Director of Public Prosecutions v Kuchath

[2018] VCC 1037

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00554

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOKRIN KUCHATH

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2018
DATE OF SENTENCE:	5 July 2018
CASE MAY BE CITED AS:	DPP v Kuchath
MEDIUM NEUTRAL CITATION:	[2018] VCC 1037

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr Hoare	OPP
For the Accused	Mr Farrington	Haines and Polites

HIS HONOUR:

1       Kokrin Kuchath, you have pleaded guilty to one charge of theft and one charge of armed robbery. You have also pleaded guilty to a related summary offence of fail to stop a vehicle on police request. The maximum penalties for these offences are as follows:

·    Theft – 10 years’ imprisonment;

·    Armed robbery – 25 years’ imprisonment;

·    Fail to stop on police request (first offence) – 60 penalty units or six months imprisonment or both.

2       At approximately 3 am on 7 July 2017 you attended at the Caltex Service Station at 75 Mount Derrimut Rd, Deer Park. You travelled to that address in a stolen Mitsubishi Lancer with your co-offenders Eskinder Albera, Patrick Kon and Angony Mabour.  You were the driver.  The car had been stolen sometime within the previous two days.

3       You remained in the driver’s seat while Albera, Kon and Mabour exited the vehicle. Albera was in possession of a hammer, Kon carried a bed sheet and Mabour carried a large machete in a green sheath.

4       After Albera smashed one of the front glass sliding doors of the petrol station, you rammed the stolen vehicle into the doors to assist the entry of Kon and Mabour.

5       The store attendant fled to a rear storeroom and Kon and Mabour proceeded to steal cigarettes from behind the counter by loading them into the bed sheet. Mr Albera kicked the storeroom door and hit it with his hammer in a failed attempt to gain entry to the storeroom. He then went to assist the other two offenders. He stole the cash register. The three of them returned to the vehicle with $558.55 and 137 packets of cigarettes. The cigarettes had an approximate value of $6,000.

6       A short time later, when you were driving your co-offenders west on Boundary Road, Truganina, police attempted to intercept the vehicle. They could not catch you due to your excessive speed. Other police tried to intercept you on Centenary Avenue, Melton. They took up a position behind your vehicle and activated the lights and sirens. You ignored this, turning off the headlights and accelerating away.  A police helicopter pursued you for approximately one kilometre and police Air Wing members watched you stop the car at 6 Brazil Court, Melton West. All four of you fled from the vehicle, jumping fences and hiding in the rear yard of a nearby house. You were found by ground unit police at this location. You were conveyed to Melton Police Station where you denied any involvement in the offending.

7       I have read the victim impact statement.  As a result of the frightening ordeal of that evening, the victim suffered emotional distress that stopped him working for three weeks.  At the time he wrote the victim impact statement he was continuing to suffer from a lack of confidence and a feeling of distrust towards others.

8       This is serious offending.  It was planned.  As a group, you gathered the items you needed to facilitate your criminal acts and you decided on a soft target.  You used a stolen vehicle.  The vehicle was used to assist forced entry into the store.  Those who entered the store had disguised and armed themselves.  Money and cigarettes were stolen and the victim suffered emotional harm.

9       With this offending, general deterrence, denunciation and just punishment are all relevant sentencing considerations.

10      You have a relevant prior criminal history.  It commences with an appearance at the Sunshine Children’s Court in February 2014 for a large number of offences including armed robbery. You were released without conviction on a nine month youth supervision order. You breached that order and in September 2014 you again appeared at the Sunshine Children’s Court for offences that included breach youth supervision order, affray and recklessly cause serious injury. You were sentenced to six months’ youth detention. An appeal against that sentence was heard in this court on 17 November 2014 and you were released on a nine months youth attendance order. That order was breached by the commission of further offences and on 6 October 2015 you were sentenced for a number of matters including breaching the Youth Attendance Order, armed robbery and assault by kicking. You were sentenced to a total effective sentence of six months’ detention at a youth justice centre.

11      There were two further appearances in the Children’s Court in December 2015 and March 2016 before your first appearance in the Magistrates’ Court in January 2017 for offences that included assault police, resist police and unlawful assault.  On those matters you were sentenced to two months’ imprisonment. Given this history, specific deterrence and protection of the community are also relevant sentencing considerations. Your criminal history also explains why I am guarded about your prospects of rehabilitation.

12      I now move to those matters relevant to your background and those matters in mitigation.

13      You were born in Sudan on 29 July 1997. When you were four years old, your mother fled the country with you and your siblings. Your country was being ravaged by civil war at that time. Your father, whilst arranging the family’s escape, decided to stay in Sudan. He died there in 2005. 

14      The family spent some months in a refugee camp in Uganda before travelling to a camp in Harbasia in Egypt. You spent many months there. I accept that this must have been an incredibly difficult time for you, your mother and your siblings.   

