Director of Public Prosecutions v El-Sayed, Tarek and Hodgkinson, Michael
[2012] VCC 1211
•31 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01314 (EL-SAYED)
Case No. CR-12-01018 (HODGKINSON)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAREK EL-SAYED AND MICHAEL HODGKINSON |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2012 | |
DATE OF SENTENCE: | 31 August 2012 | |
CASE MAY BE CITED AS: | DPP v El-Sayed, Tarek & Hodgkinson, Michael | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1211 | |
REASONS FOR SENTENCE
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Catchwords: Three armed robberies targeting taxi drivers to pay co-accuseds’ drug debts – knives.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F. Dalziel (Ms M Milardovic at sentence) | Office of Public Prosecutions |
| For the Accused EL-SAYED For the Accused HODGKINSON | Mr J. Desmond (Mr C. O’Brien at sentence) Mr D. McNally (Ms K. Wat at sentence) | Doogue & O’Brien Michael J. Gleeson & Associates |
HER HONOUR:
Introduction
1 Please remain seated, as it will take some time for me to read my sentencing remarks at the conclusion of which I will ask you each to stand individually.
2 You have pleaded guilty to three charges of armed robbery on 16, 27 and 28 April 2012 respectively. The maximum penalty for each charge is 25 years’ imprisonment.
Antecedents
3 You, Mr El-Sayed are 26 years of age. You have admitted prior appearances and convictions between March 2006 and May 2011 involving multiple driving offences and drug offences, the latter arising from the use and possession of cannabis and reckless conduct endanger serious injury, threat to kill, failure to stop vehicle on police request and failure to answer bail offences. The most recent conviction recorded in the Criminal History Report was for a possession of cannabis offence.
4 The dispositions imposed have included fines, community-based orders, an intensive correction order and wholly suspended terms of imprisonment, one of which was restored in March 2009.
5 I was told that you were required to serve the restored sentence following conviction on reckless conduct, threat to kill, drive while authorisation suspended and failing to stop offences. Apparently, the breaching offences were your response to an arson attack in 2008 on your home, about which you had complained to police, without the person you believed responsible being charged. According to your counsel you used your vehicle to rear-end this person's vehicle and you threatened him.
6 Armed robbery is an offence involving actual or threatened violence against the person and offending against property. Accordingly, whilst I accept that driving and drug-related offending are prominent in your criminal history the offending in 2008 is relevant offending for the purpose of this sentence.
7 I was told that on 15 May 2012, you pleaded guilty to outstanding drug matters for which you were convicted and, between 15 May and 14 June 2012, you served a one month term of imprisonment. This affects the calculation of your pre-sentence detention, about which I will say more shortly.
8 Mr Hodgkinson, your limited criminal history contains relevant offending against property. In February 2010 you were convicted and fined for theft from a motor vehicle and deal property suspected proceeds of crime offences. I was told that you stole numberplates which were found on your unregistered vehicle. Unfortunately, against the background of this comparatively modest offending, at the age of 25 you are now experiencing custody for the first time.
The circumstances of the offending
9 The prosecution’s opening (as amended) was read into transcript and tendered without objection. I have read the depositional material, which includes the records of interview.
10 It is not necessary to repeat verbatim the matters outlined in the prosecution’s summary.
11 The three armed robberies were committed in very similar circumstances in April 2012. In each case you arranged for a taxi to collect you and during the course of your journey you both produced knives and robbed the taxi-drivers of cash, personal property and the taxi they were driving.
As to Charge 1 – 16 April 2012
12 At 2.00 am on 16 April 2012, taxi driver, Harpeet Singh, received notification of a pick-up in Campbellfield, for a passenger called: “Robert”. When the taxi arrived, you Mr Hodgkinson confirmed the booking in the name of “Robert" and entered the front passenger seat. You, Mr El-Sayed, placed yourself behind your co-accused who provided the driver with directions and on arrival offered a bank card to pay for the trip. As the driver processed the card, he realised that you, Mr Hodgkinson, were holding a knife toward him.
