District Court New South Wales Medium Neutral Citation: R v Karaitiana [2020] NSWDC 691 Hearing dates: 8 October 2020 Decision date: 06 November 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 12 years with a non parole period of 9 years. Catchwords: CRIMES - SENTENCE - firing a firearm at a dwelling house with disregard for the safety of person or persons inside - possessing a shortened firearm without authority - doing an act to pervert the course of justice. Legislation Cited: Crimes Act 1900 (NSW), ss93GA(1) and 319; Firearms Act 1996 (NSW), s62(1)(b) Category: Sentence Parties: Regina (Crown) Hayley Karaitiana (Offender) Representation: Mr Kelly (ODPP) Mr Little (Counsel for the offender) File Number(s): 2017/00258271 Publication restriction: Nil Judgment 1. Hayley Karaitiana, you appear for sentence today in relation to three principal offences. 2. The first principal offence is firing a firearm at a dwelling house with disregard for the safety of the person or persons inside (Count 1: sequence 1 on indictment… 8.2). 3. This involves a contravention of s93GA(1) of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 5 years imprisonment. 4. In relation this first principal offence, you have asked me to take into account one matter on a Form 1 which I have certified (Count 2 on indictment 8.2), being a matter of possessing a shortened firearm without authority. 5. The second and third principal offences are each doing an act to pervert the course of justice (sequences 7 and 8 on the relevant charge certificate). 6. These involve contraventions of s319 of the Crimes Act. The maximum penalty for each offence is 14 years imprisonment. There is no standard non-parole period. 7. In relation to sequence 7, you have asked me to take into account one matter on another Form 1 which I have also certified – namely, doing an act to pervert the course of justice (sequence 9 on the charge certificate). 8. The facts surrounding the three principal offences and the two matters on the relevant Form 1 are contained in an amended agreed statement of facts (in relation to the firearm offences) and an agreed statement of facts (in relation to the perverting the course of justice offences) and may be summarised as follows. 9. In the early hours of the morning of 1 August 2017, Mr Shannon Wilkie fired four shots into a (residential) house at Hurlstone Avenue, Glenfield. That house was occupied by Mr and Mrs Mico and their two young children. 10. Although Mr Wilkie was the person who actually fired those four shots, you were instrumental in organising for that shooting to occur, including providing the loaded firearm to Mr Wilkie. 11. The background to this offending is that your children and the children of the Mico family went to the same primary school. 12. Although you and the Mico family were not close, you each had a mutual friend, Ms Bennett. Ms Bennett was a very close friend of Mrs Mico. You and Ms Bennett formed an intimate personal relationship. 13. After you began that intimate relationship with Ms Bennett, her relationship with Ms Mico became less close and, ultimately, animosity developed between you and Ms Bennett on the one hand, and Ms Mico on the other hand. 14. The animosity included you: attending Ms Mico's work address and engaging in a confrontation with her; confronting Ms Mico on numerous occasions thereafter, alleging that she had been talking about you behind your back; placing nuisance calls to Ms Mico late at night or in the early hours of the morning; and, on at least one occasion in the early hours of a morning, driving up and down outside the Mico household in such a way as to draw attention to that fact. 15. I earlier referred to the fact that you arranged for Mr Wilkie to fire shots into the house of Mr and Mrs Mico. I shall now explain how that came about. 16. You had known Mr Wilkie for about 10 years before that incident which, as I have already said, occurred in the early hours of the morning of 1 August 2017. You regularly purchased drugs from Mr Wilkie; and you also assisted him in the disposal of stolen property and the storing of stolen motor vehicles 17. On the afternoon of 31 July 2017, you contacted Mr Wilkie and falsely told him that you wanted him to supply drugs to a person called "Shane". This was the first step in a well thought out plan by you to trick Mr Wilkie into carrying out a wicked attack on your behalf on the Mico home. In this phone conversation, Mr Wilkie agreed that he would collect the required drugs from his supplier and, thereafter, supply those drugs to "Shane" at an undisclosed location. 18. There was, in fact, no person called "Shane". 19. Mr Wilkie, not suspecting how you were manipulating him, collected (and paid for) the required drugs from his supplier and went to the prearranged location. Of course, "Shane" did not turn up to complete the transaction. This was a further step in your plan. 20. Mr Wilkie then asked you to contact "Shane". Mr Wilkie was angry that the supply did not occur because he (Mr Wilkie) had outlaid over $1,000.00 to obtain the drugs from his own supplier. 21. At 11:30pm on 31 July, you supplied Mr Wilkie with an address which you led him to believe was "Shane's" address. It was actually the address of Mr and Mrs Mico – an address at which you knew young children lived. 