Director of Public Prosecutions v Saner, Tekin and Kamal, Matthew
[2013] VCC 754
•31 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
Case No. CR-12-01814
CR-12-01815
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEKIN SANER MATTHEW KAMAL |
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JUDGE: | HIS HONOUR JUDGE PILGRIM | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 22 May 2013 | |
DATE OF SENTENCE: | 31 May 2013 | |
CASE MAY BE CITED AS: | DPP v Saner, Tekin & Kamal, Matthew | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 754 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Stougiannos with Ms R. Maxwell | Office of Public Prosecutions |
| For Accused Saner | Mr T. Strong | |
| For Accused Kamal | Ms S. Pillai |
HIS HONOUR:
1 Just remain seated, Mr Saner and Mr Kamal. You have each pleaded guilty to one count of conspiracy, which would have involved the commission of an armed robbery, that is Count No. 1 on the presentment. Mr Saner, you have also pleaded guilty to the following counts: Count 2 on the presentment, theft of a motor vehicle; Count 3, theft of a motor vehicle; Count 4, burglary; Count 5, theft of a motor vehicle; Count 10, jointly charged with Mr Kamal, theft of a motor vehicle, and Count 12, a count of handling stolen goods. In addition, pursuant to s.145 of the Criminal Procedure Act, you consented to a summary offence being dealt with, which is for your benefit to get it out of the way, and pleaded guilty, that is a count of dealing with proceeds of crime.
2 Mr Kamal, you too, as I just said, have pleaded guilty to one count of conspiracy, which would have involved the commission of an armed robbery; Count 6 on the presentment, one count of burglary; Count 7, a count of theft; Count 8, a count of burglary; Count 9, a count of theft of a motor car; Count 10, jointly charged with Mr Saner, theft of a motor vehicle. I believe that is the motor vehicle that was allegedly stolen in Ballarat on the morning of your arrest. Count 11, being a prohibited person, did possess a firearm, and also, as with Mr Saner, you have, pursuant to s.145 of the Criminal Procedure Act consented to two summary matters to be dealt with, and you have pleaded guilty to those, and again, as I said, it is very tidy, and they are out of the way and gone, instead of having to go back to a Magistrates' Court at a later date.
3 You have each heard the learned prosecutor tell this court that the maximum sentence that can apply to the counts; and they are, theft of a motor vehicle attracts 10 years; burglary attracts 10 years. In your case of handling stolen goods, the maximum penalty is 15 years, Mr Saner. The same maximum penalties apply to you Mr Kamal; 10 years for burglary, 10 years for theft. Being a prohibited person in possession of a pistol or firearm, the maximum is 15 years. Of course the maximum for the conspiracy count intending to commit an armed robbery is 25 years. In relation to the two summary offences, the maximum sentence there is two years imprisonment. You heard the prosecutor tell this court the maximum sentence that applies to those counts.
4 In addition, s.89(4) of the Sentencing Act provides the cancellation and disqualification of your driving licences must occur in the count of theft of motor vehicle offences.
5 For having pleaded guilty I will impose lesser sentences than I otherwise would have imposed. In other words, you will receive a discounted sentence for having pleaded guilty. Mr Saner, you receive a further discount to your sentence when it is taken into account that you have made a statement implicating others in the commission of these offences. You acknowledged on oath that the contents of that statement are true and correct, and you further undertake to give evidence if required, should that occur.
6 It was as a result of intelligence gained from members of the New South Wales Police Force that an investigation was initiated by the Victorian Police Armed Crime Taskforce. During the course of this investigation, investigating police officers utilised telephone intercepts, covert surveillance cameras, and physical covert surveillance. In addition to your telecommunications and physical involvement, there was also the filming of your involvement and movement.
7 All of this sophisticated investigation resulted in each of you and two other accused persons, that is Lloyd Murrell and No No Ngaa, being arrested by Victoria Police Special Operations group at about 8.50 am on 2 November 2011. You were travelling in two cars, making your way out of Mr Saner's estate over in Canadian toward JD's Sports Bar here in Lydiard Street to commit a planned armed robbery.
8 At the time of the arrest, Mr Murrell was driving a Subaru sedan, with you, Mr Kamal in the rear passenger seat, and the co-accused Ngaa in the rear driver's side passenger seat.
9 In the vehicle, police located a silver 0.38 calibre Smith & Wesson six shot revolver. The handgun was loaded and had six bullets inside the revolving chamber. In the vehicle, police located black cable ties, black and grey tactical gloves, baseball caps and sunglasses.
10 You, Mr Saner, were travelling in a Nissan Pulsar following behind the Subaru. As a result of the surveillance, in whatever form that I mentioned earlier, the investigating police officers became aware of other offences being committed. After your arrest, those police officers executed multiple search warrants, whereupon a large quantity of suspected stolen property was recovered. Most of this property was traced back to further offences committed by each of you, sometimes singularly, sometimes together.
11 Dealing first with you, Mr Saner, I am now speaking to you, I am not speaking about Mr Kamal, but occasionally he comes into it because of involvement together. In relation to Count 2 for you, Mr Saner, it was approximately 8 am on Sunday 23 October. The victims, Russell Grace and his family, left their home at 3 Rider Court, Mount Clear, out towards Buninyong.
12 At approximately 10.30 am you, Mr Saner, attended the premises and stole a 2011 black Toyota Corolla sedan, Registered No. YGT-123, which was parked in the driveway. You drove that vehicle away and parked it in your garage. During the operation police intercepted telephone conversations between you and Mr Murrell, during which you described the stolen Toyota Corolla in detail and where you had stolen it from. You kept that stolen Corolla for a few days, but agreed to discard it after discussions with Murrell. You discarded the vehicle in close vicinity to your residence, and it was later recovered by police officers and returned to the lawful owner out at Mount Clear. The value of that vehicle is $22,000.
