Director of Public Prosecutions v Kamalipor
[2023] VCC 1797
•28 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted |
Case No. CR-23-01151
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAJAD KAMALIPOR |
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JUDGE: | Her Honour Judge Harper | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2023 | |
DATE OF SENTENCE: | 28 September 2023 | |
CASE MAY BE CITED AS: | DPP v KAMALIPOR | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1797 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Burglary – theft – possess drug of dependence – deal property suspected of being the proceeds of crime.
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169; R v Doran [2005] VSCA 271.
Sentence: 2 years 4 months imprisonment with NPP of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Coulson | Office of Director of Public Prosecutions |
| For the Accused | Ms B. East | Stary Norton Halphen |
HER HONOUR:
1Sajad Kamalipor, you have pleaded guilty to 12 charges of burglary, 13 charges of theft, one charge of possession of a drug of dependence and one charge of knowingly deal with proceeds of crime. You have also pleaded guilty to summary charges of committing an indictable offence whilst on bail, failing to answer bail, trespass and possess controlled weapon without excuse.
2The maximum penalty for theft and burglary is 10 years imprisonment in each case. The maximum penalty for possession of a drug of dependence is five penalty units where the charge relates to a small quantity of cannabis for personal use. The maximum penalty for knowingly deal with proceeds of crime is 15 years imprisonment.
3The maximum penalty for commit indictable offence on bail is three months imprisonment, for failing to answer bail it is two years imprisonment, for trespass it is six months imprisonment and for possess controlled weapon it is one year imprisonment.
4You come before the court with a prior criminal record, albeit a very limited one.
Circumstances of the offending
5The circumstances of your offending were fully outlined in Exhibit A, the summary of prosecution opening, dated 1 September 2023. I will summarise those facts here.
6On 19 December 2022, you failed to appear in accordance with your Bail at Dandenong Magistrates Court. You signed and entered this bail on 15 December 2022. This forms the basis of related summary offence charge 15, fail to answer bail.
7On 30 December 2022 at 4.29am, you were captured on CCTV smashing the front door of Liberty Service Station in Dandenong North. You used a large of piece of concrete to smash the door.
8You then proceeded to enter the building and stole 200 cigarettes and $500 cash from the register.
9This offending forms the basis of charge 1, burglary, and charge 2, theft.
10On 4 January 2023 at 1.06am, you were captured on CCTV attending KFC in Noble Park.
11You forced open the front door of the KFC before gaining entry. This forms the basis of charge 3, burglary.
12You then went on to empty the cash register and stole $200 cash. You also stole an Apple iPad tablet, an Uber Eats tablet and a black Door Dash tablet. This forms the basis of charge 4, theft.
13On 17 January 2023 at 4.40am, you attended Zilla Kebab and Pizza in Dandenong. You were captured on CCTV approaching the store on foot before pushing the closed and locked sliding door with your foot.
14You managed to forcibly push yourself inside the store, gaining entry via the sliding glass door. You caused moderate cracking to the top right corner of the glass door. This is the basis of charge 5, burglary.
15Once you were inside you then stole the contents of a charity tin from the counter and cash from the staff area which all together totalled $200. This is the basis of charge 6, theft.
16You also stole 7 Menu Log tablets, 2 Uber Eats tablets and 1 Door Dash tablet. This offending is the basis of charge 7, theft.
17After this offending occurred, you were captured on CCTV exiting the rear of the store into a courtyard carpark. The store manager, Mohammad Musawi, attended the store at 10am and reported the incident to police.
18Once police arrived, they located fingerprints and palm prints matching yours on the inside and outside of the sliding glass door.
19On 19 January 2023 at 5.04am, you attended the KFC in Dandenong and used a crowbar to force entry through the drive through window. You then entered the KFC and stole $200 cash from the register under the front serving counters. This is the basis of charge 8, burglary, and charge 9, theft.
20Police attended the scene and located your fingerprints on a mobile phone box located at the KFC. You were also captured on CCTV footage.
21On 25 January 2023 at 6.10am, you entered a secure multi-level car park situated in Noble Park. You forced open the front door of the car park and gained entry. This forms the basis of charge 10, burglary.
22You are depicted on CCTV walking around the carpark, carrying two bags over your shoulder and a black backpack.
23You proceeded to smash the rear drivers side passenger window of a 2003 Toyota Corolla and look inside the car. You stole a garage remote control. This forms the basis of charge 11, theft.
