Director of Public Prosecutions v Ahmad
[2021] VCC 531
•7 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 21-00365
CR 21-00366
CR 21-00367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REYAD AHMAD KARL AHMAD SARMAR SOUMAYA |
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JUDGE: | HER HONOUR JUDGE DALZIEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2021 |
DATE OF SENTENCE: | 7 May 2021 |
CASE MAY BE CITED AS: | DPP v Ahmad & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VCC 531 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Armed Robbery – Intentionally Causing Injury –
Category 2 offence – Young and youthful offenders – planned offending in company
Legislation Cited: Sentencing Act 1991, s5(2H), s.5(2)(a), s.6AAA, s16(3C).
Cases Cited: N/A
Sentence:3 years 10 months with non-parole period of 2 years; 3 years with non-parole period of 19 months, 3 years YJC.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
For Accused R. Ahmad | Mr J Lowy | Emma Turnbull Lawyers |
For Accused K. Ahmad | Ms A. Hancock | Giorgianni & Liang Lawyers |
For Accused Soumaya | Mr M. Sturges | Balmer & Associates |
HER HONOUR:
1 Karl Ahmad, Reyad Ahmad and Sarmar Soumaya, you are each to be sentenced today for charges including armed robbery and intentionally causing injury arising from an incident that occurred in Blackburn on 9 October 2019.
2 I will go through the offending, then each of your personal circumstances. I will tell you what the sentences are together at the end.
Offending
3 At the time of this offending Karl Ahmad was 20, Reyad Ahmad was 22 and Sarmar Soumaya was 19. The victim of the offending was 19. In order to make a bit of money, the victim bought and sold high end watches using Facebook Marketplace to advertise. Relevant to this offending, he had purchased a Rolex watch on 3 October which had all the supporting documentation and its original box. He had paid $6,500 for that watch.
4 He advertised it on Marketplace for sale. He estimated the value of the watch as between $7,000 and $9,000 and he put a sale price on it on Marketplace of $8,000. He was contacted by a person using a Facebook account in the name of “Stefan Evans”. They agreed to meet in Doncaster East so that “Stefan Evans” could inspect the watch.
5 At around 8.20 pm the victim drove to the agreed meeting place, which was in a suburban street. He could see a male standing in the street while they were communicating by message and “Stefan Evans” messaged saying he was there in the street. The victim was concerned about meeting an unknown person on a dark and quiet street, and so he messaged ‘Stefan Evans” to arrange to meet at a service station.
6 Around 20 minutes later a black Mazda arrived at the service station. Reyad Ahmad got out and waited for the victim to arrive, which took some time as the victim had got lost on the way. “Stefan Evans” sent a photo of the service station to the victim to help him find it. He asked a number of times what car the victim was driving, but the victim refused to provide that information.
7 The victim arrived at around 8.55 pm. He parked near the pumps and sent a message saying that he had arrived. Reyad Ahmad approached him, doing something on his phone at the same time. The victim recognised Reyad Ahmad as the person he had seen earlier in the street. Reyad Ahmad asked the victim to drive his car over to the air pump area so he could inspect the watch there. The victim moved his car.
8 Having done so, the victim got out of his car and handed the watch and associated paperwork to Reyad Ahmad. Both of them were standing near the passenger side of the victim's car. At the same time, Karl Ahmad, followed by Mr Soumaya approached the victim's car. As Karl Ahmad rounded the back of the car he took a tyre lever out of his pocket. He ran at the victim and Reyad Ahmad and knocked the victim to the ground. Karl Ahmad immediately started hitting the victim multiple times to the head and body. The CCTV footage shows at least 18 strikes with the weapon and multiple kicks at the victim by Karl Ahmad and, that at one point, Karl Ahmad threw the victim back to the ground and kicked him a number of times.
9 Reyad Ahmad was nearby and at times appeared to be assisting Karl Ahmad as he was assaulting the victim. Mr Soumaya was initially on the driver's side of the car. He used a knife to puncture the tyres of the victim's car on that side, then stole a number of things from the car. He then moved around to the other side where Karl and Reyad Ahmad were, and also assaulted the victim by kicking him as he was lying on the ground being struck by Karl Ahmad.