13 You apparently demanded his money and mobile telephone and instructed the taxi driver and your co-accused to get out of the taxi. As instructed, Mr El-Sayed, you left the taxi and whilst your co-accused searched the taxi, you approached the driver, you produced a knife, you demanded whatever was in the driver's pockets and when told there was nothing you subjected the driver to a "pat down" search.
14 You both then drove off in the taxi and the driver, who was uninjured but, as his victim impact statement confirms, very shaken and scared, sought assistance from a nearby factory and contacted 000.
15 The property stolen consisted of sunglasses, the driver’s personal and work mobile phones, his wallet containing approximately $720 cash and various cards and the 2010 model Holden Statesman taxi, valued at approximately $35,000.
16 The driver was unable to give a clear description of the knives used by you, save to say that the blades were 10-15 cm long. However, you have each admitted being armed with a steak knife.
As to Charge 2 – 27 April 2012
17 Muhammad Naeem was driving a taxi on the evening of 27 April 2012. He responded to a call for a pick up in Hadfield, for a passenger called: “Michael” and arrived at around 10.25 pm. After confirming the booking you both entered the taxi. You, Mr Hodgkinson, were again seated in the front passenger seat with your co-accused seated behind you.
18 You gave directions and, after telling the driver to stop, demanded money. It appears that the taxi driver did not understand at first what was happening until you, Mr Hodgkinson, showed him a knife, which he recalled was an 8-10 inch butter knife and repeated your demand for money. When he produced his wallet, you snatched this from his hand.
19 As this was taking place, you, Mr El-Sayed, approached the driver’s door and produced a knife, similar to the one held by your co-accused, and demanded the driver's mobile phone.
20 The driver apparently fled and you both drove off in the taxi. The property stolen in this armed robbery consisted of the driver’s wallet containing approximately $150 in cash and cards and the taxi, a 2007 model Ford, valued at approximately $20,000.
21 Unfortunately, after calling police, when they arrived, the driver mistook the police car for the taxi and fled again, this time falling over a fence and injuring his arm. It is not suggested that either of you are responsible for the physical injury suffered, although the driver's response is just one indication of how frightening this episode was for him.
As to Charge 3 – 28 April 2012
22 Within hours of the armed robbery involving Mr Naeem, at around 3.20 am the next morning, you, Mr Hodgkinson, booked a taxi, again in the name of: “Michael” for collection in Hadfield. You were standing in the street when the driver, Chhetri Gokul, arrived and confirmed the booking. You again entered the front passenger seat with your co-accused seated behind you and proceeded to give directions to the driver.
23 This driver became suspicious about the directions he was being given and, after turning on the inside light of the cab to scrutinise your co-accused, he activated the taxi’s camera.
24 You, Mr Hodgkinson, then produced a knife from your pocket, which, in keeping with the responses given during your record of interview, the prosecution says was the same knife used in the robbery earlier that evening, not a flick-knife as recalled by the driver. You held this knife toward the driver; you instructed him to stop the taxi and you demanded all his money and belongings.
25 The driver pleaded with you not to do anything wrong, he offered to co-operate and handed over money from his shirt pocket to you, which you pocketed. As in the earlier robberies, you, Mr El-Sayed, approached the driver’s door and demanded the driver’s phone and cash. On this occasion, you also reached into the car through the window and felt the pockets of driver’s shirt, whilst, for reasons that were not clear from the opening, your co-accused apparently struck the dashboard.
26 You then instructed the driver to leave the vehicle; you subjected him to a “pat down” search and demanded his mobile phone, which you went looking for in the taxi after the driver could not recall where his phone was located. You then drove the taxi away, with your co-accused seated in the passenger seat.
27 The driver flagged down another taxi, whose drive assisted him.
28 The property stolen in this armed robbery consisted of the mobile phone, approximately $300 in cash and the taxi, a 2007 model Ford valued at approximately $20,000.
