R v Abdel-Aziz

[2018] NSWDC 468

District Court

New South Wales

Medium Neutral Citation:	R v Abdel-Aziz [2018] NSWDC 468
Hearing dates:	11 – 12 October 2018
Date of orders:	12 October 2018
Decision date:	12 October 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	You are sentenced to a term of imprisonment of two years to be served by way of an intensive corrections order
Catchwords:	CRIME – SENTENCE – break, enter and steal knowing a person present in premises - co-offender with Pfuhl and Gardiner [2018] NSWDC 467 – joint criminal enterprise - in company but victim asleep during crime - small amount taken of no sentimental value - no property damage – young man aged 20 years at time of offence – prior good character – social disadvantage - - anxiety and depression - parity with sentences passed on co-offenders
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1991
Cases Cited:	R v Ponfield [1999] NSWCCA 435
Category:	Sentence
Parties:	Regina (Crown) Samir Abdel-Aziz (Offender)
Representation:	Counsel: Ms Stuart (Crown) Mr B Pierce (Offender)   Solicitors: Solicitors for the DPP (Crown) Not recorded (Offender)
File Number(s):	2017/00145362
Publication restriction:	Nil

sentence

1. HIS HONOUR: This afternoon Samir Abdel-Aziz stands for sentence as a consequence of a plea of guilty which he initially entered in the Local Court. Earlier today, at Darlinghurst, his co-offenders, Stephen Pfuhl and Jake Gardiner, stood for sentence for the same offence.

2. The matter first came before me on 14 June 2018 when it was adjourned because of a problem with the offence to which the offender had pleaded guilty. Initially he was charged that on 8 May 2017 he did break and enter the home unit of Christopher Coonrod situated at unit 801 at 2 Mandible Street, Alexandria, and entered the said unit to commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that he knew that there was a person present within the said unit. The matter was adjourned when I pointed out that on the evidence contained in the agreed facts there had been no breaking into unit 801.

3. Subsequently, the offender was charged with a different offence in these terms: that on 8 May 2017 he did break and enter the building at 2 Mandible Street, Alexandria, and then in unit 801 of the said building did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that he knew there was a person present within that unit. To that offence the offender pleaded guilty this afternoon. Not only was there an amended court attendance notice, there was an amended set of facts put before me.

Facts

4. Mr Christopher Coonrod lived in unit 801 on the eighth floor of the premises known as 2 Mandible Street, Alexandria. It is a block of home units which has been described as a “security block”. An electronic pass is required for all to make entry to the building, including the garage, and the electronic pass is needed to operate the lift within the building. The lift will only take passengers to the floor allowed for the pass given to the resident. Once inside the building, however, people can access any floor using the fire escape stairs except from the lobby.

5. At about 10pm on Sunday, 7 May 2017, Mr Coonrod arrived homet. He went inside and watched television for a few hours. Unfortunately for Mr Coonrod, the door to unit 801 did not always completely shut by itself. When it did not latch properly it could be pushed open further from the outside. At about midnight, Mr Coonrod retired to bed. Before doing that he took a sleeping tablet and he fell asleep not long after. At the time that he was retiring to bed he plugged his iPhone into a charger that was on his bedside table.

6. Between 1.30am and 2.10am on Monday, 8 May 2017, this offender, with his co-offenders, was seen to enter the building and leave it on closed circuit television cameras. The offenders walked up to the clear glass entrance door at the bottom of the unit block at about 1.30am. Gardiner used the button panel on the wall near the door. He pressed several of the intercom buttons. The three offenders waited for about five seconds before the door was unlocked, and they opened the door then entered the building. An unknown occupant had been buzzed by the offenders on the intercom and that unknown occupant had unlocked the glass entrance door. The offenders then opened the closed but unlocked entrance door. That amounts to breaking.

7. They entered the lobby but were unable to use the lift without an electronic security pass. Gardiner and Pfuhl then came back out of the entrance door and held it open whilst Gardiner pressed several more buttons on the intercom next to the door. They re-entered the building at about 1.32am. All three offenders entered the room next to the lobby by opening a closed but unlocked glass internal door in the lobby. That again amounts to a breaking. They attempted to open the fire door adjacent to the lobby but they could not do so. The present offender, Samir Abdel-Aziz, made a phone call while outside the lift. He then walked outside and passed his telephone to Pfuhl. Gardiner then went inside the lobby.

8. This offender then climbed up a set of external stairs to level 1 and he then climbed on the outside of the building using the bannister of the stairs and then climbed on to a canopy above the entrance door. He then entered the building by climbing through a window. Once inside the building he was able to press the button for the lift which brought Gardiner and Pfuhl up to the floor to which the present offender had climbed. That happened to be level 4. All three offenders then accessed the fire stairs via the closed but unlocked fire door. They climbed out of the stairs at level 8.

