R v Kettule [2015] NSWDC 202

District Court New South Wales

Medium Neutral Citation: R v Kettule [2015] NSWDC 202 Decision date: 14 May 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Sentenced to 2 years imprisonment, wholly suspended under s 12 Crimes (Sentencing Procedure) Act 1999 (NSW). Catchwords: CRIMINAL LAW – Sentence – particular offences – break, enter and commit serious indictable offence in company – gravity of offence – lower end of range of objective seriousness – significantly limited culpability compared to co-offenders – relevant factors – prior criminality – significant criminal record – offence committed whilst on conditional liberty – rehabilitation during pre-sentence period – strong family support and personal change – parity between co-offenders – explanation provided for late plea of guilty – 40% combined discount – full time custody may nullify rehabilitation already achieved – suspended sentence Legislation Cited: Crimes Act 1900 (NSW), s 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 12, 23, 98 Cases Cited: Mill v The Queen (1988) 166 CLR 59 R v Borkowski (2009)195 A Crim R 1 R v Todd [1982] 2 NSWLR 517 Category: Sentence Parties: Regina (Crown) Amar Kettule (offender) Representation: Counsel: G James QC and E James (offender)

Solicitors: C Bridge, Office of the Director of Public Prosecutions (NSW) (Crown) Z Khatiz, Oxford Lawyers (offender) File Number(s): 2011/00392763

Judgment 1. When a security guard, as part of his job, responded to a call to the commercial premises he was responsible for on the night of Sunday 4 December 2011, he found the chain securing the property had been cut through with bolt cutters. He saw a car parked in the driveway. No one was supposed to be there. Wisely he asked his headquarters to contact the police. Bravely he got out of his own car and approached the car, which was by that stage moving towards him. A man approached him and said "Reverse the car or I will fucking kill ya." He was then told to get into his car and get of there, which sensibly he did. The other car drove away. 2. The police were quick on the scene and they stopped the car. There were four men inside. There were also items which were from the premises that had been broken into. The police arrested all four men. 3. One of the men they arrested was Amar Kettule. I am sentencing him this afternoon. The three other men have already been sentenced. Two of them were sentenced by his Honour Judge Norrish QC on 15 November 2012. The fourth man was sentenced on 14 March 2014 in the Local Court. To a criminal lawyer those circumstances mean that the principle of parity in sentencing looms large. That means that - all other things being equal - like offenders should be alike. 4. Before dealing with that, I should record that the offence each man was charged with is break and enter and commit a serious indictable offence in circumstances of aggravation. The circumstances of aggravation were that they were in company at the time. That is an offence against s 112(2) of the Crimes Act 1900 (NSW). Parliament obviously regards it as a serious offence because it has fixed a maximum of 20 years imprisonment to the crime. Not only that, it has fixed a standard non-parole period of five years to the crime. If I have not already done so, I formally convict Amar Kettule of that offence. 5. It is important in sentencing an offender to record not only what happened, which I have briefly described, but to record personal information about the offender. Both are relevant to the sentencing judge. What happened and the role of the offender the judge is sentencing is important. Some activity can be a more or less serious example of the same crime. In other words, one offender may be more involved in the committing of the same crime than another offender. That will become relevant in this case. Personal information extends not only to an offender's background and personal circumstances but also to their criminal record. 6. In this case, Mr Kettule already has a significant criminal record. He has lots of convictions for traffic offences but, significantly, also a conviction for supplying a commercial quantity of a prohibited drug. For that he received a custodial sentence of two years and nine months. Not only that, he has a conviction for a specially aggravated commit serious indictable offence and break out with a weapon. For that offence he also received a prison sentence of two years and nine months. He also was convicted of driving recklessly a few months before committing the offence that I am sentencing him for. The magistrate sentenced him to four months imprisonment for that offence but on appeal to this court he received a good behaviour bond. Significantly, the offence that I am sentencing him for - which as I have said, occurred on 4 December 2011 - happened about a week after he had received a good behaviour bond from the District Court on appeal from the gaol sentence imposed by the magistrate. 