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 1. 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. 2. 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. 3. 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?" 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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." 1. 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. 2. 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. 3. 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.