Director of Public Prosecutions v Karpinski
[2022] VCC 1315
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00724
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN KARPINSKI |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 July 2022 | |
CASE MAY BE CITED AS: | DPP v Karpinski | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1315 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | |
| For the Accused | Mr J. Mortley |
HIS HONOUR:
1 Mr Karpinski, you have pleaded guilty to one charge of recklessly causing injury; one charge of common law assault, one charge of aggravated burglary; one charge of intentionally causing injury; two charges of contravening an intervention order intending to cause harm or fear for safety, that is Charges 6 and 10; six charges of persist in contravention of a family violence intervention order, Charges 12 to 16 and 18; one charge of making a threat to kill, Charge 17; and one charge of attempting to pervert the course of justice, Charge 19.
2 The maximum penalties are set out in the Summary of Prosecution Opening dated 18 July 2022 and which is the factual basis upon which you are to be sentenced and which I have fully considered.
Circumstances of the Offences
3 The 14 charges arise out of three discrete incidents and a course of conduct following your arrest and remand in custody. The offending in this case arises out of a toxic relationship between you and the complainant. You were aged 38 at the time of the offending and are now aged 41. The relationship commenced about 12 months prior to the principal index offending in August 2019. You had first met each other in about August 2017 in the context of mutual drug use. You commenced a relationship in August 2018.
4 The first offence to which you have pleaded guilty is Charge 2 of recklessly causing injury to the complainant arising out of the first incident. This occurred in May 2019 when you told the complainant to leave your residence. She sought to leave and you were following her and holding a pink knife. You then told her not to leave and she insisted on leaving and at that point you stabbed her in the thigh with the knife. It caused a 4-centimetre laceration. She did not go to hospital immediately, but went later that night and told the staff an untrue story. Photographs show there was scarring as a result of your conduct.
5 A short time thereafter on 30 May 2019 you were arrested and went into custody on other matters. You were before the Magistrates' Court in Ballarat on 6 August 2019. At that point you were sentenced for unlawful assault, intentionally causing injury, contravening a family violence safety notice and contravening a conduct condition of bail. You were sentenced to an aggregate sentence of 68 days, which was declared as time served, and a 12 months community corrections order.
6 In the period leading up to 6 August the complainant had been living at your address with your mother. You were, however, in custody at the time. On 6 August the Magistrates' Court at Ballarat made a final family violence order against you in relation to the complainant. You were present when the order was made and served upon you. One of the terms required you to leave the address immediately upon her request. The terms also prohibited you from harassing, threatening or intimidating, or committing family violence against the complainant. They also prevented you from posting anything online about the complainant and having anyone else do something that you were prohibited from doing.
7 When you were released from custody you ascertained or believed that the complainant had been stealing jewellery from your mother to pawn it for the purpose of drugs. This gave rise to a dispute between the two of you which gave rise to the second incident. On 10 August 2019 you got into an argument with the complainant about the offending the subject of the first incident. You became aggressive and approached the complainant and bit her on the nose leaving teeth marks. This altercation gives rise to the charge of common assault, Charge 5. Your conduct also involved a contravention of FVIO imposed on 6 August, that is Charge 6.
8 Following the second incident the complainant on 10 August 2019 moved into emergency accommodation in a motel in a suburb of Ballarat. In the period subsequently there were some interactions between the two of you, including you visiting her to drop off an electrical item, she staying the night at your residence on 12 August, and you visiting her on 13 August 2019 to drop dinner off and you did not stay the night.
9 The third incident involves the most serious offending to which you have pleaded guilty which is a charge of aggravated burglary. This occurred at about 4.15 am on 14 August at the motel. You attended at the motel at that time demanding the return of a gold necklace that you asserted that the complainant had stolen from you. She refused to open the door of the motel. She insisted that you leave and you told her you were not going to leave. You then made a phone call and then returned to the motel room. You stated you were not going anywhere and you did not care how long you had to wait for the door to open.
