by assaulting Mr A, which attracts a separate sentence;
(7) Karoumi’s offending was not completely spontaneous as he had time to reflect between the initial pushing and shoving dispute and returning to engage in the violent confrontation.[10]
[10]Ibid.
However, the judge also noted that there were other aspects of the objective features of the offending that favoured Karoumi:
(1) Karoumi fell to be sentenced on the basis that he did not know about the firearm upon entry and that his offending did not involve carriage or use of a weapon;
(2) Karoumi was not to be punished for the firearm offences committed by Sanar inside the premises;
(3) The entry did not involve the forcing or breaking down of a door or window;
(4) The entry occurred in daylight (not, for example, in the middle of the night);
(5) The episode following entry was of short duration;
(6) Karoumi attempted to restrain Sanar who was brandishing the gun. In doing this Karoumi sought to de-escalate the situation to the extent of not involving the firearm. (However, the judge noted that after this Karoumi went on to assault Mr A).[11]
[11]Ibid [39].
The judge concluded that, overall, this was ‘a serious form of aggravated burglary’.[12] He considered that ‘it clearly sits above the lower end in the range of seriousness for this offence’.[13] He also described the offending as involving ‘a nasty assault involving a head butt and punches directed towards the head region’.[14]
[12]Ibid [40].
[13]Ibid.
[14]Ibid [41].
The judge recorded that Karoumi had been born in Baghdad, Iraq, and left school at age 15. He was conscripted into the Iraqi army when he was 18 years old. He married his wife when he was 30 and was discharged from the army at age 34. He left Iraq for Syria in 2002. He arrived in Australia aged 43 in December 2004. He receives a disability support pension and is cared for by his wife. He has various health issues, including late-stage chronic kidney disease which originated from a shrapnel injury he sustained in the Iraqi army as a teenager. He also has type two diabetes and carpal tunnel syndrome. The judge accepted the submission that Karoumi would find prison more onerous than someone without such health problems but he considered that this did not mitigate the sentence to a significant degree as none of the conditions were especially grave or debilitating and it was acknowledged by Karoumi’s counsel that multiple medical conditions are manageable in a custodial setting.[15]
[15]Ibid [44].
Importantly, the judge was prepared to regard the early plea of guilty as having considerable utility despite the attempt to withdraw it. He said:
You entered an early guilty plea, which has utilitarian value as it avoided a lengthy trial. You were originally charged with attempted murder and after negotiations this resolved to the charges to which you now plead guilty. Both the defence and prosecution seemed to accept that your utilitarian discount should remain effectively unaltered by your change of plea application. I will proceed upon that basis.[16]
[16]Ibid [45].
The judge was also prepared to assess Karoumi as showing some evidence of remorse and insight into the wrongdoing, despite having sought to change his guilty plea on the charge of aggravated burglary and despite the fact that in the two interviews he sought to shift the blame onto the victims.
The judge noted that Karoumi has the support of his wife and family and that the references tendered showed him to be a generous, kind-hearted and good man.
The judge also noted that Karoumi’s criminal history had involved no more than a ‘relatively minor prior’[17] incident five years before, involving excessive disciplining of one of his sons and amounting to recklessly causing injury for which no conviction was recorded. For this earlier offending Karoumi had been sentenced to an adjourned undertaking to attend and continue treatment with a psychiatrist. He considered that this, combined with Karoumi being a 54/55 year old man, enhanced Karoumi’s prospects of rehabilitation and reduced the need for specific deterrence. He was prepared to treat the offending as ‘out of character’ for Karoumi and assessed his prospects of rehabilitation as ‘very good’ (and better than the prospects for either Edmon or Riko):
I am prepared to see your conduct on this day as out of character. You are at low risk of re-offending. I find you have very good prospects of rehabilitation given, in particular, your age and limited antecedents. In light of that finding, I will also temper specific deterrence.
Your positive prospects are a factor relevant to each component of your sentence but especially so with respect to the fixing of your non-parole period.[18]
[17]Ibid [42].
[18]Ibid [54]–[55].
Within this context the judge was prepared to accept that there may have been a cultural explanation (but not excuse) for the offending. He said:
At the initial plea hearing your counsel submitted that the explanation for the offending lies in the original dispute you had at these premises. You perceived yourself to be a victim and that you were disrespected. You were not thinking clearly at the time of the offending and you were angry, emotional and upset at the initial confrontation at the spare parts premises. At the supplementary plea hearing this week, your counsel also submitted that the offending was committed in the context of a middle-aged man coming from a culture where disputes of this kind were resolved privately and not by reference to the law enforcement authorities. It was submitted that this all explains your offending, although it was not suggested that it excuses it or reduces your moral culpability. In short, what occurred here is thus not unexplained offending. I accept that.
