R v Markarian

[2019] NSWDC 374

District Court

New South Wales

Medium Neutral Citation:	R v Markarian [2019] NSWDC 374
Hearing dates:	15 March 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to a term of full-time imprisonment of four years nine months commencing 13 March 2019 and expiring 13 December 2023, with a non-parole period of three years expiring 13 March 2022.
Catchwords:	SENTENCING — damage property by fire — sentence of imprisonment SENTENCING — Subjective considerations on sentence — Hardship SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Anthony Markarian (Offender)
Representation:	Counsel: D Roff (Offender)   Solicitors: R Buttini (Crown)
File Number(s):	2013/00332471

SENTENCE

1. The offender pleaded to an indictment containing a single charge that on 21 August 2013 he intentionally damaged property; namely, premises Eastwood, by fire with intention to cause bodily injury to Jiana Yu. That is an offence under s 196(1)(b) of the Crimes Act and has a maximum penalty of 14 years imprisonment and there is no applicable standard non‑parole period.  The facts were agreed and they are as follows.

The facts

2. On 14 August 2013, the victim, Ms Yu, rented a small two‑bedroom unit located at the address nominated in the charge for her mother and father to sleep over at the unit from time to time.  Unit 14 is set within an older‑style U‑shaped apartment block comprising 18 tenanted individual units.  It is situated on the first floor of a three‑story building complex with associated garages located directly underneath.  The only means of entry or exit to the units is by using an internal stairwell.

3. In late July 2013, the victim decided to list the garage space for that apartment for rent on the website Gumtree.  On 27 July 2013 the victim received a phone call from a male person who identified himself as Tony which, in the facts, it is accepted, was the offender.  The offender began negotiations with the victim for renting out the garage.  He used the mobile phone service that is particularised in the facts to contact her on her mobile service.  The mobile phone service which the offender used was registered to a Mandy Savvas, who, at the time, was the partner of the offender.  A number of calls and text messages took place between the victim and the offender, haggling over the price of the garage space over the next several days.

4. At 11.04pm on 29 July 2013, the victim sent the offender a text message indicating that she would not accept his offer.  At 2.24pm on 30 July 2013, the victim received another text message from the offender on the mobile service I referred to.  It read as follows:

"Firstly, you can kiss my arse, I'm not your dog.  Secondly, I'm going to report it to Gumtree also showing your text.  Then I'll wait till the new person moves in and I'll make sure that person finds out how the price went up.  I'll check whether renting a garage in your strata is permitted.  Hopefully not.  Then I need to come over after 9pm, knock on the door and speak to your parents about your games.  If they need an interpreter, I can return with one.  By then you might learn you ain't in China and some people in this country will give you all the trouble you need.  You might then learn not to fuck people around.  Happy now?"

5. At 11.43pm on 20 August 2013, the offender is captured on CCTV footage arriving at the 7‑Eleven service station located at 284 Parramatta Road with the intersection of Shaftesbury Road at Burwood.  He was driving a maroon Mazda 121, with the registration number set out in the facts.  He was the driver and sole occupant of the vehicle.  That vehicle was registered to his then partner.  The offender is captured on CCTV footage driving in and pulling up at a pump at the service station.  He gets out and with a small black fuel‑type container with a yellow cap and nozzle and fills the container with 2.6 litres of unleaded petrol.  He pays for that with a Commonwealth Bank debit card in his name.  He is wearing a dark blue zip‑up spray‑type jacket with a black T‑shirt underneath and black scarf around his neck, black pants and blue shoes.

6. At approximately 2.27am on 21 August 2013, the offender has driven or was a passenger in a white Corolla hatchback.  That vehicle was captured on CCTV driving past the Eastwood Police Station in a north‑easterly direction.  At 2.30am on that same day, the footage captures the same vehicle driving back past Eastwood Police Station.  A tenant who resided directly above unit 14 woke up to his smoke alarm sounding and very thick smoke inside his living room.  The witness could feel heat coming through his floor and smoke coming under the front door of his unit.  He went to his balcony and observed a fire below him in the internal stairwell.  He then quickly contacted emergency services.