The Arrests
29 You, Mr Hodgkinson, were arrested on the same day at 6.10 am. You were carrying Mr Naeem’s driver’s licence in your pocket.
30 In respect to each of the charges you made full admissions.
31 Among other things, you told police that you committed the first robbery because you owed some thousands of dollars for a drug debt and had purchased and armed yourself with a steak knife for that purpose. Whilst you said that you had worked this out with your co-accused, you also said that it was agreed that you would take the lead role. I understood this to mean that, as part of your arrangement, you were to take the front seat position in the taxi and give directions and so forth.
32 As to the second armed robbery you told police that the knife used was found somewhere and that this offence had not been planned. You could not tell police from where your co-accused obtained his knife.
33 After making arrangements to attend the police station, you, Mr El-Sayed, were arrested some days later on 1 May 2012. You exercised your right not to comment on the allegations put to you. However, having volunteered to do this, you were interviewed on 8 May 2012 at which time you made full admissions to these offences.
34 Among other things, you told police that before deciding to rob the taxi drivers you and your co-accused discussed robbing a prostitute, that the surveillance cameras were ripped out of the taxis after the offences and that you had a drug debt of $2000, which you had paid off with the proceeds of these armed robberies. In circumstances where on each occasion you demanded specific property and also took the vehicles, I did not find plausible your further suggestion to police that the mobile telephones demanded and taken from the victims had been thrown-away following the robberies.
35 The prosecution has accepted that, notwithstanding some variation in the timing of your admissions, the pleas of guilty were entered at the earliest stage of the proceeding, namely at the committal mention stage. In these circumstances, you are both entitled to a substantial sentencing discount because your individual pleas have spared the witnesses the inconvenience and, in the case of the victims, the added trauma of a contested trial. You have also spared the community a costly trial or trials.
Impact on the victims
36 Victim impact statements for Mr Singh and Mr Naeem declared on 27 July and 26 July 2012 respectively were tendered and read aloud in Court. They both describe ongoing symptoms of psychological trauma and they have both suffered financial loss.
37 For instance, Mr Singh spoke of the impact of psychological symptoms, which continue to affect his sleep, his ability to cope and his sense of personal security. Mr Singh also reported loss of personal photos of his partner, family and friends his financial loss because he can no longer cope with working night shift. Even working extra days, Mr Singh said he is no longer able to earn as much as he previously earned om nightshift.
38 Mr Naeem's statement also indicates ongoing psychological symptoms which impact on his sleep, his sense of security, his confidence and on his ability to attend college to study. However, to date Mr Naeem has not pursued his doctor's recommendation that he obtain psychiatric support.
39 Mr Naeem also reported loss of personal property during the robbery and, without quantifying this, loss of wages both on the date of the offence and for subsequent shifts when he was not well enough to attend work.
40 Whilst Mr Gokul did not also submit a victim impact statement, allowing for the circumstances in which the armed robbery occurred, I was satisfied that he probably also found the offence very frightening.
Gravity
41 The prosecution has accepted and I find that the likely motive for the three armed robberies was to repay drug debts and that, as was also evident from the records of interview, at the time you both feared retribution from drug dealers should these debts remain unpaid.
42 These offences evidence planning and method in that you selected vulnerable targets, taxi drivers working late at night, you arranged for pick-up and drop-off in comparatively isolated locations, you targeted property including cash and disposable property such as mobile phones and sunglasses, you positioned yourselves in the taxis to maximise proximity to the driver, you destroyed the surveillance cameras after each offence and you used the taxis to escape.
43 You both used a knife in the commission of these offences, which, in addition to causing each victim to fear for his safety, if used had the potential to cause significant physical harm.
44 For the purpose of assessing the gravity of these offences I have also allowed for the value of the property stolen. The value of the taxis has some relevance to this assessment despite their apparent recovery close to the areas in which they were stolen.
