Director of Public Prosecutions v Kachami

[2020] VCC 1849

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00971

DIRECTOR OF PUBLIC PROSECUTIONS

v

KARL KACHAMI

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2020
DATE OF SENTENCE:	23 November 2020
CASE MAY BE CITED AS:	DPP v Kachami
MEDIUM NEUTRAL CITATION:	[2020] VCC 1849

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:            Aggravated burglary - theft - possess unregistered general category handgun

Legislation Cited:     Firearms Act 1996, Sentencing Act 1991

Cases Cited:

Sentence:4 years’ imprisonment, 2 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr B. Sonnet Ms P. Thorp	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr P. Dunn Q.C. with Mr J. Taaffe Mr J. Taaffe	Doogue + George Defence Lawyers

HIS HONOUR: 

1Karl Kachami, you have pleaded guilty to one charge of aggravated burglary, one charge of theft and one charge of being in possession of an unregistered general category handgun. 

-    Aggravated burglary carries a maximum penalty of 25 years' imprisonment.  

-    Theft carries a maximum penalty of 10 years' imprisonment.

-    Being in possession of an unregistered general category handgun carries a maximum penalty of 7 years' imprisonment or 600 penalty units.

2You were born on 14 March 1972 and are currently 48 years old, and you were that age at the time of the offending earlier this year. 

3You have no prior criminal history. 

4The offending comprises a series of events involving a staged armed robbery committed at approximately 9.30 am on Monday, 27 April 2020 when your co-accused, Daniel Ede, was employed at the time by the target of the offending, the ‘Melbourne Gold Company’, located in an office in a building on the corner of Elizabeth and Collins Streets in Melbourne.

The chronology and circumstances of the offending are as follows. 

5On 19 April 2020, you went to Bunnings Warehouse in Hawthorn and bought Velcro strips and adhesive. 

6On 24 April 2020, a large delivery of gold bullion worth approximately $2.3 - $2.4 million was delivered to the business Melbourne Gold Company.  Your co-accused, Daniel Ede, was employed as a manager of that business. 

7At about 9.41 am you entered ‘Total Tools’ in Preston and bought a Milwaukee vertical toolbox and a Stanley toolbox. 

8On 25 April 2020 you went to Bunnings Warehouse in Hawthorn and purchased fluoro green paint and black spray paint. 

9At about 10.33 am on 26 April 2020, closed circuit television captured your partner Danqi Shi being dropped off up the road from Budget Car Rentals in Camberwell.  She went into the business by herself and hired out a white 2019 dual cab Holden Colorado, registration 1QH 8KX.  She paid cash and the agreement was to return the car by 1 pm on 28 April 2020.  Danqi Shi put down her Hawthorn East address on the rental agreement. 

10At about 1.52 pm, you purchased a pair of safety glasses from Bunnings Warehouse in Hawthorn. 

11Between 4 pm on 26 April 2020 and 8 am on 27 April 2020, a Toyota Corolla belonging to Kim Anderson was parked in Myrniong Street, Glen Iris.  The registration plates for that car – 1OG 9KV - were stolen. 

12Between 6 pm on 26 April 2020 and 8 am on 27 April 2020, a single cab Holden Colorado ute was parked outside the home of Michael Blanch in Camberwell.  Mr Blanch had hired the car from Kevin Dennis Motors in Braybrook. 

13An unknown offender or offenders removed the registration plates - 1PS 5GL - from the front and back of the car belonging to Mr Blanch.  The plates were replaced with registration plates 1OG 9KV belonging to Ms Anderson using Velcro to attach them to the car.  Accordingly, plates 1PS 5GL were now in the possession of whoever stole those plates.

14At about 9.09 am on 27 April 2020, closed circuit television footage from ‘Safe City Cameras’ captured you driving the Holden Colorado which had been hired out by Ms Shi the day before into the Melbourne CBD.  You parked outside 271 Collins Street.  The Holden Colorado had the registration plates 1PS 5GL attached (the plates “belonging” to Mr Blanch). 