10 You then believed that you heard a male voice in the room, which turned out to be a television going. You then proceeded to throw a chair through the window and entered the motel room. Upon entering the room you then proceeded to seek to douse her in lighter fluid and attempted multiple times to ignite that fluid with a cigarette lighter. The complainant was screaming. Eventually you were able to ignite the complainant's hair and she rolled on the floor seeking to extinguish it. You eventually left the premises. Police were called and a paramedic also arrived.
11 These events constitute the offence of aggravated burglary, committed with knowledge that a person was present and carrying a weapon, namely, the lighter fluid. They also constitute the offence of intentionally causing injury to the complainant, Charge 9. The complainant suffered superficial burns to her right ear and a small area of singed hair near the ear. And your conduct also constitutes a breach of the final family violence intervention order.
Subsequent Events
12 You were arrested a short time later. You have remained in custody since that time. Notwithstanding that a final family intervention order was made on 15 August 2019 and remained extant, in the following period while you were in custody, and notwithstanding the FVIO included a provision that you were not to contact the complainant, you contacted her on a number of occasions through phone calls to your brother, to the complainant herself and through your mother. The complainant was at the time back residing with your mother and so through phone calls with your brother you were able to communicate with her.
13 The multiple phone calls in the period while you were in custody, and as recorded on the Arunta system, are the basis for the multiple charges of persistent breaches of the FVIO, with the particulars of the communications set out in the relevant charges for the relevant charge period. You sought to have the complainant give false evidence, not attend court and have the intervention order dropped.
14 In the course of the communications with the complainant, and also with your brother, you made numerous threats to her, including of violence, some of it to be perpetrated by a person just released from custody, and of threatening to release sexually explicit videos. In those communications you were making offers of money to the complainant to have her drop the charges, to not attend the committal, to withdraw the FVIO and/or to give evidence that would get you out of custody.
15 Included in the communications were a number of letters that you wrote to the complainant from prison, including making threats against the complainant's child and against the new partner. The communications which are set out in the prosecution opening were repetitive and provide the basis for your plea to Charges 12 to 16 and 18, being persistent contravention of an FVIO. Given that the charges constitute a course of conduct, I regard it as appropriate to impose an aggregate sentence in relation to those charges.
16 One of the threats made, which involved leaving a message on her phone saying, 'Pick up the phone, you bad fucking dog, because I'm going to blow your brains out the minute I get out', this constitutes the charge of making a threat to kill, Charge 17. You bear high moral culpability for this particular offence given that you had earlier made a number of other threats of harm to the complainant or to her child.
17 The charge of attempting to pervert the course of justice, Charge 19, is particularised as constituting further in phone calls to your brother, and to the complainant herself, seeking to have the complainant withdraw the charge. Also included in the particulars is the fact that you wrote two letters, one dated 12 February 2020 and a second sent between 23 March and 8 April, to the complainant seeking to have her withdraw the charges. One of the conversations alleged was between you and your mother where you discussed giving the complainant money so she could evade police when required to give evidence at the committal.
18 You were facing serious charges against you. the complainant was the crucial witness. You made a determined effort, as particularised, both directly with the complainant and in communications with your brother and your mother, to have her withdraw the charges. The conduct commenced on 19 September where you discuss with your brother having the complainant kidnapped so she could not give evidence. The conduct alleged, as I have indicated, involved 13 separate phone conversations, as well as two letters. It included discussion on a number of occasions the payment of money to the complainant to drop the charges or not assist in their prosecution. The conduct spanned a period from 19 September until the final letter sent between 23 March and 8 April 2020. Your determined effort makes this a serious example of what is regarded as a very serious offence, namely, attempting to pervert the course of justice.
Overall Seriousness of the Offending
19 Considering the individual charges, and the offending as a whole, your offending here is very serious and you must bear high moral culpability. First, the complainant is a vulnerable female. She is entitled to the protection of the law. Next, at the time of the offending on 10 August you were the subject of an FVIO and also you had just been placed upon a community corrections order. These are two aggravating factors.
