Kargar v The Queen [2018] VSCA 148

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.

1 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]

[Crimes Act 1958 s 77(1)]

[Crimes Act s 74(1)]

[Crimes Act s 23]

[Road Safety Act 1986 s 30(1)]

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

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

2 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.

3 The applicant and the prosecutor reached an agreement that the applicant would plead guilty to the charges in the table at [1] above. The basis of the agreement on charge 1 was that the applicant would plead guilty to aggravated burglary pursuant to s 77(1)(b) of the Crimes Act. That section applies where, at the time the offender enters a building the subject of a burglary, 'a person was then present in the building ... and [the offender] knew that a person was then so present or was reckless as to whether or not a person was then so present'.

4 At the plea hearing, the prosecutor filed Indictment No. G13529312 and, when the applicant was arraigned, he pleaded guilty to all the charges on the indictment. The indictment described charge 1 as follows:

CHARGE ONE: The Director of Public Prosecutions charges that IMAN KARGAR at Keilor Park in Victoria on the 28th day of December 2016 entered as a trespasser a building situated at 69 Keilor Park Drive with intent to steal and at the time IMAN KARGAR knew that his co-offenders HUSSAIN ALQASSIM and HADY AL HARBIAH had with them offensive weapons namely hammers.

Statement of Offence: Aggravated burglary contrary to s 77 of the Crimes Act 1958.

5 Although charge 1 did not identify the specific provision of s 77 of the Crimes Act on which it was based, the description of the offence reflected s 77(1)(a). That section applies where, at the time the offender commits a burglary, he or she has 'with him or her any ... offensive weapon'. Section 77(1A) defines 'offensive weapon' as 'any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose'.

6 At the plea hearing, neither the prosecutor nor defence counsel apprehended that the indictment did not reflect the agreed basis for the plea. No submissions were put to the judge by either party about the circumstance of aggravation attaching to charge 1. The judge sentenced the applicant without expressly relying on either of the alternative bases of aggravation for that charge.

7 The applicant seeks leave to appeal against his conviction on charge 1 on the sole ground that he pleaded guilty to an erroneous indictment. He seeks to have that conviction set aside and a conviction entered on a charge of aggravated burglary pursuant to s 77(1)(b) of the Crimes Act. The Crown has conceded that this is an appropriate course in the light of the error in the indictment.

8 The applicant also seeks leave to appeal against his sentence on charge 1. The sole ground is that, because of the error on the indictment, he pleaded guilty to a more serious charge of aggravated burglary and should have received a more moderate sentence that reflected the correct circumstance of aggravation.

(a) the application for leave to appeal against conviction will be granted and the appeal allowed;

(b) pursuant to s 277(1)(c) of the Criminal Procedure Act 2009 ('CPA'),[2] the conviction for the offence under s 77(1)(a) of the Crimes Act in charge 1 on the indictment will be set aside and a conviction for an offence under s 77(1)(b) will be substituted; and

(c) the applicant will be sentenced to the same sentence as that imposed by the judge for charge 1.

10 On 28 December 2016, the applicant had possession and control of the stolen vehicle (charge 3 - theft of motor vehicle).[3] At approximately 2:15 am that day, he drove the vehicle to the front doors of the service station shop. In the vehicle with him were three co-offenders, then aged between 16 and 17 years. The applicant was then 20 years old.

11 The front doors of the service station shop were locked as a security measure. However, to indicate to motorists that the service station was open, the driveway apron lights were fully illuminated, the petrol bowsers were operational and the store lights were on. When the applicant and his co-offenders arrived, an employee was in the rear storeroom replenishing stock. The employee's vehicle was parked in the car park outside the front doors of the service station shop.

12 The applicant waited in the vehicle with the engine running to keep watch while the three co-offenders got out and approached the locked front doors of the service station shop. Two of the co-offenders carried hammers and the third carried a large doona cover. All three co-offenders had various items of clothing wrapped around their heads to conceal their identities.

13 The two armed co-offenders used their hammers to smash the front doors of the service station shop before all three went inside. The service station employee heard the doors being smashed and viewed the live security camera footage from the storeroom. He saw the applicant's co-offenders run to the counter area. He fled the shop through a rear roller door exit and phoned police from a nearby restaurant. (Charge 1 - aggravated burglary).