15You then drove away and parked outside 358 Collins Street.  You took a trolley and a toolbox from the Colorado and walked towards Melbourne Gold Company at 227 Collins Street.  At about 9.23 am you were captured on CCTV from an ANZ outlet walking in that direction. 

16On the morning of 27 April 2020 Daniel Ede was working at the Melbourne Gold Company business premises. 

17For the avoidance of doubt, the prosecution case is that you and your co-accused had planned to “stage” an armed robbery at Melbourne Gold Company.  That is, the two of you formed a plan that you would attend the premises armed with a weapon so that this “staged” armed robbery could occur and you could both obtain stolen property.

18To be more specific, the charges of aggravated burglary and theft against you are put on the basis that you and your co-accused planned that you would enter the premises with intent to steal, armed with a firearm, and that you would then steal the property from within.  You committed the offences pursuant to that plan.  Your co-accused “played his part” in this staged armed robbery in accordance with that plan.

19Ede was working behind a front counter at Melbourne Gold Company that morning.  At about 9.27 am he received a call to his mobile phone and pressed the front door alarm panel, disarming the front door. 

20About 9.30 am you entered 227 Collins Street.  You were wearing an orange high-visibility vest with the motif “WorkPac” imprinted on the rear, a blue round brim hat, the safety glasses you had purchased the day before, a surgical mask, dark blue pants and black lace-up shoes.  The trolley you were pushing had the word “VIC” painted on the front of it in fluorescent green paint.  The prosecution asserts that you were using the toolbox which you had bought on 24 April and that you or another had modified it with the spray paint that you had bought on 25 April 2020. 

21You got into a lift and pushed the button to level 7. 

22You wheeled the trolley to the entrance of Melbourne Gold Company and pressed a doorbell to enter the suite.  Ede disarmed the door and let you into a waiting area.  Ede then opened an internal door letting you into the internal area.

23Ede proceeded back into a kitchen space and you followed him. You removed a black handgun from the inside of the front of your jacket while Ede turned around. The handgun was a ‘General Category’ handgun as per s.3 of the Firearms Act 1996 and it was not registered. You and Ede were at this stage feigning that what was occurring was a genuine armed holdup, aware that closed circuit television cameras were recording your movements. You placed the handgun back inside the front of your jacket whilst following Ede.

24Ede later gave a statement to police purporting to give an account of what was said and done.  His account (whether true or not) was that at this stage you said, “this is a robbery” and “where's the modem” or words to that effect. 

25Ede moved into a room where a safe was located as well as the modem and hard drive for the closed circuit television cameras.  According to Ede's statement you directed him to turn off the modem. 

26Closed circuit television captured Ede getting onto a desk to disconnect the CCTV; however, the hard drive had backup power and the CCTV continued to record.  Ede stretched out his arms and made a signalling gesture with his right hand - the prosecution asserts that this was to signal you to take the gun out of your jacket, which you did.

27Ede opened an unlocked safe and removed property belonging to the business’ customers, which he placed into a container on the trolley.  These were items that the customers had placed on loan to the company and included property such as jewellery and watches.  He emptied the safe.  You removed a black bag from the trolley. 

28Ede then walked into a different internal room which had two safes in it.  You followed him, pushing the trolley.  Ede took property from on top of a desk, from within a safe, and from a shelf, placing it into the container on the trolley and into the bag which you had.  The property included solid gold bars as well as bundles of $100 and $50 notes.  You also took money and placed it within the bag. 

29The bag also had a smaller blue or beige safe placed inside of it. 

30Closed circuit television showed an angle of the handgun, revealing that there was no magazine loaded. 

31The prosecution asserts that after the toolbox and bag were filled, Ede attempted to signal your attention to another safe using his hand and by kicking at a case on the floor near the safe.  That safe contained over $4 million worth of gold bullion and $600,000 in cash.  However, you appeared not to ‘take the hint’ and did not access that safe. 

32You and Ede maintained your façade by having Ede lie face down on the floor while you tied his wrists with cable ties which you produced from your jacket. 

33At about 9.35 am two customers, one male and one female, approached the front door to the business.  The female pressed the front door bell.  You opened the door.  The male asked if the business was open.  You said, “in 5 minutes”.  They asked if they could go in and you said, “yes”, leaving through the front entrance at 9.36 am.  You left the door open and the customers walked in. 

