District Court New South Wales Medium Neutral Citation: R v DELL [2011] NSWDC 211 Hearing dates: 4 Nov Decision date: 04 November 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of four years and a head sentence of six and a half years. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Break enter and steal in circumstances of special aggravation - Deprivation of liberty - Wounding - Demand money with menaces. Category: Sentence Parties: The Crown George Dell Representation: Mr D Marr - Offender Director of Public Prosecutions Richard Cummins Lawyers File Number(s): 2009/00259583 SENTENCE 1HIS HONOUR: On 11 August 2009 Mr John Ciganda was home asleep in bed. He woke to see two men in his bedroom. When he swore at them they appeared to run away. Mr Ciganda followed them, but when he reached the top of a flight of stairs he was pushed from behind. He fell down the stairs injuring himself in the process. When he reached the bottom a man jumped onto his back and put a knife to his throat. Mr Ciganda attempted to push the knife away with his right hand and in doing so sustained a significant wound to one of his fingers. 2What followed was a significant time in which Mr Ciganda must have been absolutely terrified. He was subject to threats that he would be killed, he was hog tied, his place was ransacked and he was made to remain where he was, lying in a pool of his own blood, for a lengthy period indeed. 3The offender, for it was he who was the man with his knife to Mr Ciganda's throat, and an associate of his, stole some significant property from Mr Ciganda. They took about $16,000 in cash as well as some items of jewellery. One particular item of jewellery was of great significance to Mr Ciganda. He had his watch stolen. It was a watch that was some fifty-five years which had belonged to his father. Mr Ciganda displayed some significant emotion when he gave evidence about the loss of that watch. It obviously had a great deal of sentimental value to him. In fact he said its loss broke his heart. 4As well as taking that property the offender also made demands for $100,000. Mr Ciganda did not have $100,000, but the offenders kept making demands. Eventually they left and over the next few days Mr Ciganda received a number of telephone calls repeating the demands that he pay $100,000, accompanied by threats as to what would happen to him and his daughters if he did not pay up. 5After the offender and his associate left the house on 11 August 2009 Mr Ciganda called the police and he was treated in hospital for the wound to his finger. It required suturing and because of the wound's depth he required a course of therapy to assist him in being able to use that finger again. 6I am now to sentence the offender for an offence of break enter and steal in circumstances of special aggravation, the offender having belatedly pleaded guilty to that offence. The circumstances of special aggravation relied on by the Crown are that Mr Ciganda was deprived of his liberty and wounded. That of course relates to the events that occurred in Mr Ciganda's home. But when I sentence him for that offence the offender asked that I take into account another offence, that being an offence of demanding money with menaces with intent to steal that money, and that relates to the later demands made of Mr Ciganda that he pay them $100,000. As I said, this plea of guilty came very late indeed, it was on the third day of the offender's trial when the Crown case was about to close. The Crown case was an overwhelming one. It was circumstantial but as judges sometimes tell juries circumstantial evidence can be the best evidence of all. 7The circumstances relied on by the Crown were these. The man in the house told Mr Ciganda to call him "Bob". Mr Ciganda said that at the time Bob was in his house Bob made numerous telephone calls on his mobile phone. And the offender's mobile phone records show that he made a whole series of calls on that phone, at about the same time Bob was making calls from Mr Ciganda's house. Secondly, the mobile phone tower which picked up the offender's phone when those calls were made was close to Mr Ciganda's house. Thirdly, two calls later made to Mr Ciganda's landline and mobile phones came from a public phone near to where the offender worked. And fourthly CCTV footage show the offender using one of those public phones at the same time as Mr Ciganda received a call from Bob. As I say the Crown case was an overwhelming one. 8The maximum penalty for the offence to which the offender has now pleaded guilty is twenty-five years imprisonment. It carries with it a standard non-parole period. I have taken both the maximum penalty and the standard non-parole period into account in formulating the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 9One of the things which makes this offence so serious is the very lengthy period over which it took place. Mr Ciganda's recollection as to the time was clearly based on his assessment, affected of course as it was by the terror that he was feeling and the threats to which he had been subject. But mobile phone records suggest that it was a period of more than two hours that the offender held Mr Ciganda prisoner in his own home. At times the offender threatened to kill Mr Ciganda and he backed up those threats by holding the knife to Mr Ciganda's throat. There was a significant amount of property taken and the loss to Mr Ciganda was substantial. The wound of course could have been worse but it was a significant injury requiring not just stiches but therapy as well in order that Mr Ciganda could regain use of his middle finger. Of course as Mr Marr suggests, I take into account that whilst easily foreseeable that the use of the knife would cause serious injury and a wound, the actual wound occurred when Mr Ciganda attempted to push the knife away. In that sense it was not intended by the offender. 10Quite why Mr Ciganda was targeted is difficult to understand. The evidence that I heard would suggest he was a law abiding builder. He does not appear to have been living an extravagant lifestyle, and it may well be that his premises were selected at random or through a mistake. Equally puzzling is why the offender did it. The offender did not give evidence either at trial or in the sentence proceedings, so I couldn't ask him why he did it. But somewhat surprisingly a psychologist who prepared a report at the request of the offender's solicitors did not ask him either. I am left completely in the dark as to what motivated the offender to commit this very serious crime. I am left in the dark as to whether the offender was the principal, the leading force or whether he was merely a foot soldier. 