10 Mr Soumaya picked up the victim's mobile phone from the ground and took it also.
11 Reyad Ahmad and Mr Soumaya started walking away. Karl Ahmad was still kicking and striking the victim, and did so for around 10 seconds after the others had left. Reyad Ahmad and Mr Soumaya jogged back to him and then all three ran away from the scene. This description has not captured the vigour of the assault upon the victim, principally by Karl Ahmad. While the assault lasted for only around 30 seconds, during that time Karl Ahmad delivered multiple blows and kicks at a fast rate and from multiple angles.
12 Once the three offenders had run away, the victim sought assistance and an ambulance was called. Photographs of him at the scene show he had a substantial quantity of blood on his face and down the front of his top. He was transported by ambulance to the Monash Medical Centre. He was admitted overnight for treatment and observation.
13 As a result of the assault he sustained the following injuries.[1] Five lacerations to the back and sides of his head, one laceration to the right side of his head, required three stitches and others required repair by glue. He had abrasions and bruising to his upper body, chest and back, and he had tenderness at the T9 region of his spine.
[1] Exhibit 13 – photographs of victim’s injuries.
14 As well as the Rolex watch, and the victim’s mobile phone, the offenders stole the victim’s wallet, which contained various cards, a backpack, a pair of JBL Bluetooth headphones and two black t-shirts. The total value of the items stolen was around $9,200.
15 Palm prints on the victim's car matched Reyad Ahmad's right palm and Mr Soumaya's left palm.
16 The Facebook account in the name of ‘Stefan Evans” was deleted the following day. Over the next days a mobile phone number registered to Mr Soumaya contacted more than 10 different watch dealers, including a shop in Sydney.
17 On 19 October the three offenders flew to Sydney on tickets booked in their own name and sold the watch to a watch store for $4,100. In order to sell the watch Karl Ahmad provided his own ID and a phone number, which was one digit different to his own.
18 Each of the offenders was arrested on 9 November 2019. When Karl Ahmad's home was searched the victim's headphones and the case to his mobile phone were found, as well as a vial of a steroid, which is the subject of Charge 3 possession of drug of dependence.
19 When interviewed, Karl Ahmad and Reyad Ahmad made no comment in respect to the armed robbery and the assault, but Karl Ahmad admitted to possession of the steroid.
20 Mr Soumaya denied being involved and provided a false phone number to the police.
21 Reyad Ahmad and Mr Soumaya refused to provide their access codes to their mobile phones and so each is charged with the summary offence of failing to comply with a direction to assist.
22 Each offender was on bail at the time of committing the current indictable offences, and each has pleaded guilty to the summary offence of committing an indictable offence whilst on bail.
23 Although the victim did not make a victim impact statement, he told the police when making his statement that he had not been able to sleep since the incident and he kept seeing the shoes and all the blood. He said that at the time he thought he was going to die.
Karl Ahmad's personal circumstances
24 At the time of the offending Karl Ahmad had recently turned 20. He is now 21. He is the eldest of three children. His mother and father separated when he was four years old and he was raised by his mother. He described the family as being poor, but that he was not neglected.
25 His mother started a new relationship when Karl Ahmad was around eight years old. Karl Ahmad had a good relationship with this man and liked him very much. The relationship between Karl Ahmad's mother and this man ended when Karl was around 13, and then his mother started a relationship with a new partner, “A”.
26 Karl Ahmad did not like this man, and this escalated when, aged 14, he came home to find “A” smoking cannabis in front of his younger brother. In the following argument “A” slapped Karl Ahmad. Karl felt that his mother was choosing her partner over him. He became angry and started to avoid being at home. The conflict with and about “A “continued. Things grew worse when Karl Ahmad discovered cameras hidden in the bathroom and it came out that “A” had been filming Karl's sister when she was in the bathroom.
27 Karl started spending time away from home, he was acting out and started taking drugs. He reported that he started smoking cannabis when he was 15 and that when he was around 17 he experimented with cocaine, with increasing use of that drug until he was using it three to four times a week, mainly on the weekend. This continued for around two years. At age 18 he tried methylamphetamine, which he found he liked even more than cocaine. He was smoking that drug three times a week up until he was remanded for these offences.
28 Despite these issues, Karl Ahmad says that he was close to his mother as he was growing up and that he felt that he took paternal role in respect to his younger siblings. He felt he never had a significant male role model and that this lack had an impact on his behaviour.
