Director of Public Prosecutions v Chamma
[2023] VCC 1134
•29 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-23-00394
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR CHAMMA |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2023 | |
DATE OF SENTENCE: | 29 June 2023 | |
CASE MAY BE CITED AS: | DPP v Chamma | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1134 | |
REASONS FOR SENTENCE
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Catchwords: Theft – Burglary – obtaining property by deception – handling stolen goods – Prior criminal history for theft, dishonesty offence and driving offences – clouded prospects of rehabilitation
Cases Cited: Ralph v The Queen [2022] VSCA 185
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Baxter | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Emma Turnbull Lawyers |
HIS HONOUR:
1 Mr Chamma, you have pleaded guilty to a number of dishonesty, driving, and conduct offences.
2 The circumstances of your offending were set out in the prosecution opening, which I read in open court this morning and which I have exhibited and which I incorporate by reference. The maximum penalty for each of the offences charged is set out in the opening.
Seriousness of offending
3 It is first necessary to characterise the seriousness of the offences.
4 Your offending spans a period from November 2021 until November 2022.
5 The first indictable offence occurred on 20 January 2022 when you by deception obtained the sum of $1,825 from the complainant in an informal lease transfer arrangement. You obtained the funds from the potential new tenant but failed to remit them to the landlord. Your counsel submitted that you were always likely to be discovered for this offence given that your name was known to the relevant parties.
6 On the plea, your counsel admitted that you had in fact spoken to the complainant a few days later and promised to pay the money but never did so. This was a somewhat brazen act of deception. Your moral culpability is high because you have significant prior convictions for dishonesty offences.
7 That the offending was brazen was confirmed by the assault on the complainant which took place on 7 November 2022 when by accident the two of you met at a bar, and subsequently with the assistance of another unknown offender you assaulted him in the street.
8 The complainant has been significantly affected by this offence, as set out in his victim impact statement.
9 Although the offending was brazen, and you have numerous prior convictions for dishonesty and indeed a prior conviction for armed robbery, both the quantum of the deception here and the assault are very much on the lower end of the scale.
10 The burglary and theft charges relate to a burglary on a domestic property on 26 January 2022. You attended at the property in a vehicle that had been stolen about 10 weeks earlier on 5 November 2021 from another suburb. You attended along with two co‑offenders in the middle of the afternoon. The co‑offenders are yet to be dealt with. There must have been some planning in this event in that you attended as a passenger in the vehicle with two co‑offenders. Further, after you and another co‑offender broke into the property through the garage and through a door and stole some items, the three of you returned to the property a short time later and stole numerous items of hand tools, designer clothing, and high‑end jewellery with a total value of $134,765.
11 Police executed a warrant at your home on 24 February 2022, and one of the items, a handbag, was found there and returned to the complainant. Some of the other items have been found in the houses of your co‑offenders.
12 Your moral culpability for these offences must be seen as high. As I have indicated, you have numerous prior convictions for dishonesty offences. You attended in company. You forced entry into the property and were in a stolen vehicle. The quantum of the value of the goods stolen was high, and being clothing and jewellery they have a high sentimental value. The seriousness of this offending was confirmed in the decision of the Court of Appeal in the matter of Ralph v The Queen [2022] VSCA 185, which was brought to my attention by your counsel.
13 The final charges relate to an event on 1 November 2022. In a callous act, you stole a motorbike that had just been crashed by its rider. You were driving at the time in a vehicle with false number plates, and you were disqualified from driving. After you had got on the bike, you were pursued by the police and refused to stop. You were driving on the footpath and not wearing a helmet. As you sought to evade the police, you ran into a residential property, seeking to escape, and that gave rise to the unlawfully on premises charge. At the time, you were on bail with a curfew condition and a non‑driving condition.
14 You bear high moral culpability for this offending given your numerous prior convictions for dishonesty, stealing cars, for driving whilst disqualified or unlicensed and had a direct prior conviction for dangerous driving while being pursued by police.
15 You refused to provide the police with a PIN on your phone. On the plea, your counsel submitted that you prioritised your privacy in refusing to provide that information to police. I regard this as a very weak and unconvincing explanation.
16 The offending on 1 November, however, was over a short compass, was opportunistic, but is of moderate seriousness given your prior convictions.
17 Overall, this spate of offending commenced with you seeking to deceive a person over the transfer of a residential lease, then being in a car that had been stolen in November 2021, attending the domestic burglary on Australia Day on 26 January 2022 and then being placed on bail on 24 February. Notwithstanding that you were on bail for that offending, you then proceeded to opportunistically steal the motorbike on 1 November.