11The offender was born in Lebanon, he is now forty eight years of age. He came to Australia when he was about four or five and had some difficulties settling into a foreign country with a new language. His parents have recently returned to Lebanon. The offender went to school in Australia, stopping his education in Year 10 in order that he could work. Since that time he has held a number of jobs in various capacities including owning fruit market and coffee shop businesses. In fact the offender was running a caf at the time he committed these offences. Shortly after the offence he closed the cafe down and was working in traffic control at the time of his arrest. 12The offender has had two significant relationships. The first ended after a number of years and produced three children. The separation appears to have been acrimonious and the offender has had no contact with his children of that marriage for some time. The offender's current partner, whom he met while he ran a fruit shop, has recently given birth to a child, indeed she was heavily pregnant at the time of the trial and these sentencing proceedings were delayed and bail was granted to the offender so that he could be present at the birth of their child. The author of the presentence report reports that Mr Dell described his relationship with his present wife as mutually supportive. His wife is in court today together with their very young child. 13The presentence report says that Mr Dell claimed that he was coerced by people assumed to be involved in organised crime to commit the offences. But there was no evidence from the offender to back up that assertion. He did not expose himself to cross-examination on that claim. This is one of the reasons, as I said earlier, that I'm completely in the dark as to a number of aspects as to what led to this offence being committed. Another reason that the sentencing proceedings have been a bit delayed concerns the question of assistance to the authorities. Today I received an affidavit and annexed to that affidavit is a statement of the officer-in-charge of this matter. It concerns information given to the authorities by the offender after he pleaded guilty. He has promised to give evidence against one person whom the police believe was involved in the offence and who has been charged with it, and he has also promised to give evidence against others. On top of that, the assistance has allowed police to identify a criminal network. There was some controversy between the Crown and counsel for the offender as to the value of the assistance. Indeed there seems to have been some controversy between the Crown and the police officer as to the value of that assistance and so the police officer was called to give evidence. It may well be that in some respects what the offender has told police contradicts other evidence. But simply because that weakens the Crown case against someone does not mean that the assistance is not valuable. Assisting the authorities does not just mean making a Crown case stronger. If, in truth, the Crown case is based on a misunderstanding then it is of assistance to the authorities if the offender tells the truth and exposes the misunderstanding. 14I will not separately quantify the discount that I have allowed for assistance to the authorities from the discount that I have allowed for the very late plea of guilty. I repeat, as I have said many times now, the plea of guilty came almost at the end of the Crown case, and so the utilitarian value of that plea is very limited indeed, it saved perhaps a day or two of Court time but that is about it. 15Combining the discounts for the late plea of guilty and the assistance I will impose upon the offender a sentence which is 25 per cent less than it would otherwise have been. Of course one of the factors that is encompassed by that discount is the possibility that the offender will serve part or all of his sentence in protective custody, which carries with it the risk that his conditions of custody will be harder than those in the general prison population. Another thing that will make the offender's time in gaol harder is the circumstance that he will be deprived of being able to live with his wife and new child. His behaviour in Court has clearly suggested that this will be a matter of some significance to him. The offender will also know that through his criminal behaviour he has deprived his wife and new child of his care and support for a number of years. 16The offender has a criminal history but it is either relatively minor or old. He has certainly never served a gaol sentence before. It is a significant matter to send someone to gaol for the first time at the age of forty-eight. 17I mentioned the report of Mr Watson-Munro before. Another aspect of that report concerns the diagnosis that Mr Watson-Munro made of post-traumatic stress disorder arising from an event which occurred thirty-five years ago. The report expresses the view that that event and the subsequent effect of the event upon the offender, has been a significant aspect of his life. Mr Watson-Munro suggests that the post-traumatic stress disorder would lead to reduced judgment and impulse control. I will accept that as a general proposition but I do note that the link between committing the offence and any post-traumatic stress disorder is a bit of a matter of speculation given the lack of information that I have as to why the offender committed the offence in the first place. It may, or it may not, result from reduced judgment and impulse control. I simply do not know. Indeed Mr Watson-Munro's report suffered from being prepared with no real knowledge of what the offender actually did. The report does suffer from a lack of context. 18There are special circumstances in this case, the offender will be serving his first time in custody and will be assisted by supervision of the Probation and Parole Service upon his release. 19It is a fundamental rule in sentencing that a sentence has to reflect the objective gravity of what an offender did. What the offender did to Mr Ciganda was seriously criminal. To hold someone hog tied in their own blood while making threats to kill over a period of two hours, after having invaded that person's home with another and whilst armed with a knife is very serious criminal conduct indeed. A lengthy sentence must be imposed to reflect the objective gravity of that conduct. 20The offender is sentenced to imprisonment. Taking into account the matter on the Form 1, I set a non-parole period of four years to date from 18 October 2011, and a head sentence of six and a half years. The non-parole period will expire on 17 October 2015 upon which date the offender is eligible to be released to parole. 21I recommend that Mr Dell be placed in protection immediately and that I will ask that that be endorsed upon the warrant. ********** 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: 31 January 2012