Director of Public Prosecutions v Karoumi
[2017] VCC 38
•3 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00854,
CR-16-00857, CR-16-00856,CR-16-00855
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AKRAM KAROUMI |
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| JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 27 and 28 July 2016, 1 February 2017 | |
| DATE OF SENTENCE: | 3 February 2017 | |
| CASE MAY BE CITED AS: | DPP v Karoumi | |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 38 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
HIS HONOUR:
1.Mr Akram Karoumi on 27 July 2016 you pleaded guilty to the charges relating to you on the indictment, being charge 3, Aggravated Burglary (person present) contrary to section 77(1) of the Crimes Act 1958; and charge 5, assault contrary to Common Law. The offence of aggravated burglary carries a maximum penalty of 25 years' imprisonment and the offence of common law assault carries a maximum penalty of 5 years imprisonment.
2.I heard the plea in mitigation made on your behalf and on behalf of your co-offenders over the course of two days on 27 and 28 July 2016.
3.Prior to me sentencing you, you made application to withdraw your plea of guilty.
4.I proceeded to sentence your co-offenders on 9 September 2016.
5.Having heard your application to withdraw your plea, on 1 December 2016 I ruled against granting you leave to withdraw your plea of guilty.
6.I heard a supplementary plea in mitigation on 1 February 2017. I now proceed to sentence you.
CIRCUMSTANCES OF OFFENDING
7.I turn first to the circumstances of the offending. A prosecution opening was tendered on the plea. It was an agreed summary. Your offending conduct can be summarised as follows:
8.The offending occurred at a spare car parts business in Campbellfield.
9.You attended this spare parts business on two previous occasions to enquire about car parts and then in relation to a mechanical issue. There were no issues which arose on either of those occasions.
10.At approximately 4 pm on 15 October 2015 you attended this spare parts business with your friend, Mr Hanna-Ishmoni, to enquire about a carburettor. Other people were present at the premises including regular staff members and the owner, including a person I will refer to as Mr A.
11.A dispute arose between you and the owner about the part not being available for sale. The argument became heated before you was asked to leave. This resulted in a “push and shove” between you and the owner. Two of the staff members, including Mr A, separated you and the owner before you left with Mr Hanna-Ishmoni. As you were leaving you made a general threat to return.
12.The owner phoned triple zero to request police attendance, however there was no police unit available.
13.The prosecution opened the case upon the basis that after leaving the premises you telephoned your son, that being Mr Sanar Ghanim. You told Sanar Ghanim that you had been assaulted and humiliated. I will return to this later.
14.At approximately 4:45 pm three vehicles containing seven males arrived at the spare parts business. The first vehicle was driven by Sanar Ghanim, with his adolescent brother as passenger, the second was driven by Riko Tomas, who was unlicensed, with passengers Edmon Hurmez, Rimon Hurmez and yourself, and the third vehicle arrived shortly afterwards, driven by
Mr Hanna-Ishmoni.15.Sanar Ghanim exited the driver’s seat of the blue Suzuki vehicle whilst his adolescent brother exited the front passenger seat. Sanar Ghanim then drew a small black handgun from the front of his shorts and racked the slide before running into the premises, with his adolescent brother walking in behind him.
16.At this point the owner was sitting on the edge of the open boot of a car facing the road while it was parked just inside the premises. Upon seeing Sanar Ghanim coming towards him with a handgun drawn and pointing it forwards, he immediately ran to the kitchen area on the western side of the premises.
17.Upon entering the premises through the large open roller door, Sanar Ghanim demanded to know who was fighting with his father (i.e. you), before he fired the handgun into the premises. Sanar Ghanim then followed the owner in towards the kitchen area.
18.It was at about this moment that you, Edmon Hurmez, Rimon Hurmez and Tomas were entering the premises. You were a matter of seconds behind Sanar Ghanim. It was, however, common ground at the plea that you all arrived after Sanar Ghanim fired the first shot.
19.Sanar Ghanim returned to the open roller door when he could not locate the owner.
20.The owner in the meantime exited the kitchen area into the middle of the premises through a second door located at the rear of the kitchen. Sanar Ghanim saw the owner fleeing towards the rear of the premises.
