Director of Public Prosecutions v Kakar

[2014] VCC 1441

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00758

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR KAKAR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2014
CASE MAY BE CITED AS:	DPP v KAKAR
MEDIUM NEUTRAL CITATION:	[2014] VCC 1441

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Ellwood
For the Offender	Ms C Woodward

HER HONOUR: 

1Omar Kakar, you have pleaded guilty before me to one charge of armed robbery.  Have a seat, sir.  I will tell you when to stand up. 

2The facts underlying your offending are as follows;  at about 1.33 am on 24 February 2013 you drove a red Falcon sedan belonging to your co-accused Tabrez Masoud, you having spent the evening and early hours of the morning with Mr Masoud, into the 24 hour Coles Express service station next to the petrol pump.  Both the area of the petrol pump and the shop area were under CCTV surveillance. 

3Masoud left the car, walked to the closed and locked sliding doors of the shop and adjusted his clothing on the way in an attempt to conceal his face.  He knocked on the doors and the attendant Payagala Fernando, aged 27, opened the doors, letting him inside.  By this time you had also got out of the car but stayed near it, leaning in through the open driver's window. 

4Once inside, Masoud produced a large kitchen-style knife and demanded that Fernando hand over the money, Fernando doing as he was told.  He gave Masoud $170 from the cash register.  Masoud picked up the money and began to leave when you came in, first arriving at the sliding doors, banging on them with your elbow.  Fernando unlocked the doors and you came in, but it is possible he was trying to let Masoud out at the time and accidentally allowed you in.  You were wearing a hooded jumper and a beanie in an attempt to disguise your face. 

5When you approached the counter you also produced a large kitchen-style knife, threatening Mr Fernando and demanding he hand over more money.  When you were told there was none you demanded cigarettes and Mr Fernando handed over two packets.  On the way out you also grabbed two bottles of Gatorade from a display fridge.  The total value of the cash and property stolen mounted to $215.  The two of you returned to the car and you drove away.

6On July 12 2013, an observant police officer saw a red Falcon in Dandenong matching the description of the vehicle used in the armed robbery and noted the registration.  On 31 July, police attended Masoud's home where the red Falcon was parked outside.  It was noted that certain features on the car matched those seen in the CCTV footage.  Masoud was arrested and told police he was out with his friend Omar on the relevant night and phone links were established as occurring between Masoud and you on that night. 

7On 8 August 2013, you were interviewed at Fulham Correctional Centre where you were undergoing a sentence.  A search warrant at your home located clothing similar to that worn in the armed robbery.  Your face was clearly visible in the CCTV footage.  You exercised your right to silence, making a no comment interview. 

8You offered to plead guilty to the armed robbery charge on the morning of the committal on 1 May 2014 and no witnesses were cross-examined.  Masoud has accepted a straight hand-up brief.  There was some delay as it was possible issues of mental impairment were to arise, but now it appears a plea has been negotiated which is to be heard in October this year.  The maximum penalty for armed robbery is 25 years' imprisonment. 

9I now turn to your personal circumstances.  You are 26 years of age.  You were born in Pakistan, one of five siblings born to your parents, and your father was an officer in the Pakistani army which fought the Russians. 

10You came to Australia when you were aged two.  Your father, it appears, has not had much of an employment history here.  Before emigrating to Australia he had begun an engineering degree but was unable, because of his lack of English, to pursue that here and was then only able to obtain work as a labourer, during which he injured his back and has been on a disability pension ever since.  He also has shrapnel injuries.  Your mother also has a disability, suffering from significant migraines and now it would appear, depression; primarily, it would seem, according to the letter from your sister, because of your current incarceration. 

11You are the third of six children born to your parents and the oldest boy.  You are the only one in your family ever to have been in trouble with police.  You have an older sister who lives at home and works in a pharmacy, another sister aged 27 who is married with two children who also works part time as a pharmacist's assistant.  You have a 22 year old brother who works as a forklift driver, a 17 year old sister who is studying and working part time as a pharmacist's assistant and a ten year old sister who is still at school. 

12You were interviewed by psychologist Aaron Cunningham and his two reports dated 2 July 2014 and 25 August 2014 were tendered on the plea.  You described to him receiving a fair amount of racist taunting at school and had a reasonably difficult upbringing as extra responsibility was placed upon you as the eldest boy in the family, and because of your father's excessive discipline, he apparently running your home in a sort of military fashion.  Your sister Sarah, in her letter to the court, noted that you received regular beatings.  It was always impressed upon you that, as the eldest boy, you had a financial duty to your family and after completing year 10 you left school in order to take up work and contribute to the family finances. 

