Director of Public Prosecutions v Kargar

[2017] VCC 1505

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01119

DIRECTOR OF PUBLIC PROSECUTIONS

v

IMAN KARGAR

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2017
DATE OF SENTENCE:	18 October 2017
CASE MAY BE CITED AS:	DPP v Kargar
MEDIUM NEUTRAL CITATION:	[2017] VCC 1505

REASONS FOR SENTENCE
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Subject:Plea- sentencing

Catchwords:            Aggravated burglary - theft - reckless conduct endangering serious injury - drive whilst disqualified

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:2 years’ imprisonment, 14 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Ms M. Carroll Ms K. Sturrock	Emma Turnbull Lawyers

Pages 1 - 8

 

 

HIS HONOUR: 

1Iman Kargar, you have pleaded guilty to one charge of aggravated burglary, two charges of theft, one charge of reckless conduct endangering serious injury and one transferred summary charge of drive whilst disqualified. 

2Aggravated burglary carries a maximum penalty of 25 years' imprisonment.  Theft carries a maximum penalty of 10 years' imprisonment.  Reckless conduct endangering serious injury carries a maximum penalty of 5 years' imprisonment and drive whilst disqualified - for a subsequent offence - carries a maximum penalty of 2 years' imprisonment or 240 penalty units.

3You were born on 21 January 1996 and are now 21 years old.  You were 20 at the time of the offending in December last year. 

4You have a criminal record about which I will go into more detail shortly. 

5By way of background, at the time of the offending you lived in Epping with your family.  On 13 August 2015, by order of the Melbourne Magistrates' Court, your driver's licence was cancelled and you were disqualified from obtaining a licence for 12 months.  On 16 November 2016, you were convicted of driving whilst disqualified and further disqualified from holding a licence for a period of eight months, that is, to 16 July 2017. 

6Between 21 and 22 December 2016, unknown offenders attended at residential premises in Bennett Street, South Morang, gaining entry by forcing the front door.  A set of keys to a 2014 Mercedes Benz car was taken and the vehicle was subsequently stolen from the garage. 

7Now, as to the circumstances of the particular offending for which you are here today, on Wednesday 28 December 2016 at approximately 2.10 am, a store employee was in the rear storage room of the Coles Express service station situated at 69 Keilor Park Drive, Keilor Park.  He was replenishing stocked items. 

8Between 8 pm and 5 am, the front doors are locked as a security measure.  However, the driveway apron lights are fully illuminated and the petrol bowsers are operational.  The store is fully lit up during these hours so that customers are aware that the store is open for business.  The employee had his vehicle parked in the car park outside the front door entrance. 

9At approximately 2.15 am, whilst the employee was still in the store room you, Mr Kargar, drove the stolen Mercedes to the front doors with your three co-offenders: Hussein Alqassim, aged 17; Hady Al Harbiah, aged 16 and Majed Alibudi, aged 17. 

10You remained in the driver's seat with the engine running idle, keeping lookout. 

11The other three got out and approached the front doors.  They all had various items of clothing wrapped around their heads to conceal their identity.  Alqassim and Al Harbiah were in possession of hammers whilst Alibudi was carrying a large doona cover. 

12Alqassim and Al Harbiah used their hammers to smash the doors before all three gained entry.  The employee was still in the store room.  Upon hearing the doors being smashed, he viewed security cameras and saw all three co-offenders running to the counter area.  The employee fled the store via a rear roller door and sought refuge at a neighbouring McDonald's restaurant. 

13Alquasim, Al Harbiah and Alibudi went behind the counter and emptied two drawers of the cigarette cabinet containing a variety of cigarettes into the doona cover being held by Alibudi.  Alibudi dragged the doona cover full of the cigarettes through the rear roller door exit whilst the others ran out of the front entrance to where you were waiting in the stolen vehicle. 

14You drove the vehicle to the rear of the store.  The doona containing stolen cigarettes was then loaded into the boot compartment.  You all then got into the vehicle. 

15The employee then observed the stolen vehicle drive from the scene south on Keilor Park Drive in the northbound lanes before entering the Calder Highway driving south. 