45 Based on the reported circumstances and the likely impact on each of the victims I have assessed the objective gravity of each armed robbery as being at the lower to mid-point of the scale for this type of offending.
Personal Circumstances of El-Sayed
46 As to your background and circumstances, Mr El-Sayed, these were summarised by your counsel, in the report of psychologist, Mr Ball, who assessed you at Port Phillip Prison on 26 July 2012 and in the earlier reports of psychologist, Mr Healey, who on 28 November 2007 and 27 February 2009, assessed you in relation to other offending. Mr Ball only had access to the first of Mr Healey’s reports. You also relied on a written testimonial from your older sister, tendered at hearing in which, among other things, she expressed ongoing support for you both during and after any period of incarceration.
47 Your mother and a brother also attended Court to support you.
48 I was told that you are the third child of five siblings. You report a dysfunctional and abusive childhood. Depending on to whom this was reported, your childhood was marred by the separation of your parents when you were either two or three years of age. You then lived for some years with your father, who when you were 6 years old married a woman with whom you report a poor relationship. However, eventually following reports of physical abuse by your father, you and an older sister were placed with your mother and stepfather.
49 You told Mr Healy that the placement with your mother and stepfather was short-lived because within six months you were placed in foster care. You spent 12 months in foster care until about age 14 you were sent to live in Lebanon with your paternal grandparents and an aunt. This move and the fact that you did not resume your schooling in Lebanon meant that your formal education ceased before completion of year 8.
50 You lived in Lebanon for some 5 years during which time you report that your father returned to Lebanon and subjected you to further physical and verbal abuse.
51 Shortly after returning to Australia, at about age 20, you met and moved in with the girl who was to become your wife. She is the mother of your two children aged six and three.
52 Your employment history indicates intermittent unskilled work both during and subsequent to your time in Lebanon. You also report having undergone national service training for a period of 12 months in Lebanon during the course of which you were traumatised after witnessing the Captain of your platoon being shot dead. Whilst in February 2009 Mr Healy believed that you were still experiencing symptoms of post-traumatic stress disorder, I note that currently there is no formal diagnosis of residual traumatic symptoms.
53 Your failure to continue with your schooling coupled with a likely congenital intellectual impairment helps explains why you have never mastered the basics of literacy or numeracy.
54 For instance, on testing in 2007 and again in 2009, Mr Healy found a full scale IQ of 74 and 78 respectively. Mr Ball, on the other hand, said that he did not proceed with formal psychometric assessment due to your apparent inability to read or comprehend the questions. He too was satisfied that your intellectual functioning was impaired. In Mr Ball’s opinion, you are a vulnerable, naive and immature man likely to be easily led by negative peers. It is not, however, suggested that in the circumstances described you played a lesser role in the planning and execution of the current offending through which both you and your co-accused intended to repay drug debts.
55 You have a history of drug abuse commencing as an adult either from age 18 or 20. You told Mr Healy in 2007 that you started smoking cannabis at age 20 after moving to live with your girlfriend’s family and that, some months later, after an uncle introduced you to this drug, you also commenced smoking amphetamines.
56 Your abuse of drugs is long-standing, despite periods of reported abstinence and interventions including counselling and participation in a detoxification program at Moreland Hall. By your account, your attendance at Moreland Hall followed the birth of your first child and represented an attempt by you to address your addiction to cannabis. In any event, your history of relapse probably provides a good illustration of what Mr Ball identified as an impaired capacity to plan and execute positive and self-sustaining behaviours.
57 Moreover, based on the various reports made by you to the psychologists commencing from November 2007, it seems that your relapse into escalating drug abuse in the past has coincided with life stressors involving marital stress or conflict with others, such as the dispute that apparently led to the arson attack on your home in 2008.
58 As to the current offending, you told Mr Ball that in 2009, following your release from custody, fighting with your wife led to methylamphetamine abuse which, in turn, led to a large drug debt and threats made against you and your family should the debt remain unpaid.