13 You will notice I have left Count 1 out - I am putting it in the middle because it relates to both of you.
14 Count 3, on Wednesday 19 October, the accused, Mr Murrell utilised his telephone service and contacted you, Mr Saner. Murrell informed you that he was following a Brock Commodore and wanted to steal it. Murrell followed the Commodore whilst it was being driven by its owner and watched him drive it to his residence. Murrell then told you the address where the Commodore was parked and further told you that the car was parked in a shed.
15 At approximately 10.30 on Sunday 23 October 2012, Jason Crocker secured his Limited Edition 1985 Holden Commodore Sedan, Registered RQK-247, in the garage of his house. Soon after this you, Mr Saner, Lloyd Murrell and a third person attended at 8 Citadel Court, Miners Rest. You forced your way into the garage. You all then pushed the unlocked Holden sedan out of the garage and drove it away. Murrell later drove the vehicle to Point Cook and hid it inside the garage attached to his residence.
16 On Monday 31 October 2011, Mr Murrell organised for the stolen car to be towed to Factory 9, 213 Sunshine Road, Tottenham, with a view to getting the engine bay resprayed or spray painted. Investigators executed a search warrant at the factory and recovered the stolen Brock Commodore, which was returned to the owner. The vehicle was valued at $30,000.
17 Count 4 and Count 5. Intercepted telephone conversations between you, Mr Saner, and Lloyd Murrell in the third person prior to Thursday 27 October revealed that Lloyd Murrell made arrangements with you to steal a mini motorbike for your son's birthday which was on 28 October. The conversations detail Lloyd Murrell arranging for you to come down from Ballarat on 27 October 2011 and assist him, that is Murrell, with stealing motorbikes from a store near where Mr Murrell resided. The intercepted calls also revealed Murrell requesting a third person to assist in stealing the motorbikes.
18 At approximately 9.30 pm on Thursday 27 October 2011 Charles Bruce locked up the City West Yamaha Store at 393 Old Geelong Road, Hoppers Crossing. At approximately 9.40 pm you, Mr Saner, Lloyd Murrell and a third person arrived at the store in a stolen Toyota van. A metal pole was used to smash the surveillance camera which was mounted at the front of the building. A pair of bolt cutters was then used to cut off a padlock attached to the metal boulder situated directly in front of the main doors. After removing the metal boulder you then rammed the Toyota van into the front doors of the store, causing the doors to smash open.
19 You each then entered the store and moved the sensor for the floodlights inside the store in order to stop the security floodlights from switching on. The group of you then stole eight motorbikes from inside the store, loading them into the Toyota van. At the time you were taking these motorbikes you knocked over several other motorbikes, causing them damage. The approximate damage to the motorbikes that were tipped over was $8000.
20 Each of you then left the area in the Toyota van and drove to Lloyd Murrell's residence in Point Cook and secured all of the motorbikes in the front bedroom of that house. The Toyota van was discarded in Railway Street South, Altona, at about 10.50 pm. It was located by police, burned out. The value of the stolen motorbikes was approximately $18,000.
21 At 4.50 pm on Friday 28 October the police covert camera installed at your house at 114 Canadian Lakes Boulevard, Canadian, showed your son Alex riding a mini blue motorbike in the front of the residence. On Wednesday 2 November 2011 the investigating police officers from the Ballarat CIU executed the search warrant at your residence, 114 Canadian Lakes Boulevard, and seized a blue Yamaha motorbike. This motorbike was one positively identified as one of the motorbikes stolen from City West Yamaha. That motorbike was returned to the lawful owner.
22
On Wednesday 2 November 2011 other investigators from the Armed Crime Taskforce executed a search warrant at Lloyd Murrell's residence at 46 Tom Roberts Parade, Point Cook, and seized seven blue Yamaha motorbikes stored in the front bedroom of the house. These motorbikes were positively identified as the ones stolen from City West Yamaha Store and were returned to the lawful owner. Leaving aside Count 1, I now turn to your offending,
Mr Kamal.
23 At approximately 11 am on Monday 31 October 2011, Thi Doan left her house at 56 Point Cook Road, Seabrook, to go to the gym. All other occupants of the house had left the house early that morning. Doan locked the house as usual and left. This is Counts 6 and Count 7, theft and burglary. At approximately 11.10 am you, Mr Kamal, and Lloyd Murrell were under surveillance being conducted by the Victoria Police State Surveillance Unit. Police were watching you. Mr Murrell is defending this. I do not know what his basis of defence is but it has all been watched and filmed and taped. Nevertheless, you have pleaded guilty. Police observed Murrell driving his silver Subaru sedan with you in the front passenger seat and leaving his residence. Mr Murrell drove to the vicinity of 56 Point Cook Road, Seabrook, and dropped you off. Murrell then drove away and parked the Subaru around the corner in Shane Avenue, Seabrook.
24 At approximately 11.30 am you, sir, walked along the driveway, approached the rear bedroom sliding window and smashed it. You then unlatched the window and gained entry to the house. At this time Murrell walked down from Shane Avenue and joined you at the house. Together, you and Murrell searched and ransacked the house, stealing property, including jewellery and electronic items. Further damage was caused to a door to gain entry to an internal locked bedroom inside the house.
25 At 11.41 am Lloyd Murrell left the house and walked towards his car in Shane Avenue. He then got inside his car and drove it to 56 Point Cook Road, Seabrook. Mr Murrell and you, Mr Kamal, then placed the stolen items in the car and left. One of the stolen items was a 59-inch Samsung television set. Due to the large size of this television set, you could not close one of the rear doors of the Subaru so you, Mr Kamal, had to reach over from the front seat and hold on to the door so as to try and keep it closed. Lloyd Murrell then called his son on the telephone and told Brandon to meet him at home and open the garage door. At 11.50 am police observed Lloyd Murrell arrive home and park the Subaru sedan outside the rear garage door. Lloyd Murrell and yourself were observed taking the stolen television set inside the house while Brandon assisted and carried other stolen items inside the garage.