22. In case it is not apparent already from this recitation of facts, it should be made clear that the Mico family had nothing to do with any drug supply transaction with Mr Wilkie. 23. At the time you supplied Mr Wilkie with the address of Mr and Mrs Mico, you intended that he would shoot at those premises, acting under the mistaken belief that they were premises associated with the non-existent "Shane". You also knew that Mr Wilkie would be unaware that they were the premises at which Mr and Mrs Mico lived with their two young children. 24. Ultimately, at 1:30am on 1 August 2017, you and Mr Lewis Taula drove towards Glenfield and parked the motor vehicle in which you travelled near the Mico home. You arrived at about 2:00am. After you had done that, you called Mr Wilkie and he arrived at the scene at about 2:20am with three other people. 25. When Mr Wilkie arrived at the scene, you gave him a loaded .22 Browning pump action rifle with a sawn-off shoulder stop. Mr Wilkie and an unknown male then walked up to the front door of the Mico premises. How you came to be in possession of that loaded firearm is not revealed in the evidence before me. 26. Mr Wilkie tried a number of tricks to get Mr Mico to open the front door of the premises but he was unsuccessful. 27. Mr Wilkie then fired four shots into the front window of those premises with the firearm that you had given him. 28. It is agreed between you and the Crown that you were party to a joint criminal enterprise with Mr Wilkie to fire that firearm at that dwelling house. You and he were, therefore, equally criminally culpable in relation to that offence; but your moral culpability was significantly greater. 29. After Mr Wilkie had fired that firearm in that fashion, he returned to the motor vehicle in which you were seated. He placed the firearm in the vehicle. You then drove off with Mr Taula to your home and hid that firearm in a caravan on your property. 30. When the police inspected the Mico premises, they found three .22 calibre fired cartridge cases on the front grass area along with a live .22 calibre bullet. Four bullet holes were seen in the front dining room window. 31. The damage to the premises included penetrating impact damage to the walls and gyprock in the dining room and the children's playroom area which was behind the dining room. Metal fragments were also found between the dining room and the children's playroom area. 32. It is your involvement in the joint criminal enterprise with Mr Wilkie which constitutes the principal offence of firing a firearm at a dwelling house. It is your possession of the shortened firearm which you provided to Mr Wilkie which is the matter on the Form 1 to be taken into account with that principal offence. 33. In terms of its objective seriousness for an offence of its kind, the firearm offence is a mid-range offence. 34. The offence is additionally aggravated by the fact that it was committed in the presence of children under 18 years of age, and because it was committed in the home of the victims. 35. Insofar as the matter on the Form 1 is concerned, by having regard to the nature of the matter, it will result in a meaningful increase in the sentence for the first principal offence. 36. On 16 August 2017, you were interviewed by police. You provided an induced statement. Ultimately, it is agreed that most of the contents of that statement by you were untrue. 37. On 24 August 2017, you were arrested and participated in a recorded interview. Again, a significant proportion of what you said in that interview was untrue. 38. Unsurprisingly, you were refused bail after you were arrested and charged in relation to the firearm matters. 39. On 10 October 2017, your lawyers appeared before a Judge of the Supreme Court on a bail application in relation to those firearm offences. 40. A bundle of documents was tendered by your lawyers in support of your application for bail. 41. The bundle of documents included three letters purportedly from two medical practitioners. Those letters had been provided to your solicitor by you. 42. One of the letters was purportedly prepared and signed by Dr Mayat from Medical Imaging Campbelltown. It was dated 24 August 2015. Amongst other things, that letter included the following: "Findings: extra-axial fluid collections, midline shift or mass effect demonstrated The basal cisterns and ventricular cistern and (sic) not within normal limits. There is imaging evidence of raised intracanial (sic) pressure. Intracanial (sic) space occupying the lesions identified. The cerebellum and brainstem define abnormalities. There is 1 mass tumour sizing (2.1mm) and the second tumour mass 2.8mm Comment there is evidence of intracranial space – occupying the lesion's detected." 1. Two of the letters were purportedly prepared and signed by Dr Sellbach of the Saint Andrew's War Memorial Hospital in Queensland. 2. One of those letters bore the date 15 August 2017 and included the following: "I first reviewed Ms Karaitiana after receiving a referral from Dr Chowdhury Akrma UZ Zaman. Past History 2008 Cervical Cancer 2015 Lung Cancer (left) 2017 – Diabetes 2017 CVA Subsequent testing after Ms Karaitiana's CVA revealed multiple metastatic lesions on the brain. Ms Karaitiana requires specialist treatment and management for this terminal condition in order to maintain her quality of life. Without such treatment Ms Karaitianas (sic) QOL would be very bleak." 