7. That brings me to another circumstance about Mr Kettule and his behaviour. When he committed this offence on 4 December 2011, not only was he under the good behaviour bond imposed by the District Court a week earlier but he was still on parole for the two more serious offences that he received the prison sentences for. I mention those two factors - namely his criminal record and the fact that he was on conditional liberty when he committed this crime - because the sentencing law provides that those two factors are aggravating factors to be taken into account in determining the appropriate sentence. I should add that after he was arrested he spent a day in custody but a week or so later, the parole he was serving was revoked and he spent a good amount of time in custody at the end of 2011 and in 2012 serving out the balance of his parole which he had breached. 8. On the personal side, Mr Kettule is now 28. So he is still a relatively young man. He pleaded guilty to this offence in circumstances that I will return to. He was born in Iraq and moved to New Zealand in 1994, migrating to Sydney with his family in 2001. His parents have medical conditions, including post‑traumatic stress disorder suffered by his father and diabetes suffered by his mother. A significant and tragic event in the family's history occurred on 26 January 2014 when Mr Kettule's brother was murdered. A forensic psychologist whom Mr Kettule saw for the purposes of an assessment and it seems, for treatment, Mr Stephen Woods, diagnosed Mr Kettule with a number of conditions, including a persistent complex bereavement disorder and post‑traumatic stress disorder. He had what the psychologist described as 'survivor guilt.' Mr Woods provided a report dated 1 October 2014. Mr Woods also noted a history of drug use and drug dependency which Mr Woods noted was in remission. He also noted an earlier binge drinking alcohol disorder also in remission. Mr Woods recommended that Mr Kettule undertake a structured treatment regime and attached to his report a plan. In a more recent report dated 7 May 2015, Mr Woods regrettably said little about the treatment but expressed the opinion that based on "Mr Kettule's current mental state and stable circumstances I am of the opinion that he does not require further treatment or monitoring by a clinician." 9. The crime was committed some years ago now and part of Mr Kettule's case in mitigation is to point to progress he has made over that period of time. For some time he has been assisting in a family hospitality business and managing that facility, but more recently has set up his own mechanical and electrical repair business for motor vehicles. Exhibit 2 comprises the documents which are relevant to that business. A presentence report prepared on 1 December last year noted that Mr Kettule "has the benefit of a positive and supportive family network and employment background. It would appear the offender's association was a significant factor in contributing to his offending behaviour." The report confirmed the personal circumstances which I have referred to about Mr Kettule. 10. The reference to Mr Kettule's 'offending behaviour' reminds me that I need to say something about that. As I said earlier, an important question is the role that a particular offender played in the offence. In this case there were four criminals involved in the same crime. The case made out by senior counsel for Mr Kettule, Mr Greg James QC, emphasises the reduced role which his client had in this particular crime compared to one or two of the others. Mr James QC's submissions are borne out by the evidence. There is no evidence in the prosecution case against Mr Kettule that he was the person who uttered the threat to the security guard that night. The car being used by the offenders did not belong to Mr Kettule, nor did a trailer which was attached to the car. One or two of the other offenders were involved in the scrap metal industry and the items which had been stolen from the premises were relevant to their business. Mr James submitted, and I accept, that the "circumstances of this offender's conduct show a significantly limited culpability when compared to his co-offenders." 11. Mr Kettule's account is that he was getting a lift with these men to his then girlfriend's place. He did not know when he joined the car that their intention was to commit the crime. His error was in doing nothing but going along when it became apparent what the other offenders were doing. Mr James QC called his client to give evidence on the first occasion before me and his client's verified evidence supports that. Mr Kettule has the benefit of the principles of criminal law which provide that in sentencing a person, the judge cannot take into account anything which might aggravate the offence unless the judge is satisfied beyond reasonable doubt. There are a number of factors which ,to my mind, would suggest that Mr Kettule's involvement in this offence were not as innocent as he claims. It would surprise me that an offender such as Mr Kettule with his criminal record which included this kind of crime and being on parole and a good behaviour bond found himself innocently mixed up with the wrong crowd. Not only that, the reference from his then girlfriend whom he was visiting says this - "It is my understanding that on the night of his arrest Amar and I had made plans to see each other, he had organised to get dropped off to my house located in Croydon Park by a few of his friends. Unfortunately, Amar never showed." I note she put it no higher than her "understanding." 