29 He finished Year 10. He had some troubles at school, particularly secondary school as he was a Muslim attending a Christian school. He was bullied and he felt like an outsider and fought with others at school. Once he left school he commenced a carpentry apprenticeship, which he kept at for 18 months but did not finish. Since then he has largely worked as a labourer and at the time of the plea he was working as a concreter. A reference from his employer says he was a hard worker, reliable, popular with his co-workers and respectful of others.
30 In January 2017 Karl Ahmad had been sentenced in the Children's Court for driving offences and for armed robbery. He was sentenced to a bond that required him to continue counselling. He reported to Mr Simmons, who had prepared a report for this plea, that he found that drug and alcohol counselling extremely helpful, and that he had enjoyed it. I note that despite this his drug use escalated.
31 At the time of this offending Karl Ahmad had recently started seeing a young woman who is not a drug user and who works. She has stood by him, despite these charges, and is a support to him and to his family. She is a positive influence upon him and they have plans to buy a home together in the future.
32 The offending before me was committed to obtain funds to purchase drugs. Karl Ahmad told Mr Simmons that he lost control and 'everything went red'. That description fits the conduct seen on the CCTV.
33 The report of Mr Simmons does not indicate that Karl Ahmad has any mental health issues other than past substance abuse.
34 Karl Ahmad spent 125 days on remand before being granted bail. He spent more than a year on bail pending this plea hearing. During that time he engaged with Youth Justice and with the Youth Support and Advocacy Service. Despite the difficulties on accessing services and counselling due to the pandemic, he engaged with counsellors over the phone, he was able to develop strategies such as exercise as a positive coping mechanism.
35 By October 2020 YSAS closed his file, as Karl Ahmad felt that he was confident that he could remain drug free without that support. He was also referred to Orygen for assistance with stress management.
36 I take into account the following matters which were raised in mitigation.
i. Karl Ahmad's upbringing, in particular the absence of a father figure and violence from “A”, I take this into account as part of Karl Ahmad's life and personal circumstances;
ii. His early plea of guilty, with its attendant utilitarian value, including by reason of the effects of the COVID-19 pandemic on the business of the court and the facilitation of the administration of justice;
iii. His remorse as evidenced by his plea of guilty, his expressions of remorse to Mr Simmons and to others as indicated in their references, and also the letter that he wrote to the court and to the victim. I accept that Karl Ahmad appears to have insight into the impact of his offending on the victim, and the impact on his family and friends, and that he regrets his offending;
iv. I take into account that Karl Ahmad was barely 20 at the time of the offending. Whilst generally speaking, rehabilitation is a primary consideration when sentencing a person of Karl Ahmad's age, the effect and mitigation of that principle is reduced to some extent in the face of the violent offending such as his; and
v. It was submitted on his behalf that Karl Ahmad's prospects of rehabilitation were very good in light of his positive engagement whilst on bail, his work and the support of his family and partner. The prosecution submitted that his prospects were reasonable. I consider that he does have good prospects for rehabilitation.
37 As the offence of armed robbery was committed by Karl Ahmad in company with one or more other offenders, it is a Category 2 offence for the purpose of the Sentencing Act 1991. It was submitted on Karl Ahmad's behalf that the following combination of circumstances amount to substantial and compelling reasons that are exceptional and rare, so that I am not required to impose a sentence of imprisonment, which is not combined with a CCO upon him. The matters raised where:
i. His genuine remorse and recognition of his error;
ii. His youth, moderating the need for just punishment, denunciation and general deterrence and the lack of need for community protection;
iii. His engagement whilst on bail, reducing the need for specific deterrence and providing evidence of his good prospects of rehabilitation;
iv. His lack of further offending whilst on bail and his limited criminal history;
v. The circumstances of his upbringing, including abandonment, lack of positive male role model and the domestic violence witnessed and experienced at the hands of his mother's partner “A”;
vi. His vulnerability, due to his age, in custody;
vii. The hardship of re-incarcerating him in view of the length of time that he has spent on bail and his progress whilst on bail;
viii. The risk of a resurgence of the COVID-19 pandemic in the community, and the consequential effects of that upon the hardship of time in custody in the future; and
ix. That the offence of armed robbery, it was submitted, was less serious than the intentionally causing injury in the circumstances of this case.