16The conduct just described constitutes Charges 1, 2 and 3: aggravated burglary, theft of the cigarettes and theft of the Mercedes car.  The stock of cigarettes stolen was valued at approximately $19,000. 

17I now proceed to the facts constituting Charge 4: reckless conduct endangering serious injury. 

18A short time later, the Police air wing detected the Mercedes travelling at high speed on the Western Ring Road.  They maintained observations on the vehicle for several kilometres.  More particular details of the driving are set out in the Prosecution Summary tendered as Exhibit A. 

19In essence, your behaviour in driving the vehicle involved driving through suburban streets and roads at night with the lights turned off, driving at high speed, driving on the wrong side of the road on multiple occasions through roundabouts and narrowly avoiding collision with other motorists on three occasions. 

20When driving under the Mahoneys Road overpass in Campbellfield, the air wing observed items of clothing being thrown from the moving vehicle onto the side of the road.  The air wing observed your vehicle stop on the Whittlesea-Yea Road, Humevale, where you and all co-offenders fled on foot in various directions. 

21Police units on the ground attended at the location of the vehicle, ultimately arresting you and all co-offenders at various locations in bushland close to where the vehicle was abandoned.

22Police conducted a check on the vehicle which confirmed it to be the 2014 Mercedes Benz stolen from the burglary in Bennett Street, South Morang between 26 and 27 December 2016.  Upon searching the vehicle, they found one of the hammers used in the offence on the front passenger-side floor, the second hammer on the rear seat and the doona cover containing the stolen cigarettes in the boot. 

23You and all co-offenders were conveyed to the Mill Park Police Station for interview.  You provided a “no comment” interview to police. 

24At the time of the driving you were disqualified from obtaining a licence, and this constitutes summary Charge 8: drive whilst disqualified. 

25I now turn to your personal circumstances. 

26As noted earlier, you are now 21 and at the time of the offending you were aged 20. 

27Again as I noted earlier, you do have a criminal history, commencing in the Sunshine Children's Court when, at the age of 18, you were placed on six months' probation for robbery, assault and dishonesty offending. 

28A little over a year later, in August 2015, at the Heidelberg Magistrates' Court you were convicted of theft of a motor vehicle and reckless conduct endangering serious injury (two of the very offences for which you are being sentenced here today), unlicensed driving, failing to give your name and address to the injured, failing to render assistance after an accident and a dishonesty offence.  You were sentenced to a 12-month community correction order with, I note, a condition that you participate in programs directed at your offending behaviour. 

29Just over a year later, you were back in the Magistrates' Court, this time in Sunshine, for breaching the community corrections order.  You were put on another such order, this time for nine months and with a judicial monitoring condition. 

30The offending for which you are now being sentenced took place exactly six weeks after this order was imposed. 

31I further note that despite Corrections personnel being aware of the current offending, you were permitted to continue with your obligations under the order.  Your initial work commitments were satisfactory but soon deteriorated.  By
22 August 2017, approximately 17 hours were outstanding and there was a total of 13 unacceptable absences recorded.  In addition, you refused to enrol in and complete the Road Trauma Awareness Program which was an important condition of your order. 

32In light of the unsatisfactory progress and the present breaching offences, the community corrections report of 22 August 2017 recommended that you were unsuitable for a community-based disposition at that time.

33The correction order expired on 15 August 2017.  I note, however, that on 16 September this year you have independently and voluntarily successfully attended and completed the Road Trauma Awareness course. 

34You have had the benefit, and continue to have the benefit, of being part of a close and supporting family.  You completed Year 12 of secondary school with certificates in automotive mechanics and electrical studies.  You have worked in carpentry and have been offered the opportunity to commence an apprenticeship in that trade. 

35Your physical health is good and you have no drug, alcohol or mental health issues.

36The only explanation you have offered for your offending behaviour is that it arose in the context of your worrying about your parents' health.  Particulars of your parents' health issues were provided in the reports from Dr Abud and
Dr Yaraghi.  It is clear that both your parents have chronic conditions, particularly your father.  However, it provides no excuse for your crimes.