1. Nevertheless, the other evidence pointed to by Mr James of his client not owning the vehicles, nor being involved in the activity and the confirmation by his then partner that she expected his visit mean that I am not satisfied beyond reasonable doubt that his involvement in this crime was any greater than that submitted on his behalf by Mr James QC. That is a significant finding because it will become very relevant shortly when I come to consider the question of parity in sentencing between him and the other offenders. 2. In their helpful written submissions Mr James QC, his junior counsel Mr Evan James and his solicitor Mr Zemarai Khatiz fairly acknowledge the aggravating factors which apply to their client - his previous convictions and the fact that he was on conditional liberty - but they also point out that some of the aggravating factors which might at first glance seem to be relevant do not apply in this case. I accept the submission set out by them over pp 3 and 4 of their written submissions which are contained in exhibit 1. In addition, they point to factors which they argue are mitigating factors. I accept that Mr Kettule has demonstrated his remorse. I am disinclined to conclude that he is unlikely to reoffend. I am hoping that the progress he has made in the last few years will mean that he does not reoffend but it would be unrealistic for a judge to regard a person with Mr Kettule's criminal record and who has committed a further crime whilst on conditional liberty to be "unlikely to reoffend." I think Mr Kettule's prospects of rehabilitation are reasonable. He has stayed out of trouble for some years and appears to have changed his life in the right direction. Again, I am hoping that the change will be permanent. 3. I should add here that Mr James also pointed out that so far as the offence itself was concerned the stolen items were returned to their owners. Their value, relatively speaking, was not very high. Mr Kettule had offered to pay compensation but that offer was not taken up. 4. I turn now to the question of parity. As I said, Judge Norrish QC sentenced two of Mr Kettule's co-offenders, a Mr Choban and a Mr Erarslan. On Mr Choban his Honour imposed a sentence of three years imprisonment and fixed a non-parole period of one and a half years. In respect of Mr Erarslan his Honour imposed a sentence of 22 months which his Honour then suspended. Mr Erarslan drove the car that the men were in and was also engaged in the business which was relevant to what was stolen. However, Judge Norrish QC found that Mr Erarslan was "less involved than that of the other three offenders." In fact, I have erroneously said that he was involved in the business concerning what they were stealing. That is not the case. His Honour found that Mr Erarslan "had no prior connection with the scrap metal business." He thought that he had become somewhat unwittingly involved in the criminal enterprise. His Honour found that Mr Erarslan "has no relevant criminal history." 5. His Honour went on to find, speaking of Mr Choban and Mr Erarslan, that whilst they were "involved in a joint criminal enterprise, they are not equally morally culpable for the crime that they have admitted to." His Honour found, regarding Mr Choban, that he "took a leading role in the commission of the offence." Mr Choban had a criminal record but had not served any time in gaol. There were a number of drug related possession offences and other offences dealt with in the Local Court. This was his first serious offence. It is relevant also to observe his Honour's finding that the criminality of the overall offending was "below that of the midrange of criminality for offences of this type." His Honour acknowledged that the value of the stolen goods being $5,000 whilst "not insubstantial, in the scheme of offences involving commercial break‑ins I have seen over the years, was relatively modest." Mr Choban did have a business interest in the items which were stolen. 6. The fourth offender is a Mr Romel who was dealt with not by the Local Court as I had earlier said, but in this Court. Mr Romel received a prison sentence of two years which was also suspended. The remarks on sentence are not available. 7. Mr James QC focussed on the sentence which had been imposed on Mr Choban. His focus was well placed. Mr James QC pointed out that his client had a significantly less significant role in the crime than Mr Choban. He also pointed out correctly that Mr Kettule had demonstrated a lot more towards his rehabilitation than had Mr Choban. In fact, Judge Norrish QC found Mr Choban an unacceptable witness. On the other hand, Mr Kettule's criminal record is worse than Mr Choban's, although Judge Norrish did describe Mr Choban's record, which I have referred to, as one "of some length." Mr Choban was not on conditional liberty, unlike Mr Kettule. His Honour fixed four years imprisonment as the starting point for Mr Choban's sentence. 