Prior convictions
18 I turn to your prior convictions.
19 You are aged 33 and turn 34 in July. Your criminal record is extensive and runs to 33 pages, commencing when you were 19, when you were dealt with for cannabis offences, driving whilst disqualified, and deception offences. You were placed on a community corrections order.
20 Subsequent to that, you have numerous convictions for theft and theft of motor vehicles and driving offences. You have been placed on a number of community corrections orders and brought back before the courts for breaching those orders. You have also breached the suspended sentence.
21 You were first sentenced to imprisonment in April 2009. Subsequently to that, you have received a number of sentences for driving offences. You were sentenced to a total sentence of three years' imprisonment with a non‑parole period of 16 months for armed robbery and false imprisonment by Judge Montgomery on 8 June 2012. Subsequent to that, you were dealt with in October 2015 for numerous driving offences and dishonesty offences and placed on a community corrections order. You contravened that order and were sentenced to four months' imprisonment for that and other offending.
22 In September 2017, on charges of dangerous driving while being pursued by police, theft, and theft of a motor vehicle, you were sentenced to a total effective sentence of two years and 10 months' imprisonment with a non‑parole period of 12 months. You appealed that to the County Court, and a sentence of one year and nine months with a non‑parole period of 12 months was substituted.
23 On 10 October 2019, you were sentenced to 15 days for offences of theft and driving whilst disqualified and unlawful possession.
24 You were before this court on 10 March 2020 on charges of theft and contravening a conduct condition. You were sentenced by Judge Doyle to 240 days' imprisonment.
25 Your criminal record speaks for itself, but it is clear that, notwithstanding a number of sentences, you continued to reoffend, and that is all relevant to your moral culpability for these offences.
Personal circumstances
26 I turn to your personal circumstances, which were set out in the plea submission by your counsel, Mr Miller. As indicated, you are 33. You reached Year 10 at school. You have four brothers and sisters. Your father died in 2013. You have worked as a hairdresser, in the auto parts industry, and most recently in demolition. In the two‑year period prior to COVID, you worked in demolition. The pandemic caused disruption to your employment, and you returned to the use of drugs. You had commenced using methamphetamine in 2016, after you were attacked upon leaving prison. You unsuccessfully tried to balance the interests of your work and family and the use of drugs but then got involved with a negative peer group. You sought help for your drug addiction during the COVID pandemic but were unable to access any programs.
27 Your explanation for your offending is the use of drugs and the need to obtain money.
28 Your counsel put that you had previously successfully completed a parole period. Your counsel put that you had used your time in custody productively, but because of disruption to programs you have been unable to get into a drug course. You maintain a relationship with a young lady who visits you regularly in prison, and you have the continuing support of your mother.
Sentencing submissions
29 The prosecution accepted that your plea of guilty was an early plea. The matter resulted at a committal case conference on 10 March 2023.
30 You have facilitated the course of justice, and you are entitled to a perceptible amelioration of sentence for a plea entered in the pandemic environment. The pandemic environment also makes prison more burdensome due to more limited movement and less programs available, although those factors are diminishing by the day.
31 The burglary in this case was particularly serious given the forced entry, your prior record, the total quantum of goods stolen, and that you were in company.
32 In terms of your prospects of rehabilitation, your counsel submitted that you are not without hope. At best, I regard your prospects as clouded. You have spent considerable periods in prison and reoffended upon release. You obviously need a period in prison which has the effect of breaking ties with your drug‑using associates and a drying out period as well as access to appropriate drug programs in prison.
Purposes of sentencing
33 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
34 In sentencing for this offending, the learned prosecutor emphasised the need for general deterrence, specific deterrence, and protection of the community.
35 Your counsel did not dispute these sentencing considerations. He emphasised, however, that considerations of totality are important. No comparable cases were specifically referred to, although your counsel did refer to the case of Ralph, where the Court of Appeal emphasised the seriousness of the offence of domestic burglary.
36 Here, this was a serious offence given the forced entry. The theft of items of personal property, such as dresses, high‑end jewellery and accessories, must have had a major impact on the complainant, although no victim impact statement was tendered. Your offending certainly had an impact on the complainant in the real estate tenancy transfer, and the impact of the offending on the complainants must be taken into account. Although no victim impact statement was tendered by the owner of the motorbike or the Kia vehicle that was stolen in November 2021, this would also have had an impact on both of them, although both vehicles have been returned.