59 According to Mr Ball, you are substance dependent for both methylamphetamine and cannabis and physiologically dependent on methylamphetamine. However, during the current period of custody you report having achieved abstinence. In Mr Ball’s opinion, having been kept in a controlled environment, your drug dependence probably has now reached the stage of early full remission.
60 Mr Ball links your substance dependence to various factors including your intellectual impairment, episodic states of sadness and features of your personality. In his opinion, these have combined to produce a cyclic style of offending as you attempt to self-medicate with illicit substances. In other words, intellectual impairment has in the past and currently does contribute to your use of and dependence on illicit substances and to related criminal activity.
61 Your plea demonstrates a level of remorse, as does your indication to Mr Ball that you were remorseful for both this offending and the hurt caused to your family. You also satisfied him that you were keen to undertake further rehabilitation and treatment to manage your addiction. In this regard I accept that you are probably genuinely sorry for the predicament your offending has caused for you and your family and that you want to address your addiction.
62 Nevertheless, Mr Ball has also assessed you as someone who has no insight into your current or previous offending and as someone who has not learnt from previous mistakes. In short, the impact of your impaired intellectual capacity and your history suggests that reformation may be difficult to achieve, even with the sort of structured treatment, monitoring, supervision and support Mr Ball recommended during any period of conditional release.
63 The support you apparently still enjoy within your immediate family may have carried more weight in my assessment of your prospects of rehabilitation, if past experience had shown that this had been protective against recurrent relapse.
64 In all, absent significant and sustained interventions, I consider your current prospects of rehabilitation to be poor.
65 The prosecution has not contested and, based on the evidence, I have accepted that your impaired ability to exercise appropriate judgment should to some limited extent reduce your moral culpability for this offending. In other words, your condition reduces the extent of your personal blameworthiness and affects the assessment of just punishment for this serious offending. [1]
[1]R v Verdins & Ors [2007] VSCA 102 [26]
66 However, over a three day period, you were capable of, and you remain capable of, acting in a reasoned and purposeful way. Accordingly, despite the likely role your intellectual deficits had in forming an addiction which led to indebtedness and your decision to participate in this offending, subject to some moderation, you remain an appropriate vehicle for deterring others from similar offending. Moreover, whilst some moderation of specific deterrence is also necessary, as an offender whose prospects of rehabilitation are problematic, the sentence must still act to deter re-offending on your part and to protect the community.
Personal circumstances - Hodgkinson
67 As to your background and circumstances, Mr Hodgkinson, these were summarised by your counsel. I also had regard to the tendered material, which in your case involved a number of documents, namely:
·
a report from psychologist, Mr Watson-Munro, who assessed you on
23 July 2012;
· three copy certificates. These indicated to me that you have used your time in custody wisely by being educated about the Victorian legal system, by obtaining a Certificate II in Asset Maintenance and by completing an Anger Management Program;
· written testimonials from your aunt, Sharon Hodgkinson, and from your uncle, Dennis Warrener, both of whom report visiting you weekly during the period you have been remanded in custody. Their testimonials and your uncle’s attendance at Court, among other things, indicate strong ongoing family support and an opportunity for you to be appropriately accommodated during supervised re-integration in the community;
· a written reference dated 20 July 2012 from the director of a former employer, Babylon Plastering Pty Ltd. I was told that when writing this reference the employer had not been aware of your current offences. The reference nevertheless indicates that you were very well regarded over the two and a half years working as a plasterer prior to leaving this employment some 5 months earlier.
68 I was told that you are the third of four children and that you have two much younger step-siblings.
69 Mr Watson-Munro was probably right when he described your formative years as turbulent and traumatic. This was driven by the separation of your parents when you were aged three and the significant violence to which your stepfather subjected you in the years after you and your siblings relocated with your mother to Tasmania. Your account of the violent corporal punishments inflicted is generally supported by your aunt's testimonial in which, among other things, she also noted that scarring on your hand was due to your stepfather using a hot iron to punish you.