9. Whilst on level 8 one or more of the offenders noted that Mr Coonrod’s unit door was partially open and at least two of them entered the unit of Mr Coonrod. It is agreed that all three were involved in a joint criminal enterprise to commit the crime. After taking the victim’s property the offenders used the fire stairs to leave the building. At 2.08am all three offenders left the building by way of a frosted glass door at the top of the stairwell next to the clear glass entrance door.

10. Mr Coonrod woke up later that morning at about 8am. He noticed that his iPhone was missing. The charger was, however, still plugged into the powerpoint on the wall of his bedroom. The drawers underneath his bed had been pulled out and the sheets and towels which were normally stored in those drawers were strewn around the floor of his bedroom. His wardrobe door was also opened. When he entered the other parts of the unit he found that the refrigerator door had been left open, as were a number of kitchen cupboard doors. At the top of the stairs which lead from the front door of his unit he found a box of hairdressing supplies with the lid removed. That box was normally kept on a shelf in the entrance area of his unit.

11. In addition to noting the loss of his iPhone, Mr Coonrod noted that a Makita-brand leaf blower, its carry bag, battery and charger, were missing. A silver iPod had been taken from within a cabinet in the living room. A wooden tray was taken from the top of his refrigerator. The contents of the wooden tray included his wallet containing his New South Wales drivers’ licence, his Medicare card, a health care card, a bank debit card and a card showing his membership of a gymnasium. There was $170 in Australian notes and coin that were also missing. A set of keys had also been on the tray and was missing. He also found that his United States passport had been taken from the media space within his unit.

12. Fortunately there was no damage to either the front door of his unit or to any internal fitting or fixture in the unit.

13. On Tuesday, 15 May 2017, just over a week later, police arrested Samir Abdel-Aziz. Police found no relevant items in his possession. He participated in an electronically recorded interview. He made a substantial number of admissions. He was shown still photographs taken from the closed circuit television and identified himself as the person climbing onto the building in images numbered 6 and 7. He signed the stills to indicate that they were of him. However, he said that he did not recognise those others shown on the CCTV. He admitted that on the night, 7 to 8 May, he was intoxicated. He said that he and his two friends, whom he did not name, arrived at the unit block in order to visit a woman. They went up to her unit and knocked but there was no answer. He said that they then noticed that the door to one of the units was unlatched and partially ajar but not wide open. He admitted that they decided to go into the unit and that they decided to steal items. He admitted that he saw “the bloke” asleep when they were in the unit. He admitted that they were in the unit for about two to three minutes. He said that one of his co-offenders got out a flashlight when they were in the unit to help them find their way through. He admitted that he was driven home by one of his co offenders.

14. The offender was not placed in custody for this offence and was given bail by the police. When the matter came before me on 14 June 2019 the offender was not in custody, however, when the matter was before me at Darlinghurst yesterday I was advised that the offender was in custody at Bathurst Correctional Centre and he appears before me this afternoon in the John Maddison Tower in Sydney by way of audio visual link from Bathurst Gaol. The offender is currently in custody because he has been bail refused for offences alleged to have been committed by him on 31 July 2018. Those matters are next to be mentioned at the Burwood Local Court on 17 October, that is next week. I have been advised by learned counsel for the offender that there is a prospect that the offender may be granted bail not next week by the Local Court but next month when there is an application pending for bail before the Supreme Court.

Personal circumstances (1)

15. At the time of the offence, the offender was 20 years and three months old. He is currently 21 years and eight months old.    His only prior offences were committed in November 2014 when he was 17 years old. The offences were entering a vehicle or boat without the consent of the owner and entering inclosed land without lawful excuse. For those offences he was fined by the Children’s Court. For present purposes, those offences may be overlooked committed, as they were, by a “child”.

16. The offender essentially comes before me as a young man of prior good character. He has committed two subsequent offences, larceny on 5 July 2017 for which he is now on a 12-month bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1991 and was placed under the supervision of the Probation and Parole Service as it was then called. On 26 May 2018, he destroyed or damaged property for which eventually he served a term of imprisonment of one month commencing on 13 September 2018 and which expired today. As the law knows not part of a day, the offender would, in the normal course, have been discharged from Bathurst at 6 o’clock this morning but of course he remains bail refused for the matters that are before the Burwood Local Court next week.