15      The family moved to Australia in 2003, initially settling in New South Wales before relocating to Victoria in 2011. You went to school in New South Wales and after moving to Melbourne, commenced Year 8 at Kurunjang College. You were not a good student. You were isolated and at times subject to abuse and bullying. You were expelled in Year 9 after a physical altercation with another student. You then attended Caroline Springs Secondary College. You completed Year 10 at that school. You left school during Year 11. Since that time, you have worked sporadically as a brick layer.

16      You were living with your mother before you went into custody. Your mother, girlfriend and an uncle all attended court to support you.  

17      Alcohol abuse has been a significant problem for you. You have been drinking at heavy levels since the age of 14. You told Mr Geoffrey Cummins, a clinical and forensic psychologist, who saw you on 7 June 2018 that you need counselling to deal with this problem. You have also had periods in your life where excessive use of cannabis has been an issue.

18      You also told Mr Cummins that you have problems with anger. This has its genesis in the very strong views you hold about the racial abuse you have suffered over the years. Mr Cummins expresses the opinion that you suffer from a major depressive disorder and that you require treatment for this condition. He also recommends participation in programs for anger management.

19      You are 20 years old. You will be 21 in three weeks’ time. You are still a young offender. As a general rule, rehabilitation is a central consideration in the sentencing of a young offender. However, the gravity of this offending, together with your prior relevant history, including your inability in the past to respond to the supports offered by youth justice, diminish to some  extent the weight to be given to that principle, requiring me to give appropriate weight to those other  purposes of sentencing that I have previously identified.

20      You have pleaded guilty. The plea is not an early plea. Indeed, you ran a contested committal where four witnesses were required for cross examination. Fortunately, the victim was not one of them. Your late plea and the running of a committal distinguishes you from your co-offenders. However, your late plea of guilty still entitles you to an appropriate sentencing discount. Your plea is an acceptance of responsibility and has saved the victim from the trauma of giving evidence at a trial. It has also saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters.

21      As I have already said, I am guarded about your prospects of rehabilitation.  In his report Mr Cummins identifies that you have a most unimpressive criminal record and you have found it difficult to make “constructive life decisions”. I accept that you are still capable of reformation.  You are only 20 years old.  You have undertaken courses in custody. Your willingness to participate in the Managing Emotions Course shows some insight into the need to deal with your anger issues. This may be indicative of some maturing on your part. Perhaps the time you have spent on remand has had a salutary effect. If you were able to remain drug and alcohol free upon your release, and receive support for your depressive disorder, your prospects for rehabilitation would be enhanced.    

22      Because of your age, you are technically eligible for an assessment to see if you would be suitable to undergo a sentence of Youth Justice Detention. Your counsel did not press the issue. He sensibly recognised that your age - you will be 21 in three weeks, your prior involvement with youth justice and the lengthy time you have already spent on remand all spoke against the utility of obtaining such an assessment. I agree. However, in determining your matter I do take account of the fact that this will be your first lengthy sentence of imprisonment.

23      Parity is a relevant sentencing consideration. You were not so vigorously involved in the offending as Mr Albera. However, he was younger than you and had better prospects of rehabilitation. Mr Kon is older than you but his prior history is nowhere near as extensive. Both of them entered early pleas of guilty and they did not have the additional charge of failing to stop the vehicle. Balancing the competing considerations in the best way I can, I have decided to deal with you in a way that is not too dissimilar to Mr Kon.

24      Will you please stand?

25      On the charge of car theft, you are sentenced to a term of six months' imprisonment.  All licences are cancelled and you are disqualified from driving for a period of 12 months.  On the charge of armed robbery you are sentenced to a term of two years and nine months' imprisonment.  On the charge of fail to stop, sentenced to two months’ imprisonment. I order one month of that sentence be served cumulatively on the sentence for the armed robbery. This makes a total effective sentence of two years and 10 months. I order that you serve a minimum term of 21 months before you will be eligible for release on parole.

26      Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a term of four years imprisonment with a minimum of two years and 10 months.

27      I make a declaration that you have served 363 days by way of pre-sentence detention.  You can be seated there, thank you.  Are there any other matters, gentlemen?

28      MR HOARE:  No, Your Honour.

29      MR FARRINGTON:  No, Your Honour.

30      HIS HONOUR:  Thank you.  Mr Kuchath can be removed now.  My associate has just brought to my attention, that the criminal record has the incorrect date of birth on it, 29 July 1996.  Do you want that amended to 1997?

31      MR HOARE:  Yes, could my instructor amend that with Your Honour's leave?

32      HIS HONOUR:  Yes, I'll allow that amendment to be made.

33      MR HOARE:  Thank you.

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