38 In considering this issue I am required to regard general deterrence and denunciation of the conduct as having greater importance than the other sentencing considerations. I must give less weight to the offender's personal circumstances than to matters such as the gravity of the offending. I must not have regard to an early plea of guilty or his prospects of rehabilitation. I must also take into account that it is parliament's intention that a term of imprisonment with a non-parole period should ordinarily be imposed and I must decide whether the cumulative impact of the circumstances of the case would justify not imposing such a sentence.
39 I acknowledge the work Karl Ahmad has put in whilst on bail, and that he has been on bail for more than a year before the plea hearing. I accept it is a hard thing for any person, particularly a young man at 21 to face more prison after putting in such an effort whilst on bail. Despite that, I am not satisfied that the combination of circumstances are substantial and compelling, nor that they are exceptional and rare.
40 Weighing all those matters, and the other matters I am required to take into account in this consideration, the effect of Karl Ahmad's youth and the time he has spent on bail carry less force than they do in the ordinary sentencing discretion.
41 Karl Ahmad, the people who provided references describe the changes in you since this offending, that you are maturing and that you've worked hard to stay on the right path since you were granted bail. You are working, you are going to the gym and spending time with your family. In your letter you wrote about letting your family down and your efforts at doing better for yourself and your family.
42 In sentencing you, I have to take into account not only your personal circumstances but also the offending itself, and the other sentencing principles. The sentences I will impose are intended to act as a deterrent upon you and upon others from committing this type of offence.
43 I have taken into account not only your prospects of rehabilitation, but also just punishment.
44 As I said, I will tell you the sentences at the end.
Reyad Ahmad's personal circumstances
45 Reyad Ahmad was the eldest of the three offenders. He was 22 at the time. He is now 24 years old. He was supported in court by his mother and two older brothers.
46 He grew up in Melbourne with two older siblings. He reported that his parents were often in conflict, his father had a gambling problem and was often away from the home. Although he did not report, in the course of a neuropsychologist's interview in 2020, that his father was violent towards him, his brother gave evidence before me about the family life at that time and said that their father was violent towards Reyad and that he witnessed this.
47 Reyad Ahmad's father died unexpectedly when he was 12. The family, in particular Reyad Ahmad's mother, never really recovered from this. Reyad Ahmad reports that his mother is depressed and anxious and that he and his brothers look after her, together with other family.
48 After his father's death Reyad Ahmad struggled at school. He received some support and assistance from a school counsellor but left at the end of Year 10. He started a pre-apprenticeship TAFE course and worked in carpentry for nearly three years. He then started working in concreting.
49 He felt anxious and withdrawn, and he turned to drugs as an escape. He started using drugs at age 17, commencing with cannabis, which he continued to use up until he was remanded for these offences. He started using cocaine at age 18 and in the year before these offences was using that drug three to four times per week. He began to drink alcohol to excess after a relationship ended when he was 20.
50 In May 2019 Reyad Ahmad participated in the theft of a Rolex watch from another person, for which he was sentenced in January 2021.
51 Reyad Ahmad was evicted from his family home from time to time. His brother gave evidence that in 2019 Reyad was technically living at home but he did not see much of him, and he had no real idea what was going on in his brother's life. His brother told me about visiting Reyad Ahmad on remand and that Reyad seemed to really regret getting himself and his family into this situation. The family were all very upset by Reyad being in trouble with the law.
52 As time passed, Reyad started to think about the future and to make plans for his life, to help the family and to look after his mother. When he was granted bail he showed a real change, he worked hard, he saved money and has been a good son.
53 Since he has been released on bail Reyad reports that he has not used alcohol or drugs.
54 Mr Ahmad was assessed by Dr Aaron Cunningham. In terms of personality structure he showed elevated indications of a sense of worthlessness, a feeling of being misunderstood or demeaned by others, and anti-social tendencies. He shows symptoms of anxiety, depression, drug abuse, post-traumatic stress and a major depressive disorder. Dr Cunningham diagnosed him as presenting with generalised anxiety disorder and persistent depressive disorder.
55 Reyad Ahmad acknowledged his role in the offending and told Dr Cunningham that he felt that he, as the oldest of the three, ought to have offered them better guidance. He said that the motivation for the offending was to get drugs, and that he was at a very low point in his life.