70 You were raised and, until mid-way through year 10, were schooled in Tasmania. However, assisted by your family in Melbourne, you were reunited with your father in Melbourne where you resumed your schooling and completed years 10 and 11.
71 You have, as Mr Watson-Munro reported, a solid work history and a likely aptitude for plastering work to which you hope to return on your release. For instance, you told Mr Watson-Munro that after completing school you worked in a toy factory before commencing a plastering apprenticeship. This apprenticeship was discontinued after two years due to a falling out with your employer. You then returned to Tasmania where you worked in non-plastering work for a further two years two employers. However, on relocating to Melbourne, you returned to plastering work, this time with Babylon Plastering where, as I have already mentioned, you remained until your arrest for these offences.
72 You also told Mr Watson-Munro that you were in a relationship for some six years until this broke down in 2010 after your partner miscarried in the second month of a pregnancy.
73 Unfortunately, your father died some 10 years ago from liver cirrhosis when you were just 16 years of age.
74 As to your substance-abuse and psychological history you told Mr Watson-Munro that you were diagnosed with depression during your formative years, apparently in association with anxiety caused by your domestic situation. This impacted on your performance at school and on your self-esteem. You further report that in 2008 you attended a general practitioner. It seems that this did not lead to long-term treatment of what Mr Watson-Munro described as longstanding symptoms of an Anxiety Disorder with features of depression and low self-esteem or to treatment of a drug abuse problem established from about age 18 when you first experimented with amphetamines and smoked cannabis. You told Mr Watson-Munro that you ceased smoking cannabis in August 2011 due, you said, to its impact on your motivation. According to your counsel, until this ceased, you were smoking up to 7g of cannabis per day.
75 You also report a history of intermittent use of crystal methylamphetamine from age 19 and escalating depression, anxiety and drug abuse following your partner’s miscarriage in 2010.
76 In the months proceeding and, at the time of this offending, you report chronic abuse of ice, about ½ a gram per day and of “Liquid G” (GHB), approximately 5 mls per day. This abuse apparently caused paranoia, anxiety and delusional thinking and probably did, as Mr Watson-Munro noted, impact your mood and judgment.
77 Moreover, your mental state was further impacted during the period preceding the second and third armed robbery by what the psychologist described as a raft of symptoms of post-traumatic stress caused after you were taken hostage by your creditors and beaten and threatened on 27 April 2012. However, in Mr Watson-Munro’s opinion neither your drug abuse nor the trauma to which you were subjected had diminished your appreciation of the wrongfulness of your conduct.
78 The results of Mr Watson-Munro’s testing in July this year also established, he said, the presence of significant depression and anxiety.
79 In summary, you have been diagnosed as suffering from a protracted Anxiety Disorder, Major Depression, Post-Traumatic Stress and a Substance Abuse Disorder, the origins of each of which the psychologist found were linked to your turbulent and traumatic childhood. He also saw a link between these earlier life events, the untreated conditions and your drift into a pattern of illicit drug use from age 18.
80 Your claimed current drug-free status is supported by the negative results of three random urine screens obtained since your arrest.
81 Mr Watson-Munro has recommended psychotropic medication to treat your depressive condition and therapy for a minimum of 12 months to address the symptoms of your other disorders. This evidence alone did not satisfy me that the sentence should be mitigated to allow for a disproportionate impact on you due to your mental state. However, in view of Mr Watson-Munro’s recommendation for treatment, a copy of his report will be made available at the conclusion of this sentence to assist the gaol authorities in the assessment and management of any ongoing mental health issues.
82 Based on the unchallenged expert evidence and notwithstanding the evidence that your drug abuse commenced from age 18, I was satisfied that there was a sufficient causal connection between the largely untreated mental disorders which emerged in childhood in response to events for which you were not responsible and your later heavy addiction to drugs. It follows from this finding that I have rejected the prosecution’s submission to the contrary.
