Director of Public Prosecutions v Kartabani

[2021] VCC 122

IN THE COUNTY COURT OF VICTORIA

 Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00333

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID KARTABANI

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2021
DATE OF SENTENCE:	11 February 2021
CASE MAY BE CITED AS:	DPP v Kartabani
MEDIUM NEUTRAL CITATION:	[2021] VCC 122

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Hamnett
For the Accused	Mr M. Kozlowski

HIS HONOUR:

1David Kartabani, you are to be sentenced for one charge of theft.  The maximum sentence for theft is 10 years imprisonment. 

2You pleaded guilty before me on 12 August 2020.  You were arrested on 3 April 2019, with others in your offending, having been under surveillance by police in the course of committing Charge 18 on the indictment,  theft.  Interviewed on that day, you made no admissions, exercising your right to silence.  On 14 September 2019, committal went by hand-up brief.  You entered a plea of guilty.  The matter was then listed for a plea hearing in this court. 

3You receive the benefit of your plea of guilty, which has facilitated the interests of justice and accepted responsibility.  Your plea expresses remorse.

4I have mentioned your offending group.  You were charged with three other men, Wayne Day, Sean Morrison and Justin McEwen.  They were sentenced by me on 25 September 2020.  It must be said that they were sentenced, unlike you, for multiple offences committed over a four month period.  You are to be sentenced for a single count, committed at the end of that period, the day police arrested all four of you. 

5At the plea hearing, which ran on 12 August, 17 September 2020 and 8 February 2021, Ms Hamnett for the Crown tendered a written Crown opening.  She also provided written submissions and further submissions on sentence.  Mr Kozlowski for you tendered the CISP progress report of Kim Robertson, your case manager in that program.  It is dated 14 October 2019.  He also tendered letters of character reference by your mother and partner,   the Community Corrections order progress report of Elizabeth Khoury, of Community Corrections, dated 24 July 2020 and the letter of your general practitioner, Dr S Nata.  On 18 September, Mr Kozlowski tendered the email of Community Corrections case manager Karina Vue dated 16 September.  He provided submissions on sentence. 

6On 12 August 2020, I had requested a report as to your suitability for a further Community Corrections order.  I received the report of Monica Dankoff of Community Corrections dated 18 August 2020. 

7On Monday, 8 February, the Crown tendered the Community Corrections breach report of Karina Vue dated 2 December 2020. 

8The circumstances of  offending are comprehensively stated in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is appropriate that I give a broad description of the group offending.  I bear in mind that you, and each of the others are, and have been, sentenced individually for their crimes.

9In the period January to April 2019, the four of you were involved in the theft of industrial copper wiring f a number of locations, mainly recreational reserves or sports grounds, but also construction sites and a school.  These locations were mainly in outer suburban areas of Melbourne.  There were other associated offences.  There were 13 occasions of offending.  The typical method was to enter the site, usually in the early hours of the morning, to isolate electrical power at the relevant power box and remove wiring from the underground pits.  Power tools and vehicles were used to access the pits and to pull the wiring out.  Wiring was sold on to a recycling business, MB Recycling, at which McEwen and you,  Kartabani, were employed.  You cannot be listening to this if you are talking to somebody in the court.  

10OFFENDER:  I wasn't, Your Honour.  Sorry.

11HIS HONOUR:  All right.  Do you want me to start again or are you going to listen from now on?

12OFFENDER:  No I will listen, Your Honour.

13HIS HONOUR:  All right good, thank you.  I will go back one bit.  Wiring was sold on to a recycling business, MB Recycling at which McEwen and you, Kartabani, were employed.  The business was owned by your parents, Kartabani.  There were other associated offences, for example, charges of knowingly dealing with proceeds of crime relate to sales of wiring by McEwen to MB Recycling, as I stated, your parents' business. 

14As reflected in my sentencing reasons for your co-accused, the overall value cost and damage caused was high, although difficult to precisely quantify.  This does not very particularly apply to you, given involvement in only one occasion of offending.  The Crown submissions attributes replacement cost to you, that is the theft in which you were involved, of about $40,000. 

15As I also stated in sentencing others, the series of offences here were clearly connected by association of offenders, organisation and method.  There is a sense of the broadly complicit.  However, you and the others are not charged with a Giretti type business or criminal operation in that sense.  Each must and have been sentenced individually, in accordance with the individual offences committed.  The occasion of your involvement is that shortly before 5 am on
3 April 2019, Charge 18 on the indictment, you, Day, Morrison and McEwen went to a construction site at a secondary school in Plumpton.  The power was disconnected and power box forced open.  Approximately 60 metres of copper wiring were dragged from the underground pits.  A total of about 1,000 metres of wiring was stolen.  The cost of repair or replacement was about $40,000. 