56 In March 2020 a neuropsychologist's assessment placed his intelligence in the borderline range.
57 Reyad Ahmad spent 125 days on remand and then has also spent more than a year on bail before the plea hearing. During that time he has made progress in addressing his drug abuse and in living a pro-social life.
58 I do not accept that the diagnoses by Dr Cunningham warrant less weight being placed on general and specific deterrence. Dr Cunningham noted that Reyad Ahmad presented with 'chronic low level depressed mood' and 'excessive worry, difficulty controlling the worry, irritability, tension and sleep disturbance'. Whilst I accept that these issues are affecting Reyad's life, and I take them into account in that way, they are not of sufficient gravity to warrant reduced weight being given to general and specific deterrence.
59 In addition to Reyad Ahmad's personal circumstances, I take into account the following matters in mitigation.
i. He pleaded guilty at an early stage, giving rise to utilitarian benefit, especially in light of the effect of the pandemic upon the court and his plea has facilitated the administration of justice;
ii. Whilst he has not expressed remorse for the offending, his behaviour on bail is consistent with someone who is working towards living a better, crime-free life. It appears that Reyad has managed to control his drug and alcohol addiction while he has been on bail, and this is a very positive factor in terms of his rehabilitation; and
iii. Reyad Ahmad is still a young man, and in light of his lack of priors and the work he has done on bail, I consider he has reasonable prospects of rehabilitation, provided he remains clear of drugs and alcohol.
60 Reyad Ahmad did not seek to persuade me that one of the exceptions arose in respect to the application of s.5(2)(a) of the Sentencing Act 1991. This reflects his acceptance of his wrongdoing and that he will necessarily receive a further term of imprisonment for it.
Sarmar Soumaya's personal circumstances
61 Sarmar Soumaya was the youngest of the three offenders, being 19 at the time of the offence and is now 20. He will turn 21 on 23 May this year.
62 Like his two friends with whom he committed these offences, he was using significant quantities of drugs at the time and he offended in order to get money to buy more drugs.
63 Mr Soumaya grew up in Melbourne. He has described his family life when he was young as being afflicted by his father's drug abuse and violence towards Mr Soumaya's mother. His father's behaviour got worse after he had served a term of imprisonment and returned to the home. His father left the home in late 2017 after an intervention order was obtained.
64 Mr Soumaya's father's violent and destructive behaviour created an atmosphere of fear and instability for him in his formative years. He has had little contact with his father since 2018. He describes a close and supportive relationship with his mother and lives at home with her.
65 In light of the stressors at home, it is not surprising that school presented difficulties for Mr Soumaya. He had behavioural issues and found it difficult to pay attention in class. These problems manifested in both primary and secondary school. He finished Year 10, and although he started Year 11 with a focus on sports, this did not work and he left school when he was 16. He then did a pre-apprenticeship in plumbing but was unable to secure a permanent role as an apprentice. He found other sorts of work, including warehousing, waterproofing and concreting. He has now obtained a ticket to work on the railways.
66 Mr Soumaya is a keen football player and is interested in hiking and camping. He has the support of his mother and maternal relatives and three people were in court to support him at the plea hearing. Good references were provided for him by those involved in his football club and from his mother.
67 Mr Soumaya started drinking alcohol when he was 18, but he reports that this was not a problem for him. What has been an issue has been his drug use, which commenced when he was 17 with cannabis and 18 with MDMA. He tried cocaine when he was 17 and then started using it on weekends after he had turned 18, increasing usage until he was using it every two or three days, using up to half a gram daily by mid-2019. He reported using Xanax in this time period to help him sleep in the context of the cocaine use.
68 A psychologist's report was tendered. That psychologist considered that Mr Soumaya presented as an immature young man of average intelligence. He appeared to have insight into the link between his offending and his drug abuse. He was worried about the upcoming plea hearing and the result. The diagnoses were generalised anxiety disorder related to the court proceedings[2] and stimulant use disorder (severe), in sustained remission.[3] Anti-social personality traits were noted but Mr Soumaya did not meet the criteria for the diagnosis of a personality disorder.[4]
[2] Ms Cokorilo [79], [41], [64], [81].