34Ede remained lying on the floor inside.  He heard customers inside the suite.  At about 9.38 am he got to his feet and walked towards the two customers.  Ede said, “Help, I've been robbed”.  One of the customers pulled Ede's hands free. 

35At approximately 9.39 am, Ede called emergency services reporting a robbery where a male had produced a pistol, and requested police to attend to level 7 of that address.  Ede was asked by the operator how long ago the male had left and Ede replied, “5 to 10 minutes ago”. 

36Police arrived within about 5 minutes.  Ede was transported to the Melbourne West Police Station where he made a statement to police and a series of photographs were taken of his mobile phone which showed the phone call he had received at 9.27 am had been deleted. 

37A thorough stocktake following the offences revealed that the total weight of the stolen gold bullion stock (21.697kg), scrap gold (6.525kg) and jewellery (437.6g) was 28.66kg, which equates to a value on the day for the gold theft of between $2,499,116 and $2,522,044 depending on market fluctuations.  The total cash which was stolen was $716,970. Thus the total value of the theft was between $3,216,086 and $3,239,014.

38You left the Collins Street building wheeling the stolen gold and cash on the trolley.  You returned to the Holden Colorado which had been hired out by Danqi Shi on 26 April but had registration plates 1PS 5GL attached (the plates ‘belonging’ to Mr Blanch).  ‘Safe City’ CCTV cameras captured the car being driven away from the CBD, north along Nicholson Street. 

39At about 1 pm Danqi Shi returned to Budget Car Rentals by herself and returned the Holden Colorado which she had hired out the day before.  She returned it a day earlier than had been agreed.

40Police were later to observe the footage of the car used by you during the offences, including the registration plates 1PS 5GL.  As a result they went to Camberwell and found the car to which plates 1PS 5GL really did belong.  They saw that the car was not the one which had been used by you and it still had the registration plates belonging to Ms Anderson attached to it with Velcro. 

41At 7 pm a phone call was made to Shi's mobile phone from a payphone near the town of Dumbalk, which is about 13 kilometres from the town of Dollar.  That evening, at about 7 pm you were seen by an observer at 56 Dykes Outlet Road, Dollar.  The observer also saw a fire on the property at that time.  The property at that address had been purchased by your mother in about 2012.    

42The prosecution asserts that you went to the property that evening and tried to destroy, in a firepit, the trolley and steel cap boots used during the commission of the offences.  You also left behind parts of the small safe taken during the offences as well as a “Stanley” logo matching the toolbox.  The remnants of those items were later discovered by police.

43The prosecution further asserts that the toolbox used during the offences, containing a large quantity of the stolen gold bullion and jewellery along with four shotgun cartridges, and the blue/beige-coloured safe which was taken during the offending were buried at some stage after 1 pm on Monday,
27 April 2020 near a large log on an adjacent property. 

44At about 3.50 pm on Wednesday 29th April 2020 you were arrested in a carpark at Harold Street, Camberwell.  At the time of your arrest you were holding an envelope containing two pieces of a cut-up registration plate: the portions containing the letter “S” from “1PS 5GL”.

45Despite your assertions that you believed that this would be a victimless crime because your co-accused was a staged “victim”, the impact on the Company and its owner has been profound.  The victim impact statements tendered provide moving testimony as to the shock, the turmoil, the anxiety and loss suffered as a result of your conduct.

46I now turn to your personal circumstances. 

47As I noted earlier, you are now aged 48, you were also that age when this offending occurred in April this year, and you have no prior criminal history.

48You were born and largely raised in Melbourne.  In your early years your family moved and you lived in various countries in the Middle East where your father had relocated to pursue work as a construction engineer. 

49Your family re-settled in Australia in 1979 when you were aged seven.  Your father continued his career as a construction engineer and your mother was employed as a teacher. 

