Director of Public Prosecutions v Kakar
[2022] VCC 1416
•10 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00251
CR-21-01831
CR-21-01832
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Omar KAKAR |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2022 to 10 March 2022 (Trial) | |
DATE OF SENTENCE: | 10 August 2022 | |
CASE MAY BE CITED AS: | DPP v Kakar | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1416 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Firearms Act 1996 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:DPP v Omar Kakar (dated 12 June 2013); DPP v Omar Kakar (dated 29 August 2014); Power v The Queen (1974) 131 CLR 623; Rockie Russo v The Queen [2021] VSCA 244; DPP v Stevens [2013] VSCA 187; Mammoliti v The Queen [2020] VSCA 52; Worboyes v the Queen [2021] VSCA 169; The Queen v Madex [2020] VSC 145, Brown v the Queen [2020] VSCA 60; Muldrock v R (2011) 281 ALR 652; William Bugmy v The Queen (2013) 302 ALR 192; Peter Buckley v The Queen [2022] VSCA 152; DPP v Sarah Azimi [2020] VCC 875;
Sentence:TES 6 years imprisonment, Non-parole period of 4 years. Licence cancelled for 18 .
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr N. Goodfellow | Michael J Gleeson & Associates |
HIS HONOUR:
1Omar Kakar, after a trial a jury found you guilty of,
(a) On Indictment C1913188.1
§One charge of armed robbery (Charge 1),
§one charge of aggravated carjacking (Charge 2); and
§one charge of recklessly engaging in conduct endangering life (Charge 3).
2Additionally, you have pleaded guilty to;
(a) On Indictment K13133637A
§one charge of handling stolen goods (Charge 1).
(b) On Indictment K13133637B.1
§one charge of as a prohibited person carrying a firearm (Charge 1),
§one charge of theft (Charge 2), and
§two charges of possession of a drug of dependence (Charge 3).
3You have also pleaded guilty to the summary charges of;
· possess cartridge ammunition without a licence (Charge 8), and
· commit an indictable offence, handling stolen goods, while on bail (Charge 15).
Circumstances of your offending
Indictment C1913188.1
4On 19 November 2019, at around 9.30 pm, you left your girlfriend's home at Doveton, with your girlfriend and your sisters, Sarah and Nazzo, in a VW Jetta motorcar. You were carrying a firearm. It appeared to be a sawn-off shotgun.
5You drove to nearby Claret Street where you believed you would meet a man named “Rizz”, who apparently owed Sarah money.[1] You parked behind a red Mazda. Your girlfriend and you got out of your car. You were armed with the shotgun. Your sisters remained in the VW.
[1]Your sister, Nazo, told police ‘Rizz’ owed one of your friends money and arrangements were made to meet Rizz to obtain drugs from him. She said it was a trick to confront Rizz about the debt. The trial was conducted on the basis her assertion was true.
6You got into the other car.
7Rizz himself had not come. His younger brother Mohamed and Mohamed's friend, Danny, were in the car sitting in the front seats.
8At the trial they gave evidence
· you brandished the shotgun and demanded all their belongings.
· They handed over cash and the phone.
· From the backseat you fired a shot which struck the rear view mirror, and
· ordered them out of the car.
· When they got out of the car you got into the driver's seat and drove off with your girlfriend.
· You left the car in the street where your girlfriend lived and the two of you went back to her place.
9You did not dispute you got into the car carrying a shotgun, which discharged, and that you left with the cash, phone and car.
10You denied you took their belongings or car without their consent.
11You argued;
· you took the firearm for personal protection because you believed Rizz was violent and dangerous, and you were not going to use it to put anyone in fear of harm;
· that you believed you had a legal right to take the phone, cash and car as collateral for a debt Rizz owed your sister; and
· that the firearm discharged accidentally.
12By its verdict the jury was satisfied;
· you took the firearm with you in order to carry out a robbery at gunpoint,
· you discharged it inside the car deliberately,
· you did not genuinely believe you had a legal right to take the property, and
· you stole the cash, phone and car using threat of force.
Indictment K13133637B.1
13In relation to the offences in respect of which you have pleaded guilty, when you committed the armed robbery you were prohibited from carrying a firearm under the Firearms Act 1996 (Vic).