[3] Ibid [79].
[4] Ibidem.
69 The psychologist considered that whilst Mr Soumaya expressed remorse for his actions and was able to recognise the likely impact on the victim, she thought that his statements appeared to be superficial and that he had a poorly developed sense of empathy. This was consistent, she said, with indicators of anti-social personality pattern, which included impulsivity, lack of care about the damage that might be inflicted on others and acting without restraint or consideration of consequences.[5]
[5] Ibid [87], [73].
70 Mr Soumaya spent 62 days on remand before he was granted bail. He described being on remand as traumatising and as a wakeup call.[6] He engaged very well while on bail and impressed his Youth Justice supervisor, Mr Riordan, with his application to the tasks given to him. Mr Riordan gave evidence before me, noting that Mr Soumaya did more than the minimum required, and that he demonstrated an important change in his attitude, showing real resolve to avoid further offending, as well as appropriate remorse and victim empathy. Mr Riordan expressed concern about Mr Soumaya being put into adult custody, noting that he was immature for his age.
[6] Cokorilo [100].
71 The psychologist also considered that a term of imprisonment would be likely to have significant adverse effects on Mr Soumaya and his future behaviour by undermining the positive structures he was currently focusing on and exposing him to negative peers.
72 I take the following matters into account in mitigation.
i. Like his co-accused, Mr Soumaya pleaded guilty at an early stage. This has utilitarian benefit in itself, which is greater in view of the effect of the pandemic upon the operations of the court;
ii. His plea of guilty is also an acknowledgement of wrongdoing. I accept Mr Riordan’s assessment of Mr Soumaya's remorse and note that the concerns expressed by the psychologist may reflect the learned aspects of Mr Soumaya's response rather than a lack of real appreciation by him of the gravity and consequences of his act upon the victim;
iii. I also take into account Mr Soumaya's youth, both at the time of the offending and now. Promoting his rehabilitation is a factor I have given weight to in determining both the type of disposition and the length of it;
iv. At the time of the offending before me Mr Soumaya had no prior convictions or findings of guilt, although I note he was on bail at the time and had previously been complicit in a theft of a Rolex in May 2019 for which he was sentenced in 2020;
v. He has good prospects for rehabilitation, provided he remains clear of drugs and bad company. In making this assessment I have considered Mr Riordan's opinion, the efforts Mr Soumaya has made on bail, and the psychologists assessment; and
vi. The period on adult remand has had a significant deterrent effect already. I do not consider, however, that that period of custody is sufficient to meet the sentencing requirements.
73 As is clear from the summary of the offending I gave earlier, Mr Soumaya's role in the armed robbery did not involve a direct confrontation of the victim, and his role in the intentionally causing injury offence, was less than Karl Ahmad's. He was on the other side of the car stealing items from it as part of the armed robbery when Karl Ahmad attacked the victim. He did join in the assault on the victim and can be seen kicking at him once when he was on the ground.
74 For the reasons I will expand upon shortly I reject the submission that the injuries caused to the victim were 'relatively low level'. Whilst Mr Soumaya did not actively cause the head injuries, he was complicit in a group attack on the victim, both in respect to the armed robbery and the injury charge. Whilst the knife was not used to attack the victim, it forms part of the armed robbery and increases Mr Soumaya's culpability for that reason.
75 Mr Soumaya also submitted that the combination of circumstances amounted to substantial and compelling reasons which are rare and exceptional, so as to warrant a departure from the requirement of s.5(2H) of the Sentencing Act 1991 in respect to the charge of armed robbery. He relied upon:
i. The circumstances of his family life as a child and teenager and the impact of that upon his drug use and hence this offending.
ii. His significant period on bail, 16 months, during which he has made great progress.
iii. His youth and vulnerability in custody due to his immaturity.
76 There are a number of positive factors that I take into account in this consideration. I am also very conscious of the hardship of putting a person of Mr Soumaya's age back into custody, particularly after such a long period of successful bail.
77 At the same time, however, I am required to regard general deterrence and denunciation of the conduct as having greater importance than the other sentencing considerations. I must give less weight to his personal circumstances than to matters such as the gravity of the offending. I must not have regard to an early plea of guilty or his prospects of rehabilitation. I must also take into account that it is parliament's intention that a term of imprisonment with a non-parole period should ordinarily be imposed and I must decide whether the cumulative impact of the circumstances of the case would justify not imposing such a sentence.