13You had a good work history for a number of years.  You worked in a warehouse at Victoria Express, which distributed car parts, for a period of 12 months.  You then worked in a factory Buttercup Bakers for 18 months and then for two to three years worked at two abattoirs in Cranbourne and Carrum Downs.  Finally you worked as a crane operator at Selwood Steel, this basically being an internal crane operation which did not require a formal ticket.  However, despite your good work history, there were problems developing on the side. 

14You began using cannabis when you were 15 and by the age of 18 had begun regularly using methamphetamine or the very destructive drug, ice.  You also began using the equally destructive antidepressant Xanax which is sold on the streets and is often used by ice and amphetamine addicts when their supply runs out.  Both ice and Xanax are well known to this court as causing, in particular, terrible mood dysfunction in their users.  Yours is a clear case, in my view, where the effects of that drug are evident. 

15It would seem you have always had a difficulty with your peer group and you do have a number of prior convictions, but up until 2011 when you were arrested in relation to charges of robbery and false imprisonment these were relatively minor, essentially comprising driving offences.  However, in 2011 with a group of friends, you became involved in the robbery of a pizza delivery man who was, in the course of his employment, taken by you and your friends, prevented from leaving and driven out to the Dandenong Ranges where he was assaulted and his takings stolen from him.  You were apparently in the company of three other persons at that time. 

16This was the first time you had ever been involved in serious violent offending.  Indeed, there had been no history of violent offending before that date.  It would seem that at that time you were using, and had been using, ice on a daily basis for quite a long time.  It appears after you finished school you mainly socialised with young men that you met in the Dandenong shopping precinct.  It would appear that they were persons who also used these damaging drugs and it was in that context and in their company that that offending occurred. 

17You were remanded in custody for five days then released on bail and successfully completed a court integrated services program during which you attended to your drug problem, receiving counselling from the South Eastern Alcohol and Drug Service, however, that program lasted only for a period of months.  After it had finished you were unable to find work, in particular because of your concerns that any employment would be interrupted by the likely gaol sentence you would receive for this offending.  In any event, it seems that because of idleness and because of the anxiety surrounding your upcoming court appearance, you fell back into drug use.  This offending occurred well over a year after you had been placed on bail for the previous offending. 

18Your counsel informed me that whilst you had been using ice on a sporadic basis whilst on bail, the main problem drugs for you were cannabis, Xanax and alcohol.  You told your counsel that the use of those drugs on that night, you had apparently taken between 20 and 30 Xanax tablets, has impacted on your memory and you can recall little of what occurred, telling your counsel that you barely knew who you were at the time. 

19In any event, ultimately, you were sentenced by His Honour Judge Chettle on 12 June 2013 on charges of robbery and false imprisonment to an effective term of three years' imprisonment with a minimum term of two years.  There is some difference in the information that I have in this matter to that which was presented to Judge Chettle. 

20It is important to note that since you have been in gaol you have ceased drug use and reported to Dr Cunningham feeling much better as a result.  This is completely unsurprising.  The court sees before it a steady stream of young men who have basically offended in a violent fashion because of their use of amphetamine or ice, or Xanax, all of them notoriously interfering with mood.  Users live lives either on a high, or when they've come down, in black depression.  The more they use, the more they need. 

21The age group of users of these very destructive drugs are usually like you, young men in their late teens, early 20s or early 30s who are incapable of attending to the addiction that they have, but who, once they are gaoled, find great relief in not being able to access the drugs and are then able to reflect on how dangerous those drugs are and how appalling they felt whilst they were using them.  According to Mr Cunningham, this is exactly what has happened to you. 

22You are very ashamed of your offending in that you would not allow any of your family to attend court.  You are apparently very aware of your duties to your family as the eldest son and feel you have very much let them down, however, I am satisfied that your family continues to support you. 

23You have been serving the sentence imposed by Judge Chettle at Fulham Prison.  Due to the appalling overcrowding that is currently being experienced in gaols, even though you have been in custody for 12 months, you have been unable to be placed on any rehabilitative programs.  I regard this as unacceptable and, in the circumstances, find that the overcrowding experienced by you resulting in the lack of programs means that you are serving what is commonly known as "hard time" and are entitled to some discount in relation to this. 