21.You attempted to hold Sanar Ghanim back preventing him from pursuing Hanna, and subsequently caused Sanar Ghanim to fall backwards and trip over a car tyre on the ground.
22.You then turned around and observed Mr A, a staff member, standing next to a hoist and approached him aggressively with a clenched fist before head-butting him to the face. This caused Mr A to move backwards in an attempt to avoid further confrontation. Sanar Ghanim immediately got off the ground and also approached Mr A while still armed with the handgun in his right hand.
23.You held Mr A by the scruff of the neck and punched him several times to the face whilst standing in front of him. Sanar Ghanim took up a position to the right side of Mr A and held the handgun to the right side of Mr A’s head whilst punching him to the throat and face with his other hand. Mr A pleaded with Sanar Ghanim not to use the handgun, and when he attempted to move Ghanim’s hand away from his head, Ghanim discharged a bullet from the handgun. The bullet grazed the right side of Mr A’s head above the ear, causing an open wound which immediately started to bleed.
24.During this whole episode, Edmon Hurmez, Rimon Hurmez and Riko Tomas remained in close proximity to Sanar Ghanim and you.
25.Prior to exiting the premises Sanar Ghanim threatened to return and burn down the building if anyone reported the matter to police and then drove off in the car with his adolescent brother and father. You and the remaining offenders left in the other vehicles.
26.Once you had all left, an ambulance was requested for Mr A, who was conveyed to the Royal Melbourne Hospital and head scans were conducted. No further information concerning his injuries has been provided.
27.The whole episode was of approximately one minute’s duration.
INTERVIEW
28.Mr Karoumi, you were interviewed twice by the police. You gave varying accounts of what occurred and your role in the offending. In your first interview you said that when you attended the premises earlier in the day, you were assaulted by five people and the owner of the shop had a gun and you were thrown out of the shop after being kicked in the back. You said you called your son Sanar, and when he arrived “they” started shooting at him. You said that no-one else attended with you and your son and you denied that your son was armed. You said that you heard the owner of the shop use the gun twice. You denied going back into the shop a second time. You said that you were unconscious at the time and did not realise that you were with the other accused.
29.During your second interview you said that the owner of the shop pulled a revolver on you and the workers at the shop had blocked the door so you couldn’t get out. You said after that incident you called your wife, not your son Sanar. You never actually left the area after the initial incident. And you cannot remember anything about the shooting incident as you did not have full consciousness.
OBJECTIVE GRAVITY OF OFFENDING AND ROLES
The relevance of Hogarth
30.I turn to an assessment of the objective gravity of the offending and your role. First I deal with the relevance of the Court of Appeal decision of Hogarth v The Queen (2012) 37 VR 658. An issue arose on the plea about whether I should be assessing the gravity of this offending and current sentencing practice by reference to Hogarth. There are differences between the circumstances in Hogarth and the current matter. Hogarth involved a home invasion, as do most, if not all, of the cases where Hogarth has been said to be of direct relevance.
31.Even so, in DPP v Meyers [2014] VSCA 314 at [36], the Court of Appeal said the task of applying Hogarth does not require the classification of offences into categories. The Court also said this:
"Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held."[1]
[1] At [6]
32.The defining characteristics of 'the confrontational' category of aggravated burglary are these: it 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. See DPP v Meyers [2014] VSCA 314 at [37].
33.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. I see no reason to exempt it from the general application of Hogarth.
34.In Hogarth at [36] the Court quoted what the Attorney General said when the penalty for aggravated burglary was increased from 15 to 25 years:
"The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The Government wishes to send a message to offenders that these crimes will not be tolerated". [My emphasis]]
35.And so too must the Courts.
36.That all said, while I receive guidance from the principles of Hogarth, this should not be overstated. I need to be careful to sentence you based upon my assessment of the objective gravity of your actual offending. There will thus inevitably be differences between the instant offending and offending in many of the home invasion cases. I must also be careful to examine your individual offending, which I will do.
