Director of Public Prosecutions v Karam
[2023] VCC 306
•27 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01743
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOE KARAM |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2023 | |
DATE OF SENTENCE: | 27 February 2023 | |
CASE MAY BE CITED AS: | DPP v Karam | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 306 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Theft of a motor vehicle – Armed robbery - Verdins – Prospects of rehabilitation assessed as positive – Relevant criminal history – Drug use linked to offending – Complex mental health presentation – Expressions of remorse – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 74(1), 75A; Sentencing Act 1991 ss 6AAA, 89(4).
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 1 year and 10 months with a non-parole period of 1 year and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms O Sparrow | Office of Public Prosecutions |
| For the Accused | Ms H Anderson | Valos Black & Associates |
HIS HONOUR:
Introduction
1Joe Karam, you have pleaded guilty to:
(a) one charge of theft of a motor vehicle contrary to s 74(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charge 1); and
(b) one charge of armed robbery contrary to s 75A of the Crimes Act, which carries a maximum penalty of 25 years imprisonment (Charge 2).
2You have also admitted your criminal record.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4You were 32 years old at the time of offending. The victims in this matter are Jayesh Bhadra, who was 33 years old at the time, and Rosaline Taulapapa, who was 21 years old and employed at Caltex petrol station in Laverton North.
5On 23 November 2021, Mr Bhadra was selling his vehicle, a BMW X5 M Sport, for $89,990. On that date, you contacted him by phone and an agreement was made for the vehicle to be inspected.
6At approximately 12:25pm, Mr Bhadra met you at Point Cook. You took the car for a test drive with Mr Bhadra seated in the front passenger seat.
7You pulled the vehicle to the side of the road on Boardwalk Boulevard and requested that Mr Bhadra check whether there was smoke coming from the car’s exhaust. When Mr Bhadra exited the vehicle, you accelerated away and drove down a nearby street.
8Mr Bhadra attempted to control or track the vehicle through a phone application, but it had been switched off shortly after you had taken the vehicle. Mr Bhadra then called police.
9At approximately 12.50pm police located the vehicle in a carpark in Altona. The vehicle was stationary but still turned on, and had been left partially open. There were no occupants, and police were unable to locate you.
10On 25 November 2021, you contacted Mr Bhadra from the same phone number, requesting a refund for a deposit that had been paid on the vehicle. No deposit had been taken for the vehicle. (Charge 1 – Theft of motor vehicle)
11On 24 November 2021 at approximately 9.30pm, a taxi driver picked you up from Altona under a booking for ‘Mick’. You placed a duffle bag into the boot of the taxi and requested the driver head to an address in Sunshine. During the trip you said your name was ‘Cynthia’ and, later, ‘Mack’. Approximately 10 minutes into the journey, you advised the driver that you did not have money to pay the fare.
12At approximately 9.49pm, the driver stopped at a Caltex petrol station in Laverton North and advised you he could not take you any further. You said you would get money. After you exited the taxi, the driver drove away.
13You entered the petrol station shop where Ms Taulapapa was working. She described you as speaking ‘gibberish’, such that she could not understand you.
14You then said, ‘Don’t take it personal, sweetheart; give me all the money in the till.’ Ms Taulapapa responded, ‘Sorry, what did you say?’ and you repeated, ‘Give me all the money in the till.’
15As you said this, you lifted the left side of your shirt to show a knife tucked into your pants. Ms Taulapapa described the knife as having a thick black handle approximately 15cm long, and a ‘little bit’ of the silver blade being visible above your pants.
16You then winked at Ms Taulapapa.
17Ms Taulapapa believed that you would have used the knife if she did not open the till, and she was scared.
18Ms Taulapapa opened the till and asked whether you wanted the coins as well, and whether you wanted a bag to carry it in. You responded, ‘No, I just want the notes.’ Ms Taulapapa handed you the cash from the till which you placed in your pocket. You then ran from the store. Approximately $175 was taken by you. (Charge 2 – Armed robbery)
19When you were outside, Ms Taulapapa locked the doors and called police. The taxi driver who had driven you returned to the petrol station after remembering you had left your duffle bag in the boot of the car.
20When police arrived, the taxi driver provided the duffle bag to police. The duffle bag contained several documents belonging to Mr Bhadra, and a forged acknowledgement of transfer relating to the stolen vehicle.
21On 25 November, police received a call from you where you identified yourself as ‘Max Conwards’ with the same phone number you had used to contact Mr Bhadra. You advised you had left a black bag containing tools and keys in a taxi at an Ampol petrol station in Altona at approximately 9.30pm the day before.
22Police invited you to attend Werribee Police Station to collect the items. You advised that your friend by the name of ‘Joe’ would collect the property at approximately 5pm the following day. No one attended to collect the items.
23On 30 November 2021, you were remanded into custody on another matter also involving a motor vehicle. Police conducted a forensic examination of that vehicle and seized a Samsung mobile phone, which after further investigation, was determined to be the phone you used in relation to the communication with the victim of the car theft.
24On 23 December 2021, police gave you the opportunity to participate in a record of interview in relation to the current matters, but you declined.
Nature and gravity of the offending
25Turning first to Charge 2.
26Armed robbery is an inherently serious offence. This is reflected in the maximum penalty of 25 years imprisonment which Parliament has prescribed.
27It was submitted on your behalf that the offending may be categorised as a ‘low range’ example. The offending was clearly spontaneous in that the taxi driver stopped at the service station after you indicated that you could not pay the fare. The prosecution contend that your offending falls in the ‘low to mid range’ for this type of armed robbery.
