Director of Public Prosecutions v Karam
[2022] VCC 403
•17 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00312
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH KARAM |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 April 2021; 8 March 2022 | |
DATE OF SENTENCE: | 17 March 2022 | |
CASE MAY BE CITED AS: | DPP v Karam | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 403 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Sargent (Plea) | Office of Public Prosecutions Victoria |
For the Accused | Mr N Brown Ms H Anderson | Nelson Brown Legal Valos Black and Associates |
HER HONOUR:
1Joseph Karam, you have pleaded guilty to one charge of armed robbery contrary to s 75A(1) Crimes Act 1958 . The maximum penalty for the offence of armed robbery is 25 years imprisonment.
Circumstances of the Offending
2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 22 March 2021 which is the agreed basis upon which you are to be sentenced. A summary of your offending is as follows:
3At approximately 11:43 pm on 30 July 2020 you were captured on CCTV exiting your room at the Motel Maroondah on Whitehorse Road, Mont Albert where you were living at the time.
4At about 12:23 am on 31 July 2020 you attended a nearby 7-Eleven store in Mont Albert. The victim of your offending, Mr Kanav Dhawan, was a 21-year-old working alone in the 7-Eleven store. Mr Dhawan let you in through the store’s front doors.
5You were wearing a purple hooded jumper, shorts and your face was partially covered with a blue medical facemask.
6Upon entry, you walked directly to the counter and told the victim, “I have a weapon”, before lifting your jumper to display an item with a brown coloured handle tucked into your pants. The victim believed the item was a hammer or a knife.
7You then demanded that the victim “give me all the money in your till”. The victim took out the till and placed it on the counter. You took approximately $200 worth of $20 and $10 notes before walking back to front door and asked the victim to let you out. This is the conduct that is the subject of the charge of armed robbery.
8The victim subsequently contacted the 7-Eleven support line and emergency services to report the incident.
9Police arrived at the scene shortly after, obtained a description of you from the victim and reviewed the CCTV footage. A police canine unit tracked you to the motel and police located you in your Motel room at around 11:40am.
10The police located your purple jumper over the fence of the Motel’s neighbouring property. Next to the jumper was an imitation handgun with a brown handle. This was the item used by you during the armed robbery.
11You were subsequently arrested and transported to the Box Hill Police Station where you participated in a record of interview. You made some admissions in respect of being present at the 7-Eleven store but otherwise denied the offending, stating that you had been wearing your army jacket, jeans and shoes that evening, but another male wearing shorts and a jumper had tried to break into your room that evening. You denied having seen the imitation handgun before.
Nature and Gravity of the Offending
12I turn now to discuss the nature and gravity of your offending.
13The offence of armed robbery is an objectively serious offence reflected in the maximum penalty of 25 years’ imprisonment fixed by Parliament.
14It is an aggravating feature of your offending that the victim, a young man, was working alone late at night in the 7-Eleven store. You chose a ‘soft target’ for your offending. Further, this was not spontaneous offending. There was a degree of premeditation in that you attended the 7-Eleven store armed with the imitation handgun and, as can be inferred from your conduct immediately upon entry, did so with the intention of stealing.
15A photograph of the imitation handgun was tendered in the plea hearing.[1] It is a realistic replica. The gravity of producing a realistic imitation handgun is moderated by the fact you only revealed the handle of the gun and did not otherwise indicate the nature of the weapon in your possession. Indeed, the victim did not identify the item as a handgun, believing you were showing him the handle of a hammer or a knife. Nonetheless, the victim understood from your conduct that you had a weapon of some form at the time you made your demand for money. Although no victim impact statement was filed, this must have been a frightening experience for the victim.
[1]Exhibit B
16Without diminishing the impact of the armed robbery on the victim, it is also relevant my assessment of the gravity of your offence that it was a relatively short-lived incident and that the amount stolen by you was limited to just $200.00. Once you had stolen the money, you immediately left the store without further incident or threats. I agree with the prosecution’s characterisation of your offending as being a less serious instance of the offence of armed robbery.
Personal Circumstances
17I turn now to discuss your personal circumstances, much of which is detailed in the psychological report of Consultant Psychologist, Gina Cidoni who assessed you for the purposes of your plea.
18You were born in Lebanon on 16 January 1989 and were raised there by your parents during the war. Your father died when you were 4 years old.
19With your mother, you immigrated to Australia in 2001 after she remarried an Australian man where you lived in Glenroy.