78 The armed robbery in which Mr Soumaya was complicit was a planned group offence committed to fund Mr Soumaya's drug addiction. Even accepting that the offending against this victim was conceived of and set up on the day of the offence, this lead-up and the preparation steps included contacting him, arranging a meeting, moving the meeting and then approaching him. All of this occurring over sufficient time for Mr Soumaya, or the others, to reconsider their actions. Denunciation and general deterrence carry real weight in this matter.
79 So, whilst Mr Soumaya has done good work on bail, taking into account all the matters I am required to in this consideration, I do not find that the high bar of substantial and compelling reasons which are rare and exceptional has been achieved.
80 Turning to the sentencing discretion in respect to Mr Soumaya, as I have said, there are significant factors in mitigation to be taken into account. Mr Riordan prepared a report at my request regarding Mr Soumaya's suitability for a Youth Justice Centre order. He reported that he considered that Mr Soumaya has very good prospects for rehabilitation and importantly has ceased using cocaine. He considers that Mr Soumaya is a suitable candidate for a Youth Justice Centre order.
81 Weighing the gravity of the offending, the principles of general deterrence, specific deterrence, denunciation and just punishment together with the factors in mitigation I have concluded that in view of Mr Soumaya's age and immaturity, the appropriate disposition for him is a Youth Justice Centre order.
The gravity of the offending
82 This offending did not occur in isolation. On 6 May 2019 Reyad Ahmad and Sarmar Soumaya stole a Rolex watch which had been advertised for sale via Facebook Marketplace. Over the course of several days, using messages, they arranged to meet this seller at his workplace. Three males arrived and loitered outside. Reyad Ahmad went inside and was handed the watch to inspect. He put it on and ran away. Mr Soumaya opened the door to help him escape.
83 Reyad Ahmad and Sarmar Soumaya were sentenced for this offence and others after they had been arrested for the armed robbery in this case. Each received a substantial fine without conviction.
84 I note that there is no evidence linking Karl Ahmad to this earlier offending.
85 A month or so before the offending for which they are now to be sentenced, a person selling two Rolex watches via Gumtree was contacted by “Sammy” from the mobile phone number connected to Mr Soumaya. That seller found the contact suspicious and so he did not meet with “Sammy”.
86 The armed robbery for which these three young men are to be sentenced today was planned offence. It involved the three of them robbing a similarly aged victim. The steps in preparation involved creating a false Facebook profile, searching for a potential target, messaging the victim to arrange to meet, arranging to meet in a suburban street at night, then amending that plan when the victim raised concerns, waiting for him at the service station, using Reyad Ahmad to identify and approach the victim, moving him away from the pumps and in the case of Karl Ahmad and Mr Soumaya, arming themselves prior to approaching the victim.
87 Whether or not Karl Ahmad decided to arm himself not long before the offending or earlier makes no difference to my assessment of the gravity of the two offences. He did choose to arm himself and he used that weapon with force and repeatedly. Whilst Reyad Ahmad and Mr Soumaya played a lesser role in the assault on the victim, the culpability of all three in the armed robbery is similar.
88 Reyad Ahmad was the front man, but each played their part. The planning and set up of the armed robbery involved the steps I have described which were taken to avoid detection, such as using a false Facebook profile. Although defence counsel pointed to aspects of the offending and the sale of the watch that demonstrated a lack of sophistication, in particular using their own names to fly to Sydney and sell the watch, this was certainly not naïve or simple offending. Rather, the accused used a method which had worked previously, to find a person selling a watch online and to steal that watch from him.
89 The offence of intentionally causing injury involved a group attack on a person who had been targeted by the offenders. Whilst most of the blows were inflicted by Karl Ahmad wielding a tyre lever as a weapon, Reyad Ahmad and Mr Soumaya also took part in the attack. By their pleas, Reyad Ahmad and Sarmar Soumaya acknowledge their complicity in Karl Ahmad's attack on the victim, and they are to be sentenced for that as well as their own blows directed at the victim.