50Your parents frequently argued and were incompatible.  Your father also appears to have been disinterested in a parenting role, and although your mother attempted to compensate for this, her engagement with you and your siblings was inconsistent.  Although your parenting was divisive, you felt loved at home by your mother and you enjoyed a positive relationship with your siblings whilst growing up.  You parents separated when you were 17 and divorced the following year. 

51You commenced primary school in Australia and were bullied for some period in secondary school due principally to not being athletic.  You achieved high grades academically and were offered a scholarship to a private secondary school, but this was declined by your father who did not wish to undertake the additional transport required for you if you switched schools.

52You completed secondary school and commenced a Bachelor of Science in 1990.  You were employed for a time as a sessional tutor and lecturer and returned to tertiary studies in 1999, completing a Bachelor of Applied Science in Computer Science and an Advanced Diploma of Business in 2001. 

53With the financial assistance of your mother you purchased residential property in Melbourne and commenced self-employment managing tenancies and refurbishments.  You also maintained self-employment in the consignment, acquisition and sale of antiques.

54By the commencement of 2020 it is clear that you had established a significant multi-million-dollar portfolio of residential property which, although mortgaged, was returning approximately $17,000 per month in income.  In addition, your wife's salary was $80,000 per annum gross. 

55You had married in 2010 and have three children now aged eight, seven and two.  Your wife suffered serious post-natal depression after the birth of your third child and has a clear preference for focusing on her career rather than close maternal care.  You have accommodated this by being the principal carer for the children and your wife is respectful and supportive of this role.

56Your health has been compromised after a diagnosis of type I diabetes in 1992.  The management of your condition requires you to administer insulin five times daily.  This is assisted by use of an insulin pump.  You also take prescribed medication to assist cholesterol and you experience minor arthritis.  Otherwise you are reasonably healthy.

57Psychological reports from Mr Michael Bilyk and Dr Angela Sorotos were tendered on your plea.  Neither of the reports suggests that you have any significant mental health issues. 

58You have voluntarily attended treatment sessions with Mr Bilyk from 21 July to 13 October 2020 to manage coping and mental health issues following your arrest for these offences.  In Mr Bilyk's opinion you are likely prone to pessimism and worry and are more likely to avoid or circumvent problem situations rather than regulate your emotional experiences and functionality to seek resolution.  In this context you appear to have struggled to maintain a sense of efficacy personally and professionally.  Mr Bilyk further opined that associated stressors of vulnerability due to poor health and financial difficulties had eroded your ethical and functional decision-making and allowed you to contemplate offending. 

59It appears that your negative emotions have remitted somewhat since treatment and you have developed an improved self-awareness of the origins and patterns of your stress.

60While Dr Sorotos opined that there was no evidence of major mental illness, she did accept that your personality functioning and distress intolerance may have contributed to impaired decision-making, leading to vulnerability to commit the offences.  Whilst your personality profile suggested a number of characteristics most commonly seen in a Narcissistic Personality Disorder,
Dr Sorotos did not consider that these characteristics were likely to be functioning at a level that would result in impaired daily functioning.

61Three character references were also tendered on your plea. 

Ø  You mother refers to your qualities of optimism, intelligence, resilience and perseverance and how these qualities assisted you in the difficult circumstances of your father's indifference and your challenges with a diabetic condition.  Your mother has also confirmed your family's continuing support and that you acknowledge full responsibility for what you have done.

Ø  Mrs Von Eitzen recalls challenging instances in your early life, including your father's negative nature and occasions of bullying from peers.  She describes you as an honest, hardworking, caring family man. 

Ø  A friend from the Lebanese community who has known you for almost 20 years, Ms Yamen, refers to you as selfless and reliable and states that you have expressed to her the guilt that you feel for the pain, shame and embarrassment that you have inflicted upon your family and that you take full responsibility for your actions.

62The nature of your offending is serious.  Whilst there was no genuine confrontation or immediate apprehension to any person present, which is normally associated with aggravated burglary, the owners of this business are legitimate victims.  The shock, anxiety, damage to reputation and violation of the victims’ sense of trust remain profound. 

63The financial extent of the robbery, at over $3 million, was very substantial in the context of this type of crime.  Had it not been for your ineptitude, the amount could have been much higher.