26 On Wednesday 2 November 2011 investigators from the Armed Crime Taskforce executed a search warrant at Murrell's residence, 46 Tom Roberts Parade, Point Cook. During the search of the premises they located several items of property that were stolen in this burglary, including the 59-inch Samsung television set that was displayed in the living room at Murrell's house. Several items of jewellery stolen during the burglary were also located inside your wallet after your arrest. These items were positively identified by Ms Doan as items stolen from her house. The property has since been returned to Ms Doan. The total value of the items stolen from the Doan household was approximately $14,000.
27 Counts 8 and 9. On the morning of Tuesday 1 November 2011 at approximately 10 am Rodney Tobin, the sales manager at Kevin Dennis at 272 Ballarat Road, Braybrook, left his office to assist a customer in the front yard. Tobin left his keys to the business vehicle YKE 249, on top of the counter inside his office before he went into the yard. Those keys belonged to a silver 2011 model Holden Commodore SS sedan that was parked in the yard registered to Kevin Dennis Motors and used by Mr Tobin. Mr Murrell and you, Mr Kamal, were under surveillance. At 10.22 am police observed Murrell drive his Subaru sedan to Hammersley Street, Braybrook, and park in the vicinity of Kevin Dennis Motors. You, Mr Kamal, were seated in the front passenger seat and a third male was in the rear. Police observed you,
Mr Kamal, exit the Subaru sedan and enter the car yard. At approximately 10.25 am you entered the office and stole a set of keys. You then used the unlocking function on the key to identify which vehicle those keys belonged to. You then returned to Murrell's vehicle and you all left the area. To say the very least, it was a well planned and audacious burglary and theft if I may say so.
28 At 1.06 pm police observed Lloyd Murrell and yourself return in the Subaru sedan and park in Vine Street, Braybrook, approximately 20 metres away from the car yard. Mr Murrell got out of the Subaru and entered the car yard, that is Kevin Dennis. Murrell used the keys stolen earlier in the day and drove out of the car yard in the silver Holden Commodore and drove to the Central West shopping centre. You, Mr Kamal, followed in Murrell's Subaru sedan. You advised Murrell to park the stolen car in the shopping centre and to collect it later. You then utilised your mobile phone and made enquiries with Mr Saner in relation to the stolen car and as to whether or not it was able to be tracked by an inbuilt GPS device. Mr Saner, so it is understood, rang a Holden dealership and advised you that the stolen car had no inbuilt tracking device. I think that was dodgy advice because he found it. Mr Murrell and you, Mr Kamal, then drove the stolen car to Sara Grove, Tottenham, and parked it there with a view to retrieving it the next morning.
29 The car was located by Rodney Tobin later that evening and was recovered by local uniform police officers. The stolen Holden Commodore sedan was valued at $40,000. The stolen SS vehicle being found by the owner and taken by the police frustrated your efforts to use this car as a getaway car after the commission of the planned armed robbery here in Ballarat. Consequently, other arrangements were made to steal yet another motor vehicle so as to have a getaway car available after the completion of the armed robbery. Mr Kamal, you were delivered by Mr Murrell to the area that you had left the stolen SS Commodore in. You informed Murrell that you could not find the SS and you asked Murrell to come back and pick you up. Mr Murrell then suggested that you attend in Ballarat in the morning and steal a motor car from the railway station, to which each of you, Mr Saner and Mr Kamal, agreed. I will come to that in a moment, that is Count 10. That is the one count where you were both charged with the same offence, Count 10.
30 At 8.05 am police officers observed Mr Murrell, you, Mr Kamal, and Ngaa, gaining entry to a 2002 model Holden Statesman sedan, registered TLT 870, while you, Mr Saner, waited inside Murrell's Subaru sedan. The Holden sedan was parked in Doveton Street, Ballarat. Mr Murrell, you, Mr Kamal, and Ngaa were all wearing gloves. Mr Murrell forced the ignition of the Holden sedan using a screwdriver, and together with you, Mr Kamal, and Ngaa, driving it to Lydiard Street, Ballarat. Mr Murrell parked the stolen car approximately 10 metres south of JD's Sports Bar with a view to use it as the getaway car after the planned armed robbery had been completed. Mr Saner, you followed the Holden sedan closely and parked the Subaru on the opposite side of Lydiard Street in front of JD's Sports Bar. You must have been outside the George Hotel.
31 Mr Murrell, you, Mr Kamal, and Ngaa were observed exiting the stolen Holden sedan, and together with Mr Saner left the area and returned to Mr Saner's residence in Canadian Lakes. As referred to in Count 1, the somewhat spectacular arrest of each of you and the co-accused, the arresting police officers then went searching for you, Mr Kamal. You were seated when you were arrested, as you will recall, in the back seat of the Subaru as I mentioned earlier on the driver's side. When searching the Subaru the police officers found on the back seat floor of the driver's side the silver .38 calibre Smith & Wesson six-shot revolver. As I mentioned earlier, it was loaded, it had six bullets inside the revolving chamber. The Smith & Wesson was a make 10 model, 38 special calibre revolver handgun, serial number 8D26485 and was not registered in Victoria. Mr Kamal, you were sentenced to a term of imprisonment of 18 months on 22 February 2010 in the Burswood local court, Fairfield, New South Wales. That establishes you under the legislation here as a prohibited person in possession of a firearm because of that conviction and that sentence. That is Count 11 and that relates to you, Mr Kamal. As to Count 12, it relates to you, Mr Saner.