90 The injuries inflicted included multiple blows to the victim's head and blows to his body. The blows to the head in particular did not cause a minor injury. The lacerations can be seen in the photos and were quite large. One on the side of the victim's head, above his ear, required stitches. Whilst not as severe as injuries approaching the level of “serious injury” as defined in the Crimes Act, these were still significant injuries, inflicted with a weapon to a vulnerable part of the body.
The principle of totality
91 Each of these young men was on bail at the time of the commission of the offences of armed robbery and intentionally causing injury. Pursuant to s.16(3C) of the Sentencing Act 1991 this means there is a presumption that any jail sentences imposed will be served cumulatively upon each other. That is subject to the principle of totality. I will order a degree of cumulation between the armed robbery and the intentionally causing injury charges to reflect the separate and additional criminality of the intentionally causing injury charge and to capture the totality of the offending. This applies also to the summary offence of committing an indictable offence whilst on bail.
Parity
92 In arriving at the sentences and orders I am about to announce, I have taken into account as best I can the differences and similarities between each of the accused and their roles in the offending.
93 The matters I have taken into account include:
i. The different ages of each of the three, although I note that the difference was not great. A significant effect of their ages is that at this time only Mr Soumaya is eligible for a Youth Justice Centre order.
ii. Reyad Ahmad and Sarmar Soumaya have no prior convictions, whereas Karl Ahmad has the relevant prior of armed robbery. Reyad Ahmad and Mr Soumaya were involved in the May 2019 theft of the Rolex and there is no evidence that Karl Ahmad was involved in that matter.
iii. The differing roles played by each of them. Whilst Reyad Ahmad was the first to engage the victim in the armed robbery, it was Karl Ahmad who was the most active in the assault upon the victim. Reyad Ahmad was not armed. Karl Ahmad had a tyre lever and Mr Soumaya had a knife with him.
iv. All three have not reoffended since this offending and have taken steps to live better lives.
94 In respect to Karl Ahmad and Reyad Ahmad I have set relatively short non-parole periods in order to encourage their rehabilitation and to take account of their youth. Would each of you please stand.
95 The sentences are.
| Offence | Maximum Penalty | KA | RA | SS |
| Armed robbery | Level 2 25 years imprisonment | 2 years 6 months 9 months cuml on Charge 2 | 2 years 6 months Base | 2 y 6 m YJC |
| Intentionally cause injury | Level 5 10 years imprisonment | 3 years Base | 2 years 5 m cumulative on Charge 1 | 18 m YJC 6 months cum on Charge 1 |
| Possess drug of dependence Applies to K. AHMAD only | 30 penalty units or Level 8 (1 year) imprisonment, or both. | Proved and discharged pursuant to s73 of the Sentencing Act 1991 | NA | NA |
| Related summary offences | ||||
| Offence | Maximum Penalty | KA | RA | SS |
| Commit indictable offence whilst on bail | 30 penalty units or 3 months imprisonment | 2 month 1 m cuml on Charge 2 | 2 months 1 m cuml on charge 1 | 1 m YCJ |
| Fail to comply with direction to assist Applies to R. AHMAD and SOUMAYA only | Level 7 2 years imprisonment | NA | 2 months | 2 m YJC |
| Total effective sentence | 3 y 10 m | 3 y | 3 yrs YJC | |
| NPP | 2 y | 19 m | NA | |
| PSD | 125 days | 125 days | 63 days | |
| 6AAA | 5 yrs NPP 3 yrs | 4 yrs NPP 2 y 6 m | 4 yrs JYC | |
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96 You may sit.
In respect to s.6AAA of Sentencing Act 1991 I declare that if these young men had not pleaded guilty, the sentences would have been Karl Ahmad five years with a non-parole period of three years. Reyad Ahmad four years with a non-parole period of two and a half years and Mr Soumaya four years Youth Justice Centre order.
HER HONOUR: Ms Warren, is there anything I have not covered?
MS WARREN: Can I just make one correction Your Honour said 66 days for Mr Soumaya, it's 63 days.
HER HONOUR: Apologies, 63. I will vary that.
MS WARREN: There is a disposal order Your Honour and a compensation Your Honour might have done that on plea, I can't remember.
HER HONOUR: I don't think they were raised. Is there any issue with those orders?
COUNSEL: No Your Honour.
HER HONOUR: I'll make the orders, they can be sent through. Unless there's anything else we'll adjourn.
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