20 Next, considering the offence of aggravated burglary, there are a number of aggravating features. First, the offence occurred in the early hours of the morning. Next, it occurred when the complainant was seeking refuge from you having been placed in this emergency accommodation. Next, there was a violent entry into the motel room. You entered the room with intention to assault her. You knew she was there as she had earlier refused you entry. You carried with you the weapon of lighter fluid which you then proceeded to attempt to ignite. Your conduct within the room is separate from your intention at the time of entry, which was clearly to engage in an assault on the complainant.
21 Your counsel submitted that this was not a premeditated planned event. It was put that this was a vicious overreaction when the complainant refused to accede to your demand that the gold chain be returned. Your counsel submitted that you believe that she was responsible for the loss of the chain and when you raised it with her at the motel room you believed another person was present and in those circumstances you broke into the room in a rage. I find there was a vicious overreaction which was completely unjustified. Further, there was some premeditation in that you were armed with the lighter fluid. I regard your moral culpability as high for this particular offence. It is a reasonable inference that the complainant was afraid of you. After all you had assaulted her in May which is the subject of Charge 2. Further, you had an FVIO against you imposed only on 6 August that included a term that you leave any premises where she asked you to do so.
22 The offence of attempting to pervert the course of justice is a serious example of an offence which is regarded very seriously within the criminal calendar. Your conduct was captured on the Arunta calls. There were numerous calls that are set out in the particulars to the charge. Your conduct involves seeking to have other people assist you in having the complainant withdraw the complaint in, namely, your mother and your brother. In addition, you drafted two letters to her seeking to have her withdraw the complaint. There were threats of violence including sexual violence. The attempt was persevered in over a period of months.
23 Overall, this is a serious spate of offending against a vulnerable female. Your conduct is aggravated by the fact that you were on a community corrections order and the subject of an FVIO. Further, the conduct spanned a considerable period and involved numerous individual actions involving the breaches of the FVIO and, as particularised, to the charge of attempting to pervert the course of justice.
24 As emphasised by the learned prosecutor, the most serious offences here were the aggravated burglary, intentionally causing injury and the attempt to pervert the course of justice. The other offences to which you have pleaded guilty are, however, also serious, including the offence of making a threat to kill.
Prior Convictions
25 You have a significant criminal record commencing in the Children's Court when you were aged 15 and you have received two significant sentences of imprisonment when you have been before this court. You received a total effective sentence of three years and eight months, with a non-parole period of two years and two months, on 22 March 2004 on two charges of armed robbery and handling stolen goods. You were sentenced to two days' imprisonment on 22 January 2008 for shop theft. On 12 May 2009 on charges of armed robbery and theft you were sentenced to a term of imprisonment which on appeal resulted in a total effective sentence of five years and 11 months, with a non-parole period of four years and two months. Both the armed robbery charges were to obtain money or drugs.
26 On 10 May 2018 on a charge of being a prohibited person in possession of a firearm, and failure to provide information, you were sentenced to three months' imprisonment. I have already referred to the sentence imposed on 6 August 2019.
27 You are now aged 41 and your personal circumstances were set out in your plea submission and also in the report of Ms Cidoni, psychologist. I incorporate those matters by reference. You come from a difficult background and have spent considerable periods in custody. You have been on a disability support pension for many years. Your background circumstances are encapsulated in comments recorded in the Court of Appeal decision in 2011 when you successfully appealed the sentence for theft and attempted armed robbery that was imposed in 2009.
28 The decision reads as follows - and some of this has been referred by your counsel - and I incorporate paragraphs 16 and 17 of the decision. At paragraph 17 the Justice of Appeal says:
'At the time of the appellant's arrest [this is for the armed robbery in 2007] he was found to be in a drug-induced psychotic state. He appeared to be using large quantities of methylamphetamine on a daily basis and had a history of polysubstance abuse. The sentencing judge took account of a psychiatric report relied on by the appellant on a plea from Dr Danny Sullivan, a consultant psychiatrist.