32 On Wednesday 2 November 2011 the police officers executed a search warrant at your home after your arrest. During the search of your premises police recovered an Acer laptop computer and a Toshiba laptop computer. The police were able to ascertain that the laptops were stolen. The laptops were positively identified and returned to their owners. Further, the police officers located a blue Yamaha WR450F motorcycle in the garage. We spoke of that earlier. The police were able to ascertain that the motorcycle was stolen property. The motorcycle was positively identified and returned to the owner. That is the handling stolen goods matter.
33 I will deal with the two summary offence matters before I go back to the conspiracy matter. As I said earlier, pursuant to s.145 of the Criminal Procedure Act you, Mr Kamal, have consented to two summary offences being dealt with today, they being two counts of dealing with property the proceeds of crime. Using the summary offence charge number just for identification for the prosecutor probably more than anybody else, it is Count 15. Of course, that is a nonsense if you try and put it with the presentment, but it has to be identified.
34 Count 15 relates to $1200 cash being proceeds of crime. At the time of your arrest $1200 cash was found in your wallet, that cash being proceeds of crime as I have just said. Summary offence Count 17 relates to two gold rings. At the time of your arrest two gold rings were located in your wallet, they being the proceeds of crime.
35 Mr Saner, you too have pursuant to s.145 of the Criminal Procedure Act consented to one summary offence being dealt with, that being Count 29 in terms of the summary offence number. During the search at 114 Canadian Lakes Boulevard, Canadian, that is your residence, police located several items of jewellery, including necklaces, several electronic items, including laptops and computer parts, and several items of hardware and power tools suspected of being the proceeds of crime. No doubt they are the matters that negotiations are going on with.
36 Now I have unfortunately got to spend some time spelling out what the circumstances of the conspiracy count is. I cannot avoid it, it is going to take some time, but I will be as quick as I possibly can. I am now dealing with Count 1 and I am dealing with it as best I can in point form, but it is still quite extensive.
37 The conspiracy unfolded as a result, as I have said earlier, of New South Wales police officers intercepting telephone calls that were being made to Lloyd Murrell's phone. Lloyd Murrell is the centrepiece of all of the offending in these matters. That is an observation I make. The New South Wales police authorities contacted Victoria Police and informed them of the intelligence they had learned, that is the New South Wales police officers. That resulted in phone tapping, video surveillance and physical surveillance here in Victoria. I will quote directly from the agreed statement of facts.
38 As a result of this information, the New South Wales Robbery and Serious Crime Squad contacted their Victorian counterparts, the Armed Crime Taskforce. An investigation was initiated codenamed Operation Dustman and the police officers then commenced intercepting communications between Mr Murrell, you, Mr Saner, Mr Kamal, and Mr Ngaa. Those intercepts were occurring between 27 October 2011 and 2 November 2011. Most of the calls were initiated by Murrell. The content revealed planning between the four of you to commit an armed robbery in Ballarat at JD's Sports Bar. The investigators installed covert surveillance cameras at Mr Murrell's residence and Mr Saner's residence. They also commenced physical surveillance, so you had been filmed and physically watched. I will read as quickly as I can what then occurred as a result of those surveillance matters being put in place, be it telephone, be it covert filming or covert surveillance, physical.
39 Investigators from the Armed Crime Taskforce and Robbery and Serious Crime Squad monitored lawfully intercepted phone calls of Murrell between 14 October and 27 October. The content of the intercepted material revealed the plan to commit an armed robbery in the Ballarat area. The New South Wales police ascertained that Murrell was attempting to organise you, Mr Kamal, and a fellow called Wilson to come down to Melbourne before 2 November with a view to committing an armed robbery at JD's Sports Bar in Lydiard Street, Ballarat. Mr Murrell was also attempting to get you, Mr Kamal, to contact Wilson at that time in order to obtain a handgun from Wilson and for you, Mr Kamal, to bring that handgun down to Melbourne. I know you have spoken of the foolishness of any such thing happening because you could not get in an aeroplane and carry it anyway, even though the Chief Commissioner of Police got away with carrying some bullets on an aeroplane, but that is another matter.
40 Mr Kamal, you indicated a very keen interest about coming down to Melbourne to Mr Murrell and wanting to take part in this planned armed robbery, Murrell repeatedly making enquiries with Saner and Kamal, that is both of you, in order to establish what day the Melbourne Cup falls, planning on Wednesday 2 November as the day to commit the planned armed robbery. Mr Murrell and Mr Saner discussing stealing a car to use as a getaway car, and Mr Saner suggesting they use the Corolla that I spoke of earlier that had been stolen out at Mount Clear. Mr Murrell was telling you, Mr Saner, to get rid of the stolen Corolla and not to hold it for another two weeks, being the time for the planned armed robbery.
41 Next, Mr Murrell is discussing the armed robbery planned for 2 November with Anwar Murrell who is a brother I understand, suggesting that that Lloyd Murrell would make 30 to 40 thousand dollars out of the planned armed robbery. Lloyd Murrell meeting with Ngaa at his residence, with Da, that is Ngaa's uncle, and recruiting Ngaa for the planned armed robbery. The next surveillance reveals Murrell and you, Mr Kamal, organising a date for you, Mr Kamal, to travel to Melbourne with enough time prior to the planned event. Lloyd Murrell was telling you that he already has a handgun and not to worry about Wilson and arranging with you, Mr Kamal, to fly down to Melbourne by Tiger Airlines and he, Murrell, would pick you up from the airport.