14 The three co-offenders placed in the doona cover cigarettes worth approximately $19,000 from two drawers and a cigarette cabinet. The co-offender carrying the doona cover dragged it through the rear roller door exit while the remaining two co-offenders ran out the front entrance and got into the vehicle. The applicant drove the vehicle to the rear exit of the shop. The doona cover containing the stolen cigarettes was loaded into the car boot. The applicant and his co-offenders drove away from the service station, south on Keilor Park Drive in the northbound lanes, before entering the Calder Freeway driving south. (Charge 2 - theft of cigarettes).

15 A short time later, the police air wing detected the vehicle driving at high speed on the Western Ring Road. Police maintained observation for several kilometres. They saw items of clothing being thrown from the vehicle onto the side of the road. They also saw the vehicle cross onto the incorrect side of Dalton Road in Lalor and drive at high speed on the dual carriageway in the opposite direction with its headlights turned off. In total, while the vehicle's headlights were off, police saw it drive through 14 roundabouts in the incorrect lane and narrowly avoid collisions with four cars on three separate occasions. It also drove through a red light. (Charge 4 - reckless conduct endangering serious injury).

16 At the time of the offending, the applicant's licence had been cancelled and he had been disqualified from obtaining a licence until 16 July 2017 (summary charge 8 - driving while disqualified).

17 The vehicle stopped in Humevale, where the applicant and his co-offenders fled on foot in different directions. They were arrested in nearby bushland.

18 The applicant was 21 years old at the time of sentencing. He has one brother and one sister. His parents experienced poor health in the years before the current offending. In 2014, his father was diagnosed with emphysema and a short time later was diagnosed with prostate cancer. His mother has also suffered from ill health.

19 The applicant completed Year 12 and obtained a Victorian Certificate of Applied Learning, after which he completed an electrical course at TAFE. In late 2016, he commenced work with an employer who offered him a carpentry apprenticeship, however that offer was withdrawn as a result of the current offending. On 31 July 2017, he obtained work as a labourer with another employer. In a letter tendered on the plea, the employer described the applicant as reliable, consistent, and having a good attitude towards his work and co-workers, and stated that he had offered the applicant a carpentry apprenticeship.

20 The applicant's family have continued to support him. Character references from his parents and siblings were tendered on the plea. They stated that he intends to take responsibility for his actions and has shown remorse for his offending, and that they were confident that the offending was a 'one-off incident' and that 'he will learn lessons that he will use from here onwards'. A marriage celebrant from the applicant's community stated that he was respectful, very friendly and loved to help others, but that he had fallen in with 'wrong friends'. He stated that the applicant had expressed his remorse and was working hard to become a better person.

21 The applicant has no history of drug or alcohol abuse, or mental illness.

22 The applicant has a relevant prior criminal history. In 2014, he was dealt with in the Sunshine Children's Court for the offences of robbery, unlawful assault and dealing with property suspected to be the proceeds of crime. He was placed on 6 months' probation without conviction.

23 On 31 August 2015, he was dealt with in the Heidelberg Magistrates' Court for theft of a motor vehicle, reckless conduct endangering serious injury, failing to render assistance after an accident, failing to give his name and address to an injured person, unlicensed driving and a dishonesty offence. He was convicted on each charge and sentenced to a 12-month community correction order ('CCO'), with the conditions that he perform 180 hours of unpaid community work over 12 months, attend a road trauma awareness seminar and obey a curfew for three months. His licence was cancelled and he was disqualified from obtaining a licence for 12 months.

24 On 16 November 2016, six weeks before the current offending, the applicant was convicted in the Sunshine Magistrates' Court of contravening the CCO dated 31 August 2015 and unlicensed driving. He was sentenced to a nine-month CCO which included the conditions that he perform 100 hours of unpaid community work, attend a road trauma awareness seminar and be subject to judicial monitoring. He was also disqualified from holding a driver's licence for a further period of 8 months (to 16 July 2017).