'He said, "Mr Karpinski has a background of marked behavioural disturbance and early educational failure, with recurrent criminal justice contact and antisocial peers. His offences have occurred in the apparent context of heavy substance abuse. However, there is no indication that he was experiencing mental health disorder at the time of the offending. His course in prison has been rendered more onerous due to his mental disorder. However, Mr Karpinski has also elected not to take treatment and has improved over time despite this refusal. Residual symptoms are not currently of marked clinical significance".'
29 Now, the comments from the Court of Appeal of 2011 remain for sentencing you here. You have had a difficult background and upbringing that is referred to by your counsel and have spent considerable periods in custody. Your background is such that considerations of the case of Bugmy are engaged and are to be taken into account in your favour notwithstanding your mature years. However, these considerations, and those canvassed in the Court of Appeal decision, indicate that considerations of specific deterrence and protection of the community remain salient.
30 In her report Ms Cidoni indicates that you have a number of diagnoses, including opiate use disorder, post-traumatic stress disorder, personality disorder, major depressive disorder and generalised anxiety disorder. She indicates that your history of childhood trauma remains a significant matter. She is of the view that you have a high risk of perpetrating future family violence and reoffending due to low protective factors. In her view you require psychotherapy. She is also of the view that imprisonment will have a serious adverse effect on your mental health and these are matters that I must take into account.
Other Matters Put in Mitigation
31 Your counsel put a number of matters in mitigation which I take into account in your favour. First, you have pleaded guilty. You are entitled to a significant benefit for facilitating the course of justice and accepting responsibility for your conduct. The plea was somewhat late, but remains of utilitarian value. It is some evidence of remorse, although there is little other evidence of remorse. The plea is to be accorded additional value as it has been entered during the pandemic and this has assisted the criminal justice system's response to the pandemic and you are entitled to a perceptible amelioration of sentence on the basis of the plea being entered in these circumstances.
Prospects of Rehabilitation
32 You have a significant criminal record and have spent significant periods in custody as set out in the earlier decision. In the period since you served that sentence you have had further appearances. You are now aged 41 and have spent over three years in custody under sentence and on remand. Sixty days of that period was referrable to other offending which was dealt with in the Magistrates' Court on 6 August 2019.
33 The entire period that you have been in custody, however, is relevant in relation to totality considerations and in that most of it has been under the pandemic where programs have been unavailable or only available on a strictly limited basis. Visits have been limited and you have faced the uncertainty of being struck down with COVID with less ability than the rest of the community to control your risk. Recently you were diagnosed with COVID and spent eight days in isolation.
34 On your counsel's submission you have spent most of the time that you have been in prison working and you are to be commended for that. The period that you have been in custody are matters that I take into account, including that during this period you have had the resolution of your offending by this sentence hanging over your head. This makes any period of remand more burdensome than a sentence and that is a significant matter that I take into account.
35 Given your prior criminal record, your prospects of rehabilitation, however, must be seen as guarded. You failed to respond to the CCO that you were placed on on 6 August 2019. You have served a significant sentence some years ago for serious offences. You ignored the FVIO that you were placed on. Your counsel put that you are now aged 41. You have a significant history with the mental health services in Ballarat. You have been receiving depot injections for schizophrenia and an antisocial personality disorder. Your lawyers are investigating court action for abuse when you were in the Youth Justice system many years ago.
36 At your age there is some likelihood that you may settle down. You hope to live with your mother and work with your brother in a business that had been established some years ago. You have no specific plan for dealing with your mental health issues. Given the period that you have been in custody, a significant period where you would be eligible for parole is possibly your last hope of breaking a cycle of incarceration and reoffending.
Relevant Cases
37 The learned prosecutor referred to the leading case of DPP v Meyers [2014] VSCA 314 where the court indicated that sentences for domestic relationship confrontational aggravated burglary have failed to recognise the seriousness of the offending. On any view this is a serious example of that type of offending - this is Charge 8. Similarly, the breaches of the family violence intervention order are persistent. In addition, your attack on the complainant using the lighter fluid, although luckily it did not give rise to any significant injury, evidence a high level of moral culpability given the repeated attempts.