42 However, the intercepted telephone conversations revealed that Mr Murrell and Mr Saner were discussing stealing a car to use in the planned armed robbery, Mr Murrell discussing the number of police brought up from country areas to work at Melbourne over the Melbourne Cup Carnival, Murrell telling Mr Saner that they have to steal a car before 2 November and Saner agreeing to take part in the planned armed robbery on 2 November. The next intercept reveals Murrell telling Ngaa that he has everything organised for 2 November and Ngaa saying that he's coming along to the planned armed robbery.
43 Further, Murrell discussing with Anwar, that is the brother, that they, Murrell and Kamal, are looking for a WRX to steal in order to use it for a planned armed robbery. Murrell and Kamal canvassing the streets in Point Cook for vehicles to steal. Next intercept, Murrell discussing whether 1 November, Melbourne Cup Day, is a public holiday and whether local police will be in Melbourne to assist with the Melbourne Cup event. Next intercept, Mr Murrell discussing how to steal particular models of a Subaru WRX with you, Mr Saner, and then Murrell and Kamal attending several car yards in order to steal one. Mr Murrell asking Mr Saner about different car yards with a view to attending and steal a car to use for the planned armed robbery.
44 Next there were numerous conversations recorded between Murrell and his partner Kerrie Anne Brennan. They were obviously having a domestic about whether or not Murrell should continue and she was threatening to go and see a well known policeman - he is well known to me because I have seen him many, many times over 25 years - called Jolley next door. That was really not a part of the commission of the offence, but involving the offence, the lady trying to talk him out of it.
45 Next intercept, Murrell asking Saner to come down and steal a car for them. Mr Murrell telling Mr Saner that he and Kamal had not been able to steal one the whole day, being 31 October, Mr Saner confirming that he is still in the snatch, referring to the planned armed robbery, but Mr Saner is indicating he does not want to do it in a VR Commodore SS sedan from Kevin Dennis car yard. I have spoken of that in relation to the offence that was committed when it was stolen.
46
The next intercept on 1 November, Murrell informing Ngaa that he had stolen a car for the planned armed robbery, indicating it was to be the next day.
Mr Murrell telling Ngaa that Wilson is not coming, that it will be just him, that is Murrell, Ngaa, and Kamal to do the job. Ngaa telling Murrell that he will be at home waiting for him. Murrell telling him that he will come over and talk to him. The next intercept. Mr Murrell informing Mr Saner that he, Mr Kamal, and Ngaa will be over at 6 am tomorrow, being 2 November, and that the job is going ahead 100 per cent. Mr Saner acknowledging and telling Mr Murrell that he will have an early night to be ready for the next morning. Mr Saner also suggesting moving his Nissan Pulsar sedan out of his garage in order to have enough room for the stolen Holden SS sedan.
47 The next intercept. Mr Saner enquiring whether Murrell "has the silver thing" referring to the silver handgun, and Murrell informing him that he does. Mr Murrell telling Mr Saner that everything is organised and ready to go. Mr Murrell enquiring whether Mr Saner has cable ties and whether they are big enough to go around hands. Mr Saner offering to get the cable ties out and have them ready for the next day.
48 The next intercept. Early in the morning of 2 November 2011, Mr Murrell was calling Ngaa and telling him that they are waiting for him and that they are ready. Murrell then informing Mr Saner that they were on their way. Murrell further telling Mr Saner to get ready and wear decent clothes. Murrell informing Mr Saner that they, Ngaa and Kamal, will be going in and that he will be sitting out the front as a getaway driver. He further says that he will be watching the police station. Mr Saner says he does not like the idea and telling Murrell that he has to live here, referring to Ballarat, and does not want to be seen near the area. He insists that he can watch the police station and that Murrell can be the getaway driver. Murrell tells Saner to wait and he will come and talk to him.
49 The next event is at 4.14 pm on Sunday 30 October. The police had followed the accused, Mr Murrell and Mr Kamal, whilst they travelled towards Ballarat inside Murrell's Subaru sedan. At 4.34 Murrell and Mr Kamal parked the Subaru sedan in the vicinity of JD's Sports Bar in Lydiard Street and entered that sports bar. At 4.38 pm Mr Murrell and Mr Kamal exited that sports bar and drove to the rear of the venue in Camp Road, Ballarat, which is around the back of JD's.
50 At 10.22 am on 1 November the next observation was Mr Kamal exited Mr Murrell's Subaru sedan and entered Kevin Dennis' car yard when the act occurred. All of those circumstances are evidence that confirms the conspiracy being developed and plans being made.
51 I am addressing you, Mr Saner, now. You, Mr Saner, are now aged 31 having been born at Westmead in New South Wales on 31 October 1981. You have recently been seen by the well known consultant psychologist Mr Warren Simmons. Mr Simmons provides an excellent report dated 20 March 2013. I propose to quote from an introductory paragraph, but as the report has been exhibited I will not regurgitate your extensive difficulties. Whoever wants to read it should there be another need, it is an exhibit and it can be read. I have read it in full three or four times. As I said, it provides an excellent report and I will read the introductory paragraph.
52 He says this of you, that is Mr Simmons speaking about you, Mr Saner. "Mr Saner is a 31-year old man who was born in Westmead, New South Wales, and grew up in Macquarie Fields, an area he said was colloquially called the Bronx. He described it as one of the worst areas a bloke could be raised in Sydney. His mother is aged 65 and of English descent, with Mr Saner stating that she always remained at home. His father died in 1994 at the age of 32, saying that he had most likely overdosed on heroin, but when he collapsed he hit his head in the bathroom. He was of Turkish descent and worked for an electronics company. Mr Saner has an older brother Metin, aged 32. In addition, Mr Saner revealed that his mother also had a previous relationship from which there are five children, saying that her previous partner was killed in a motor vehicle accident .