24Further, Mr Cunningham conducted testing, the Wechsler Adult Intelligence Scale (Fourth Addition) to assess your level of cognitive functioning and found that you were within the extremely low range of cognitive functioning.  I do not accept that the IQ difficulty that you have, which was assessed at 67 (and I note that the cut-off range for intellectual disability services is 71) as some sort of Verdins point which means you have less criminal responsibility for your offending, but what I find important is Mr Cunningham's comment that: 

"It appears that Mr Kakar's ability to problem solve and think consequentially would not be as developed as his age peers.  He would not have the same ability to manage stress.  He would present with global deficits in his judgment and reasoning.  In my opinion, these deficits in judgment and reasoning would likely to be aggravated by his use of illicit substances". 

25There are features in your personal life that do not match up with your offending.  You come from a strong family.  You have got a good work history.  Your sister talks about you in her letter handing over most of your pay packet each week.  At the same time, you are using a lot of drugs.  That has not resulted in serious offending for some years. 

26I accept that, even though you are 26, your level of cognitive functioning means that I should and do accept that you are a person who is likely not to think the consequences of your actions through, that relates both to the use of drugs and to criminal offending and in your choice of companions.  Somehow, and it would seem it is because of your very strong sense of family, you have been able to live a productive life; to work, to hand over your money and to live with your family. 

27On the other hand, if I can put it this way, you have chosen such terrible friends and such terrible drugs that, in some senses, your personal life away from your family is very much on the criminal edge and walking on the wild side.  The situation is that, after appearing in court, always in the Magistrates' Court and never before on offences of violent offending, that offending suddenly escalates or increases in seriousness to an inexplicable degree, except that you were using drugs and hanging around with some very bad people, and part of that decision to do that and adopt that lifestyle may be lay, in my view, at the door of your cognitive functioning level. 

28It is my view that had Judge Chettle been in possession of this information, he may not have sentenced you to as higher term as he did.  I am in no way interfering with or criticising Judge Chettle's sentence, I am simply saying that I have material which he did not, which, in my view, affects not just the length of any term that I must impose upon you, but goes to the question of the appropriate totality in all the circumstances relating to both sets of imprisonment. 

29You do need to understand, Mr Kakar, that even though I am basically saying you are essentially a good man insofar as your family and work is concerned, your decision to use these terrible drugs that have led you, I am satisfied, to behave in this appalling and violent fashion in the company of very inappropriate and unsuitable friends has severely traumatised your victim on this occasion; that is, Mr Fernando who was simply doing his job in the service station. 

30People like Mr Fernando work really bad hours.  He was working an overnight shift at a service station.  He would not have been paid very much money for it.  He was extremely vulnerable; he was on his own.  He was what is called a "soft target".  The court sees far too many of these types of violent acts of offending on people like Mr Fernando. 

31I received a victim impact statement from him.  I have to say, having read it, he sounds like a very intelligent, insightful and forgiving man.  He talks about the enormous fear in which he was placed.  A CD of your offending was played, and this man was twice confronted with young men like you, well-built young men holding a large knife at him, and the only barrier between you and him were a few strips of wire across the counter. 

32What he says is: 

"I was left paranoid, angry and incredibly saddened.  The fact that the two men in question were willing to risk another person's life over a few hundred dollars was both infuriating and deeply upsetting". 

33He said neither of you looked as if you really needed the money to survive.  So this is a man who can actually appreciate that people might offend because they need money to survive.  You did not need money to survive; you needed money for your retched drugs. 

34He said: 

"In my honest opinion, going by their appearance and the way they were dressed, it looked like they just wanted some money to have a night out". 

35And he is probably right, because you probably just wanted the money for more drugs and that is a night out. 

36He said: 

"I hope they can someday understand what they put me, and even their own family through, by committing such a crime". 

37Sounds like a very decent man, does he not, Mr Kakar?  He is not writing to me saying, "Put them in gaol for a million years, they are scum, they should never get out".  He is thinking about the fact that you come from a family who is likely to be upset by what you did.  He was hoping that you would have the maturity and the compassion and the insight to understand what you did to this man. 

38What he said was:

"I felt threatened and genuinely feared for my life while the accused toyed with the knife that was pointed at me". 