25 Corrections Victoria permitted the applicant to continue with the CCO dated 16 November 2016 after the current offending. He breached that CCO both by the current offending and by failing to comply with its conditions. A report by Corrections Victoria dated 22 August 2017 stated that he had incurred 13 unacceptable absences and failed to enrol in a road trauma awareness seminar or complete his unpaid community work hours. The report described the applicant as unwilling to discuss his offending and engaging in avoidance behaviour. It recommended that the CCO be cancelled and the applicant be found unsuitable for a further community-based order.

26 On 16 September 2017, the applicant attended a road trauma awareness seminar, albeit after his CCO had expired.

27 In his sentencing remarks, the judge described the circumstances of the aggravated burglary as summarised at [10]-[13] above. He referred to the presence of the employee in the service station and the use of the hammers by two of the co-offenders to smash the front doors of the service station shop but he did not describe the hammers either as 'weapons' or 'offensive weapons'. As we have already indicated, the judge did not state whether the aggravating circumstance for charge 1 was possession of the hammers or the applicant's recklessness as to the presence of the employee. The judge made the following observation about the employee:

Whilst the employee ... was fortuitously not at the counter area ... 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.[4]

28 The judge described the applicant's conduct at the service station as 'disgraceful and dangerous'.[5] He said that the act of aggravated burglary 'shows an alarming and dramatic escalation in the seriousness of [the applicant's] developing criminal propensity'[6] as it was committed in the context of earlier offending of a similar nature and shortly after the imposition of a CCO.

29 The judge observed that two of the offences for which the applicant was dealt with in August 2015 were the same as those for which he fell to be sentenced, and that he had made unsatisfactory progress with CCOs imposed in the past.

30 The judge had regard to the mitigating factors that the applicant was able to call in aid, namely: his pleas of guilty, both for their utilitarian benefit to the community and as evidence of his remorse; his youth and the fact that he had never before been sentenced to a custodial sentence; his prospects of rehabilitation aided by his lack of alcohol, drug and mental health issues; his rehabilitation efforts since the expiration of his last CCO, including completion of the road trauma awareness seminar; his good character as expressed by his family, and its positive impact on his prospects of rehabilitation; his efforts to obtain and maintain employment; and the fact that, despite the seriousness of the charges, no victims were injured.

31 The judge concluded that despite the applicant's youth and the importance of rehabilitation for youthful offenders, the seriousness of his offending meant that those mitigating factors had to give way to the primary sentencing purpose of punishment, namely, deterrence. He held that this purpose could not be achieved without a sentence of imprisonment longer than that allowed for by a combination sentence.

32 The applicant seeks leave to appeal against his conviction on the aggravated burglary charge on the following ground:

The conviction on charge 1, aggravated burglary, was entered as a result of a series of errors, namely, that the indictment contained an error, that the Applicant unintentionally pleaded guilty to this erroneous indictment, and that neither party apprehended the error in the course of plea or sentence hearing.

33 The applicant submitted that he did not intend to enter a plea of guilty to charge 1 on the basis of aggravation pursuant to s 77(1)(a) of the Crimes Act, but did so because the indictment contained an error. Accordingly, so it was said, the conviction on charge 1 should be quashed and a conviction on a charge of aggravated burglary pursuant to s 77(1)(b) should be entered.

34 The Crown accepted that, although the indictment referred to s 77 of the Crimes Act and not any sub-section, the wording of the charge was consistent with s 77(1)(a) and did not reflect the agreement reached between the parties. The Crown also accepted that it was never part of the prosecution case that the hammers were offensive weapons - in the sense that the co-offenders intended or threatened to use them to injure or incapacitate any person - as distinct from being used to gain entry to the service station shop.

35 In its written case, the Crown submitted that this Court should not address the error in the indictment by setting aside the conviction on charge 1. Rather, according to the Crown, the Court should amend the particulars of that charge on the indictment, pursuant to s 165 of the CPA, to reflect s 77(1)(b) of the Crimes Act. As noted by the Crown, that approach was adopted by this Court in Eade v The Queen.[7] However, in oral argument, the Crown accepted that the most appropriate course was for the conviction for the offence under s 77(1)(a) of the Crimes Act to be set aside and for a conviction for an offence under s 77(1)(b) to be substituted.

36 Sections 165 and 277 of the CPA relevantly provide as follows:

165 Order for amendment of indictment

(1) The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2) If an indictment is amended by order under this section, the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the trial.