8. Mr James' argument was that his client's sentence should be somewhat less than that. In my opinion Mr James has made out his case. Relevant in particular are three things. One is the overall assessment of the crime as being towards the lower end of objective seriousness. Second is the acknowledged less significant role in the commission of the offence of Mr Kettule. Third is Mr Kettule's stronger subjective or personal case so far as his efforts at rehabilitation are concerned. 9. I would regard an appropriate starting point for Mr Kettule's sentence as being one of three years and six months. In other words, the factors that I have referred to would result in a commencing assessment for a sentence some six months below that of Mr Choban's. 10. Mr Choban had pleaded guilty at the earliest available opportunity and received for that a 25% discount in accordance with legal principle. Mr Kettule did not plead guilty at the earliest available opportunity. In fact he pleaded guilty on the occasion that the trial was listed for the fifth time. But again, Mr James QC took me through the history of the other listings. On one occasion it appeared that there was a conflict of interest so far as Mr Kettule's representation was concerned resulting in the hearing date being vacated. On a second occasion, what was described as a medical issue - apparently Mr Kettule was assaulted and wounded - meant that he could not face his trial. On another occasion, his brother had been tragically murdered close to the time of the trial. 11. Mr James QCs point was twofold. First, although the prosecution was not responsible for the adjournments they were events that occurred rather than initiated by his client. There is some force in that submission. The second point he made is that his client had used the intervening time to rehabilitate himself to a significant degree. I accept that submission as well. 12. Indeed, relevant to this case are the factors referred to, as Mr James QC pointed out, in R v Todd [1982] 2 NSWLR 517 (at 519-520). These principles were adopted by the High Court of Australia in Mill v The Queen (1988) 166 CLR 59 at 64 ff. There has been a delay of some years in the sentencing proceedings in this case. The reason for the delay was connected with the offender but was not initiated by him. The High Court extracted, with approval, a passage from the judgment of Street CJ in Todd where his Honour had said at 519-520 - "[W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence…" In the High Court their Honours acknowledged that these considerations not only apply to the fixing of a non-parole period, but also to the fixing of a head sentence. I gave weight to that factor, as well, in determining that an initial head sentence would be three years and six months for Mr Kettule. 1. Mr Kettule, however, does not get the same benefit of the early plea entered by Mr Choban. As Howie J said in R v Borkowski (2009)195 A Crim R 1, with the specific agreement of McClellan CJ at CL, at 10 ([32]) - "The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount." His Honour observed at the same paragraph that, generally speaking, "the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced." 1. In this case, however, there is an additional factor. The additional factor is the subject of confidential exhibit D. I have read that exhibit and taken it into account. I will ask my associate to seal that document and I have marked that it not be opened except by a District Court judge or a judge of a higher jurisdiction. Mr James submitted that his client should receive a combined discount, for his plea of guilty and under s 23 of the Crimes (Sentencing Procedure) Act 1999, of some 40%. Mr C Bridge who appeared for the Director of Public Prosecutions and whose submissions, I might add, were also very helpful, did not disagree with that assessment. To my mind that is a fair assessment for a joint discount, a combined discount in this case. I would therefore discount the initial sentence of three years and six months by 40% which produces a sentence of just over 25 months. I would be prepared to round that down to 24 months or two years imprisonment. 2. Mr James QC placed reliance on s 5 of the Crimes (Sentencing Procedure) Act which provides that a Court "must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." He argued that I should either suspend the sentence or direct that his client be assessed for an intensive corrections order. I propose to adopt one of those alternatives. 3. My reasons are that I accept the written submissions made on behalf of Mr Kettule to the effect that a sentence of full‑time custody "may nullify rehabilitation already achieved." This is a case where the offender has used very well the time during which he has been waiting for his sentence to be imposed. Evidence suggests that he is not associating with people that might lead him to crime and, on the contrary, is engaged in the family business and in setting up his own business. 