20You completed school up to Year 8 in Lebanon and then Years 9 and 10 in Australia after which you attended trade school and received qualifications in painting and logistics. You have a strong employment history. You undertook an apprenticeship with a qualified painter between 2008 and 2012 and worked in painting and decorating until 2015, followed by a brief period operating your own painting business until 2016. Your business failed after the breakdown of your marriage and coincided with the beginning of a period of sustained offending. Although your work has been interrupted by periods in custody, and then due to the impact of the pandemic, you have generally been able to secure work as a painter, including prior to your recent remand.
21In 2012 you married your now ex-wife and purchased a home in Roxborough Park. You reported to Ms Cidoni that the relationship ended after you became aware your wife was having an extramarital affair, and you were told this male was the father of your two children. Following your separation you were served with a Family Violence Intervention Order and you were precluded from the family home. You subsequently became homeless and have not had stable accommodation since that time.
22Your drug addiction issues spiralled out of control following the breakdown of your relationship. You began using cannabis in your late teens, but from late 2015, you were abusing cannabis, heroin and methylamphetamine. You told Ms Cidoni that prior to your arrest for this offending, you were using between 1-1.5g of these drugs daily.
23In her report dated 23 March 2021, Ms Cidoni confirmed that Forensicare records reveal you had seven psychiatric admissions between 2015 and 2019, and had been treated as an involuntary patient on five occasions during that period. Ms Cidoni states you were diagnosed with an unspecified psychosis in 2016; schizophrenia, a dissocial personality disorder, mental and behavioural disturbances due to methylamphetamine use in 2017; and due to cannabis use in 2019.
24Following psychometric testing, Ms Cidoni assessed you with an Adjustment Disorder, depression and anxiety. In Ms Cidoni’s opinion your mental impairment is severe and impacts on your problem solving, motivation, judgement and decision-making. Ms Cidoni opines that your use of heroin and methamphetamines would have exacerbated these symptoms, and is likely to have produced ‘transient psychosis’ at the time of the offending, consistent with your previous psychiatric admissions.
Prior criminal history
25It is conceded by your Counsel that this instance of offending arose in the context of drug abuse, and indeed, that your long-standing drug addiction corresponds with your criminal history. Your prior criminal history commenced in NSW from 2006-2012 and included sentences for driving, drug and dishonesty offences.
26From 2016, you have a relevant and reasonably extensive prior criminal history in Victoria. In December 2016, you were sentenced to a combination sentence of three months’ imprisonment followed by a 12 month community correction order (‘CCO’)for offending that including burglary, theft and family violence offences. In August 2018, you were sentenced to one years’ imprisonment and a 12 month CCO for multiple offences including false imprisonment, family violence offences and dishonesty offences, including six charges of burglary.
27In August 2019, you were sentenced to 99 days’ imprisonment for possessing amphetamine and dishonesty offences.
28Then, on 25 October 2019, you were sentenced to six months’ imprisonment for driving and dishonesty offences, including burglary, going equipped to steal, theft of a motor vehicle and obtaining a financial advantage by deception. You were released on 25 March 2020. It is of concern that this offending occurred less than three months later, in the context of a drug relapse. It is notable that this is your first conviction for the offence of armed robbery, which represents an escalation in your offending behaviour.
Deferral of sentence
29At the time of your plea hearing on 9 April 2021, you had served 255 days on remand. You had been found suitable for admission to the Odyssey House residential drug rehabilitation program. The application made on your behalf to defer sentence pursuant to s 83A of the Sentencing Act 1991, supported by the prosecution, was granted by me in order to better assess your prospects of rehabilitation. This course was supported by the recommendation of Ms Cidoni who recommended you “obtain urgent drug treatment”, to maintain abstinence and address your risk of relapse, which Ms Cidoni assessed as “high”. For that reason, Ms Cidoni recommended residential rehabilitation to counter this risk.
30Following your release from custody, you spent approximately three months at Odyssey House. You completed stage 1 of that program and were reported by your therapist to engage positively in that 8 week program. Random supervised drug screens indicated you remained drug free during this period.[2] However, you were found to be in breach of the programs rules (unrelated to drug use) and were discharged on 28 June 2021. You were offered re-entry to the program but elected to exit treatment due, in part, to your reluctance to wean yourself off the methadone program, a condition of stage 2 treatment.
[2]Letter from Odyssey Housed dated 7 March 2022.