Seriousness

17. I am required to consider the objective seriousness of the offence committed by this offender and by his co-offenders. I did that this morning at Darlinghurst but I should briefly mention the matter again. The Crown submits that this case is just below the midline of objective seriousness for an offence contrary to s 112(2) of the Crimes Act 1900. I would not so describe this offence. It is towards the bottom of the range of objective seriousness for an offence contrary to s 112(2) of the Crimes Act 1900. There is an aggravating factor, namely that the offender was in company with two others, but the significance of that aggravating factor falls away when one realises that the law treats being in company as an aggravating factor because the presence of two or more persons is more likely to intimidate, overawe, frighten or coerce the victim of a crime. If the victim of the crime is asleep he does not realise that there are two or more persons present and therefore the significance of the aggravating factor falls away to a large extent.

18. There are a number of aggravating facts for the purpose of s 112(2), but the present is not the most serious of those aggravating facts. Other aggravating facts are being armed with an offensive weapon or instrument, being in company, using corporal violence on any person, intentionally or recklessly inflicting actual bodily harm on any person, and the deprivation of liberty. On one view of it, where the victim is unaware that the persons have come into his or her home, the present circumstance of aggravation is towards the bottom of the range.

19. In R v Ponfield [1999] NSW CCA 435, a number of factors were identified which enhanced the seriousness of offences contrary to s 112(1) of the Crimes Act 1900. They include that the offence was committed whilst the offender was at conditional liberty but such is not the case here. The next factor identified is that the offence was the result of professional planning, organisation or execution. This is not such an offence. As has been submitted by learned counsel for the offender, the offence was unplanned and opportunistic. The next aggravating factor is the offender has a prior record, particularly for similar offences, but this offender has no such prior history. Another significant factor is that the offence was committed at the premises of the elderly, the sick or the disabled. There is no evidence to put Mr Coonrod in any such category and indeed the evidence suggests that he was an agile man, because he attended a gymnasium. Another factor is that the offence was accompanied by vandalism or significant damage to property but such is not here the case. Another factor is the multiplicity of offences. This does not apply to this case. The next factor identified in Ponfield is that the offence was committed in a series of repeat incursions into the same premises. That is not here the case. Another factor identified in Ponfield was that actual trauma was suffered by the victim. There is no evidence that the victim, Mr Coonrod, suffered from any physical trauma and if there were any mental trauma it could only be what the Court would infer what a householder, who wakes up to find that his house has been “robbed”, as a householder would say, whilst he was asleep and feels that his home has been violated and the safety that he normally would expect to have in his own home has been challenged, would feel. The final factor identified in Ponfield was the use of force or the threatened use of force. This is not such a case.

20. Bearing in mind the many circumstances of an offence contrary to s 112(2), as I said, this case stands towards the bottom of the range of objective seriousness.

Personal circumstances (2)

21. I now turn to consider the offender’s personal circumstances. I have mentioned his age and the fact of his prior criminal record. The offender was born in Sydney. His father describes himself as a Palestinian but he was born in the Lebanon. I assume that he had been forced to migrate from the country he calls Palestine to Lebanon. The offender’s father is a self-employed contractor. The offender’s mother is a New Zealand lady called Jessica. The offender is the elder of two sons of his parents’ relationship. The offender has two half-siblings from his father’s prior marriage but I do not know how frequently the offender might have contact with his half siblings.

22. The offender attended Wiley Park Public School from kindergarten to Year 3, then Beverly Hills Public School from Year 4 to Year 6. He then attended Hurstville Boys High School for Years 7 and 8 and spent Year 9 at Mudgee High School. He completed his secondary education, Year 10, at an MTC Training College. He does not have any tertiary qualifications. As I understand it, the offender has spent the time since leaving school laying carpet or other flooring.

23. Like each of his co-offenders, the offender has pleaded guilty at the earliest available opportunity and the Crown has conceded that he is entitled to a 25% discount on the sentence properly to be passed upon him.

24. The offender was interviewed by a consultant psychologist, Mr Anthony Diment, on 7 May 2018. Mr Diment identifies some degree of social disadvantage. From about the age of eight until he was 12 the offender’s father was the perpetrator of domestic violence. Although he did not hurt any member of the offender’s family, he was “intimidating”. He would throw items around the home causing fear. He recalls at the age of 12 there was a fight in his home between his father and eight members of the constabulary. That was brought about by the fact that his mother had started gambling and his father was angry with her about that. His parents separated when he was in Year 8 at approximately the age of 13 or 14. That caused the offender to lose some interest in his schooling. He started mixing with the wrong peer group.

25. His mother has not worked since her separation from his father. She still has a gambling problem. The offender elected to live with his mother rather than his father. The offender told Mr Diment that he tried to support his mother after his parents’ separation. For a time they were living in a refuge in Surry Hills and he found things “pretty tough” at that time.