16There were serious disruptions to the construction project and power to the school.  As stated, you were under police surveillance, followed back to MB Recycling and all four of you arrested. 

17You are a 28 year old man on bail awaiting this sentence.  You are the youngest of four.  Your elder sisters and brother are married with families and have no criminal history.  You live with your mother, your parents having separated in 2018.  You left school at Year 10 and began to work in the construction industry. 

18About four years ago, your parents began MB Recycling and you began to work there.  You have also done other work with an uncle who was a builder.  I accept that you have a good worth ethic.  The COVID-19 lockdown in 2020 prevented consistent work at MB Recycling.  Accordingly you worked on motor vehicles, having acquired car mechanical skills by working overtime with extended family members.  On 8 February, I was told that you have recently begun to work in concreting.  You are in a long term relationship.  Your partner and family are supportive of you.  You began using cannabis in teenage.  Two motorcycle accidents in 2017 and 2018 have badly affected you, one killing and another badly injuring close friends.  Your parents' separation has also impacted upon you.

19You developed a methylamphetamine habit, you said in these contexts.  Methylamphetamine abuse is present in your co-offenders.  You were using daily at the time of this offence.  Tendered material states some treatment for anxiety and depression. 

20Your criminal record states between 2014 and 2017, four prior court appearances for dishonesty, driving and drug related offences.  There are subsequent matters including for unlicensed driving and possessing a drug of dependence in July 2020.  This was whilst on bail for this offending.  You received, on 27 July, and had served, a short sentence.  Prior to that you were placed on a Community Corrections order for driving related offences in November 2019.  The offending occurred in 2017.  After your April 2019 arrest for this offending, that before me, you served 59 days of remand and then received bail.  The tendered CISP bail report of October 2019 states apparent fundamental compliance with that program.

21There is, at best for you, mixed messaging in respect of your performance on the Community Corrections order imposed in November 2019.  There is some, perhaps sporadic compliance, described in a July 2020 progress report.  You received that short 15 day sentence soon after, as earlier stated.  An informal progress report by case manager Karina Vue in September 2020, just prior to the second plea hearing date - I would ask you Ms Hamnett to check the date of that, if you have got it available?  I have got 2016 here which cannot be right.  I will say that again.

22An informal progress report by case manager Karina Vue, in September 2020, just prior to the second plea hearing date, again stated some compliance, but raised the 27 July sentence as a likely cause of breach proceeding.  However, you were given the opportunity to resume the order. 

23On 12 August 2020, I had requested a report as to your suitability for a further Community Corrections order.  That report, by Monica Dankoff of Community Corrections, finds you to be unsuitable.

24Your presentation, on phone assessment because of the COVID-19 lockdown, featured lack of motivation and, on one view, lack of candour.  For example, you reported abstinence from drug use in the face of the July 2020 drug offending. 

25On 17 July, I was persuaded to defer sentencing of you under s.83A of the Sentencing Act.  The return date was 8 February.  As stated earlier, the
2 December 2020 community corrections order breach report of Karina Vue was tendered by the Crown.  The breach proceeding is listed for 7 April at the Sunshine Magistrates' Court.  The contravention is said to be a level of non-compliance, but also, and primarily, the reoffending which led to your sentence of imprisonment for 15 days on 27 July last year. 

26However, the report also notes improvement in your compliance.  It notes, referring to that July 2020 sentence:

'Following his period of imprisonment for the further offences,
Mr Kartabani has been able to refocus on his order commitments and rehabilitation'.

27You have completed drug and alcohol treatment and continue, after expiry of the order in November 2020, psychological counselling.  The recommendation is that the order, although expired, be confirmed. 

28As I stated, when sentencing your co-offenders:

'Applicable to all the three of you to be sentenced today, the clearly serious circumstances of offending make relevant sentencing considerations of moral culpability, deterrence, denunciation of the offending and proportionate punishment of it'.

29These adverse sentencing considerations, whilst relevant, are to a degree moderated in your case, given your lesser role in the overall offending.  There are a number of factors, less adverse to you, which I must take into account.  They include the following.

1.  Your plea of guilty.  I accept that you feel a level of remorse.

2.  Your limited involvement in the overall circumstances of offending.

3.    Although guarded, I see genuine prospects for your rehabilitation.  You have family and other support, work capacity and there is an improvement in your performance and compliance in the period of sentence deferral.

4.    I also see return to prison after a period of now over 18 months since your remand to be of particular hardship relevant to what sentence I should impose.

30I am persuaded that I should impose a sentence combining a short period of imprisonment and another community corrections order.  However, a sentence which does not mean that return to custody.  On 8 February, I requested a further report as to your suitability for a community corrections order.  I have received the report of Gurjoit Dhillon, which finds you suitable.