83 As I have already said this finding does not mean that, by reason of any disturbance of mind you were not able to appreciate the wrongfulness of conduct which clearly required planning and an ability to execute three armed robberies over a three day period. Rather, it acknowledges the connection between your offending and your drug addiction, the latter likely attributable to causes for which you were not responsible. This factor affects the punishment that is just in all the circumstances and calls for some moderation of general deterrence as a sentencing consideration.
84 Mr Hodgkinson, your plea is an indication of remorse. Mr Watson-Munro found evidence of genuine remorse and an ability to empathise with the victims, particularly since detoxifying from the use of dangerous illicit drugs. His findings in this regard are consistent with the testimonials received from your aunt and uncle. This evidence has helped me accept that, having yourself read the victim impact statements, the formal apology expressed through your counsel at the plea hearing probably reflects genuine and empathetic remorse.
85 In Mr Watson-Munro’s opinion, the evidence of insight, remorse, a solid work history, the steps taken by you since incarceration to advance your rehabilitation and your evident desire to change your life for the better suggest bnsome potential in life. I agree. The ongoing support offered by your aunt and uncle and your comparatively limited earlier engagement with the criminal justice system have also helped me accept that, with treatment your prospects for rehabilitation are probably good. Accordingly, whilst specific deterrence as a sentencing consideration remains relevant to the sentencing process, in your case personal deterrence and protection of the community have lesser roles in formulating an appropriate sentence.
Sentencing considerations
86 You have each conceded that the offending calls for the imposition of an immediate custodial term. You have both urged reduction in the non-parole period, in your case, Mr El-Sayed, to allow a longer opportunity for supervised rehabilitation and interventions under the auspices of the Adult Parole Board and, in your case, Mr Hodgkinson, to reflect your evidently better prospect of early re-integration and rehabilitation in the community.
87 Superior courts have repeatedly emphasised that any sentence imposed for an armed robbery offence must emphasise general deterrence and protection of the community as sentencing considerations. The offence carries a high maximum penalty because an armed robbery typically terrifies the hapless victim and leaves other members of the community understandably fearful for their safety. Importantly, subject to any relevant mitigatory factors any sentence imposed today in respect to multiple armed robbery offences must send a strong message that the community will not tolerate criminal conduct that targets taxi drivers as a means of paying off drug debts.
88 The prosecution put the sentencing range for you, Mr El-Sayed, at between 4 and 5 ½ years’ with a minimum of between 2 ½ and 4 years’ imprisonment. For you, Mr Hodgkinson, this was said to be between 3 ½ years and 5 years’ with a non-parole period of between 2 and 3 ½ years’ imprisonment. These ranges, the prosecution submitted, reflected the mitigatory features noted during the plea hearing and allowed for some degree of cumulation.
89 In my view some cumulation is required at the very least to reflect that the offending involved different episodes and different victims.
90 Mr El-Sayed’s counsel queried the basis for the differentiation between offenders in the suggested ranges.
91 I too had some concern with the prosecution formulation of these ranges.
92 Among other things, Mr El-Sayed’s sentence must reflect some moderation of general and specific deterrence, although his less favourable prospects of rehabilitation and any ongoing concern about the safety of the community in the future must also have some impact. However, for reasons that were not explained during the plea hearing, the prosecution submission as to the range adds 6 months to his head sentence with a reduction in the non-parole period at the bottom end and an increase at the top end.
93 Obviously, the prosecution’s submission on the sentencing range for Mr Hodgkinson was informed by the prosecution’s assertion that his drug addiction should not have a mitigatory impact. Had this submission been correct, the basis for recommending a lesser range for the same offences was not evident from the submission made. However, the reduced non-parole period at either end of the range I expect, was intended to reflect his overall better prospect of successful re-integration in the community.
94 My observations arising from the prosecution’s submissions are not intended to suggest that with some cumulation a range for the head sentences of between 3 ½ and 5 ½ years’ cannot be justified by reference to current sentencing statistics and comparable sentences.