Your counsel also put to me ... that you now know that resolving a dispute in this way is unacceptable under our legal system. I accept this, to a point. ... it is hard to identify with any precision just how much responsibility you accept and how much insight you have. But I have given you some benefit for this and it does weigh in your favour in assessing your prospects.[19]
[19]Ibid [52]–[53].
The judge was mindful that the offence of aggravated burglary is complete upon entry and that, in sentencing for that offence, he needed to ensure he did not impose punishment for offending which occurred after entry, namely, the assault, to avoid the risk of double punishment.[20]
[20]Ibid [56].
He was also aware of the constraints of parity for sentencing co-offenders and he outlined some of the important differences in the roles played by Karoumi and his co-offenders. In particular, he mentioned that Karoumi was the instigator of the offending and perpetrated the assault on Mr A whereas Edmon, Rimon and Riko played much less significant, and more spontaneous, supporting roles and none of them physically assaulted anyone.[21] On the other hand, Edmon, Rimon and Riko had considerably greater criminal histories, especially Edmon and Riko. Furthermore, Karoumi was neither on bail (whereas Sanar, Edmon, Rimona and Riko were) nor on a Community Correction Order (whereas Edmon and Riko were).[22] Moreover, it was Sanar who engaged in the most serious offending and was sentenced for the more serious offending of aggravated burglary with a weapon in addition to a person being present, as well as the offences with respect to possessing and discharging a firearm.[23]
[21]Ibid [61].
[22]Ibid [62]–[63].
[23]Ibid [66].
Is the sentence manifestly excessive?
In R v Pham,[24] Bell and Gageler JJ observed that ‘[i]t is only if the sentence is found to be “unreasonable or plainly unjust” that the challenge of manifest excess succeeds’.[25] Redlich and Priest JJA explained in McPhee v The Queen[26] that there is considerable difficulty in making out the ground:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[27]
[24](2015) 256 CLR 550.
[25]Ibid 568 [56], citing House v The King (1936) 55 CLR 499, 505.
[26][2014] VSCA 156.
[27]Ibid [8] (emphasis added), citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing).
Maxwell P emphasised the stringency of the threshold required to establish manifest excess in Ayol v The Queen[28] when he observed that one should ask whether ‘something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion’.[29]
[28][2014] VSCA 151.
[29]Ibid [30], citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). See also Young v The Queen [2016] VSCA 149 [128] (Ashley, Whelan and Kaye JJA).
Here, Karoumi submitted that the sentence imposed is manifestly excessive because:
· he pleaded guilty and his pleas were early pleas, occurring at the committal hearing and before any witnesses were cross-examined — the utilitarian value of the plea was not reduced by the change of plea application;
· he sought to de-escalate the situation by restraining Sanar;
· he was not armed and did not know that Sanar was armed;
· the duration of the incident was brief — about one minute;
· his criminal history was limited to the single incident five years before;
· he was 55 at the time of sentencing and the lack of prior convictions shows the conduct was ‘out of character’;
· he was considered by others to be a generous, kind-hearted and good man and he was supported by his wife and family;
· there was evidence of some remorse and insight;
· he has a low risk of re-offending and has very good prospects of rehabilitation;
· his experience of prison will be more onerous than that experienced by other prisoners given his multiple health conditions;
· there was an absence of other aggravating factors, not having involved the forced breaking down of a door or window, not occurring at night and not being committed at a residential dwelling.
Karoumi submitted that these factors, taken individually, and in combination, reveal that the sentence imposed was more severe than necessary to achieve the purposes for which the sentence was imposed. He had submitted on the plea, and reiterated at the hearing of the application for leave to appeal, that a combination sentence (a Community Correction Order and a period of imprisonment) would have been sufficient to achieve those purposes, including the purposes of denunciation and general deterrence.
Analysis
We reject Karoumi’s submissions. We consider that the judge’s reasons are unimpeachable and reveal a fair and carefully considered sentencing disposition. We do not consider that the individual sentences imposed, the total effective sentence, or the non-parole period are unreasonable or plainly unjust, or reveal that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.