14On 20 November 2019, when police were investigating the armed robbery, they arrested you at a Doveton property. There they executed a search warrant where they located a motorcycle, which you had stolen, and 3.05 grams of cocaine and 6.9 grams of cannabis.[2]
[2]Exhibit A; Summary of Prosecution Opening dated 21 July 2022.
Summary Charge 8
15They also found a number of rounds of .22 ammunition and the police arrested you.
16At interview you denied any involvement in the carjacking of the red Mazda the night before. You admitted the motorcycle was yours and you knew it was stolen. You said you bought it from a mate for $200.
17Police released you without charge.
Summary Charge 15
18Late on 3 December 2019 at 11.15 pm, police arrested you for suspected drug offending and remanded you in custody. You were released on bail early next morning at 3.45 am.
19
On 4 December 2019, police attended your home at Cranbourne North where they found a laptop computer, headphones, tracksuit pants and a cooler bag which had been stolen from an apartment at Narre Warren, between 3.30 and
6:00 am earlier that day.[3] You were in possession of the stolen property while you were on bail.
[3]Exhibit B; Summary of Prosecution Opening dated 21 July 2022.
Criminal Record
20You have admitted a criminal record.
21On 12 June 2013, his Honour Judge Chettle sentenced you to two years' imprisonment for robbery and two years for false imprisonment. Your total effective sentence was three years' imprisonment. You were ordered to serve two years before being eligible for parole.
22I have read His Honour's reasons for sentence.[4]
[4]Reasons for Sentence in DPP v Omar Kakar, dated 12 June 2013 (His Honour Judge Chettle).
23In 2011, in company with three others, you robbed a pizza delivery man and drove him to the Dandenong Ranges where he was assaulted and you took his personal belongings.
24On 29 August 2014, her Honour Judge Gaynor sentenced you to three years' imprisonment for an armed robbery, which you had committed before Judge Chettle sentenced you. Her Honour fixed a new head sentence of four years and six months and set a new minimum term of three years.
25I have read Her Honour's reasons for sentence.[5]
[5]Reasons for Sentence in DPP v Omar Kakar, dated 29 August 2014 (Her Honour Judge Gaynor).
26On 24 February 2013, in company with one other, you held up a service station console operator. Your co‑offender produced a large kitchen style knife and in response to a demand for money, the console operator handed him $170 in cash. As your co‑offender was leaving, you entered the shop, produced another large knife and demanded more money. When you were told there was none you demanded cigarettes. The operator handed over two packets. On your way out you grabbed two bottles of Gatorade from the fridge.
27Your prison history shows you served a little more than four years of your prison sentences. On 27 July 2017, five months before your sentences expired, you were granted parole release.
28On 8 January 2018 you were arrested for firearms and other offences and remanded in custody.
29On 4 July 2018 at Dandenong Magistrates' Court you were sentenced to one year and six months' imprisonment, with a non-parole period of 10 months, for firearms offences and handling stolen goods.
30You were released on 6 July 2019 after you had served your one year and six month sentence.
31On 4 December 2019 you were arrested and charged with armed robbery and remanded in custody where you have remained since.
Personal Circumstances
32You were born in June 1988 in Afghanistan.
33Your personal circumstances are set out in the reports of Carla Lechner, psychologist,[6] and Kelly Sinclair, neuropsychologist.[7]
[6]Exhibit 1, Psychological Report by Carla Lechner dated 11 June 2021.
[7]Exhibit 2, Neuropsychologist Report by Kelly dated 22 June 2022.
34Your family fled to Pakistan when you were two years old and migrated to Australia as refugees two years later.
35You are the third of six children and the oldest son. Initially your family lived in Perth.
36When you were around 12 years old, the family moved to Melbourne.
37You were bullied at school and left at the end of Year 9. With home schooling you received a TAFE Year 10 pass.[8] You reported your sister completed your assignments for you. Then at your father's direction you went to work to support the family because he was unable to work due to a back injury.
[8]You reported your sister completed your assignments for you.
38He was a strict man who disciplined you with regular beatings.
39You had a good work history for a number of years, however, you have struggled with anxiety and depression related to your childhood and adolescent trauma.[9]
[9]Reasons for Sentence in DPP v Omar Kakar, dated 29 August 2014, at [13].
40At 15, you started using cannabis to block out feelings of anxiety, sadness and anger, and when you were 18, you started using methamphetamine as a stimulant and misusing Xanax to help you sleep.