...

(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must -

(a) order a new trial of offence A; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury or, in the case of a plea of guilty to offence A, the trial judge must have been satisfied of facts that prove the appellant was guilty of offence B -

enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A ...

...

37 In our opinion, it is patently clear that, through inadvertence, charge 1 on the indictment did not reflect the agreement between the parties that the applicant would plead guilty to a charge under s 77(1)(b) of the Crimes Act. Not only did the applicant not intend to plead guilty to a charge under s 77(1)(a), but a finding of guilt on that charge was not open on the evidence because it was not established that the hammers satisfied the definition of 'offensive weapon'. Accordingly, the conviction for the offence under s 77(1)(a) involved a substantial miscarriage of justice.[8]

38 In these circumstances, the Crown properly conceded that: the appeal against conviction should be allowed; the conviction for the offence under s 77(1)(a) of the Crimes Act should be set aside; and a conviction for an offence under s 77(1)(b) should be substituted. Accordingly, we will make orders to that effect. As the erroneous conviction will be set aside, and the applicant will be convicted of the offence to which he intended to plead guilty, under s 277(1)(c) of the CPA, it is unnecessary for the indictment to be amended under s 165 of that Act.

39 In the event that the applicant was successful on the appeal against conviction, he also sought leave to appeal against his sentence for charge 1. This proposed ground of appeal is as follows:

That the sentence on charge 1 should be moderated in view of the Applicant having been sentenced on an example of a different form of aggravated burglary that is more serious than that on which he ought to have been sentenced.

40 It was common ground that the effect of an order under s 277(1)(c) of the CPA setting aside a conviction for one offence and substituting a conviction for another offence is that this Court must impose a sentence for the latter offence.

41 The applicant submitted that, under the definition of 'offensive weapon' in s 77(1A) of the Crimes Act,[9] an article such as a hammer - which is not made or adapted for use for causing injury to or for incapacitating a person - can be an offensive weapon only where the person having the article intends to use it, or threatens to use it, for such a purpose. According to the applicant, in the case of such an article, it is insufficient that the person who has it merely intends to threaten to use it for such a purpose.

42 The applicant contended that, as he did not have possession of the hammers and the co-offenders who had them did not threaten any person with them, the only logical basis upon which a charge under s 77(1)(a) of the Crimes Act could be maintained against him was that he intended that the co-offenders would actually use the hammers to injure or incapacitate a person. He argued that there was no evidence that he or his co-offenders so intended and the prosecution had not put the charge in that way.

43 The applicant submitted that, by his plea to the incorrect form of charge 1, he unwittingly conceded all of the elements of the offence, including a form of aggravation for which there was no evidence. He contended that an aggravated burglary that involves an intention to cause injury or incapacity with an offensive weapon is much more serious and culpable than one which involves knowledge or recklessness as to the presence of an individual. He described his offending as 'low level'.

44 According to the applicant, due to the error on the indictment he was sentenced for charge 1 on a much more aggravated basis than that which had been agreed or was open on the evidence. He contended that this amounted to a miscarriage of justice and, accordingly, a more moderate sentence should be imposed on charge 1, consistent with the offence being against s 77(1)(b) of the Crimes Act.

45 The applicant conceded that, in his sentencing remarks, the judge did not expressly state that he was sentencing him for an offence under s 77(1)(a) of the Crimes Act rather than for an offence under s 77(1)(b). He also conceded that the judge did not describe the hammers as either 'weapons' or 'offensive weapons'. Nevertheless, so it was said, as charge 1 on the indictment referred to the hammers as 'offensive weapons' and the judge was required to have regard to the elements of the aggravated burglary offence as described in the indictment, the judge must have sentenced him on the basis that he had committed an offence under s 77(1)(a).