1. The second letter purportedly from Dr Sellbach bore the date 27 September 2017 and included the following: "It would be extremely beneficial for Ms Karaitiana to commence radiation therapy and chemotherapy at her earliest convenience. I have been informed of the difficulty this presents to Ms Karaitiana being currently incarcerated. It is imperative that this treatment be commenced as soon as practicable and for the patient to be reviewed in 3-6 months to assess her response to treatment in the hopes of her being suitable for surgery." 1. These documents were tendered on your behalf and on your instructions on the bail application without objection. On 10 October 2017, Schmidt J granted bail. In the course of her Honour's judgment, her Honour said: "… on evidence tendered this morning, which establishes, by letters provided by various medical practitioners, that the applicant is suffering various cancers, including inoperable brain cancer which is terminal. She has three to six months to live and requires treatment to alleviate her symptoms which are not available to her in custody." It is clear, therefore, that the three letters were very significant for her Honour's decision to grant you bail. 1. But the three letters to which I have referred were not prepared by either of the medical practitioners. 2. It is not clear who prepared the letter purportedly from Dr Mayat. The letters purportedly from Dr Sellbach were prepared by your (then) new partner, Ms Kelly Edmonds. All three were provided by you to your lawyers. I hasten to add, however, that your lawyers were completely unaware of the fraudulent nature of those documents. 3. The letter dated 15 August 2017 purportedly from Dr Sellbach is the first principal offence of doing an act to pervert the course of justice (sequence 7); and the letter dated 27 September 2017 is the second principal offence of doing an act to pervert the course of justice (sequence 8). 4. The letter purportedly from Dr Mayat bearing the date 24 August 2015 is the matter on the Form 1 (sequence 9) which is to be taken into account in relation to sequence 7. 5. At all material times you were aware that these three letters were false documents. The false letters were intended by you to be used for two purposes: first, to obtain bail; and secondly, to have an effect on any ultimate sentence you might receive. 6. And in each case you were successful: you obtained bail; and the letters will have an impact on the sentence you receive – but not in the manner you expected or hoped for. 7. In terms of their objective seriousness for offences of their kind, each of the offences of doing an act to pervert the course of justice is slightly above the midrange. 8. Insofar as the matter on the Form 1 (sequence 9) is concerned, by having regard to the nature of the matter, it will result in a meaningful increase in the sentence for the relevant principal offence (sequence 7). 9. You did not give sworn evidence in the sentence hearing which was conducted on 8 October 2020. 10. Nor was a specifically prepared expert's report tendered on your behalf (which, if it were to be of any weight, would need to have had your thoroughly dishonest conduct fully disclosed to the relevant expert). 11. Curiously, your subjective circumstances were advanced through material which was obtained for a fitness hearing. 12. It is at this point that some reference needs to be made to the course of the proceedings involving you through this Court. 13. As I have already said, you were arrested on 24 August 2017. 14. On 6 June 2018, you were committed by the Local Court for trial in this Court. 15. You first appeared before a Judge for arraignment in this Court on 6 July 2018. 16. Ultimately, a trial date was fixed for 25 February 2019. 17. The trial was not allocated to a Judge on that day but stood over to 26 February 2019. On that date, your counsel raised a question of your fitness for trial. A timetable for a fitness hearing was then fixed – and variously extended because you failed to cooperate with the process. 18. On 11 March 2020, a Judge of this Court found you were unfit to be tried. In coming to that conclusion, his Honour had available to him a report by Dr Martin, a forensic psychiatrist, dated 23 October 2019 and a report by Professor Greenberg, another forensic psychiatrist, dated 8 November 2019. 19. Following that determination, you were referred to the Mental Health Review Tribunal. 20. On 8 July 2020, that Tribunal determined that you did not suffer from a mental illness nor a mental condition for which treatment was available in a mental health facility and recommended that you be found fit to be tried for the offences with which you had previously been charged. 21. Consequently, on 13 August 2020, a further fitness inquiry was conducted, at the conclusion of which you were found fit to be tried on the two Counts then on the relevant indictment (i.e. the firearm offences). 22. Ultimately, a plea of guilty was entered on 7 October 2020 to the first firearm offence on the indictment, and the second firearm offence was noted as being to be dealt with on a Form 1. 