37.The Court of Appeal, in the case of DPP v Meyers [2014] VSCA 314, helpfully set out some of the considerations that would ordinarily be relevant to an assessment of the seriousness for an offence of aggravated burglary. They say this:
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 (e.g., 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.
YOUR OFFENDING
38.As to the objective seriousness of your offending I make the following observations:
·As I said, your intent at the point of entry was that an assault would be committed by your group to exact ‘payback’ for an earlier conflict situation which involved yourself.
·You knew that you would cause a high level of fear to those workers at the premises. This is exactly what happened. The CCTV of the incident was played in court. Even putting the use of a firearm to one side, this episode was always intended to be a frightening and violent confrontation.
·You acted in company – there were 6 of you. It was, by dint of your number and the overt aggression of your group, intended to be a menacing encounter.
·You were the instigator. It was your grievance that led to this offending. It was triggered by a telephone call you made either to your son Mr Sanar Ghanim or your wife. On the plea, your counsel said that – contrary to what you said in your first police interview - you did not actually speak with your son; rather you spoke with your wife and your message was then relayed to your son. Your counsel said you had a limited memory about these phone calls and that you at least attempted to contact your son. You counsel accepted that nothing turns upon this. I agree. It was accepted by your counsel that it was your grievance and your initial telephone contact which led to the commission of this aggravated burglary. It was common ground that the message seeking assistance was intended to be conveyed to your son as indeed it was. If it was of any importance I would find – based upon your first admissions – that you did speak with your son.
·While your entry did not involve breaking down doors or the smashing of windows, as I said in relation to your co-offenders, there was something particularly menacing about an invasion of a workplace by a large group of males. I have viewed the CCTV and your intrusion was both aggressive and purposeful.
·There were a number of persons present in the target premises. You must have appreciated that there would be a number of persons present given the nature of the premises, the fact that you entered during working hours and because of the number of people present during your earlier visit.
·Once inside the premises you gave effect to your intention to commit an assault which was committed against Mr A. You stand to be separately punished for the common law assault upon Mr A. Your conduct inside the premises sheds light upon your aggressive state of mind upon entry.
·Your offending was not completely spontaneous. Some time passed between your departure from the business after the initial dispute and your return with your co-offenders. You had this time to reflect upon the initial dispute before proceeding with this violent confrontation.
39.On the other hand I accept the following:
·I must sentence you upon the basis that you did not know about the firearm upon entry. You have not pleaded guilty to that form of aggravated burglary. You fall to be sentenced upon the basis that your aggravated burglary did not involve carriage or use of a weapon.
·You are also not to be punished for the offences committed by Mr Ghanim with the firearm inside the premises.
·The entry here did not involve the forcing or breaking down of a door or window;
·The entry occurred in the middle of the day, rather than, say, the middle of the night;
·The episode following entry was of short duration.
·I also appreciate that at some point you attempted to restrain your son Mr Sanar Ghanim, who was brandishing the gun. You were trying to de-escalate the situation at least to the extent that you did not want the firearm involved. That said, you went on to later assault Mr A.
40.Overall, I regard it is a serious form of aggravated burglary. In my view, it clearly sits above the lower end in the range of seriousness for this offence.
41.It was also a nasty assault involving a head butt and punches directed towards the head region.
MATTERS PERSONAL TO YOU
Criminal history
42.Mr Karoumi, you have one prior matter in your criminal history, a single charge of Recklessly Causing Injury dealt with some 5 years ago, on 25 January 2011, for which you received an adjourned undertaking without conviction to attend and continue treatment with a psychiatrist. Your Counsel submitted that this incident related to an instance of excessive discipline of one of your sons. The prosecution accepted this. In any event, the penalty imposed suggests that I should treat it as a relatively minor prior, from some time ago. I will do that.
Personal and mitigating circumstances
43.Mr Karoumi you were born on 15 November 1961 and are 55 years old. You were born in Baghdad, Iraq. You were educated in Iraq and left school at age 15. You were conscripted into the Iraqi Army in 1980 when you were 18 years old. You married your wife when you were 30 in 1991. You were discharged from the army at age 34. You left Iraq with your family for Syria in 2002. You arrived in Australia aged 43 in December 2004. You receive the disability support pension and are cared for by your wife. In fact you both care for each other.
