R v Cassidy

[2010] NSWDC 323

CITATION:	R v CASSIDY [2010] NSWDC 323
HEARING DATE(S):	22 April 2010
EX TEMPORE JUDGMENT DATE:	22 April 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment consisting of a non-parole period of ten and a half years and a head sentence of fourteen years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Intentionally destroy number of motor vehicles and a dwelling house with the intent it would endanger the life of a named person. - Complete absence of remorse.
PARTIES:	The Crown Sean Lindsay CASSIDY
FILE NUMBER(S):	DC 2009/218239
COUNSEL:	Mr J Booth - Offender
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

SENTENCE

1 HIS HONOUR: Sean Lindsay Cassidy appears today for sentence, having committed a most serious offence indeed. He pleaded guilty this morning to an offence of having intentionally destroyed a number of motor vehicles and a dwelling house with the intent it would endanger the life of a named person. The maximum penalty for that offence is twenty-five years imprisonment. That in itself reflects the seriousness with which I should treat Mr Cassidy’s misconduct.

2 Although it was a case where he pleaded guilty today on indictment, it is accepted by the crown that in fact the offender entered his plea of guilty at the earliest opportunity in the Local Court, on indictment being required because of a defect in the committal papers. Accordingly, the sentence I will ultimately impose upon Mr Cassidy is 25 per cent less than it would otherwise have been.

3 The offences arose out of a neighbourhood dispute involving a Mr Genigzakis and a number of other people who lived in the area where he lived. It was Mr Genigzakis’ habit to have a number of unregistered motor vehicles parked around his property.

4 One evening, 16 September 2009, he and his partner were at home watching TV when they heard noises outside. It sounded to them as though someone was opening the doors of the cars parked outside. Mr Genigzakis therefore went outside where he saw a number of young people. He challenged them, saying, “What the fuck are you doing at my car?” to which one replied, “We’re not doing anything, you fucking cunt.” This was the start of a confrontation between the group of young people and Mr Genigzakis.

5 There is no evidence before me that the offender was part of the group of young people. However, he certainly learnt about the altercation and took offence at it.

6 What Mr Genigzakis said included these words, “Go back to your drug dealing parents.” When he said this he saw some people standing out the front of 17 Brown Street. It turns out that a person that the offender refers to as an aunt lived there. Out the front of 17 Brown Street were a man and a woman. Mr Genigzakis said to them,

“Everyone in the neighbourhood knows you’re fucking drug dealers. Everyone knows that 13 and 17 Brown Street and 19 Burnett Street and the people in McKellar Street are nothing but fucking drug dealers and junkies. Your four houses have held the whole community to ransom.”

7 This was scarcely likely to calm things down and they certainly did not. It was at this stage that the man who was out the front of 17 Brown Street said, “We’re going to burn your fucking house down.” Police were called by Mr Genigzakis’ partner. They spoke to the victim, Mr Genigzakis; they spoke to a number of other people. It was obvious that there was an ongoing dispute between Mr Genigzakis and many other residents in the neighbourhood. Police left the area and things seemed to calm down.

8 Mr Genigzakis went back inside where he resumed watching television and he fell asleep in the lounge room. His partner had gone up to bed on the second storey of the home, where she too fell asleep.

9 In the early hours of the following day, at about 12.05am in fact, Mr Genigzakis was woken to the sound of windows smashing and flames coming through the lounge room windows. He could feel the heat coming through the windows and when he looked at the lounge room roof he saw that it was about to collapse. Fortunately, his partner had also been woken. She yelled at him to get out of the house. They both ran past some of the cars parked outside. As they got near one of them, an LPG powered vehicle, the gas cylinder exploded, throwing Mr Genigzakis about ten metres. He got to his feet and saw a wall of fire engulfing both his cars and his home.

10 It is fortunate indeed that both Mr Genigzakis and his partner were able to escape the conflagration. It is a matter of good fortune for the offender that he is not in a different court facing two much more serious matters.

11 Police and fire brigades attended and eventually the fire was put out. Enquiries pointed to the source of the fire being the vicinity of the rear right hand side of the motor vehicle which had exploded. Examination of the scene revealed that the explosion was so forceful that parts of the car were thrown 50 metres away.

12 The damage Mr Genigzakis suffered included the total loss of his home and four of his vehicles. The financial loss was in excess of half a million dollars. Other premises were also damaged by the intensity of the fire and the explosion.

13 It was not long before the offender was identified as the person responsible. In lawfully intercepted telephone calls he spoke about placing what he described as a “napalm bomb” in the rear seat of the black coloured car, which was the one that exploded, next to the gas cylinder and setting fire to the device.