41When you were 19, you went to Afghanistan where you witnessed a bombing. As a result you suffered post trauma symptoms of flashbacks and nightmares. You increased your drug use to cope.
42Your first serious offending was in 2011, when you robbed the pizza delivery man.
43Since June 2013, you have had only two periods of freedom, six months from July 2017 and five months from July 2019.
44In June 2018, the Department of Health and Human Services (‘DHHS’) issued you a statement of intellectual disability.[10]
[10]Exhibit 3, statement of Intellectual Disability dated 27 June 2018.
45When you were released from prison in July 2019, you started receiving NDIS support and you were living with your girlfriend. She managed most aspects of daily living, including bill payments, shopping and meals. Your relationship with her ended when you were remanded in custody in December 2019.
Psychological and Neuropsychological Opinions
46Carla Lechner interviewed you on 7 June 2021.
47She assessed your verbal intelligence in the “extremely low borderline range”.
48She diagnosed you with an adjustment disorder related to exposure to “complex developmental trauma”[11] during your childhood and adolescence, with depression mostly reactive to your incarceration.[12]
[11]Exhibit 1, at page 6.
[12]Exhibit 2, at page 1.
49In her opinion, your cognitive limitations, your poor mental health and substance abuse, likely contributed to your offending “in terms of (you) not thinking through the potential consequences, going along with the group behaviour without assessing the likely personal implications, and acting impulsively”.[13]
[13]Exhibit 1, at page 9.
50Ms Sinclair conducted a neuropsychological assessment on 2 June 2022.
51You tested in the low average range for intelligence.
52You reported a lot of pain in your right ankle, left knee, right arm and neck from chronic injuries. You also reported frequent sleep disturbance and stress about your sentencing outcome.
53You told Ms Sinclair you were wanting to help your sister get back money owed to her. You maintained you borrowed a rifle for your own protection and had no plan to use it to scare anyone. You said the firearm discharged accidentally and the occupants gave you the car. You said you were abusing ice, Xanax, MDMA and alcohol at the time, and you would not have acted in the way you did if not for all those drugs.
54In Ms Sinclair's opinion your intellectual disability is linked to your offending because it will have compromised your judgment and decision-making.
55You were anxious and frustrated about your pending sentence and described prison life as a daily struggle. You have had periods in quarantine and lockdown due to COVID-19 outbreaks in prison. No visits have been allowed and programs and courses have been reduced.
56In Ms Sinclair's opinion:
· your mood indicated severe symptoms of depression and stress, and
· aspects of prison are likely to be harder for you because of your impaired intellectual functioning.
57I accept the unchallenged opinions of Ms Sinclair and Ms Lechner.
Defence Submissions
58In mitigation of penalty Mr Goodfellow, who appeared on your behalf, relied on the following factors:
· firstly, your guilty plea to the firearm and drug possession and stolen goods charges;
· secondly, your intellectual disability and your childhood and adolescent experience of violence to moderate your moral culpability;
· thirdly, the two and a half year delay in sentencing; and
· fourthly, the additional hardship of prison as a result of public health restrictions and for you as a result of your psychological conditions.
59He also submitted, because you committed the armed robbery, aggravated carjacking and recklessly engaging in conduct endangering life offences in a single episode, I should make orders for significant, if not total, concurrency between them.
Prosecution Submissions
60
Mr Batten, who appeared for the prosecution, submitted the categorisation of aggravated carjacking as a Category 1 offence and armed robbery as a
Category 2 offence demonstrates the seriousness of those crimes.
61He submitted there was a considerable degree of planning and premeditation to your offending. CCTV footage from your girlfriend's home showed you removing the firearm from the boot of your car before getting into the driver's seat with it, in company with your girlfriend and your two sisters, and driving to the prearranged meeting place.
62Mr Batten did not concede your moral culpability as diminished by reason of your intellectual disability because in his submission there is no evidence of a realistic connection between your disability and the planning and execution of your crimes.
63He also did not concede your moral culpability was diminished by your childhood disadvantage because you grew up in an intact family and appear to have had a good work history for about 10 years.
64He submitted you have shown no remorse for the serious aspects of your offending and, given your criminal record, your prospects of rehabilitation are no better than poor.