24You then walked towards the southern end of the carpark and entered a 2016 black jeep station wagon by again breaking into the rear driver's passenger door. You stole a CD and an IKEA bag. This forms the basis of charge 12, theft.
25On 25 January 2023 at 7.30am, you attended at My Chemist in Noble Park.
26You broke a flyscreen window and reached in the window to open a door to gain entry to the retail area of the chemist. This forms the basis of charge 13, burglary.
27Once inside you ransacked numerous rooms in the store and stole five NAB deposit books. This is the basis of charge 14, theft.
28You were captured on CCTV with your full face visible, showing a distinctive dark coloured mole on your left cheek.
29Police then attended the scene and found your fingerprints on the cash register.
30On 26 January 2023 at 8.25am, your victim was asleep in her bedroom at her residence in Noble Park.
31At the residence you banged on the front door before walking to the side gate and then going back to the front door where you remained for one minute. You were unable to gain entry and your full face was seen on CCTV. This forms the basis of related summary charge 54, trespass.
32Your victim found a brick, a broken handle and part of a hunting knife that was left by you at her residence. In an interview with police, you admitted to attending the residence with a broken hunting knife. This is the basis of related summary charge 55, possess controlled weapon without excuse.
33On 27 January 2023 at 5.30am, you attended LH Fresh Supermarket in Dandenong.
34You used a rock to smash the glass sliding door of the store to gain entry. This is the basis of charge 15, burglary.
35Once you were inside the store you proceeded to steal an unknown amount of cash and Tattslotto ‘scratchies’ from two cash registers. You then left through the broken sliding door. This is the basis of charge 16, theft.
36You were captured on CCTV which showed you wearing the same Adidas runners that you had been captured wearing in previous offences. Once police attended and examined the scene they found your fingerprints on one of the cash registers that you had pulled out.
37On 27 January 2023 at 9.15pm, CCTV shows you attending a residence in Dandenong carrying garden shears. You proceeded to break into this residence through the side door after you removed the flyscreen and glass panel to gain entry. This is the basis of charge 17, burglary.
38When you were inside the residence you ransacked the property and stole jewellery belonging to the occupant. This forms the basis of charge 18, theft.
39You left the property carrying a backpack. This which was subsequently found at Mahtab Money Exchange on 29 January 2023 containing some of the stolen jewellery relating to charge 18 which has since been returned to the victim.
40On 29 January 2023 you committed four burglaries.
41At 5.30am at Jesus Church in Dandenong you were captured on CCTV attending the scene on a push bike. You forced entry into the church through the front door, which allowed you to access the Dandenong Hub Shopping Centre. This forms the basis of charge 19, burglary.
42At 5.45am, you attended Mahtab Money Exchange, referred to above. You forced entry into the store through the front door before you climbed over the counter to gain entry to the office area. This is the basis of charge 20, burglary.
43Once you were inside the office area you stole A$5080 and unknown money in other currencies, as well as a safe containing A$139,775. This forms the basis of charge 21, theft.
44You took the safe to the walkway area but you were unable to open the safe or retrieve its contents. The safe was found at 10am on the ground floor of the shopping centre. Despite it being damaged it was not opened and the safe was returned to its owner with all its contents, being A$139,775 and US$300.
45You then attended at Perpetua Money Transfer where you smashed the front door and entered the office area and ransacked the office. This forms the basis of charge 22, burglary.
46You then proceeded to steal A$70. This forms the basis of charge 23, theft.
47Your offending was captured on CCTV where a distinctive tattoo behind your left ear could be seen.
48The final burglary on this day occurred at the Stamp and Coin Shop where you gained entry by smashing the front door glass pane. This forms the basis of charge 24, burglary.
49You then stole a tray of collectable coins which forms the basis of charge 25, theft.
50This offending caused the security alarm to be triggered and you and you then fled the area on foot.
51I note that during all offences above you were on bail. This forms the basis of related summary charge 4, commit indictable offence whilst on bail.
Arrest
52You were arrested by police on 31 January 2023 at the Comfort Inn in Dandenong.
53At that location police located the following items:
·A roll of $50 notes tied together in an elastic band in a black coloured Bulgari purse totalling $4,450 cash.
·Keys to an electric Scooter.
54Following your arrest you told police that there was money inside your bedside table. Police then located and seized the following:
·Singapore Dollar - S$25.
·Euro - €180.