14 The statement of facts reveals that the offender did know that he was putting what he described as the napalm bomb next to a gas cylinder. It was not an unintended consequence that the gas cylinder would explode, it seems to have been precisely what the offender wanted to happen.

15 In these intercepted calls the offender also spoke about what he was wearing and what he did afterwards. He also said that he proposed to create a false alibi, suggesting that he was in Narromine at the relevant time. Police then arrested the offender and he has been in custody since 30 September 2009. He did, as police expected, suggest that he was in Narromine and told police who could provide an alibi for him. However, as is clear, that alibi was shown to be false. Upon searching 13 Brown Street, an address associated with the accused, police found clothing which incriminated the offender as well as fuel and empty fuel containers.

16 Ms Gail Harris also spoke to the police about the offender’s movements and having heard the offender say, about Mr Genigzakis, “I’m fuckin’ sick of the way he talks to the women in this street. He needs a good bashing”.

17 It was clear that Ms Harris had at least her suspicions that the offender was responsible for the fire because as soon as she saw him the following morning she said to him, “What the fuck have you done, Sean?” to which the offender replied,

“I didn’t do a good enough job, they’re still alive. They shouldn’t have been able to get out of the house if the fire had spread like it was supposed to.”

18 This expression of a complete absence of remorse on the part of the offender has continued. There is no evidence before me that he is in the slightest way sorry for having risked the lives of Mr Genigzakis or his partner and, indeed, the only evidence before me suggests that he remains disappointed that they are still alive.

19 Included in the material tendered on behalf of the Crown are some letters that the offender has written from prison. The highest that Mr Booth was able to suggest to put things in suggesting that the offender was remorseful is the offender’s statement that he is sorry because he “fucked up big time”.

20 I am satisfied, however, that what the offender meant to convey by those words is that he is sorry for his family, for what he has done to them. Perhaps he is sorry that he was caught or he is sorry for what he is now putting his family through, but it remains the case that the offender is in no way remorseful, in no way sorry, for having committed the offence. To Auntie Gail he said, “I should have killed him when I had the chance.” He wants to teach the offender a lesson because of what he did to his family.

21 The seriousness of the offender’s misconduct is obvious. He deliberately placed the bomb in a position where it was next to an LPG fuel tank. It was his intention that the fire would spread in such a way that the people inside the house would not get out alive and even to this day it seems he wishes that he had succeeded. Such criminality, as is obvious, requires harsh, perhaps even a draconian sentence.

22 Mr Booth called no evidence, nor did he tender any documents in his case, apparently upon his client’s express instructions. There was no pre-sentence report available in the material tendered by the Crown and so I am left to glean what I can about the offender and his background from very limited evidence indeed. From that I can work out that he is now twenty-four years of age and that he was twenty-three at the time of the offence. He has an extensive list of offending on his criminal history. All of the matters, however, to date, have been dealt with in the Local Court, with none of them being dealt with in the District Court.

23 In circumstances where the offender seemed to take objection to the reference to drugs being made by Mr Genigzakis, it is important to note or it is perhaps relevant to note that the offender has one matter on his criminal history of possessing a prohibited drug. I can tell from the letters that he has a family who love him and support him but that seems to be the limit of the evidence that I have before me as to matters personal to the offender.

24 Mr Booth submitted that the offender’s motivation was a misplaced sense of grievance. That seems to be the case. The offender seems to have objected to Mr Genigzakis’ claim that the people in number 17, where his Auntie Gail lived, were involved in drugs. There is no evidence before me as to the accuracy or otherwise of Mr Genigzakis’ complaints but even if they were entirely baseless, to say that the offender’s reaction was an over-reaction is something of an understatement.

25 Nor was this a spur of the moment decision. The offender would have taken some time to assemble the materials to produce what he described as “the napalm bomb”, all the while having the capacity to reflect on what he was doing. I state the obvious here but it is one thing to destroy the property of someone you are upset with but to want them dead and to set about achieving that is a completely different matter altogether.

26 There are clearly no special circumstances in this case. In any case, the length of the sentence that I will now impose is such that there is an extensive period of eligibility for parole but in any case the non-parole period that I am about to announce is the least which properly reflects the offender’s criminality.

27 The offender is sentenced to imprisonment, it will date from 30 September 2009, on which date the offender was arrested and has remained in custody since then. I set a non-parole period of ten and a half years which will expire on 29 March 2020, on which day the offender is eligible to be released to parole and I set a head sentence of fourteen years.

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