Health issues
44.You have health issues, including late-stage chronic kidney disease. This stems from a shrapnel injury you sustained in the Iraqi army as a teenager. You also have type two diabetes and carpal tunnel syndrome. A medical report was tendered on the plea listing your other medical problems and the medication you take. It was submitted that you will find imprisonment more onerous than someone without such health problems. As a matter of common sense I will accept that. But it does not mitigate your sentence to a significant degree. There is no evidence before me that imprisonment will be significantly more burdensome for you. There is no evidence before me that any of your medical conditions are especially grave or debilitating. Your counsel accepted as much. Your counsel also accepted that your multiple medical conditions are manageable in a custodial setting. Your counsel instructed me on Wednesday that you had recently been hospitalised for a heart attack, and then discharged, although he had no medical evidence and none was tendered. I indicated that in the circumstances there was little for me to act upon.
Plea of guilty
45.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.
Remorse and insight
46.The question of remorse is a difficult one to assess.
47.First, in your interviews with police you did everything but accept responsibility. You in fact sought to shift the blame upon the victims in this case. On the other hand, by your plea of guilty - entered at an early stage - you did ultimately accept responsibility.
48.Second, your acceptance of responsibility and your insight into the inappropriateness of your behaviour is also obscured by your change of plea application with respect to the aggravated burglary. That said, you never sought to change your plea with respect to the common law assault. Further, the basis of the application was not so much a denial of doing the things which make you liable for aggravated burglary (that is, entering the premises with intent to assault in the knowledge that persons were present), rather you appear to blindly refuse to accept that this amounts to aggravated burglary, when it clearly does. Your sense of injustice seems to have also been partly engendered by the fact that the victims have not been dealt with for their conduct in the initial altercation with you. I have a sense that complex cultural factors play some role in your thinking.
49.In the end I am prepared to find there is some evidence of remorse and insight into wrongdoing, despite your change of plea application with respect to the aggravated burglary.
Prospects of rehabilitation
50.You have the support of your wife and family. References were tendered at the plea which show you to be a generous, kind hearted and good man.
51.Initially your counsel at the original plea hearing relied upon the authorities of advancing age in your plea of mitigation[2]. You were 54 years of age at the time of the initial plea hearing and you are now 55 years of age. After some debate with me, it became clear that your counsel was really submitting that your age was relevant to the question of your prospects of rehabilitation and the reduced need for specific deterrence. Your counsel pressed upon me that as you are a 54 / 55 year old man with only one relatively minor prior, this reflected in your favour on your prospects of rehabilitation and reduced the need for specific deterrence. I accept this.
[2] He referenced cases like R v Bazley (1993) 65 A Crim R 154.
52.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 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.
53.Your counsel also put to me this week that you now know that resolving a dispute in this way is unacceptable under our legal system. I accept this, to a point. As I have said above, 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.
54.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.
55.You positive prospects is a factor relevant to each component of your sentence but especially so with respect to the fixing of your non-parole period.
Totality and Double punishment
56.You fall to be sentenced for aggravated burglary (which involved upon entry an intent to assault) as well as the common law assault upon Mr A once you had entered. In sentencing you for both offences and in selecting the degree of cumulation I must be careful not to double punish you. I am conscious that the offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for offending which occurs after entry. I must also be careful to apply the principle of totality.
GENERAL PRINCIPLES AND PARITY BETWEEN OFFENDERS
57.In sentencing you I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter over people from behaving like you. I must deter you from repeating such behaviour, though because of my findings with respect to your prospects of rehabilitation, specific deterrence carries less weight here. I must express the community's denunciation of your conduct and I must promote your rehabilitation. I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances.
58.I have also considered the sentences which I have imposed upon your co-offenders. I attach Table A to these sentencing remarks which summarises the sentences imposed upon your co-offenders. The circumstances relating to your co-offenders are detailed in my sentencing remarks relating to them. I will not repeat them here.