·Malaysian Ringgit - RM$663
·Sri Lankan Rupee - Re$140
·Pakistan Rupee - Rs$46,950
·New Zealand - NZ$5
·India Rupee – 10 rupees
·Chinese Yuan - ¥15
·United Arab Emirates Dirhams - AED$5
·Qatar Riyal - QR$100
·Thailand Baht - THB$2028.
55On the same day, being 31 January 2023, police also located and seized a zip lock bag containing dried green vegetable matter in the same draw as the foreign money. This was found to be cannabis and is the basis of charge 26, possession of drug of dependence.
56You were then taken to Dandenong Police Station for interview. You were frank with police and made full admissions to committing all the burglaries and thefts. You also disclosed to police a number of offences that had not been put to you.
57You told police that you committed these crimes to eat and to support your drug habit, that on 30 January 2023 you attended at Unit 2, 1 Balkan Court, Dandenong North and left the majority of the clothing worn in the offending.
58You also disclosed to police that you traded the stolen items to ‘Abdullah from unit 2, 1 Balkan Court’ for drugs and money.
59Police then attended this address in Dandenong North on 31 January 2023 and executed a search warrant.
60Police located the following items:
·A number of foreign coins believed to be from Mahtab Money Exchange.
·One silver Samsung tablet believed to be from KFC Dandenong.
·One black Samsung Horizon tablet believed to be from KFC Dandenong.
·One Black Lenovo tablet believed to be from KFC Dandenong.
·Five deposit books in the name of Chemist Warehouse and Harris field Pharmacy (from My Chemist, Noble Park).
61Police then reattended the location where they first arrested you at the Comfort Inn and executed a search warrant, seizing:
·One Kasa Electric Scooter. I note this forms the basis of charge 27, knowingly deal with proceeds of crime.
·140 British Pounds believed to be from Mahtab Money Exchange.
·Sony Xperia smartphone with charger.
·Black Samsung Phone.
·Two collectable coins in cases (sixpence) believed to be from Stamp and Coin.
Gravity of the offending
62Your offending correlates with your descent into homelessness and drug abuse. While that may explain your conduct, it does not excuse it. You broke into a large number of premises, including one private home, and stole any items you considered to be of value.
63I consider your offending to fall in the low to mid‑range for offences of this type.
Victim Impact Statement
64I received a victim impact statement from Ms. Kerrie Stevens, the victim of charges 17 and 18, being the residential burglary and subsequent theft. Ms. Stevens detailed the effects of your violation of her home and the worry and hyper-vigilance she now experiences.
65The property you stole, of which only some was recovered, had great sentimental value and it cannot be replaced. You have taken away her sense of safety in her own home.
Plea of guilty
66You entered pleas of guilty to the charges at the Magistrates’ Court. Both parties submitted this was an early plea and has significant utilitarian benefit in the circumstances. You have saved the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence. As such, you have facilitated the administration of justice and you are entitled to a benefit for that.
67The utilitarian benefit of your plea is enhanced by the fact that the Worboyes v R [2021] VSCA 169 considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.
Remorse
68You have expressed remorse for your offending and accepted responsibility for your actions. Your cooperation and expressions of regret demonstrate true remorse and I will moderate the sentence accordingly.
69Further, you admitted offending that had not been put to you, resulting in an additional eight charges being laid against you. For this you are to receive an additional discount as per the principles in R v Doran [2005] VSCA 271.
Personal circumstances
70I will turn now to your personal circumstances.
71You are 26 years of age, having been born in Iran in December 1996.
72You fled Iran at the age of 16 after singing and rapping about politics which was unacceptable under that regime. You came to Australia via Indonesia and spent some time on Christmas Island before being sent to immigration detention in Hobart. Ultimately, you were released into the community in Melbourne under supervision as you were still under 18.
73Your older brother and your father remain in Iran. Your mother passed away in 2019.
74You completed year 10 at Epping College. At the age of 23 you completed a carpentry apprenticeship before you began to work as a painter. You held this position for some two and a half years and have employment available to you on release.
75When you were 18 you met your wife. You married and together had a son and a daughter. The relationship deteriorated in late 2021 and due to the imposition of an intervention order, which has now lapsed, you were required to leave the home. I note you now have an amicable relationship with your former wife and will reside with her upon your release until you find stable housing.
76In the lead up to the offending you had been homeless but you were living at the Comfort Inn in Dandenong and had been introduced to methylamphetamine. You found yourself using half a gram a day, together with cannabis and prescription medications. You have been abstinent from illicit substances since your remand.