65He accepted that while there should be substantial concurrency between your armed robbery and aggravated carjacking sentences, orders for some accumulation of the recklessly engaging in conduct endangering life sentence should recognise the additional criminality of discharging the firearm.
Consideration
66Armed robbery and aggravated carjacking are inherently serious violent offences. Each carries a maximum penalty of 25 years' imprisonment.
67Sentences of imprisonment are the legislated norm.[14]
[14]Armed robbery is a Category 2 offence. Aggravated carjacking is a Category 1 offence.
68Quite properly your counsel did not argue a sentence other than imprisonment is appropriate for you.
69In sentencing for an offence of aggravated carjacking a minimum non-parole period of three years is mandated unless a special reason exists.[15]
[15]Sentencing Act 1991 (Vic), Section 10AD.
70A special reason includes “impaired mental functioning that is casually linked to the commission of the offence and substantially and materially reduces the offender's moral culpability”.[16]
[16]Sentencing Act 1991 (Vic), Section 10 A(c)(i).
71While I am satisfied your intellectual disability is relevant to your sentencing, I am not satisfied a non-parole period of less than three years would be sufficient minimum time that justice requires that you must serve having regard to all the circumstances of your offence and your offending overall.[17]
[17]Power v The Queen (1974) 131 CLR 623, at [629]; Rockie Russo v The Queen [2021] VSCA 244, at [66].
72Your crimes of armed robbery and aggravated carjacking are serious examples of the type.
73They were premeditated and planned. Your victims were specifically targeted. Your girlfriend lured them on the pretext of a drug buy to a dead-end street at night. You confronted them with a loaded firearm to scare them into handing over whatever valuable belongings they had. You took the cash, the phone and the car, and you discharged the firearm inside the car while they were seated in the front seat, no doubt to intensify their fear.
74General deterrence and just punishment are important sentencing considerations and stern punishment must follow.[18]
[18]DPP v Stevens [2013] VSCA 187, at [31]; Mammoliti v The Queen [2020] VSCA 52.
75You are entitled to a demonstrable sentencing benefit for your guilty plea to the firearm, drug possession and stolen goods charges.[19]
[19]Worboyes v the Queen [2021] VSCA 169, at [35].
76I take into account your time in custody because of public health reasons and the risk of COVID-19 infection has been, and will continue to be, harder for all prisoners than in normal times.[20]
[20]The Queen v Madex [2020] VSC 145, at [52], Brown v the Queen [2020] VSCA 60, at [48].
77
I also take into account you have endured an anxious wait for
two and a half years in custody to learn your outcome.
78I also take into account that aspects of prison are likely to be harder for you because of your impaired intellectual functioning.
79You have a significant intellectual disability. Because it will have compromised your judgment and decision-making, I accept there is some connection between your mental condition and your offending. Accordingly, your moral culpability is to be reduced. Additionally, general deterrence is to be moderated because you are not an appropriate medium for making an example to others.[21]
[21]Muldrock v R (2011) 281 ALR 652, at [50], [53] – [54].
80You also experienced childhood and adolescent violence and abuse which has left its mark on you. As the High Court said in Bugmy:
“Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence.”[22]
[22]William Bugmy v The Queen (2013) 302 ALR 192, at [43].
81Your background of childhood and adolescent deprivation also moderates your moral culpability and the need for general deterrence.
82Before you offended, you had spent five and a half years of the previous six and a half years in gaol. The terms of imprisonment which you served did not deter you from reoffending. Your rehabilitation prospects appear limited, however, I do not lose sight of them in determining the sentences I will impose.
83“The benefit of the minimum term is for the purpose of an offender's rehabilitation. I will fix a non-parole period which mitigates punishment in favour of your rehabilitation.”[23] I will fix a non-parole period which mitigates punishment in favour of your rehabilitation.
[23]Peter Buckley v The Queen [2022] VSCA 152, at [37].
Parity
84Your sister Nazzo Kakar went with your girlfriend Yazi Wang, your sister Sarah and you, to the rendezvous and drove your car away after you left in the red Mazda. She was acquitted at trial. It appears the jury had a doubt as to whether she was a party to an agreement to rob the occupants of the car with the use of a firearm.
85On 9 June 2020, your sister, Sarah Azimi, pleaded guilty to one charge of armed robbery and one summary charge of harassing a witness.