7. At 2.44am police arrived on the scene where they observed the door to unit 14 to be completely burnt out with its base still smouldering.  The immediate area inside and outside the unit including the walls, ceilings and floors were burnt and covered in soot.  Police immediately began evacuating all the residents who were in their units asleep.  The New South Wales Fire Brigade arrived on the scene moments later and forced entry into the victim's unit and extinguished all the remaining fire.  No persons were inside the unit at the time.  The unit complex had 12 persons inside their units asleep.  They had to be evacuated.  Five of them were children aged between two and 14 years of age.

8. Investigations by the Fire Investigation Research Unit determined the origin of the fire to be the exterior side of the front door to unit 14.  Two fire accelerant dogs were used and both gave an indication that an accelerant was used.  A crime scene was declared and samples of the carpet were obtained and sent for analysis and that subsequently the analysis showed it was positive for petrol in the contents of the carpet.

9. The offender then travelled in the white Toyota Corolla hatchback to Leichhardt to a Telstra public payphone located outside the 7‑Eleven store in Norton Street, Leichhardt.  He can be seen in CCTV footage leaving the car from the front passenger seat.  He made his way to the Telstra payphone and dialled the victim's mobile phone.  She did not answer.  CCTV footage from the 7‑Eleven store shows the Toyota Corolla parked outside the store at approximately 3.15am.  The footage also depicted the offender wearing the same clothes he was wearing four hours or so earlier when he purchased the petrol from the 7‑Eleven in Burwood.

10. There is evidence that the offender walked 150 metres up Norton Street and stopped at another Telstra public payphone on the other side of the road outside number 47 Norton Street and used this payphone to send the following threatening text message at 3.44am:

"Next time, I won't play with fire.  I'll make you play with bullets and guns.  I may even make sure some place that any given time I have you walking outside or maybe even bash your father.  To save a long story, if you've got the balls send me another message and I'll show you what playing with fire is.  You low‑self‑esteem cheap China hoe that would fuck for ten bucks, try me."

11. At approximately 8.30am on 21 August 2013, the victim woke up and noticed she had a number of missed phone calls from blocked numbers and the above text message.  A voicemail had been left on the phone.  About 9.30am she contacted police and was informed of the fire at her rental unit.  She attended Eastwood Police Station and provided a statement.  During this time, the victim informed police of the abusive text messages she had received and of her dealings with a person, Tony, clearly, the offender.

12. In relation to the access the offender had to a white Toyota Corolla hatchback, police attended his known work premises, Abraham's Automotive situated in Parramatta Road in Summer Hill on 6 September 2013.  They sighted the particular Toyota Corolla or one fitting that description.  Checks showed that the vehicle had been registered to Belinda Cattacalis and she confirmed that her vehicle had been taken to that automotive repair shop on several occasions in 2013 and had been there in late August 2013.  She also confirmed that when her vehicle had been returned to her in late August, she could smell petrol inside of it.

13. About 10.30am on 4 November 2013, investigators placed the offender under arrest and he was cautioned and searched.  The police executed a search warrant at his home in Petersham.  They found a small black fuel‑type container with a yellow cap and nozzle and matching that seen in the CCTV footage from the 7‑Eleven store in Burwood; a dark blue bomber jacket matching that worn by him during the night of 20 August till to 21 August; an A4‑size piece of paper with the name of the strata manager for the relevant unit complex.  There was a statement obtained from the police from a Mr Pierre Sukkar informing police that he is a mechanic and as such had known the offender for some 16 years and both are in the automotive mechanical receipt industry.  He owns and operates a mechanical business in Summer Hill.  He said he hired the offender as the workshop manager for the site and confirmed that the Toyota Corolla hatchback had been serviced there and that the offender would have had access to that vehicle.

Assessment of objective seriousness

14. I turn then to my assessment of the objective seriousness of the offence.  The offence is a very serious example of this type of offence.  There was clearly considerable planning gone into the offence, it having occurred a month after the dispute with the victim concerning the leasing of a garage.  An accelerant was used in lighting the fire and the offender used a car he had access to through his work, no doubt in an attempt to avoid detection.  A residential unit was set fire to and in the very early hours of the morning when the offender clearly knew that within the building, at the very least, people would have been sleeping.