77I received a report from psychologist Daniella Kocic, dated 31 August 2023 which was Exhibit 2 on the plea.
78Ms Kocic opines that you have a history of distress and maladjustment and have experienced much instability throughout your life. You have witnessed and engaged in self-harming behaviour. She found you met the criteria for major depressive disorder, for which you are medicated, and cannabis and stimulant use disorder (amphetamines).
79Your untreated mental health issues combined with your substance use created a risk of criminal misconduct which was realised. Ms Kocic assessed you as being a moderate risk of reoffending. Further, she found that imprisonment is likely to weigh more heavily on you than on a prisoner without your mental health conditions.
Deportation
80I understand your bridging visa expired in March 2022 and it is therefore likely that you will be deported upon your ultimate release from custody. It was recognised by the Victorian Court of Appeal in Akot v The Queen [2020] VSCA 55 that:
'The potential for an offender to be deported at the completion of a sentence is relevant to the sentence in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment, because it destroys the opportunity for the offender to settle permanently in this country.'
81You have been in Australia since the age of 16, you have two children who were born and reside here and you have made your life here. I accept that the prospect of deportation will weigh heavily upon you whilst you serve your sentence, particularly as it would involve a separation from your children.
Sentencing principles and factors
82Mr Kamalipor, these were unsophisticated and opportunistic offences, causing damage and a violation of various businesses and a residential premises. The value of the goods you stole was in most cases not significant but you were not to know that on breaking into the properties.
83Given the number of offences you have pleaded guilty to and your moderate risk of reoffending, I find that specific deterrence has some application in your case. General deterrence is however, particularly relevant given the prevalence of these sort of offences in the community.
84Should you remain abstinent from drugs upon your release, I find your prospects of rehabilitation are reasonable. You have expressed a desire and opportunity to go back to stable employment and you wish to build a relationship with your children, both of which bode well for you.
85I must also consider just punishment, denunciation and protection of the community from offending such as yours.
86As you were on bail at the time of the offences before the court, I note that pursuant to s.16 of the Sentencing Act 1991, the presumption of concurrency does not apply. I will however order some periods of concurrency given the number of offences you are pleading guilty to. Totality is a further relevant consideration.
87Would you please stand, Mr Kamalipor.
Disposition
88On each of charges 1, 5, 15, 17, 18, 21, 22 and 24 you are sentenced to six months imprisonment.
89On each of charges 2, 3, 4, 8, 10, 13, 14, 16, 19 and 20 you are sentenced to four months imprisonment.
90On each of charges 6, 9, 11, 12 and 27 you are sentenced to three months imprisonment,
91On charge 7 you are sentenced to five months imprisonment.
92On each of charges 23, 25 and related summary offence 54 you are sentenced to two months imprisonment.
93On charge 26 you are sentenced with conviction to pay a fine of $150.
94On related summary offences 4 and 55 you are sentenced to one month imprisonment.
95On related summary offence 15 you are sentenced to seven days imprisonment.
96Charge 17 will be the base sentence.
97I order that one month of each of the sentences imposed on charges 1, 3, 4, 5, 8, 10, 13, 14, 15, 19, 20, 22, 24, 27 and related summary offence 54, two months of each of the sentences imposed on charges 7 and 18 and three months of the sentence imposed on charge 21 be served cumulatively on the sentence imposed on charge 17 and on each other.
98That makes a total effective sentence of two years four months imprisonment.
99I order that you serve a minimum non-parole period of 18 months before being eligible for release.
100I declare that pursuant to s.18 of the Sentencing Act 1991, you have served 240 days imprisonment, up to but excluding today.
101Pursuant to section 6AAA of the Sentencing Act 1991, had you not pleaded guilty I would have imposed a total effective sentence of three years three months with a minimum non-parole period of two years to serve before being eligible for release.
102I make the forfeiture and disposal orders sought by the prosecution.
Are there any other matters, counsel?
MS EAST:No, Your Honour.
HER HONOUR: You can be seated, Mr Kamalipor. Given the number of offences, I might give counsel time to just check the addition. I’ll stand down for a couple of minutes. If you can let my staff know when you’re ready to resume. We’ll stand down temporarily.
MS COULSON: Yes.
MS EAST:Yes, Your Honour.
HER HONOUR: Thank you. Is there anything further from either party?
MS COULSON: No, Your Honour.
HER HONOUR: Thank you. Would you take Mr Kamalipor out, please.
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