It is clear that the judge meticulously identified and considered each factor relied upon by Karoumi. Indeed, as we discuss further below, we consider that in many respects his assessment was generous to Karoumi.
The judge acknowledged the utilitarian value of Karoumi’s plea as an early plea. Moreover, we consider that he acted generously to Karoumi in ignoring the change of plea application in that assessment.
We also consider that Karoumi’s reliance upon his attempt to de-escalate the situation is significantly undermined by the sequence of events, in particular, that it was after he sought to restrain Sanar that he went on to approach Mr A aggressively and head-butted and punched him. Karoumi’s commission of the ‘nasty assault’[30] detracted from any submission that he was a calming or mature influence in the course of the incident. The judge was well aware of the relationship between the two events.
[30]See [32] above.
The judge expressly observed that Karoumi fell to be sentenced on the basis not only that he was not himself armed but that he did not know that Sanar was armed.
The judge recorded the brevity of the incident but also acknowledged, appropriately, that the incident, for Karoumi, was not entirely spontaneous as Karoumi had an opportunity for reflection by leaving the premises after the initial interaction before he returned. Thus, while the duration of the aggravated burglary was brief, it was not committed in the heat of the moment. Moreover, the incident must have been terrifying for the employees of the spare parts business, and especially Mr A, and the judge was well aware of this.
The judge’s approach to Karoumi’s criminal history was also generous. He was willing to regard the earlier conduct, which amounted to recklessly causing injury, as a ‘relatively minor prior’.
He was aware of the positive assessment of Karoumi’s character by others, aware of Karoumi’s age, and he was prepared to treat the offending as ‘out of character’. In that context we consider that the judge’s assessment that Karoumi had some insight into his offending, and some remorse, was a benevolent finding given Karoumi’s application to withdraw his guilty plea. The finding in Karoumi’s favour reinforced the judge’s determination that Karoumi would suffer no disadvantage from having made a change of plea application. The finding also provided the foundation for the judge’s positive assessment of the risk of Karoumi re-offending and his prospects of rehabilitation.
Moreover, the judge expressly sought to understand the offending from Karoumi’s perspective and the complex cultural factors that may have played a part, including that it was asserted that in Iraq disputes of this kind are resolved privately without resort to law enforcement authorities. The judge appreciated the role these cultural factors may have played, while emphasising that Karoumi’s apparent refusal to accept that his conduct was a breach of criminal law in Australia, and amounted to aggravated burglary, was misguided.
It was accepted by Karoumi’s counsel on the plea that multiple medical conditions can be managed in prison and the judge observed that none of Karoumi’s medical conditions is especially grave. The judge nevertheless accepted that Karoumi would find imprisonment more onerous than someone without his health issues but, appropriately in our view, did not consider that this mitigated the sentence to a significant degree.
The absence of a weapon was not itself a mitigatory factor in the sentencing process and could not warrant a reduction in sentence. We consider that the judge appropriately took into account the lack of a weapon when considering the objective gravity of the offending.
The time at which the incident occurred was taken into account by the judge. However, its timing, during the day and not at night, stands to be considered in the context of the nature of the confrontational aggravated burglary committed, namely, that it was a workplace that was targeted and Karoumi expected people to be present at that time going about their work and entered the workplace intending to commit an assault, indeed to engage in ‘payback’. Confrontational aggravated burglaries will not be considered less serious purely because they occur in a workplace rather than a residential dwelling.[31]
[31]Kerapa v The Queen [2017] VSCA 56 [22]–[23].
We consider that it was well open to the judge to reject a submission that a non-custodial disposition was appropriate or proportionate. The aggravated burglary was prompted by Karoumi’s grievance and he instigated menacing and viciously aggressive conduct upon persons who were entitled to feel secure in their workplace. The assault perpetrated by Karoumi was a violent, unprovoked, and sustained attack on a person who had sought to reduce the hostility of the initial dispute. We consider this to be a serious example of serious offending. We consider that it was open to his Honour to consider that the objective gravity of the offending, and Karoumi’s moral culpability, even when counterbalanced by the factors in mitigation, warranted a substantial term of imprisonment and the fixing of a non-parole period. In our view, the individual sentences imposed, the total effective sentence imposed, and the non-parole period, were reasonably open to his Honour as within the permissible range. The sentence was not of a level of severity to amount to a manifestly excessive sentence.
We would refuse leave to appeal against sentence.
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