31Following your discharge from Odyssey House, you returned to work as a painter but were remanded for further alleged offending on 30 November 2021.
Sentencing Considerations
32In written submissions that were expanded upon at the plea hearing, both counsel highlighted a number of matters they submit should be given weight in the sentence I impose. I have taken each of these matters into account.
33First and foremost is your plea of guilty. You entered a plea to the charge of armed robbery at a committal mention hearing on 15 February 2021. Your early plea saved the victim from having to give evidence in these proceedings and saved the community the cost and time associated with a trial. The utility of your plea is heightened at this time given the delays associated with trials in the wake of the pandemic.
34By your plea you also accept responsibility for the offending and express remorse. At the time of your plea, you also expressed your remorse for your conduct and your desire to undertake drug rehabilitation in a letter you wrote to the court dated 23 March 2021. You are entitled to a significant sentencing discount for your plea of guilty, at this time.[3]
[3]Worboyes v The Queen [2021] VSCA 169
35Secondly, your time on remand following your arrest from 31 July 2020 to 9 April 2021 ran in parallel with the restrictions in place to respond to the pandemic. This included periods in isolation to manage the pandemic, limitations on programs, and significantly, an absence of face to face visits. I accept this was an additional burden of your time on remand, and I have taken that into account in mitigation of sentence.
36Thirdly, the time you spent in residential treatment at Odyssey House is also relevant to my sentence. As stated by the Court of Appeal in Akoka[4], there are two issues that arise from a period in residential treatment: firstly, the positive effect rehabilitation may have and secondly, the time actually spent at the rehabilitation centre.
[4]Nathan Akoka v The Queen [2017] VSCA 217 (‘Akoka’)
37Here, you demonstrated a commitment to your rehabilitation over that period of three months and are reported to have begun developing strategies to overcome your drug dependency. Urine screens confirm you were drug free during that period. Unfortunately however, the progress you made at Odyssey House was not sustained. For a period of five months, you did not come to the attention of police. However, at the time of sentencing, you have been remanded for subsequent alleged offending and, as accepted by your counsel, in possession of methylamphetamine at that time. Although the charges are pending and accordingly have no role to play in my sentence, the fact of your further remand in the context of a relapse into methylamphetamine use, means I am unable to find this period of rehabilitation has led to sustained abstinence from drugs. Your future prospects of rehabilitation will very much depend on your long-term commitment to living drug free. Although you demonstrated a willingness to engage in drug treatment during your time at Odyssey House, at present, I remain guarded about your prospects of rehabilitation into the future.
38As to the second issue, I accept that the restrictive nature of your time in rehabilitation at the Odyssey House facility is a matter I am able to take into account, in a broad sense, in mitigation of your sentence. In taking this period of close to three months into account, I give weight to the fact you were compelled to reside at Odyssey House as a condition of bail during the period of your deferral. Further delay necessitated as a result of your change in legal representation is not a matter relevant to sentence.
39Finally, I have regard to the matters outlined in the report of Ms Cidoni, including your diagnosed Adjustment Disorder, depression and anxiety. Although these matters do not operate to moderate your moral culpability for your offending, I accept the submission that Ms Cidoni’s report concludes that your mental health conditions will compound the burden of your imprisonment, and have taken that matter into account in accordance with the authority in Verdins,[5] with respect to limb 5 only.
[5] R v Verdins (2017) 16 VR 269
40On your behalf, Ms Anderson submitted that a straight sentence of imprisonment could meet the relevant sentencing considerations in this case. In my judgment however, the paramount sentencing considerations of general deterrence, denunciation and community protection warrant a sentence of imprisonment and with a non-parole period being fixed. In reaching this decision, I have had regard to my assessment of your prospects of rehabilitation and the need for the sentence to operate as a specific deterrent, particularly in light of your past criminal history. Fundamentally, this sentence must deter you and others who may be minded to offend against members of the community, particularly those who work alone in convenience stores, who are perceived to be ‘soft targets’.
Sentence
41Taking these matters into account and have regard to the maximum penalty imposed for the offence of armed robbery, you are convicted and sentenced to 24 months’ imprisonment. I fix a non-parole period of 12 months before you are eligible for parole.
42Pursuant to s18 of the Sentencing Act 1991, I declare that 264 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
43Pursuant to s6 AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 2 years, 10 months with a non-parole period of 20 months.
44Finally I make the disposal order sought by the prosecution, noting that it is not opposed.
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