District Court New South Wales Medium Neutral Citation: Gittany v R [2019] NSWDC 800 Hearing dates: 2 May 2019 Date of orders: 02 May 2019 Decision date: 02 May 2019 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: CRIME SENTENCE APPEAL. Intentional damage to property. Mural valued at $22,000. Mural damaged by appellant believing it to be sacrilegious. Community service for 300 hours. Appellant sentenced after pleading not guilty but being convicted. Poor criminal record. Allegation that the length of CSO was too onerous. Appeal dismissed. Category: Principal judgment Parties: Benjamin Gittany – Appellant Regina – Respondent Representation: W. Korn - Appellant S. Jaeger - Crown File Number(s): 2017/00356368 Publication restriction: Nil. Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 27 July 2018 Before: Huntsman LCM File Number(s): 2017/00356368 Judgment 1. HIS HONOUR: This is an appeal against the severity of sentence passed by Magistrate Huntsman sitting in the Downing Centre Local Court on 27 July 2018. The appellant pleaded not guilty to a charge that on 18 November 2017 at Erskineville in this State he did intentionally or recklessly damage property, namely, a mural entitled "Saint George" located at Bray Street Erskineville, the property of Paul McDermott. Her Honour convicted the appellant and imposed a Community Service Order requiring the appellant to perform 300 hours of community service. Her Honour also ordered the appellant to pay compensation to Mr Paul McDermott in the sum of $14,000 which probably represents the cost to be borne by Mr McDermott to restore the mural which was damaged by the appellant. 2. The mural was painted at the behest of Mr McDermott by an artist who advised that the value of the mural was $22,000. This property was not recklessly damaged, it was intentionally damaged. In January 2017 Mr McDermott commissioned the artist to paint a mural of the late musician, George Michael. I have been told from the Bar table that that musician was an "icon" in the gay community. The mural depicted George Michael as a Christian saint but he was carrying a bottle of amyl nitrate and a marijuana cigarette or joint. That may have been offensive to many people who are committed Christians. However, the mural was painted on the wall of Mr McDermott's terrace house which was on the corner of Bray Street and Concord Street in Erskineville. The mural was on the wall of the terrace house that faced Concord Street. Mr McDermott had been well known by Mr Michael and the owner of the mural was quite upset when it was deliberately defaced by the appellant. 3. On Saturday 18 November 2017 the appellant went to the Bunnings Warehouse at Alexandria and purchased disposable overalls, disposable gloves, two paint trays, two roller brushes on poles with extensions to 1.8 metres and a 10 litre tin of block-out paint. The paint was black designed to block out anything that was painted underneath it. Those items were purchased with cash. 4. Police were called at 3.20pm on Saturday 18 November to a report that a male was painting over the mural. A sergeant of police attended and observed the offender to be wearing a hooded white paper painting suit using a long-handled roller to paint over the mural with black paint. When the offender noticed the police approaching him he ran towards the mural, picked up the large tin of paint and threw it upwards on to the wall further defacing the mural. Police stopped the offender who was in company with another man. He was arrested and cautioned. When asked why he was at that place he replied, "To do this". He explained later to the police and bystanders that he was offended by the mural because it was sacrilegious and he felt bound by his religious convictions to do what he did. 5. In a pre-sentence report a Community Corrections officer observed this: "Mr Gittany did not dispute the commission of the offence. He said that he considered the mural offensive on a personal and religious basis. Whilst Mr Gittany appeared to justify his behaviour he acknowledged however that he could use other means to demonstrate his disapproval such as approaching the Council. Mr Gittany also presented with insight that he could learn to accept life in a cultural and religious pluralistic society with a variety of attitudes and practices." I accept that the offender now has insight into what he did and that he had no right to destroy the expression of another of that other's own sincere beliefs or values. 1. The Christian tradition requires one to obey the law of the State provided that it does not interfere with religious practice and values. In a pluralistic society such as ours everyone is entitled to their own beliefs and no one can force his or her beliefs on to another. The same applies to values. It is the law's role to protect the beliefs and values of all and by regulating relations between the citizens of the State. That is why the law prohibits people from destroying or damaging, inter alia, the property of others. 2. The offender does not have a good criminal record. In fact, for a man who is about to turn 25 years of age it is a poor criminal record. However, the offender acknowledges that he has done wrong things in the past and is seeking to rehabilitate himself. He now has his own business as a carpenter and employs four apprentices and his business appears to be thriving. He is in a stable relationship with a loving lady who has her own business. She tells me in a letter dated 4 September 2018 that the appellant works from 5am to 5pm Monday to Friday and sometimes works on the weekend, if needed. A reference from a long-term friend and current employee attests to the offender's doing well in his business and offering the long-term friend a secure and stable job which he finds extremely rewarding both financially and professionally. 3. The offender does not seek to interfere with the order for the payment of compensation to Mr McDermott. However, he does seek a reduction in the number of hours of community service because he believes the requirement to be onerous. However, if one serves seven hours of community service in a day, 300 hours of community service would be completed over 42 days, that is, within a period of a year. Even if community service were only worked for six hours a day it could be completed within 50 days in a year, that is, say, 50 Saturdays in one year. 4. The maximum penalty for this offence is two years imprisonment and/or a fine of $11,000. If the crime were to be visited with a Community Service Order or Community Corrections Order the maximum number of hours of community service would be 500 hours and 500 hours of community service is obviously not as onerous as two years imprisonment. 5. The offending was deliberate albeit that the offender was misguided in undertaking the task. It appears to be a form of religious vigilantism. The damage to a private mural is more significant than the damage, for example, to an advertising sign erected by a large corporation or in fact any business. The value of the mural was significant. I do not have her Honour's reasons before me. The appellant was not entitled to any discount on sentence. In the circumstances it appears to me that the number of hours of community service imposed was well within range and I cannot accept that the sentence imposed was in any way excessive. I have, of course, my own discretion as to what penalty ought to have been imposed but I am not persuaded that the penalty was so severe that I should exercise my discretion to interfere with the penalty imposed by the learned magistrate. The appeal is therefore dismissed. ********** Amendments 11 February 2020 - Typo corrected in catchwords. 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: 11 February 2020