Director of Public Prosecutions v Karimi

[2023] VCC 230

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01927

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAHOO KARIMI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2022
DATE OF SENTENCE:	22 February 2023
CASE MAY BE CITED AS:	DPP v Karimi
MEDIUM NEUTRAL CITATION:	[2023] VCC 230

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plea – Causing injury intentionally

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175

Sentence:                  Total effective sentence of five years’ imprisonment with a minimum non-parole period of two years and nine months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr L. Hocking	SLKQ Lawyers

HIS HONOUR:

1Mr Karimi, on 30 November 2022, you pleaded guilty on arraignment to a single charge of intentionally cause injury on Indictment M10803480.

2The offending itself occurred many years ago, in a sense, on 10 March 2018 in Kealba.  The day before, on 9 March 2018, two men hatched a plan to steal your motorbike that you had advertised for sale.  One came to take the bike on a test ride and, according to their plan, never returned.  He and his associate then hid the bike before it was ultimately sold for $1,000 in cash and $1,000 in methylamphetamines.

3Understandably, you were not pleased to have your valuable bike stolen.  How you reacted was totally unacceptable.  In effect, you took the law into your own hands.  You sent a text to one of the men who was involved in stealing the bike, threatening him and demanding the return of the bike.  You then decided to seek this man out and asked an associate of yours, Mr Abdul Hassani, to accompany you.

4You were able to find where the man who had stolen the bike lived, and you went there with your co-accused to this address.  The confrontation on 10 March 2018 between you and the man who became the victim was captured on CCTV footage, which I have viewed.  In short, it was a very frightening event.

5You spoke to the man and made the allegation that he had stolen the bike.  He went to run, and you chased him; that is, you and your co-accused.  You very quickly drew a gun.  You fired three shots in total, two striking the victim.  One of the shots hit the victim in the back as he ran away.  This shot caused the victim to fall onto the path where he then turned to face you as you were holding a gun with both hands about 2 metres away.  You then fired the gun at the victim's face, and the bullet was lodged behind or below his left eye after passing through his left cheek.

6This whole conduct amounted to the single charge of intentionally cause injury but without doubt is a serious example of that offence.

7As I said, the incident was captured on CCTV with audio although the shooting itself cannot be seen on the CCTV footage as you had moved along the pathway to a degree.  The shooting occurred on a busy street with a Telstra worker, I think, in a pit in the very vicinity of this confrontation and shooting.  You had walked past the worker just prior to the shooting.  The footage shows the worker fleeing across the road once the firearm is produced.  The area had cars and members of the public moving about doing their ordinary business.

8Your co-accused was not said to have known of the gun or the plan to shoot, and he pleaded guilty to an intentionally cause injury on the basis that he had no intent to cause serious injury or know about the gun or the plan to shoot.  I will return to the issue of parity in due course.  What can be said at this point is you were the main offender.  You had the gun and you used it, ultimately shooting a man in the face at close range.

9The records from the Royal Melbourne Hospital reveal the victim sustained fractures to his cheekbone and a facial bone.  The forensic physician, Dr Angela Sungalia, concluded that the fractures are likely to have been the result of the shockwave as the bullet entered his skull.  On 11 March 2018, the victim underwent surgery to have bullet fragments removed.  The victim was in hospital for four days. The prosecution, as I said, have indicted you ultimately on a charge of intentionally cause injury, but on any measure, both the injury and the circumstances mean this is at the upper level of that offence.

10

Some years later on 6 February 2020, you were interviewed by the police with respect to this offending, and you denied your involvement.  You were then arrested in New South Wales on 18 April 2021 and extradited to Victoria.  You were remanded in custody and have remained there for a period which now is 675 days.  These days can be declared or are available to be declared as

pre-sentence detention.