31Associated with that is the Forensicare mental health screening report of social worker Amy Meiklejohn.  That states mild mental health symptoms, reactive to grief and loss and which speak for a mental health treatment condition on the order.  The suitability report advises the suspension of the Community Corrections unpaid work program, which I see as a serious present deficiency in the Community Corrections order regime.  I raised this, this morning and Ms Hamnett advised me that there are alternative placements, seeking to accommodate that.

32Having considered what I see to be the relevant matters, I sentence you as follows. On one charge of theft, I sentence you to imprisonment of 59 days. However, I declare under s.18 of the Sentencing Act, 59 days, that is that period of pre-sentence detention already served.  I also impose a community corrections order of 18 months duration, the usual terms apply.  The additional conditions that you be under supervision, that there be drug rehabilitation and treatment and mental health assessment and treatment and also, that you be subject to judicial monitoring by me.  I propose setting a first judicial monitoring period four months from now.  What is that? 

33ASSOCIATE:  June, Friday the 11th.

34HIS HONOUR:  Friday 11 June?

35ASSOCIATE:  Yes.

36HIS HONOUR:  All right.  Is that the date of the other one?

37ASSOCIATE:  No, the other one was ‑ ‑ ‑

38HIS HONOUR:  July, it was July.

39ASSOCIATE:  Yes.

40HIS HONOUR:  All right.  You need to present yourself to be seen by me on
11 June at 10 o'clock.  You can do that by going to the relevant community corrections office, if you are complying with the order.  If you are not complying with the order, you will have to come here,  if you have not been breached in the meantime.  All right, now we will print the order out and then I will put it to you.

41MS HAMNETT:  Your Honour if I may?  It was 2020 that report of Karina Vue.

42HIS HONOUR:  Was it?

43MS HAMNETT:  Yes.

44HIS HONOUR:  Thank you, yes, very good.  All right, now stand up again, I need to put this to you formally.  You are to be placed on a community corrections order, another one, which runs Friday month.  So it goes to
10 August 2022.  The usual terms are these, you do not commit another offence for which you could be imprisoned during the time.  Possession of even a small amount of methylamphetamine meets that and that would breach the order.  You must comply with a regulation that prohibits you going to any program, appointment or site affected by alcohol or drugs or in possession of illegal drugs.

45You must report to and receive visits from Community Corrections, you must report to them within two days of the order starting.  That is two days from today.  You must let them know within two days of a change of address or job.  You must not leave Victoria without getting their permission to do that.  You must obey all of their lawful directions.

46In addition to those terms, there are these conditions, that you be under supervision of a particular Community Corrections officer, you must undergo assessment and treatment for drug abuse, you must undergo mental health assessment and treatment and you must attend for judicial monitoring review, the first of which will be on 11 June 2021 at 10 o'clock.  It says here the County Court, but I have told you that if you are complying, you can go to the Community Corrections office, they will tell you about that.  Now do you understand that?

47OFFENDER:  Yes, Your Honour.

48HIS HONOUR:  Do you agree to it?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  I will get you to sign it then please.  All right, now what else is there?  Are there other orders?

51MS HAMNETT:  No, there's no further orders.  The forfeiture and disclosure order were made on 25 September last year.

52HIS HONOUR:  All right, good.  Thank you.

53MS HAMNETT:  Thank you, Your Honour.

54HIS HONOUR:  I will sign it now and we will give a copy to Mr Kartabani and to the two counsel.  There you go.  What is that, that needs to get printed out does it?  Take a seat for the moment.  All right, that has been given - have you got your copies?  That is about to happen is it?  Copies to the ‑ ‑ ‑

55ASSOCIATE:  I've emailed them through.

56HIS HONOUR:  They're going to be emailed to you.

57ASSOCIATE:  That (indistinct words).

58HIS HONOUR:  All right, yes.  Sorry?

59ASSOCIATE:  The CCO (indistinct words).

60HIS HONOUR:  Did I what?

61ASSOCIATE:  Take the CCO for the other matter?

62HIS HONOUR:  Take it?  I would think I didn't, I would think that I ‑ ‑ ‑

63ASSOCIATE:  All right.

64HIS HONOUR:  ‑ ‑ ‑ gave it to you.  Yes, it is not here.  No, here it is here, it is in the file.  Yes, thank you.  All right, that is all that needs to be done?  Thank you again ‑ ‑ ‑

65MS HAMNETT:  As Your Honour pleases.

66HIS HONOUR:  ‑ ‑ ‑ for your assistance during these long proceedings.  You can come out of the dock now.  Yes, you are both excused.  Thank you.

67MR KOZLOWSKI:  Thank you, Your Honour. 

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