53 His oldest brother Leigh died of cancer in 2010 at the age of 46. He then has a sister Kerrie, aged 45, and a brother Lloyd, aged 44. Lloyd is the central part of all of this criminal activity, as well as two younger sisters, one aged 42 and one aged 40. He went on to reveal that his brother, that is Lloyd as I understand it, has just been released from prison after having been sentenced in 1996 for multiple armed robberies and the shotgun killing of another man. As I said, Lloyd Murrell is one of the co-accused in these matters.
54 Mr Simmons reports as to your education and employment. I again quote from his report. He says this of you, and I am reading from his report. Mr Saner was unable to recall the name of the primary school that he attended, adding that he struggled in mathematics but is literate. He is able to read and write, although he added that the latter is not the best. He felt he was picked on by his teachers, saying that he was often sent to the principal's office or made to stand in front of the chalkboard. He admitted being disruptive and recalled one occasion when he threw a chair. He fought with his peers often about issues in the school yard, adding that that he remembers fighting a great deal. He was always in detention and revealed that he did not enjoy school and always wanted to be on the streets. Mr Saner completed grade 6 but did not attend any secondary schooling. His mother did not make him go to school so he spent his time on the streets with his mates, running amok.
55 Mr Simmons then reports on your employment . He says there appears to have been a pattern of no significant employment until he, Mr Saner, moved to Melbourne in 2006. Mr Simmons says this of you, and I again quote him. "He completed a course that enabled him to install antennas, which he did for 12 months, but was sacked when a dog was stolen from a house where he had worked and he was blamed for this. He denied having done this, reporting that he enjoyed his work a great deal. He then found a position with Foxtel installing new equipment which he did for nine months until he gradually drifted out of work because he was using heroin. He has not worked since then, although Mr Saner went on to add that he has always enjoyed being in employment and found the experience in Melbourne rewarding".
56 Mr Saner, you have a long term partner, Ms Lisa Bright. You have three children from this union. These children are presently living with your mother as Ms Bright has encountered significant health difficulties and sadly has followed your habit into using heroin. Her addiction complicates her poor health, no doubt. Mr Simmons reports at length on your drug and alcohol history. You commenced using amphetamines and cocaine when aged 14. I have quoted again from Mr Simmons' report. "Over the years Mr Saner has taken ecstasy, amphetamines, GHB, acid, Xanax, Seroquel, revealing an intermittent pattern of use that has been erratic and not very consistent. He has not shared needles but has injected drugs into his neck, feet and hands and has injected temazepam, methadone, and various tablets. Mr Saner reveals that he was attending drug and alcohol services in St Albans as part of an intensive corrections order in the past and was also seeing a counsellor in Ballarat as part of CISP program, ceasing about two months before he was remanded in custody. He added that he had started using heroin again after ceasing his counselling. Mr Saner went on to indicate that he does not believe his drug use has been a problem until now".
57 Mr Simmons further reports that when you first went into custody on these matters you were given methadone at the rate of 140 mg a day. You are now on 100 mg a day so it is coming down. Mr Saner, you have moved away from Sydney to Melbourne so as to move away from the influences you had in Sydney as Mr Simmons reports. This is what he said. "This included members of his family as he wanted to start a new life, obtaining employment for the first time. However, there is no doubt that his elder brother has quite a systemic problem with criminal behaviour and was an influence in these current matters." From my observation, he followed you down and has created havoc.
58 It does appear that Lloyd Murrell is a major player in this offending. The prosecution evidence is overwhelming as I understand the material. Mr Simmons further reports of you, Mr Saner. He says this. "Of note is the fact that Mr Saner has only one long term relationship of almost 15 years' duration with a young woman whom he seems to have been able to maintain stability in the relationship such as they have never separated for any period. She previously had no history of substance use and he blames himself for having introduced her to heroin in the last few years and she has since battled with the drug. There are three children who are in the care in his mother, but what was of significance is the fact he was told by his partner she has recently been diagnosed with leukemia but seems reluctant to follow further investigations or medical treatment". I hope she changes her mind quickly. Again, that is a comment of mine. I am of the view that this positive relationship augurs well for your prospect perhaps of rehabilitation. I pause there now and turn to you, Mr Kamal.
59 Mr Kamal, you are now aged 30 years, having been born on 2 July 1982. Dr Aaron Cunningham, a forensic psychologist, has provided a report for this court. He reports on your family and background and I quote from his report briefly. He says this of you and your family. "Mr Kamal is a 31-year old" - he says 31, I think it is 30, that is a typo I think - "born in Sydney. His father raised him with one younger brother. He described his father as a good man who was always supporting the children. When Mr Kamal was aged two his mother left the family after suffering a nervous breakdown. He did not continue a significant relationship with his mother. He stated he felt abandoned by her. Mr Kamal's father re-partnered and had one daughter. When Mr Kamal was aged 13 the stepmother evicted him from the family home. He stated that he lived on the streets until his father ended that relationship. He then returned to live with his father. Mr Kamal continued to live with his father until 2010. He stated that his father died from a heart attack in September 2010. He stated that he was very close to his father and went off the rails after his death. Mr Kamal then moved to live with his romantic partner Stephanie. The couple have continued a relationship for nearly three years and they have one nine-month old son Costa. He stated he has known Stephanie since secondary school. He has continued telephone contact with Stephanie whilst incarcerated. He stated he maintains family support in Sydney. He cited his auntie as one of his most significant emotional supports. He stated his auntie operates a drug rehabilitation centre for Anglicare." Anglicare are well known in this state too, they have got a huge reputation for goodness - comment again by me.