11As to your personal circumstances, you are currently 35 years old.  You were born in Iran in 1988, the oldest of two children.  When you were around three years old, your family fled Iran for Turkey due to the Iran-Iraq war and events that affected, in particular, your mother.  Your family remained in Turkey as refugees for a number of years before you arrived in Australia in 1994, as I understand it, as refugees. Your family settled in Penrith, New South Wales, where you went to school.  Unfortunately, your father was violent towards your mother, and ultimately this resulted in her leaving your father and caring for you and your brother alone.  Your upbringing was far from ideal, with significant moves and changes in circumstances of the kind that I have just outlined.  I have factored in this disrupted upbringing generally and, in particular, in giving the broad context to your resort to extreme violence to sort out a problem about a motorbike.

12You commenced drug use in your teens, and later you misused painkillers.  You commenced offending in New South Wales before making some rehabilitative progress on a supervised bail program in New South Wales.  Those steps in 2020-2021 are to your credit and give a sign that you can rehabilitate.  You have no prior convictions in Victoria.

13You have pleaded guilty at a time when the trial lists of this court are still beleaguered, thus there must be a more substantial benefit to you for your plea.  The Court of Appeal in the cases of Worboyes v The Queen,[1] and Chenhall v The Queen,[2] make this point clear.  I also have taken into account your long periods on remand that have been served in the more restrictive circumstances due to the COVID-19 pandemic.

[1] [2021] VSCA 169.

[2] [2021] VSCA 175.

14As mentioned, your co-accused has been sentenced for this crime together with a separate set of offences that he committed.  He received, in effect, a time-served sentence of nine months' imprisonment and thereafter a lengthy community corrections order with a justice plan.

15In consideration of the question of parity, what stands out are factors that establish differences or disparity or justify disparity.  First, the co-accused was very much younger than you and fell to be sentenced as a youthful offender.  He was intellectually disabled and ultimately placed on a Justice Plan.

16He made significant progress on Court Integrated Services Program (‘CISP’) bail within this court such that the pre-eminent sentencing purpose of his rehabilitation due to his youth was, in practical terms, worth giving real weight.  However, he suffered a significant setback when he himself was the victim of a shooting which at the time of the sentence meant that he was wheelchair-bound.  His physical health was very problematic.

17Beyond those very substantial differences in his personal circumstances, the fact already mentioned is important; that is, you were the main offender, the one who had and used the gun in circumstances where the victim was running away and then injured and on the ground.  The co-accused was not said to even have known you had the gun or that a gun would be used.

18

The sum of all those matters justifies a sentence of imprisonment with a

non-parole period for you notwithstanding that he received a gaol sentence with a Community Corrections Order (‘CCO’).  Thus, it is a different type of sentence than it was for him in his unique circumstances.  However, with respect to the length of the sentence, I note the overall time that the co-accused was under general supervision – that is, imprisoned under CISP bail, which is not declarable as time served, and then a CCO – is a very long period indeed.

19In my view, a community corrections order, which was urged by your counsel, does not adequately meet the sentencing purposes that are prominent here with respect to you; that is, denunciation and deterrence to others and to you.  The community is concerned regarding the use of firearms in the community.  It only has to be said for the need for stern punishment to follow that this was on a suburban street in the middle of the day or thereabouts while ordinary people went about their business, including the Telstra worker, when you fired and shot at a man three times, hitting him twice.

20I do give weight to your prospects for rehabilitation, but in the end, the gravity of this shooting, as I say, in the public streets means this sentencing purpose of your rehabilitation must yield to other sentencing purposes.  As I have said, there is a significant benefit that must be articulated because you have pleaded guilty in COVID times.

21Doing the best I can, for the charge of intentionally causing injury, I sentence you to a term of imprisonment of five years, and I fix a non-parole period of two years and nine months.

22Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of seven years with a minimum term of five.

23With respect to the time you have served in custody, as I said, this has been a lengthy period.  I am told it is 675 days; that is, one year, 10 months, four days.  This figure having been reckoned, I now declare that it is part of the sentence that I have just announced.  I will ensure that this declaration is entered into the records of the court so the prison authorities know that you have served 675 days of the sentence I have just imposed.

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