37Character reports were provided from your sister, brother and parents and also from Mr Mohammad Baltaji, an active member of the Islamic community in Melbourne.  Mr Baltaji regards you highly and has mentioned your remorse and intentions to change your offending ways.

38Your conduct on this occasion was disgraceful and dangerous.  It was committed in the context of earlier offending of a similar nature and very shortly after the imposition of your last community correction order. 

39The act of aggravated burglary shows an alarming and dramatic escalation in the seriousness of your developing criminal propensity.  Whilst the employee of Coles Express was fortuitously not at the counter area of the store at the time of the forced entry, he was still present in the store and very much aware of what was no doubt a very terrifying situation. 

40Aggravated burglary is a very serious crime, as reflected by the maximum penalty imposed by Parliament.  Ordinarily, general and specific deterrence and the protection of the public are considered prominent in the sentencing discretion. 

41Similarly, both the reckless conduct and the theft charges are serious.  The use of stolen cars by young men in committing other crimes is prevalent and the public is put at great danger and distress by your type of driving conduct.

42As to any issue of parity with your co-offenders, I note that they each fell to be sentenced in the different regime of the Children's Court as each was younger than you. 

43In mitigation, I take into account the submissions of your counsel, and in particular:

·     your pleas of guilty - both for the utilitarian benefit to the community and as evidence of remorse;

·     your youthfulness;

·     your prospects of rehabilitation which should be enhanced in your case by the absence of any alcohol, drug or mental health issues;

·     the rehabilitative effort you have made since your last community correction order in completing, ultimately, the Road Trauma Awareness Program;

·     your otherwise good character as expressed by members of your family and your efforts in obtaining and maintaining employment;

·     the support you have from your family which will also assist your rehabilitation;

·     that if sentenced into custody this will be the first time that this has occurred; and

·     whilst the charges are serious, no victims were actually injured. 

44I am conscious of the sentencing principles regarding young and youthful offenders and that in the case of a youthful offender, rehabilitation is usually far more important than general and specific deterrence.  A youthful offender should not be sentenced to adult prison if such a disposition can be avoided.  However, in the case of serious offending and in the particular circumstance of the case, the mitigating matters must, to a degree, give way to the primary purpose of punishment, namely, deterrence. 

45In the course of considering the material before me following the plea, I arranged to have you assessed for your suitability for a community correction order.  You were found suitable for such an order. 

46However, in the current circumstances I am satisfied that the seriousness of the offending balanced with your background of offending and personal circumstances is such that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve your confinement, and furthermore, that it requires a sentence of time to be served greater than that which would allow for a combination sentence of custody followed by a community correction order. 

47Mr Kargar, could you please now stand?

48On Charge 1 of aggravated burglary, you are convicted and sentenced to
18 months' imprisonment.

49On Charge 2 of theft, that is, the cigarettes, you are convicted and sentenced to 6 months' imprisonment. 

50On Charge 3 of theft, that is, the motor vehicle, you are convicted and sentenced to 12 months' imprisonment. 

51On Charge 4 of reckless conduct endangering serious injury, you are convicted and sentenced to 9 months' imprisonment.

52On the summary Charge 8 of drive whilst disqualified, you are convicted and sentenced to 1 month's imprisonment.

53As to cumulation, Charge 1 is the base sentence.  I direct that three months of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  The sentences are otherwise concurrent.

54The total effective sentence is 2 years' imprisonment. 

55I direct that you serve a minimum of 14 months' imprisonment before eligibility for parole.  Because of the considerations of your youthfulness, I have imposed a shorter period of custody before eligibility for parole than I otherwise would have. 

56Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that would have been imposed is three years' imprisonment with a minimum period of two years to be served before eligibility for parole.  

57I note that your theft Charge 3 involved a motor vehicle and this has enlivened s.89(4) of the Sentencing Act. Pursuant to that section, I further order that any driver's licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of 18 months, effective from today.

58At the plea hearing, the Crown sought a disposal order to which you consented and I have made that order today. 

59You may be seated for the moment. 

60Are there any other matters from either counsel?

61MR ROPER:  No, Your Honour.  

62HIS HONOUR:  All right.  Mr Kargar may be now taken into custody. 

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