60 Mr Kamal, taking into account your relatively difficult young life, you have pursued employment with considerable success. You attended primary school and then secondary college until year 8. You left school on becoming homeless. You have a certificate 3 in hairdressing. From age 17 you spent two and a half years in a metal fabrication outfit. You then commenced work with your dad as a mechanic with his company, Castaway Marine. It is your intention upon your release from custody to return to Castaway Marine and run this business as your own. You produced documentation with the business name and I am sure that what you are saying is truthful.
61 Dr Cunningham reports that you had periods of unemployment due to drug abuse. I have no doubt that it is correct. I further observed that you found yourself frequently incarcerated in the years around the death of your father or thereabouts, creating further difficulties with unemployment because you were incarcerated and battling drugs. Dr Cunningham in his report as to your drug and alcohol history says, "Mr Kamal began use of heroin at the age of 14. He stated his use of heroin coincided with associating with peers that he met whilst living on the streets. He reported injected $2000 worth of heroin per week. He reported a small amount of cocaine abuse. He attended Odyssey House for one month at the age of 24. He completed the drug court program at the age of 26. He stated that these treatments helped to reduce his drug abuse. He has completed a three-month drug and alcohol course, breaking the cycle, whilst incarcerated at the Melbourne Remand Centre". There is documentation produced indicating that is the very thing you have done.
62 "He began use of 140 mg of methadone and that has now been reduced to 70 mg of methadone per day so it is now coming down further". Well done. You are indicating 40, so I assume it is in that vicinity. Dr Cunningham assessed your mental health status, reporting that you were previously administered Zoloft to treat depression. You have been treated with Avanza for the past five years. Dr Cunningham says this. "Kamal meets the Diagnostic and Statistical Manual of Mental Disorders DSM4 for substance use disorder. He presents with a dependence to opiates. In the context of his substance use disorder, Mr Kamal presents with impaired ability to cope with life stress and dysphoric mood states. He presents with symptoms of depression and grief and loss related to the death of his father", of whom you were very fond, I am sure.
63 Mr Kamal, your plea of guilty is an expression of your remorse. Mr Pillai, your barrister, again on your behalf expresses your remorse to this court. Your prospects of rehabilitation, whilst guarded, may be good subject to you continuing your drug rehabilitation programs that you have commenced in prison, referred to by Cunningham. Your counsel has produced pathology testing results indicating negative use to illicit drugs whilst in prison. You are doing the right thing and not using. Once released, you have the support of your aunt in New South Wales who conducts rehabilitation as I mentioned earlier and your sister-in-law, who provides a supportive and glowing reference as to your intentions.
64 Whilst in custody here in Victoria as I have said before, you participated in a Breaking the Cycle drug and alcohol program. That is conducted by Moreland Hall. Mr Pillai as I have just mentioned produced that report. You further produced documentation from Wetherill Park College, that is in Sydney or New South Wales, indicating that you have successfully completed an Outreach course. You further produced certificates from the South Western Sydney Institute indicating your completion of the hairdressing course that I spoke of earlier. Further to these endeavours, you are anxious to rejoin your partner Stephanie who remains supportive of you, not to mention reconciling with your young son Costas.
65 Mr Cunningham in his report says "Kamal appears to have several current protective factors that may reduce his risk, stabilise him in the community and improve his psychological functioning. Kamal presents with employment opportunities in Sydney, he presents with a supportive partner and nine-month old son. He presents with family support in Sydney. He stated his auntie operates drug rehabilitation centres", which I have just mentioned. Cunningham goes on to say, "Kamal would further benefit from psychological intervention to improve his ability to cope with life stress and dysphoric mood states in the absence of illicit substance use. He may source psychological treatment through Beyond Blue. Ongoing engagement with drug and alcohol and psychological intervention, as well as re-engagement with the workforce and the maintenance of family support will positively assist rehabilitation".
66 Mr Saner and Mr Kamal, you together with the co-accused were an extremely active group conducting what I call a crime wave, both in the western suburbs of Melbourne and here in Ballarat. Your behaviour was deplorable. Your activities are to be denounced in the strongest of terms. Mr Saner, you also pleaded guilty, as did Mr Kamal, at the earliest opportunity that you had to plead. Your plea, Mr Saner, like that of Mr Kamal's, is again indicative of your remorse.
67 Both you, Mr Saner and Mr Kamal, have an extensive criminal history. You in particular, Mr Kamal, have visited the prison system all too frequently whilst living in New South Wales. Mr Saner, until going into custody on these offences you had not been incarcerated so no doubt this has been a shock to your system. You now find yourself in protective custody. I assure you that I will take that status into account in arriving at a just sentence because I have been told on many occasions it is more onerous serving a gaol sentence or serving any form of sentence when in protective custody.
68 There have been no victim impact statements filed in respect of these counts. Mr Saner, I assure you that I have taken into account all that has been said by Mr Ginsbourg, who was then here, on your behalf. I take into account your early plea of guilty and your prospects of rehabilitation, guarded though it may be. I also take into account the statement made and filed by you and your willingness if required to give evidence should there be a trial.
69 Mr Kamal, I also take into account all that has been said on your behalf by Mr Pillai, your plea of guilty and your prospects of rehabilitation again are guarded because you are wrestling with drug and alcohol problems and all of the health problems that flow therefrom. Mr Cunningham among other things said this of you. "To reduce his risk of re-offending, Mr Kamal would benefit from intervention to treat his substance use disorder, cease negative peer associations and maintain stable employment". A profound statement but just common sense, with respect.