26. One problem that he has experienced since entering the carpet laying/flooring trade is a problem with his right knee which is the subject of chronic bursitis. The offender was a smoker of cigarettes until he was taken into custody. He did not drink often but when he did he was prone to binge drinking, that is what he told me when he gave oral evidence. He experimented with cannabis at the age of 16 and, like many many young people, took ecstasy at music festivals. He tried cocaine on two occasions. The offender told me that at the time of the offence now in question he had been heavily intoxicated and the evidence he gave to me indicates that his problems with the law all result from his binge drinking.

27. Mr Diment diagnoses both anxiety and depression. One would expect any young man or indeed any person, standing for sentence where a custodial sentence might be imposed, would suffer from anxiety and depression. Should a person not experience symptoms of those conditions whilst standing for sentence one might think the person were abnormal. However, it is clear from Mr Diment’s formulation that the offender has a strong risk of emotional/behavioural problems that may result from his fractured familial background. Mr Diment expressed this opinion,

“Overall I found him to be an open, serious young man who has had a somewhat difficult upbringing in relation to his parents’ marital problems and separation in his formative and early teen years. He has taken a responsible approach to the welfare of his mother and has given realistic thought to his future, who wants to work and is hopeful of continuing a six-month relationship with a young woman.

In relation to a favourable long-term prognosis and prospects of rehabilitation, in his favour is his expressed desire to acquire formal trade qualifications, no previous criminal history of violence and support from his family as they can give it to him.

He requires appropriate medical assessment and treatment of his depression and also psychological treatment (cognitive behaviour therapy). I discussed this with him and he is open to this approach. He has not had appropriate treatment in the past. The psychological component is available via GP referral to a psychologist/clinical psychologist under a Medicare Mental Health Plan.”

Consideration

28. I freely acknowledge that my assessment of the offender’s prospects could be marred by what the offender has done since he committed the current offence. However, it appears to me, reading the material before me and hearing the evidence given by Mr Abdel-Aziz, that his prospects for rehabilitation are very good provided that he brings his alcohol problem under control and seeks treatment for the conditions diagnosed by Mr Diment.

28. This young man, in my assessment, requires treatment and rehabilitation. He does not require the sort of “education” that one can obtain in a correctional centre. He has now spent two and a half months in gaol and told me that it is a place that he does not want to remain in and told me that those with whom he is required to mix and what he sees happening around him are all “no good”. That is probably a realistic assessment of his circumstances.

29. Parity questions also have to be borne in mind. For his co offenders, Stephen Pfuhl and Jake Gardiner, I commenced the sentencing exercise with a three year head sentence which I reduced to two years and three months after applying a 25% discount. Bearing in mind the youth of the offender at the time of the offence, his lack of any prior criminal history which must be compared very favourably to the co offender, Jake Gardiner, and bearing in mind the offender’s subjective circumstances, I believe that a lesser sentence is called for in this particular case.

30. I commence the sentencing exercise with a head sentence of two years and eight months imprisonment. I reduce that by 25% on account of the offender’s plea of guilty at the earliest available opportunity. That reduces the head sentence to two years imprisonment. I should have mentioned and I do now that I am persuaded the offender is remorseful and contrite for the crime that he has committed, as is set out by Mr Diment in his report. I have decided, in the circumstances of this case, that the sentence should be served by way of intensive corrections order in the community.

31. A number of submissions have been put to me as what ought be the conditions of an intensive corrections order. I reached the decision that I know enough from the material before me to dispense with the necessity of an assessment report.

sentence

33. Samir Abdel-Aziz, could you stand up please?

34. OFFENDER: Yes, your Honour.

35. HIS HONOUR: On the charge that on 8 May 2017 at Alexandria in this State you did break and enter the building at 2 Mandible Street, Alexandria and then in unit 801 of the said building did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that you knew that there was a person present within the unit, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment of two years to be served by way of an intensive corrections order. The sentence will commence today. You must report to the Community Corrections Office at Bankstown within 48 hours of your release from custody. Do you understand?

36. OFFENDER: Yes, your Honour.

37. HIS HONOUR: The conditions of the intensive corrections order are,

1. You must not commit any offence.

2. You must submit to supervision by a Community Corrections officer.

3. You must undertake such alcohol and other drug rehabilitation and treatment as is required of you by a Community Corrections officer, including,

1. any residential rehabilitation program, and

2. alcohol and other drug counselling treatment and testing.

4. You are to abstain from all alcohol for at least six months.

5. You are not to associate with Jake Gardiner or Stephen Pfuhl.

6. You are to seek treatment as suggested by Mr Diment in exhibit 2 in these proceedings.

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Decision last updated: 26 February 2019