64This was a brazen operation with carefully considered and comprehensive preparation designed to disguise your complicity.  You also sought to destroy incriminating evidence subsequent to the robbery. 

65An explanation for your vulnerability to resort to crime was that a short illness together with financial crisis caused by the Corona pandemic found you over-extended on your mortgages and facing forced sales in an uncertain market to relieve your financial obligations.  On the figures provided, however, a simple analysis demonstrates that you possessed the means to comfortably and legitimately manage any losses.  The clear motivation was that you simply resorted to serious crime to ameliorate some financial setback.  Your moral culpability for these crimes is high.  

66Despite some emotional neglect in your early life you appear to have managed very well, to the point where, as a man of 48 years, you had achieved great success academically and financially.  You also had the advantage of close emotional support and comfort from your immediate family and friends as well as financial support from your mother. 

67In mitigation, I accept the matters submitted on your behalf by your counsel and in particular:

·     In-as-much as the aggravated burglary was a staged event, no actual person was present and thereby confronted and subjected to immediate fear and apprehension. 

·     The firearm was clearly unloaded and there was no possibility of any discharge if any unexpected person had arrived at the scene - I accept that its use was as a prop in a staged event.

·     Your plea of guilty and the time that it was entered - whilst you initially denied involvement in the robbery, once you became aware of the significant evidence and its weight against you, you assisted with the police investigation, including taking police to the site where the majority of the stolen property could be located.  You did, however, continue to dissimulate until 12 June 2020 when you provided a detailed account in a statement to the police which the prosecution accepts is truthful.  Your cooperation eventually led to the recovery of the greater part of the theft; however, the amount of $333,420 remains unrecovered.

·     Your otherwise good character, reflected by the absence of any previous offending and the character references tendered.

·     The continuing family support that you have and the efforts you have made to explore your emotional vulnerabilities through psychological counselling - in that context you have already commenced rehabilitation. 

·     Your conditions in custody in the context of the more confined circumstances and anxieties attributable to the COVID-19 pandemic.  I accept that your diabetic condition will mean that there will be some additional hardship in the prison environment.

·     I also accept that as their principal carer you will experience added anxiety at the loss of the time you would otherwise have with your three children and your wife, and the burden that this will place on your wife who has a particular vulnerability in managing maternal care.  For the avoidance of doubt, what I am taking into account there is the anxiety that that is likely to provide to you. 

·     I also take into account the shame that you have experienced and the embarrassment for the offending which you have expressed.  You have the capacity for sensible reflection as well as intelligence and resilience, and I accept that your prospects of rehabilitation are good.

68In light of the mitigating circumstances, I accept that the sentencing principle of specific deterrence should be sensibly moderated.  Principles of general deterrence and denunciation by the court remains significant.  I accept, however, that the mitigating circumstances should also be reflected in the period of permitted parole. 

69Mr Kachami, I will now read out the terms of your sentence.

70On Charge 1 of aggravated burglary, you are convicted and sentenced to two years and six months' imprisonment. 

71On Charge 2 of theft, you are convicted and sentenced to three years' imprisonment.  

72On Charge 3 of being in possession of an unregistered general category handgun, you are convicted and sentenced to one month's imprisonment. 

73Charge 2 is the base sentence.

74I direct that 12 months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.  The sentences are otherwise concurrent. 

75The total effective sentence is four years' imprisonment.

76I direct that you serve a minimum period of two years' imprisonment before being eligible for parole. 

77The sentence starts today. 

78As to this term of imprisonment, you were taken into custody on 29 April 2020, bailed on 29 June 2020 and remanded again on 29 October 2020. So pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 87 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

79For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the total effective sentence over all charges that would have been imposed is a term of imprisonment of six years with a non-parole period of four years.

80At the plea hearing, the prosecution sought orders for disposal, forfeiture and restitution to which you consented and I have made those orders today. 

81That concludes my sentencing remarks.  Are there any other matters from either counsel?

82MS THORP:  As Your Honour pleases.

83MR TAAFFE:  No, Your Honour, nothing from me.

84HIS HONOUR:  Thank you, adjourn the court.

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