59.As I said when sentencing your co-offenders, the issue of parity nearly always involves comparing incommensurables and this is rarely an easy task. I must make a relative comparison of your role in the offending, and all your personal circumstances and antecedents, with that of your co-offenders who I have already sentenced.
60.I mention some of the more significant differences below.
61.On the one hand, you played a more significant role in the offending than Edmon Hurmez, Rimon Hurmez and Riko Tomas. You were the instigator of this offending. You engaged in the physical assault of Mr A once inside the premises, for which you also fall to be punished. By contrast, Edmon Hurmez, Rimon Hurmez and Riko Tomas each played a supporting role in this aggravated burglary, as evidenced by their conduct after entry. None of them physically assaulted anyone. Your offending can also be characterised as less spontaneous than their offending.
62.Yet on the other hand, and in your favour, you have significantly less by way of criminal antecedents than Edmon Hurmez, Rimon Hurmez and Riko Tomas. In particular, in my sentencing remarks for your co-offenders, I described the criminal antecedents of Edmon Hurmez and Riko Tomas as extensive.
63.You also did not offend whilst on a Community Correction Order, like Edmon Hurmez and Riko Thomas did. You also did not offend whilst on bail, like Edmon Hurmez, Rimon Hurmez and Riko Thomas did.
64.You have better prospects of rehabilitation than Rimon Hurmez and significantly better prospects of rehabilitation than Edmon Hurmez and Riko Thomas. There is a correspondingly reduced need for specific deterrence in your sentence.
65.While Riko Tomas attracted some mitigatory benefit arsing from the application of Verdins, whereas you do not, there was, in his case, an increased need to protect the community.
66.Turning to Sanar Ghanim, whilst you were the instigator, Sanar Ghanim engaged in the most serious offending. He was sentenced for the more serious offending of aggravated burglary with a weapon (being the firearm) in addition to a person being present. He also fell to be punished for offences in relation to possessing and discharging of the firearm. You do not. He committed the offending whilst on bail. Of course I do not ignore that fact that some of his personal circumstances were different such as his relative youth, the mitigating explanation for his explosive anger, and totality also loomed very large.
67.Submissions were made on your behalf at the plea hearing in July 2016 that I should impose a Community Correction Order sentence in combination with a term of imprisonment, the imprisonment being the time which you have already served.
68.Reliance was placed upon the decision of Boulton v R (2014) 37 VR 658, which states that community correction orders can be imposed for serious offending, including aggravated burglary and, moreover, that such orders are punitive in nature.
69.Boulton, of course, does indeed stand for those propositions, but I would add what the Court of Appeal recently said in Atanackovic v The Queen [2015] VSCA 136, which although not an aggravated burglary case, had the following passage from the Court of Appeal in relation to Boulton:
Such statements do not carry any presumption that a CCO is suitable for any particular offence, still less that it is appropriate in the circumstances of any particular offender. The appropriate sentencing disposition in each case will depend upon the statutory provisions and sentencing considerations that are pertinent to that case, informed by relevant case law.[3]
[3] [160]
70.Having regard to the gravity of your offending, and to your personal circumstances, and weighing all the considerations which I must take into account, I am of the view that the appropriate sentencing disposition for you is a term of imprisonment with a non-parole period, of the length I am about to announce.
SENTENCE
71.Mr Karoumi, would you please stand.
72.On charge 3, aggravated burglary, you are convicted and sentenced to 3 years and 8 months imprisonment.
73.On charge 5, common law assault, you are convicted and sentenced to 12 months imprisonment.
74.Charge 3 is the base sentence. I direct that 3 months of the sentence imposed on Charge 5 be served cumulatively upon the sentence imposed on Charge 3.
75.This makes for a total effective sentence of 3 years and 11 months imprisonment.
76.I fix a non-parole period of 2 years' and 4 months imprisonment.
PSD
77.Pursuant to s.18 of the Sentencing Act 1991 I declare 393 days be reckoned as the period of imprisonment already served under that sentence. That does not include today.
6AAA
78.Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty I would have sentenced you to a total effective sentence of 5 years and 4 months with a non-parole period of 3 years and 9 months imprisonment. Thank you, you can be seated
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