23. In the meantime, investigations had been underway in connection with the three medical reports tendered in your Supreme Court bail application. 24. Those investigations led to you being charged in the Local Court with the pervert course of justice offences. You pleaded guilty in that Court and were committed for sentence to this Court on 16 September 2020. Those proceedings were linked up with the firearm offences in this Court on 7 October 2020, on which occasion, when you were arraigned on the firearm matters, you adhered to your pleas of guilty in connection to the pervert the course of justice offences. 25. I pause to observe that the Crown initially contended that, in addition to seeking to obtain bail and to improperly influence the outcome of any sentence proceedings, the course of conduct constituting the perverting of the course of justice also extended to the vacating of the trial date on 26 February 2019 (when the fitness issue was raised) and a subsequent application made on 14 October 2019 for a permanent stay of the proceedings. During the course of sentence hearing, however, those latter two aspects were not pressed by the Crown. 26. I shall now turn to your subjective circumstances which, as I have already said, were advanced through material which was obtained for the first fitness hearing. 27. And as I have said, two reports were obtained for that fitness hearing: one obtained by your legal advisors from Dr Martin; the other was obtained by the Crown from Professor Greenberg. 28. In the course of his comprehensive report, Professor Greenberg had access to Dr Martin's report to which I shall shortly refer. Professor Greenberg also noted that in a number of the medical records it was recorded that you had provided dishonest histories – for example, the entry referrable to 9 April 2015. 29. Although Professor Greenberg did not explain why, it is not insignificant to note that he nevertheless found it appropriate and necessary to include in his report the following two paragraphs in the section headed "Differential Psychiatric Diagnoses": "… Factitious disorder is the falsification of medical or psychological symptoms in one's self that is associated with an identified deception. They also seek treatment for themselves following induction of injury of disease. The diagnosis requires demonstrating that the individual is taking surreptitious actions to misrepresent, stimulate or cause signs or symptoms of illness or injury in the absence of obvious external rewards. The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms noted by external incentives such as avoiding criminal present prosecution, obtaining financial compensation or obtaining drugs." 1. There are passages in the report of Dr Martin which are less opaque. 2. At page 2 of his report, under the heading "Executive Summary", Dr Martin wrote: "I have significant concern about the reliability of information obtained for this assessment. She presented as perplexed and apparently unable to give a coherent, relevant account of herself, and her responses were vague and lacked detail. Whether this presentation reflects genuine mental disorder or is deliberately feigned is not clear to me at this stage. Furthermore, I have significant concern that the apparent medical material attached to your affidavit, obtained from the family (rather than the original medical source), which purports to state that she has serious medical issues such as "terminal" metastatic brain cancer, is not genuine, and this needs urgent investigation. At this stage, the medical information can not be relied on." 1. Later in his report, Dr Martin in the section entitled "Review of Collateral Information", and having referred to the "reports" from Dr Uz-Zaman and Dr Sellbach, noted: "The above "medical" information is incoherent…" 1. Later in that same section of his report, Dr Martin wrote: "I am highly suspicious of the veracity of this information and have concerns that it has been presented by your client fraudulently. This needs to be investigated and it may represent medical identity theft in attempt to pervert the course of justice." 1. Finally, under the heading "Opinion", and having expressed a tentative view that you were not fit for trial, Dr Martin went on to say: "… This opinion is based on the assumption that she presented genuinely, however, and it is plausible that her apparent cognitive deficits have been exaggerated or feigned in an attempt to gain legal advantage. Regarding her current fitness, assessment is complex because it is highly possible that she is not presenting genuinely." 1. Dr Martin's suspicions were well justified. 2. You deceitfully manipulated Mr Wilkie. 3. You have a significant criminal history of dishonesty. 4. You have admitted to three instances of doing an act to pervert the course of justice - to advance your own interests. 5. You did not get into the witness box to swear to the truth of any of the material sought to be relied upon as subjective material on your behalf. 6. You have the onus of proving, on the balance of probabilities, any significant fact in mitigation. 