46 The applicant conceded that the judge had correctly referred to the applicable sentencing considerations, including his youth, and the mitigating circumstances on which he relied. Nevertheless, he argued that the judge's sentencing discretion had miscarried in relation to charge 1. This was said to be because a lower sentence would have been imposed if the judge had given primacy to rehabilitation due to his youth, and had given proper weight to the mitigating circumstances on which he relied and the absence of any prior conviction for aggravated burglary.[10]

47 The Crown submitted that it does not follow from the error on the indictment that a more severe sentence was imposed on the applicant, or that a different sentence should now be imposed. It argued that the judge had not placed any weight on the possession of the hammers in the sentencing synthesis - other than to note the fact that they were used to gain entry to the service station shop - and had not stated that it was an aggravating factor. Further, it contended that regardless of whether the applicant's appeal against conviction is allowed or the indictment is amended, the applicant would fall to be sentenced on the same factual basis, which he has not challenged.

48 The Crown submitted that this Court should not impose a different sentence to that imposed by the judge for charge 1. The Crown contended that, having regard to the serious nature of the aggravated burglary offence, the applicant's extensive prior history and the fact that he had previously been given a number of opportunities for rehabilitation, the sentence of 18 months' imprisonment for that offence was 'remarkably lenient'. The Crown argued that such a lenient sentence can only be explicable by the judge having given considerable weight to the applicant's youth.

49 Pursuant to s 277(1)(c) of the CPA, it falls to this Court to sentence the applicant for the substituted aggravated burglary charge. That section stipulates that our sentence must not be more severe than the sentence that was imposed by the judge for the original aggravated burglary charge.

50 We agree with the Crown's description of the sentence imposed by the judge for charge 1 as 'remarkably lenient'. This is particularly so having regard to the objective gravity of the offending and the maximum penalty of 25 years' imprisonment.

51 The aggravated burglary offence under s 77(1)(b) of the Crimes Act was very serious. It was not, as the applicant submitted, 'low level'. It involved considerable planning, including attendance by the offenders at the service station with implements to smash their way into the premises and a doona cover in which to carry the stolen cigarettes. The burglary was committed in company on a 'soft' target, being a service station shop with a sole attendant late at night, and involved a violent forced entry by disguised co-offenders. The judge was correct to describe the incident as 'a very terrifying situation' for the employee on the premises.

52 For a young man, the applicant had a significant prior criminal history at the time he committed the current offending. While that history did not involve aggravated burglary, it included robbery, dealing with property suspected to be proceeds of crime and theft of a motor vehicle. The applicant has been given ample opportunities to reform by being placed on two CCOs but has failed to take advantage of those opportunities. Indeed, he was only six weeks into the nine-month CCO dated 16 November 2016 when he committed the current offending

53 In these circumstances, although rehabilitation remains a primary sentencing consideration due to the applicant's youth, specific and general deterrence assume prominence.[11] Protection of the community is also important. Convenience stores and similar businesses are vulnerable to violent criminal activity, particularly late at night when they are staffed by a single employee and few customers are present. Those employees are entitled to feel safe in their workplaces and the business owners are entitled to feel confident that their property rights will not be violated. Those who regard these types of premises as easy targets for aggravated burglaries should be under no misapprehension that such offending will be met with condign punishment.

54 Contrary to the applicant's submission, the judge gave considerable weight to the applicant's youth in sentencing him for charge 1. In our opinion, the sentence of 18 months' imprisonment is so modest that it is only explicable on the basis that the judge gave prominence to the applicant's youth in the sentencing synthesis.

55 The applicant was right not to challenge the sentences imposed by the judge for the two charges of theft and the charge of reckless conduct endangering serious injury. The circumstances giving rise to the latter charge involved very egregious conduct which placed many motorists at risk of serious injury. It is a wonder that no one was hurt.

56 It follows that we are not satisfied that the applicant should receive a lesser sentence for charge 1 than that imposed by the judge. In accordance with s 277(1)(c) of the CPA, the applicant will be sentenced to 18 months' imprisonment for that charge.

[1] DPP v Kargar [2017] VCC 1505 ('Sentencing remarks').

[2] Section 277 of the CPA is set out at [36] below.

[3] The extended definition of 'theft' in s 73 of the Crimes Act includes a situation where a person who 'has come by' property without stealing it assumes a right to it by keeping it or dealing with it as owner.

[7] [2012] VSCA 142; (2012) 35 VR 526.

[10] The applicant referred to R v Mills [1998] 4 VR 235 ('Mills').

[11] Mills [1998] 4 VR 235, 241-2.