39And he also says:

"Thankfully no one was hurt, however, it took me a while to come to grips with what had happened". 

40Now what usually happens to men like Mr Fernando who have been treated in that violent fashion, Mr Kakar, is that they have to find another job, and they usually end up earning even less money because they are too scared to do overnight work anymore, and when they go to work, they are scared, and often when they step out in the street, they are scared.  Their whole life becomes fearful.  They cannot sleep at night.  They think about it all the time.  They lock their doors and windows at night.  They have troubles with crowds. 

41I do not know if this has happened to Mr Fernando because he is not a man who is really moaning and complaining about the effect upon him; he sounds to me like a very decent man with a lot of dignity.  But the experience of this court is that people who have been held up and threatened, not once, but twice in the way that he was, generally find their lives are less enjoyable, more stressful and they experience an enormous amount of fear. That is the man that you became when you were on these drugs.  The man who - and I know you think this and you are quite right - dishonoured his family and terrorised another human being who was simply going about his work, poorly paid work and difficult work. 

42The court has an obligation to protect people like Mr Fernando.  The court has an obligation to send out a message to the community that these people are not going to be held up by drug-crazed thugs like you were on that night and let those people get away with it without any consequence.  I hope you are thoroughly ashamed of yourself, Mr Kakar. 

43You know, you have got sisters working in a pharmacy, have you not?  How would you feel if some addict desperate for Xanax held your sisters up at knifepoint and went through the medicine cabinet.  How do you think your sisters would feel after that?  How capable would they be of going back and working in that pharmacy, of undertaking the work that they obviously have to in order to assist your parents?  It could easily be someone exactly like you, Mr Kakar, and it is all because of your choice about drugs and your choice of terrible friends. 

44I note that one of those friends who was involved in the robbery and in false imprisonment of the pizza delivery boy left Australia when he was placed on bail because he did not want to face the music.  Not a very brave or courageous person.  Those are the people that you have chosen as your friends. 

45The offending is extremely serious.  It was committed in a cowardly fashion by people who did not care because they are off their heads on drugs, and such behaviour had a long lasting, terrible effect on the victims.  Because of that, you must receive a further sentence of imprisonment.  Because of the functioning difficulties uncovered by Mr Cunningham's assessment of you, you are not going to get a great deal more, but you are going to have a reasonably long period of parole and you really need to have a think about what you are doing, Mr Kakar. 

46I understand that life might have been difficult with your father but when you get out of gaol, you have got a family to go to.  It is quite clear from the letter written by your sister that they long for your return, that they love you very much.  Your sister has not been able to tell her nephew, who keeps asking why you are in gaol, what you have done.  So many people come before this court who are using drugs because they have terrible families or because their parents have abused them and they have nothing to live for and they have no love and they have no family.  You are not like that.  You have got a very good family who continues to love you. 

47Your sister wrote: 

"We have moved houses since Omar has been in prison, waiting for him as we have prepared his room and all his stuff for a fresh new life". 

48Your family really loves you and you are a very fortunate man, but you need to understand that you have very poor judgment.  Do you realise that now, Mr Kakar?  Yes, good.  Even if you do not get into a program, that is something you really need to think about. 

49I am going to order a new sentence which will have a period of parole, and another thing you have to remember as well, Mr Kakar, is this, when you get out of gaol and if you are on parole and you commit another offence, if you decide you are going to fall off the wagon, you decide you are going to use drugs and hang around with those old mates, firstly you will be charged with breaching your parole and secondly, any sentence you receive, and because of your serious priors now, you have got two very serious priors, you are nearly always going to get gaol now if you get into trouble because the court is not going to give you fines or bonds or community corrections orders.  Any sentence you receive for any offending while you are on parole must be served - must be served - on top of the parole that you owe.  Do you get it?  So if you offend again you are going to be going away for years, and you are already serving a sentence of years.  Do you understand me? 

50You have got an enormous amount to lose and you have got a lot of making up to do, and I am satisfied that you are a person who has got good prospects of rehabilitation because you have got a good work history, you have been a good son, a good brother and a good uncle.  Your sister describes you as a kind-hearted man, and as long as you understand it is those terrible drugs and those terrible friends and what that has brought you to I think you have a bright future, but you are the one that has got to make that decision. 