7. I regret to say that I regard you as a profoundly dishonest person, and absent any credible, independent and objective evidence, I do not accept any of the second hand histories that you have given in the two reports prepared by Dr Martin and Professor Greenberg. 8. All that I am satisfied of is that you were born in August 1985, you have 2 young children who have been taken into care, and that, although you have a history of offences for dishonesty, some of which have resulted in suspended jail sentences, you have not previously served a term of full-time imprisonment. 9. I am not satisfied, on the balance of probabilities, that you are remorseful for any of your criminal offending. 10. I regard your prospects of rehabilitation as being poor. 11. Insofar as each of the three principal offences is concerned, I am satisfied that no sentence for any one of them other than a term of full-time imprisonment is appropriate. 12. General and specific deterrence are fully engaged. 13. In connection with the firearm offence, parity requires me to take into account the sentence imposed by his Honour, Judge O'Brien, on Mr Wilkie. Before the relevant discount, his Honour indicated that the head sentence would have been imprisonment for 7 years. 14. You and Mr Wilkie were approximately the same age when the firearm offence was committed. He had a less significant Form 1 matter. This will be your first time in custody; whereas he had a much more significant criminal history. You were equally criminally culpable for that offence, but you were significantly more morally culpable. 15. Similarly, parity with Ms Edmonds for the pervert course of justice offences is to be taken into account. 16. You are five years younger than Ms Edmonds. Your moral and criminal culpability for the pervert course of justice offences are equivalent. You have a more significant criminal history than Ms Edmonds, including suspended jail sentences. 17. I intend imposing an aggregate sentence. 18. Consequently, it is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. 19. In this context, it is agreed that, insofar as the pervert the course of justice offences are concerned, you should receive a discount of 25 per cent for your early plea in relation to those offences, which discount should be applied to the relevant indicative sentence. 20. However, in relation to the firearm offence, the Crown has challenged your counsel's submission that you should receive a 25 per cent discount. The Crown has submitted that you did not plead guilty at the first available opportunity, and has pointed to the fact that the matter was ready to proceed to trial, except for the issue of fitness which was raised on the trial date. The Crown has submitted you should receive a discount in the order of 10 percent. 21. There is much force in the Crown's submissions. 22. However, the Judge who conducted that hearing had available the reports of Dr Martin and Professor Greenberg. It does not seem as if the Crown had, at that stage, sought to pursue the veracity of at least some of the material which was before the Court in the fitness hearing. And as I understand the two expert reports, neither witness specified for how long you had been unfit for trial. 23. Once you were found fit for trial in relation to the firearm offences on 13 August 2020, those proceedings were adjourned to 7 October 2020 for arraignment (and for those proceedings to link up with the pervert the course of justice offences which were, at that stage, still at the Local Court). However, on 13 August 2020, you did indicate through your counsel an intention to plead guilty to the firearm offences – which you formally did on 7 October 2020. With some hesitation, I shall allow a discount of 25 per cent for the indicative sentence referrable to the principal firearm offence. 24. In relation to the firearm offence and taking into account the relevant matter on the Form 1, except for the discount of 25 per cent, the indicative sentence would be 10 years imprisonment. After the discount of 25 per cent, the indicative sentence is 7 years 6 months, and the indicative non-parole period is 5 years 7 months. 25. In relation to sequence 7 and taking into account sequence 9 on the Form 1, except for your plea of guilty, the indicative sentence would have been 6 years 6 months. After the discount of 25 per cent, the indicative sentence is 4 years 11 months. 26. In relation to sequence 8, except for your plea of guilty, the indicative sentence would have been 5 years imprisonment. After the discount of 25 per cent, the indicative sentence is 3 years 9 months. 27. In formulating the aggregate sentence, I have taken totality into account. 28. Hayley Karaitiana, for the three principal offences you are therefore sentenced to an aggregate term of imprisonment of 12 years. 29. You have been in custody for approximately 1 years 2 months and, accordingly, the start date of the sentence will be backdated to 6 September 2019. 30. I decline to make a finding of special circumstances. 31. Accordingly, the non-parole period is imprisonment for 9 years commencing 6 September 2019 and which will expire on 5 September 2028. 32. I fix a balance of 3 years to date from 6 September 2028 and which will expire on 5 September 2031. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2020