95 For instance, the Sentencing Snapshot for armed robbery referring to the period 2006 to 2011 and published in June 2012, shows that in respect to 943 offenders the median length of imprisonment was three years, the most common length of imprisonment imposed was two years and the average length of imprisonment imposed was three years and two months. Where eligible to have a non-parole period fixed the Snapshot also indicates that the median length of the non-parole period fixed was two years and the most common non-parole period imposed was one year.
96 Obviously, today your individual circumstances, the circumstances of the offending, the parity principle and, because of the multiple offences, some allowance for cumulation have shaped the sentences imposed.
97 Despite your different circumstances, when appropriate allowances are made for individual differences, I could see no proper basis for differentiating between your sentences on either the head sentence or on the length of the period available for conditional release in the community. As I have already said, Mr El-Sayed's history and my assessment of his prospects of rehabilitation are less favourable, although if the Adult Parole Board deems this appropriate he likely requires a longer period of supervised release to establish programs suitable to his specific needs.
98 On the other hand, the combination of Mr Hodgkinson's comparatively limited criminal history, his good work record and, with treatment, his overall good prospect of rehabilitation warrants some reduction in the non-parole period to encourage his rehabilitation and reintegration in the community.
Sentence
99 Please stand, Mr El-Sayed.
100 On each armed robbery charge, Charges 1, 2 and 3 you are convicted and sentenced to 28 months' imprisonment. For the purpose of your sentence I treat the sentence on Charge 1 as the head sentence.
101 I direct that 14 months of each of the sentences imposed on Charge 2 and Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other. The sentences are otherwise concurrent.
102 The total effective sentence is 4 years and 8 months’ imprisonment,* with a non-parole period of 2 years and 6 months’ imprisonment. This sentence starts today.
103 Pursuant to s18(4) of the Sentencing Act and allowing for the period of custody for unrelated offending between 15 May and 14 June 2012 I declare that the period of 93 days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
104 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 6 years and 2 months’* imprisonment with a non-parole period of 4 years and 1 month’* imprisonment would have been imposed.
105 Please stand, Mr Hodgkinson.
106 On each armed robbery charge, Charges 1, 2 and 3 you are convicted and sentenced to 28 months' imprisonment. For the purpose of your sentence I also treat the sentence on Charge 1 as the head sentence.
107 I also direct that 14 months of each of the sentences imposed on Charge 2 and Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other. The sentences are otherwise concurrent.
108 The total effective sentence is 4 years and 8 months’ imprisonment,* with a non-parole period of 2 years and 6 months’ imprisonment. This sentence starts today.
109 Pursuant to s18(4) of the Sentencing Act I declare that the period of 126 days in your case be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
110 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 6 years and 2 months'* imprisonment with a non-parole period of 4 years and 1* month imprisonment would have been imposed.
* These represent the figures as corrected by Her Honour in open Court.
111 At the plea hearing, pursuant to s464ZF of the Crimes Act 1958, the prosecution sought orders for the retention of forensic samples. I have acceded to the prosecutor's applications in relation to both of you, and in doing so I have taken into account the seriousness of the circumstances of the offending, your prior convictions, the fact that the applications were not opposed and the interest the public has in keeping these samples. I have signed the orders.
112 A disposal order was also sought at the plea hearing. I note that the application was not opposed. I have signed that order. Those orders will be given to the Crown. Are there any further matters, counsel, that I need to address this morning?
113 MS MILARDOVIC: Your Honour, I understood you to say in relation to Mr Hodgkinson when declaring 6AAA I think Your Honour said the non-parole period to be six years and one month. I think Your Honour should perhaps correct that to say four years and one month.
114 HER HONOUR: I thought I said four, but in any event.
115 MS MILARDOVIC: I heard you say six.
116 HER HONOUR: If I didn't, it is four years. Thank you for that indication. Can you please remove Mr Hodgkinson and Mr El-Sayed? Thank you for your assistance today.
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