4. I am hopeful that his rehabilitation will continue and that he will no longer need to appear before the criminal courts. As I said, I am realistic and experienced enough to know that that may not be realised but I am prepared to give Mr Kettule the benefit of the doubt and I think a case has been made out for him to serve his two year sentence other than in full-time custody. 5. ​I have heard helpful submissions from Mr C Bridge who is prosecuting and Mr Z Khatiz who is appearing today for Mr Kettule. I propose to suspend the sentence in a moment. My reasons are those outlined by legal representatives. I think Mr Khatiz is right in pointing to the efforts of his client in rehabilitating himself with working in the family business at weekends and in his own business during the week. Those are impressive steps towards rehabilitation. I would not want to frustrate that progress by imposing limitations on his lifestyle, especially working lifestyle, which would limit him. I acknowledge also, as Mr Bridge says, that an intensive correction order would be a more demanding form of sentence for Mr Kettule and perhaps one that arguably should be imposed. But I am not going to for the reasons that Mr Khatiz pointed out about his client's work but also for the reason that Mr Bridge pointed out, that it means that I can monitor Mr Kettule progress over the next two years. HIS HONOUR: If you would stand up, Mr Kettule, I am going to sentence you now. 1. For the offence of break, enter and commit a serious indictable offence in circumstances of aggravation I sentence you to two years imprisonment under s 12 of the Crimes (Sentencing Procedure) Act 1999. I make an order suspending the execution of the whole of the sentence for the whole of the period, and I direct that you be released from custody on condition that you enter into a good behaviour bond for two years. 1. ​The conditions of the bond are: 1. That he be of good behaviour for that period. 2. That he notify the Registrar of this Court of any change in his residential address. 3. That he attend Court if he receives a notice to do so. HIS HONOUR: Mr Kettule, you've listened to me for the last hour or more, and you've heard what I've said. I've got my reservations but you've got the benefit of the principles of the law and I'm hoping that the case that's been made out for you by Mr James is going to be seen through by you and you're just going to now get on with your life, with your family and with your business, your relationship - I didn't mention that, Mr Woods mentioned that - your new relationship but it's entirely up to you. A few things have to be clear, one is you've got a gaol sentence of two years, all right. Two, it's suspended for two years. Three, that with Mr Khatiz you will have to go to the Registry now, sign a good behaviour bond, stay out of trouble for two years. If you change your address you let them know at the Court here. And three, if you get a notice in the mail saying you've got to turn up, you turn up, you don't have the Sheriff chasing after you. The most important thing which Mr Khatiz will remind you of, and you may know from your own knowledge, is a s 12 bond is not like an ordinary good behaviour bond. If you break that, even a drink driving offence or a fight or something like that, the law makes it very hard for me not to send you to gaol. I've pretty well got to send you to gaol. That's why Mr James has emphasised the 'it's in your hands' and Mr Bridge has done the same and I imagine Mr Khatiz will. What you do over the next two years will determine whether you stay out of gaol or not. If you continue to do what you have been doing for the last few years - which is commendable, and I congratulate you - then you won't have to see me again. If I do get a report, you will be in before me and as said, my hands are very much tied. Do you understand all that? OFFENDER: Yes, your Honour. HIS HONOUR: Keep up the good work and good luck. OFFENDER: Thank you your Honour. HIS HONOUR: You can come out of the dock and join your family. Anything else Mr Khatiz and Mr Bridge? BRIDGE: The only other thing your Honour, is in terms of the original bond, if that's been officially called up, I know you had facts and stuff and I know you've referred to it. I just wonder as a formality whether or not it should be marked as no further action perhaps? HIS HONOUR: Which bond is that? BRIDGE: The bond for the driving offence. HIS HONOUR: Which he got from the District Court. I will do that. BRIDGE: Given it's now expired and given you've just imposed - I know I handed up facts on a previous occasion, you certainly referred to it in your sentencing remarks. I don't know whether you need any formal paperwork, I think there's puzzling looks coming from-- 1. In respect of the good behaviour bond imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 on 28 November 2011, under s 98 of that Act I am satisfied the offender has failed to comply with the good behaviour condition of the bond and under s 98(2) I decide to take no action with respect to the failure to comply. HIS HONOUR: Does that deal with it? BRIDGE: That's fine, thank you very much. HIS HONOUR: Anything else, Mr Bridge? BRIDGE: No, thank you. HIS HONOUR: Mr Khatiz? KHATIZ: No, your Honour.