15. While I cannot find beyond reasonable doubt the offender actually set the fire, I am satisfied beyond reasonable doubt that he planned the offence and obtained the accelerant and that if the fire was not actually lit by him it was lit at his direction pursuant to a joint criminal enterprise with another.  The risk to human life was very high and it is simply luck that the building concerned was not more seriously damaged and that no‑one suffered injury or was killed.  The offence was committed without regard for public safety which, in my view, is an aggravating factor.  I consider the offence to be within a notional midrange level of objective seriousness for this type of offence.

Offender’s subjective case

16. I turn then to the offender's subjective case.  He is currently 49 years of age and was 43 as at the time of the offence.  He has a limited criminal record as an adult.  His last significant offence was in 1999 when he was given community service for making a false representation to police in relation to an investigation.  His limited record does not disentitle him to some leniency here. 

17. There is a psychological report before me dated 11 March 2019 by Mr Chafic Awit. 

18. That report contains a self‑reported history provided by the offender.  In terms of his background and personal history, the report contains the following:

19. He is one of his parents' three children.  While growing up his parents would argue but he 'reported the rare occurrence of domestic violence'. In terms of schooling, he left school in year 12 and it seems he did not obtain his higher school certificate.  He commenced employment as a motor mechanic and completed an apprenticeship.  He worked for more than two decades in that industry and from 2004 to 2013, he had his own business.  He ran that business until July 2013.  The offender told the psychologist his father passed away in 2013 and that this significantly affected him and he says that he harbours guilt because he did see his father shortly before he passed away.  He told the psychologist that he had suffered five heart attacks from the end of June 2017 to early July 2017.  There are before me two hospital discharge summaries from that time period.  He told the psychologist that he continues to have a serious heart condition and that the ongoing stress of these proceedings has impacted upon him over the years.  I will discuss the delay in these proceedings a little later.

20. In terms of the relationships he has had during his life, he advised there were three significant ones.  The most significant one was between 2000 and 2015.  He told the psychologist that the relationship came to an end because of the current proceedings and the associated pressure of it.  He denied any substance use issues.  He told the psychologist that over the last six years he had experienced significant symptoms of anxiety and depression.  This was said to be linked to the ending of his business, the death of his father, his then partner suffering a miscarriage and the stressors of these proceedings.

21. The psychologist considered that the offender reported symptoms consistent with a diagnosis of a generalised anxiety disorder as at the time of the offence.  He also considered that he reported symptoms consistent with a diagnosis of major depressive disorder.  The psychologist also considered that the results of psychometric testing showed the offender's level of anxiety met the criteria for a diagnosis of Generalised Anxiety Disorder and for a Major Depressive Disorder.  The psychologist expressed the opinion that there was a psychological link between those conditions and the commission of the offence.  The psychologist expressed the opinion that the two conditions impaired the offender's decision‑making ability and caused impulsivity. The link to the offence was said to be that the offender had told the psychologist that a few days before the offence his then partner had received a number of abusive messages via a social media application that had been directed to the offender by the victim.  The offender claimed to the psychologist that after seeing those messages, a number of which he said were derogatory about his mother, he was angered.  This, in combination with the other stressors in his life, caused him to act impulsively.

22. The offender gave no evidence before me and the statements about being angered by text messages from the victim are untested.  There is nothing in the agreed facts to support such assertions.  I do not propose to give those assertions to the psychologist any weight given they remain untested.  I do not, therefore, accept the opinion of the psychologist that the offence was in some way linked to his mental health conditions, as a significant factual basis upon which that link was said to be based has not been shown on the balance of probabilities.  The psychologist expressed the opinion the offender has a low risk of re‑offending.  The psychologist also expressed the opinion the offender expressed deep remorse and regret in relation to the offence.  I will return to the issue of remorse shortly.