28The circumstances of your conduct represents armed robbery on a soft target, in this instance, being a young person working in a service station, at night. While you did not point the knife directly at the victim or act in an overtly violent manner, your conduct was nonetheless frighting for the young attendant. In the circumstances, I accept that your offending does not represent a high end example, and does fall towards the lower end. However, as I have mentioned above, it remains inherently serious offending.
29As to the theft charge, the vehicle stolen was of high value and it is clear from the evidence that you engaged in some planning, albeit rather unsophisticated. However, I also note that the vehicle was located some 20 to 25 minutes after the theft, undamaged.
Personal circumstances
30You are now 34 years of age and were born in Lebanon during the civil war. You were raised there by your parents; your father was killed when you were just four years old. You have no siblings.
31Your mother went on to remarry an Australian man, and that is how you came to be in Australia. You came in 2001. Your mother’s second marriage has since broken down and she has returned to Lebanon. You do not have frequent contact with her.
32You completed Year 8 equivalent schooling in Lebanon and completed Years 9 and 10 in Australia. You have qualifications in painting and logistics, having worked relatively consistently until 2020. At one stage you owned and operated your own painting business.
33You married your ex-partner in 2012 and purchased a home in Roxburgh Park. Together you raised two children whom you believed to be yours, but you later found out that you were not the biological father. The marriage broke down in 2015, coinciding with an escalation in your substance misuse. It was at this time you began using heroin and methylamphetamine, which spiralled into criminal offending.
34A psychological assessment report authored by consultant psychologist Gina Cidoni dated 23 March 2021 and prepared in relation to different offending, provides a history of your mental health. You have had seven psychiatric admissions between 2015 and 2019. You were treated as an involuntary patient five times on Temporary Treatment Orders from 2015 to 2020. You have received a number of mental health diagnoses, including unspecified non-organic psychosis, schizophrenia unspecified, dissocial personality disorder, and mental and behaviour disturbance due to harmful methamphetamine use and cannabis use.
35Prior to this current offending, you had just spent three months at Odyssey House, a residential rehabilitation facility, where you completed Stage 1 of their program. After you left Odyssey House, you obtained share house accommodation with the support of the Salvation Army and generally stayed clean, with no relapse with heroin and only rare occasions of methylamphetamine use. However, you experienced a significant relapse in November 2021, which triggered this current offending. At the time, you had been using about 1.5 grams of heroin daily, together with some ice use.
36On 17 March 2022, you were sentenced in this court in relation to a similar armed robbery of a service station, committed in July 2020. You were sentenced to 2 years imprisonment with a non-parole period of 12 months. You did not obtain parole and your sentence will expire on 9 May 2023.
37You have made use of your time in custody, completing a number of courses, including a 44 hour drug and alcohol program and a TAFE course in traffic management. At the plea, I was told that you have also completed a four month civil construction course and that you are working in the prison where you are currently housed, which is a minimum security prison. You remain on methadone to assist with your drug rehabilitation.
Sentencing considerations
38I first take into account your plea of guilty. The matter proceeded to this court by way of straight hand-up brief and no witnesses have been cross-examined. As such your plea has saved significant court time and expense and therefore has facilitated the course of justice. The plea is indictive of remorse and you have conveyed to your counsel that while you never intended to hurt anyone, you appreciate that your conduct may have a significant psychological impact. Your plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169, [39].
39Ms Anderson who appeared on your behalf, submitted that Verdins principle 5 is enlivened based on the report of Ms Cidoni. When you were sentenced in this court on 17 March 2022, Her Honour Judge Chambers found that Verdins 5 had application. However your circumstances have changed somewhat since that sentencing. Most significantly, it appears that you are doing well in custody; you have competed a number of courses and you have been moved to a minimum security prison. In the circumstance as I indicted during discussion, without further assessment and evidence, I am unable to find that Verdins 5 is still enlivened.
40As to your prospects of rehabilitation, it appears that given the good work you have done in custody, your prospects have improved despite the setback in relation to your drug use that led to this offending. You have the capacity and desire to work upon your release. Clearly, your prosects are dependent upon you remaining drug free and if you do, in my view your prospects may be assessed as positive.
41Deterrence, both general and specific are relevant sentencing considerations. This type of armed robbery committed on vulnerable people, simply going about their employment, must be deterred. As you committed a similar armed robbery for which you are serving a sentence, the sentence I impose must also have a deterrent effect on you.
42You have been in custody since 30 November 2021, when you were remanded in relation to the another matter to be heard in this court later this year. As noted, you were sentenced on the other armed robbery on 17 March 2022. You became eligible for parole in that matter in May 2022, although due to being remanded for another matter, and with this current matter pending, you were denied parole. I note also that there was a period of delay between the commission of this offence on 24 November 2021, and being charged on 1 June 2022. As such, it was submitted by Ms Anderson, that totality remains a relevant consideration as you do not have any formal pre-sentence detention available to you. In the circumstances, I accept that totality is a relevant matter to be taken into account in the sentencing discretion.
Sentence
43Mr Karam, would you please stand.
44Joe Karam, on Charge 1, theft of a motor vehicle, you are convicted and sentenced to 8 months imprisonment.
45On Charge 2, armed robbery, you are convicted and sentenced to 20 months imprisonment. I direct that 2 months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2 making for a total effective sentence of 22 months imprisonment. I direct that you serve 12 months before becoming eligible for parole.
46Further, the intention is that the sentence I have imposed today will be concurrent with the sentence you are serving, making you eligible for parole in approximately 10 months.
47Pursuant to s 6AAA of the Sentencing Act 1991 (‘Sentencing Act’), I indicate that had you not pleaded guilty, I would have sentenced you to a period of 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months.
48Pursuant to s 89(4) of the Sentencing Act, any licence you hold is cancelled and you are disqualified from obtaining a licence for a period of 12 months from today.
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