37 In sentencing you, I have taken into account all the submissions made on your behalf. You are very much at a fork in the road in your life given your age. On one view, your offending has slowed up until the offending in January 2022, and I note that the offending in November 2022 was opportunistic. Further, as your counsel has emphasised, you have had a significant period of employment in recent time that was stopped by the pandemic.
38 I must, however, give some emphasis to the protection of the community as well as the needs for general deterrence and specific deterrence and denunciation. People are entitled to security of their home and personal property, not come home and find the place has been burgled and all their personal items have been cleaned out, which is what happened exactly to the owner of the house out in Point Cook.
39 In relation to your driving offences, you must understand that when you are disqualified from driving you must cease driving, and not just ignore whatever orders are made by magistrates about your driving status. You have multiple prior convictions for driving and unlicensed driving. Overall, a signal has got to be sent to you personally that you have got to stop thieving and obtaining property by deception, stealing cars, stealing items. It is your first conviction of burglary, but you have got a major list of prior convictions, and then of course you have got all these driving offences, so you have got to learn that every time you reoffend you will be sent to prison for longer and longer. But I have taken into account the requirement to give you an amelioration of sentence because the plea has occurred in the COVID environment, and indeed a number of the offences occurred when the community is still going through the effects of the pandemic.
40 The sentence of the court is as follows. Could you please stand.
Sentencing
41 On the charge of burglary, you are sentenced to two years imprisonment. That is the base sentence. On the charge of theft, which is the theft of all the items in the property at Point Cook, you are sentenced to two years' imprisonment. On the charge of theft of a motor vehicle, you are sentence to six months' imprisonment. On the summary charge of failing to comply with a direction to give your PIN, you are sentenced to one month's imprisonment. On the offending against Mr Cervantes of obtaining property by deception and unlawful assault, you are sentenced to an aggregate sentence of one month's imprisonment.
42 On the offences in November 2022, on the charge of theft of the motorbike, you are sentenced to six months' imprisonment. On the offence of handling stolen goods, being the plates, you are sentenced to seven days' imprisonment. On the offence of committing an indictable offence whilst on bail, you are sentenced to seven days' imprisonment. On the summary charge of contravening a conduct condition of bail, you are sentenced to seven days' imprisonment. On the summary charge of driving a motor vehicle when directed to stop, you are sentenced to seven days' imprisonment. On the summary charge of driving whilst disqualified, you are sentenced to six months' imprisonment. On the summary charge of failing to wear a motorbike helmet, you are convicted and discharged. On the summary charge of driving on the footpath, you are convicted and discharged. On the summary charge of entering a private property without authority, you are sentenced to seven days' imprisonment.
43 The sentence of burglary is the base sentence. I order that four months of the sentence on the Charge 2 of theft be served cumulatively on the base sentence. I order that two months of the charge of theft of the motor vehicle be served cumulatively on the four months and on the base sentence. I order that the whole of the aggregate sentence of one month be served cumulatively on the earlier sentences. On the charge of theft of the motorbike, I order that be served cumulatively on the other sentences. On the summary charge of driving whilst disqualified, I order that two months of that sentence be served cumulatively on the other sentences. All other sentences are concurrent, and that makes a total effective sentence of two years and 10 months. I order that you serve a minimum period of one year and 10 months before being eligible for parole. I declare that you have served 234 days' PSD. I declare that had you not pleaded guilty I would have imposed a total effective sentence of four years and three months' imprisonment with a non‑parole period of three years.
44 In relation to your licences, the driver's licence, on the charge of theft of a motor vehicle, Charge 4 and Charge 6, all licences you hold are cancelled, and you are disqualified for a period of 12 months. On the charge of driving a vehicle when directed to stop, all licences are cancelled, and you are disqualified for a period of six months. On the charge of driving whilst disqualified, all licences are cancelled, and you are disqualified for a period of 12 months. So the effective licence cancellation period is a period of 12 months.
45 All I can finally say to you, Mr Chamma, is that you are getting too old to be in prison system. You are turning 34. You have spent a lot of time in jail up to date. When you get out after this sentence, you have got to make the best of it and move on with your life. You have got a life expectancy of probably 50 more years, and in and out of jail is a waste of time. But remember, you are disqualified from driving when you get out, or you will not have a licence, and you will have to get yourself relicensed before you get back in a motor vehicle. You have got to remember that personal property is property and it is not for you to appropriate, whether it be cars, other items or chattels, and you are not entitled to go into people's houses with other people just to get money and items for drugs.
46 I want to thank counsel for their assistance in this matter, and adjourn the court sine die.
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