51And in the end, you can do a million drug programs, and I hope you do, and I make the comment because I will ensure these sentencing remarks go before the parole board; you do need to undergo further drug treatment whilst you are on parole.  But in the end, it is you - it is you - who has got to get your head right and make the decision about how you lead your life.

52Stand up, please.  On the charge of armed robbery, I am sentencing you to a term of imprisonment of three years.  The new head sentence will be four years and six months and I set a new minimum term of three years. 

53Now I do not know how to work out the days, but I declare that 14 months, three weeks and one day of this sentence have already been served by way of presentence detention. 

54So you are going to do an extra year, all right?  I do not know what your counsel is going to say to you, but that is pretty lenient in the circumstances, you could have got a lot more.  So do not waste this opportunity, Mr Kakar. 

55Pursuant to s.6AAA, I declare that had you not pleaded guilty to this charge, I would have sentenced you to a term of imprisonment of four years and order that you serve a minimum term of two years and six months. 

56Have a seat, sir.  Now have I got that right, Mr Elwood, I think I have.  He was sentenced on 12 June and then there is an extra five days of presentence detention because he was held on remand in relation to the robbery and false imprisonment.

57MR ELLWOOD:  Yes.

58HER HONOUR:  So I took that back, just to work it out, to 7 June, even though that is not strictly what it was.  So the difference between 7 June 2013 and 29 August 2014 is 14 months and 22 days which works out to 14 months, three weeks and one day.  I wonder if we should look at the calendar and I will just count it up.   

59MR ELLWOOD:  I think Your Honour should reduce it by one day because your sentence will actually start to run today, the new sentence will actually start to run today.

60HER HONOUR:  All right, so 14 months and three weeks.  So if we take it back to 7 June that means there is another 23 days in June, 31 in July, 31 in August, 30 in September, 31 in October, 30 in November, 31 in December, 31 in January, 28 in February, 31 in March, 30 in April, 31 in May and then another 29. 

61I make that 354 days.  How many days are in a year?

62MS WOODWARD:  356.

63HER HONOUR:  I mucked that up. 

64MR ELLWOOD:  I have just put - there's a timeanddate.com, Your Honour, I will just get my instructor to put in the dates.  Commencing with 7 June 2013 ‑ ‑ ‑

65HER HONOUR:  So that gives another 23 days in June that he has got to serve.

66MR ELLWOOD:  To 28 August 2014. 

67HER HONOUR:  I have left a couple out, sorry. 

68MR ELLWOOD:  The period from 7 June 2013 to 28 August 2014 is 448 days or one year, two months and 22 days. 

69HER HONOUR:  That is right.  Yes, I have left out a couple of months there.  All right. 

70I declare that 448 days of that sentence have already been served by way of presentence detention. 

71Is there anything else I need to attend to?  There was some ancillary orders.

72MR ELLWOOD:  Yes, just the orders, Your Honour, which I will pass up.

73HER HONOUR:  Thank you.

74MR ELLWOOD:  My instructor has asked me to ask of Your Honour whether Your Honour is available in October.  We are thinking of the Masoud plea.

75HER HONOUR:  I will be.  It was October 17?

76MR ELLWOOD:  October 17. 

77HER HONOUR:  Yes, I am running a trial but I can fit it in in the morning.

78MR ELLWOOD:  If Your Honour was available, that would be very good. 

79HER HONOUR:  Yes.  I can do the plea at 10 o'clock on 17 October, that is fine.

80MR ELLWOOD:  Thank you, Your Honour. 

81HER HONOUR:  Now what I said about the bloke in the service station, imagine that poor pizza delivery guy, what his life is like now.  That is two human beings now who have been terrorised by you, Mr Kakar.  It is not fair and it is not how you would normally behave, I would imagine, if you were not affected by drugs. 

82Mr Kakar, can you stand up.  I have ordered that police take an intimate sample, that means a swab from your mouth, it is a swab of saliva.  I am crossing out the blood sample.  I need to tell you that if you resist, the police doing this are entitled to use reasonable force in order to obtain it. 

83I order that you pay a compensation in the sum of $215 to Coles Express Narre Warren.  Thank you. 

84MR ELLWOOD:  As Your Honour pleases. 

85HER HONOUR:  Yes.  I thank counsel very much indeed for their assistance in this matter. 

86MR ELLWOOD:  Thank you, Your Honour. 

87HER HONOUR:  We will adjourn to 9.30 on Monday.  Thank you. 

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