70 I also take into account the contents of the letter you wrote to me. I have read that a number of times this morning and yesterday. You are obviously very troubled by the lack of your contact with your family, in particular your son. Just before I ask you to stand, I am also I believe obliged to make comment taking into account the length and all of the material I have covered to recognise there are aggravating circumstances involved in the offending, particularly the offence of conspiracy to armed robbery. The conspiracy count together with the remaining counts are indeed very serious examples of criminal offending. There had been, one, extensive planning involving most of the offences that were committed. There were a couple that were on the side, but most or all involved in the one event. Secondly, Lloyd Murrell obviously was having numerous discussions to maximise the take, that is the ill-gotten gains the armed robbery was expected, because of the timing, that is to have an armed robbery conducted on a TAB outlet on the day after the Melbourne Cup when wagering would expect to be at a maximum. I think those in Victoria, because it is supposed to stop the nation, would all agree that that is the case with the Melbourne Cup.
71 The third point, the armed robbery was going to be committed by at least four persons. There was a loaded Smith & Wesson revolver found; disguise was to be used; there were cable ties, gloves, hats and sunglasses all to disguise. Stolen cars in plural, many stolen cars, all put together for this one nefarious practice. In addition, not only was this armed robbery to occur, it was to be conducted in broad daylight in one of the main streets of Ballarat, Lydiard Street.
72 There were extensive prior convictions involved. I have not seen the prior convictions of Lloyd Murrell, I suspect they are extensive. I do not know about Ngaa, but certainly three of those - two I have seen, I infer one other - are all convicted persons, all suggesting desperate offenders with drug and alcohol problems, and such offending is to be denounced in the strongest of terms.
73 Would you please stand up, each of you. Dealing firstly with you, Mr Saner, there are so many offences you have just got to relax as best you can until I am finished because it might sound overwhelming at the beginning, but counsel will certainly speak to you about it if there is any misunderstanding. On Count 1, which the conspiracy count, you will be convicted and sentenced to six years' imprisonment. On Count 2, theft, Count 3, theft, Count 4, burglary, Count 5, theft, and Count 10, theft, on each count you are convicted and sentenced to 18 months' imprisonment. On Count 12, that is the handling stolen goods matter if I can abbreviate in that form, convicted and sentenced to two years' imprisonment. On the one summary offence, convicted and sentenced to six months' imprisonment. It is ordered that six months of the sentence imposed on Count 12 be cumulated with the sentence imposed on Count 1. This is in relation to Mr Saner. Otherwise, all sentences to be served concurrently. That equates to six years and six months' imprisonment.
74 In relation to Mr Saner it is further ordered that Mr Saner serve a minimum term of four years' imprisonment before being considered as eligible for parole. I have yet more to say, of course, about that.
75 Turning to Mr Kamal, on Count 1, the conspiracy count, convicted and sentenced to six years' imprisonment. On Count 6, burglary, Count 7, theft, Count 8, burglary, Count 9, theft, Count 10, theft, on each of those offences convicted and sentenced to two years' imprisonment. On Count 11, that is what used to be felon in possession of a pistol, prohibited person in possession of a pistol, four years' imprisonment. On each of the two summary offences, six months' imprisonment. It is ordered in relation to Mr Kamal that three months of the sentence imposed on Count 6 be served cumulatively with the sentence imposed on Count 1. Perhaps for your purposes, Mr Pillai, because you no doubt will be speaking to your client, that is the burglary count that does not relate to any of the conspiracy counts, I am just identifying that so you can understand what is happening. I will repeat it now without saying that. It is ordered that three months of the sentence imposed on Count 6 be served cumulatively with the sentence imposed on Count 1. It is ordered that 12 months of the sentence imposed on Count 11, that is the pistol matter, be served cumulatively with the sentence imposed on Count 1. Otherwise, all sentences are to be served concurrently with one another. That effectively amounts to seven years and three months' imprisonment.
76 In relation to Mr Kamal, it is further ordered that Mr Kamal serve a minimum term of five years' imprisonment before being considered as eligible for parole.
77
Pursuant to s.18 of the Sentencing Act, in relation to Mr Saner, Mr Saner is to be treated as having served 508 days of imprisonment. In relation to
Mr Kamal, pursuant to s.18 of the Sentencing Act, Mr Kamal is to be treated as having served 576 days of imprisonment, so substantial portions of their prison sentences have already been completed. Mr Saner, pursuant to s.89(4) of the Sentencing Act, from this date any licence to drive a motor car is cancelled and you are disqualified from holding any licence for a period of five years dating from today.
78 Mr Kamal, pursuant to s.89(4) of the Sentencing Act any licence to drive a motor vehicle in Victoria is cancelled and you, too, are disqualified from obtaining a licence in Victoria for a period of five years. This relates to both of you, gentlemen. Pursuant to s.464ZFB of the Crimes Act you are both to supply forensic samples and I order that those forensic samples be retained. In relation to you, Mr Saner - and understand, we said this earlier, there is still some negotiation going on about satisfactory explanation of some property, but the property that is to be disposed of, the following order is made. Pursuant to s.78(1) of the Confiscation Act, the forfeiture to the state of property referred to in the schedule attached to this order, I further direct it be placed in the custody of the Chief Commissioner of Police, Mr Lay, and be held by him until 28 days from this date or the conclusion of any appeal proceedings and it may be tested, analysed and then destroyed.
79
In relation to you, Mr Kamal, there is also an order for confiscation of property; that property as listed on this list to be placed in the possession and custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and it may be tested, analysed and then destroyed. In relation to the firearm there is a forfeiture order. The court orders pursuant to s.151 of the Firearms Act the forfeiture to the Crown of a Smith & Wesson revolver with six ammunition. Pursuant to s.6AAA of the Sentencing Act had it not been for a plea of guilty lodged by
Mr Saner, and it is very difficult when there are so many matters involved, but I suspect I would have ordered a prison term of probably eight years with a minimum of six. In relation to Mr Kamal, because of a more serious prior history of offending, he would have been sentenced to a term of imprisonment I believe of nine years with a minimum of seven. They indicate, I would imagine, significant discounts because of their pleas.
80 Thank you, adjourn the court.
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