38 I have already indicated that the charge of attempt to pervert the course of justice is a serious one. You engaged in a persistent pattern of behaviour involving your brother and your mother seeking to have the complainant withdraw her charges against you. Your conduct calls for serious condemnation and considerations of general deterrence are very important.
Purposes of Sentencing
39 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
40 In sentencing you for these offences I must have regard to considerations of totality and proportionality. The overall sentence needs to be a just and appropriate measure of your criminality. Here, save for Charge 17 of attempt to pervert the course of justice, all the offending was against the complainant and constitutes a significant course of conduct against a vulnerable female. The overall offending calls for a significant sentence. Your conduct must be absolutely condemned.
41 Although there is no victim impact statement, your conduct must have had a major impact on the complainant, and your assault on her in the motel room was outrageous and you are fortunate that the injuries were minimal. Similarly, the attempt to have the complainant withdraw the charges was very determined, although ultimately unsuccessful, and calls for denunciation and just punishment.
42 In sentencing for Charge 19 and the six persistent contraventions of an FVIO, I have sought to ensure by accumulation orders that there is no double punishment. Notwithstanding that the seriousness and persistence of the offending here calls for a substantial sentence, at the same time the interests of the community in your rehabilitation remain. Despite your difficult upbringing and repeated offending, it is still in the interests of the community that you are rehabilitated. You may be at a fork in the road in your life given that you are now aged 41 and have spent considerable periods to date in custody.
43 Weighing these considerations and all the submissions made on your behalf, the sentence of the court is as follows - could you please stand:
· on Charge 2 of causing injury recklessly you are sentenced to eight months' imprisonment;
· Charge 5, common assault, eight months' imprisonment;
· Charge 6, contravention of an FVIO, four months aggregate sentence with Charge 10;
· Charge 8, aggravated burglary, the base sentence four and a half years' imprisonment;
· Charge 9, causing injury intentionally, 18 months' imprisonment;
· Charge 10, contravention of family violence order, four months aggregate sentence along with Charge 6;
· Charge 12, contravention of a family violence order, and Charge 13, Charge 14, Charge 15, Charge 16, Charge 18, six contraventions, an aggregate sentence of 30 months' imprisonment;
· on Charge 17, of making a threat to kill, you are sentenced 15 months' imprisonment;
· on Charge 19, the offence of attempting to pervert the course of justice, you are sentenced to 30 months' imprisonment.
44 The base sentence is a sentence of four and a half years' imprisonment and I order the following accumulation: two months of the sentence on Charge 2; two months of the sentence on Charge 5; six months of the sentence on Charge 9; seven months of the aggregate sentence on Charges 12, 13 to 16 and 18; four months of the sentence on Charge 17; and 12 months of the sentence on Charge 19 - making a total effective sentence of seven years and three months' imprisonment.
45 I direct that you serve a minimum period of four years and eight months' imprisonment before being eligible for parole and I declare you have served 1,012 days pre-sentence detention, excluding this day, and order that it be deducted administratively.
46 Pursuant to s6AAA I declare that had you not pleaded guilty to these offences I would have imposed a total effective sentence of 10 years' imprisonment, with a non-parole period of six and a half years' imprisonment.
47 I've got to explain the sentence to you, Mr Karpinski. You've pleaded guilty to a number of charges. I've imposed a total sentence of seven years and three months.
48 The most serious charge, as I said, is aggravated burglary. I've imposed an aggregate sentence in relation to two of the charges of contravention of the family violence order and an aggregate sentence on the six charges of persistent contravention - ordered accumulation. That makes a total effective sentence of seven years and three months and I've ordered that you serve four years of that before being eligible for parole, and declared a 1,012 days pre-sentence detention. So it's a fork in the road.
49 OFFENDER: I'm very sorry for my offending too.
50 HIS HONOUR: I thank both counsel for their assistance in this matter. And adjourn the court temporarily.
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