86She was arrested on 5 December 2019. She told police Mohamed Rizzi owed her $10,000 and the plan was to meet him under the guise of buying drugs to rob him to get repayment.[24]
[24]DPP v Sarah Azimi [2020] VCC 875 (sentence of her Honour Judge Gaynor, dated 17 June 2020)
87She admitted she was part of a plan to rob the occupants of the car of their belongings. The prosecution accepted her plea on the basis;
· she did not expressly agree to the theft of the car, and
· she believed an imitation firearm, not a real one, would be used.
88She is a single mother who had no criminal record. Her husband was abusive and never worked so she left him.
89Her Honour Judge Gaynor sentenced Ms Azimi to 175 days' imprisonment, her pre-sentence detention, combined with a two and a half year Community Correction Order.
90Your then girlfriend, Yazi Wang, also pleaded guilty to armed robbery.
91She had messaged Rizz to buy drugs to lure him to Claret Street so you could steal drugs and cash to recover moneys said to be owed to Sarah. She thought you were carrying an imitation firearm.[25]
[25]Summary of Prosecution Opening for Plea (Yazhi Wang) dated 9 February 2022.
92She admitted a criminal record for violence, weapons and dishonesty offences.
93On 4 May 2022 Her Honour Judge Marich deferred sentence until 30 November 2022 to allow Ms Wang to continue to participate in the CISP program to demonstrate her commitment to her rehabilitation.
94Your then girlfriend and your sister Sarah were complicit in the armed robbery you committed. Because you were the principal offender, and committed the additional offences of aggravated carjacking and recklessly engaging in conduct endangering life, you must expect a substantially greater sentence than those imposed or to be imposed on them.
95Nevertheless, I have had regard to the parity principle to ensure consistency in punishment. When two or more co‑offenders are sentenced any significant difference in sentences imposed upon them should be capable of rational explanation.[26]
[26]Green v The Queen (2011) 244 CLR 462, at 572 – 3 [28]
Totality
96As you are to be sentenced for several crimes, I must have regard to the totality principle to ensure your sentence is a proper measure of your overall criminality.
97Mr Kakar, by the sentence I impose I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
98Considering the circumstances of your offending and your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
· On the charge of armed robbery you are sentenced to 5 years' imprisonment. This is your base sentence.
· On the charge of aggravated carjacking you are sentenced to 5 years' imprisonment.
· On the charge of recklessly engaging in conduct endangering life you are sentenced to 2 years and 6 months' imprisonment.
· On the charge of carrying a firearm as a prohibited person you are sentenced to 2 years' imprisonment.
· On the charge of theft you are sentenced to 6 months' imprisonment.
· On the charge of handling stolen goods you are sentenced to 4 months' imprisonment.
99I direct;
· 4 months of the sentence I have imposed for the aggravated carjacking, and
· 4 months of the sentence I have imposed for the offence of recklessly engaging in conduct endangering life, and
· 2 months of the sentence I have imposed upon you as a prohibited person carrying a firearm, and
· one month of the sentence I have imposed for the theft offence, and
· one month of the sentence I have imposed for the handling stolen goods offence,
be served cumulatively on your base sentence and each other.
100On each of the summary charges of;
· possess cartridge ammunition without a licence, and
· commit an indictable offence while on bail,
you are sentenced to one month's imprisonment.
101I order these two sentences be served concurrently on your base sentence and each other.
102
Your total effective sentence is 6 years' imprisonment and I fix a period of
4 years before you are eligible for parole.
103While there is some artificiality in stating the benefit you have received for your guilty plea, doing the best I can, I declare but for your guilty plea to those charges I would have imposed longer sentences and made orders for cumulation to effect a total effective sentence 6 months longer and a minimum non-parole period 4 months longer than the periods I have imposed.
104
Pursuant to s18(4) of the Sentencing Act 1991, I declare you have already served
980 days of your sentence by way of pre-sentence detention.
105I make forfeiture and disposal orders in terms of the draft orders filed with the court.
106
Aggravated carjacking is a serious motor vehicle offence under the
Sentencing Act 1991. Sub-section 89(2) requires the court to cancel any driver licence or permit held by you and disqualify you from obtaining a further one for a period of not less than 18 months.
107Considering the seriousness of the circumstances in which you stole the red Mazda, I order all licences and permits held by you be cancelled and you are disqualified from obtaining a further licence for a period of 2 years.
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