Kargar v The Queen - [2018] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0237

IMAN KARGAR	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2018
DATE OF JUDGMENT:	7 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 148
JUDGMENT APPEALED FROM:	DPP v Kargar [2017] VCC 1505 (Judge Mason)

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CRIMINAL LAW – Appeal – Conviction – Plea of guilty to charge of aggravated burglary on agreed basis – Agreed aggravation was recklessness as to presence of person in building – Indictment erroneously referred to aggravation by possession of offensive weapon – Error not apprehended by defence counsel or prosecutor – Crown concession that appeal should be allowed – Appeal allowed – Conviction set aside – Conviction for agreed offence substituted – Criminal Procedure Act 2009 s 277(1)(c) applied.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 2 years for charge of aggravated burglary, 2 charges of theft, charge of reckless conduct endangering serious injury and summary charge of driving while disqualified – Whether sentence of 18 months for aggravated burglary charge excessive – Whether lesser sentence should be imposed for substituted aggravated burglary charge – Applicant sentenced to same sentence as that imposed by sentencing judge for original aggravated burglary charge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L Richter	Emma Turnbull Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
PRIEST JA
KYROU JA:

Introduction and summary

On 11 October 2017, the applicant pleaded guilty to the charges set out in the following table. On 18 October 2017, he was sentenced as set out in that table.[1]
[1]DPP v Kargar [2017] VCC 1505 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary
[Crimes Act 1958 s 77(1)] 25 years 18 months Base

2 Theft
[Crimes Act s 74(1)] 10 years 6 months -

3 Theft 10 years 1 year 3 months

4 Reckless conduct endangering serious injury
[Crimes Act s 23] 5 years 9 months 3 months

Related Summary Charges

8 Driving while disqualified
[Road Safety Act 1986 s 30(1)] 2 years 1 month -

Total Effective Sentence: 2 years

Non-Parole Period: 1 year, 2 months

Section 6AAA Declaration: 3 years with a non-parole period of 2 years

Other Orders: Licence disqualification for 18 months from 18 October 2017

The offending occurred when the applicant, while disqualified from obtaining a driver’s licence, drove his three co-offenders in a stolen Mercedes Benz vehicle to a service station in Keilor Park, and waited in the vehicle while they smashed the front doors of the service station shop with hammers and stole a large quantity of cigarettes. An employee was in the rear storeroom of the service station shop at that time. The applicant then drove in a dangerous manner from Keilor Park to Humevale.

The applicant and the prosecutor reached an agreement that the applicant would plead guilty to the charges in the table at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kargar v The Queen

Details

AGLC: Iman Kargar v The Queen [2018] VSCA 148
Case: [2018] VSCA 148
Decision Date: 7 June 2018

CaseChat Overview and Summary

The appellant, Kargar, appealed against his conviction and sentence for multiple criminal offences. Kargar pleaded guilty to charges including aggravated burglary, theft, reckless conduct endangering serious injury, and driving while disqualified. The appeal was centred on the nature of the aggravated burglary charge, as well as the appropriateness of the sentence imposed. The appeal was heard in the High Court of Australia.

The primary legal issue in the appeal was whether the error in the indictment regarding the basis of the aggravation in the burglary charge was sufficiently serious to warrant setting aside the conviction. The agreed basis of aggravation was the appellant's recklessness as to the presence of another person in the building, but the indictment erroneously referred to the aggravation as being by possession of an offensive weapon. Neither the defence counsel nor the prosecutor had noticed this discrepancy. Additionally, the appeal challenged the severity of the sentence, specifically the 18-month term for the aggravated burglary charge.

The court found that the error in the indictment was indeed significant, as it misrepresented the agreed basis of the aggravation in the burglary charge. The court held that the error was not noticed by either party and was material to the offence charged. The court applied section 277(1)(c) of the Criminal Procedure Act 2009 to set aside the conviction for the original offence and substitute a conviction for the correctly described offence. The court also determined that the sentence for the substituted offence should mirror the sentence for the original offence, which was 18 months for the aggravated burglary charge. Consequently, the appeal was allowed, the conviction was set aside, and a conviction for the correctly described offence was substituted. The sentence remained unchanged.

Orders