Determination

23. These proceedings have had a most unfortunate history.  The offender was committed for trial back on 2 September 2014.  They were listed for trial three times in 2016, twice in 2017, and on 2 October 2018 and the plea of guilty was entered on 3 October 2018.  I was told that on three occasions, the trial was vacated on the offender's application.  On one occasion, it was vacated on a joint application.

24. Given the lateness of the plea and the history of the proceedings, I propose to allow the offender a 5% discount of his sentence for the utilitarian value of the plea. 

25. I have had regard to the delay in the finalisation of the matter in fixing sentence, but I note the number of times the trial was adjourned on the offender's application. 

26. I noted earlier the psychologist's view of the offender's remorse.  I also note that eventually a plea of guilty was entered. However, there was also placed before me a statement by Detective Senior Constable Emerson from Ryde Detectives concerning a conversation he had with the offender when the offender saw him on 28 February 2019 after the plea of guilty had been entered.  In that conversation the offender purported to blame another person for lighting the fire, a person called Pierre who was particularised as Pierre Sukkar referred to in para 22 of the agreed facts, a person for whom the offender had done work.  The offender claimed to the Detective Senior Constable that the messages sent to the victim were from that person.  He claimed he went to the victim's business only with an intention of gluing the lock to her premises and not to set fire to the premises.  Needless to say, the detective did not accept those explanations from the offender and nor do I.  Those statements are inconsistent with any genuine remorse and are arguably inconsistent with his plea of guilty in my view.

27. When the matter was called on before me on the last occasion, counsel sought to withdraw from the matter.  I inquired whether the offender was seeking to reverse his guilty plea and was told he was not.  I inquired whether the offender sought to dispute the agreed facts upon which he was to be sentenced and was told he did not.  In those circumstances, I declined to allow counsel to withdraw from the sentence proceedings and counsel on behalf of the offender put detailed submissions including written submissions.

28. I think overall the offender has no genuine remorse for his offending when I have regard to the history of the proceedings, the late plea, the attempt to sheet home to the victim provocative text messaging on a social media platform when speaking with the psychologist and the conversation in February this year with the detective I just referred to. 

29. There are discharge summaries from Royal North Shore Hospital that he has a cardiac condition.  Although, I note in the one dated July 2017, it records that his ECG did not show acute ischaemia.  I have had regard to the history ofheart condition and his testicular cyst condition referred to in one of the other medical reports when imposing sentence.  I also have regard to the fact that there is no evidence before me suggesting he will not be appropriately treated for those conditions while in custody.

30. Given his limited criminal history and the fact that he has been on bail for a lengthy period without committing an offence, I am of the opinion he has good prospects for rehabilitation. 

31. His physical and mental health mean that he is like to find custody more arduous than other persons.  I propose for those reasons to make a finding of special circumstances also noting this is his first time in custody. 

32. He spent one day in custody prior to remanding him in custody on 15 March when the matter was last before me. I propose to backdate the sentence to 14 March 2019. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.  Clearly general deterrence must be reflected in this sentence as well as specific deterrence. Such offending is very serious offending and has the potential to cause serious damage to property and people. The only appropriate sentence is one of imprisonment.  The maximum penalty has been taken into account as a legislative guidepost.

33. Sir, you are convicted of the offence to which you have pleaded guilty.  You are sentenced to a term of imprisonment consistent of a non‑parole period of three years and a balance of term of one year and nine months.  That is a total sentence of four years and nine months.  The sentence dates from 14 March 2019 and expires on 13 December 2023.  The non‑parole period expires on 13 March 2022. 

23. The earliest date you may be released to parole is the date of the expiry of the non‑parole period, which is 13 March 2022.  Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison is determining whether you are released then another date

24. It is a total sentence of four years and nine months with a non‑parole period of three years.  It commences on 14 March 2019 and expires on 13 December 2023.  I have the non‑parole period expiring on 13 March 2022.

Orders

36. Convicted.

37. Sentenced to a term of full-time imprisonment of four years nine months commencing 13 March 2019 and expiring 13 December 2023, with a non-parole period of three years expiring 13 March 2022.

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Decision last updated: 02 August 2019