R v Akil

[2024] NSWDC 460

District Court

New South Wales

Medium Neutral Citation:

R v Akil [2024] NSWDC 460

Hearing dates:

25 July 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

Sentence

Catchwords:

CRIMINAL LAW – SENTENCING – Robbery armed with an offensive weapon – s 97(1) Crimes Act 1900 (NSW)

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Henry [1999] 46 NSWLR 346

Category:

Sentence

Parties:

Mr Akil (the Offender)
Rex (Crown)

Representation:

Mr Khan, Counsel for the offender
Ms Thoms-Packer, Solicitor for the Crown

File Number(s):

2022/00346968

JUDGMENT

Sentence

1. Hassan Akil, who is now 26, appears for sentence having pleaded guilty to an offence contrary to s 97 (1) of the Crimes Act 1900, a charge of whilst armed with an offensive weapon, namely a knife, robbing Shreya Simkhada of $1200 on 13 November 2022.

2. The offence carries a maximum penalty of 20 years imprisonment, there is no standard non-parole period.

3. The offender was committed for trial on 31 August 2023 and arraigned on 29 September 2023. A trial date was fixed for 17 June 2024, however, on 29 May 2024 the Crown was advised that he intended to enter a plea of guilty. It was entered on 4 June 2024. The common position between the parties is that he is entitled to a 10% discount for the utilitarian value of the guilty plea pursuant to s 25D of the Crimes (Sentencing Procedure) Act. I accept that.

4. The offender has been in custody since 17 November 2022. At the time of the offending he was on parole. That parole was revoked from 17 November 2022 and the first six months and twelve days of the time he spent on remand was also time spent serving the balance of parole. It is a matter of aggravation on sentence that this offence was committed on parole. It does not make the objective seriousness of the offending any greater, but it is a factor on sentence.

5. Relatedly, it is also an issue as to questions of totality. I have a discretion as to when any further sentence should be dated from. It has been submitted on his behalf that 50% of this period would be an appropriate exercise of that discretion considering that parole was largely revoked because of this further offending. As I will come to, he was doing very badly on parole in any event.

Facts

6. On the night of 12 November 2022, the offender befriended Mr Simkhada, the victim. Both men were at the Grand Hotel in Rockdale. The victim was playing the poker machines and struck up a conversation about locating some cannabis. The offender said he could get some. At about 1.03am, they left the premises together in the victim’s car. The victim had $1200 in cash with him after his evening on the pokies.

7. They went initially to Riverwood and then to the Beverley Hills Hotel. More poker machines were played. The victim at one point told the offender he had lost all of the money. This was not true.

8. When they returned to the car, the offender was more aggressive and agitated. They drove to a location the victim understood was the offender’s home. The offender left the car for a period and while he was away the victim hid the $1200. The offender came back with a knife. He held it to the victim’s throat and he said:

“I will cut your throat. I will stab you, give me the money.”

9. Mr Akil said this several times. He also punched the victim to the face, head, left side of his body and back left of his shoulder. Despite the victim begging him to stop, he kept punching him and looking for the money. The victim was also scratched and lacerated by the knife. The incident took two or three minutes. The victim, out of fear, told the offender that the money was still in the car. He managed to get out of the car, ran and sought help. When he returned, in the company of two men, the offender was gone and so was the money.

10. In the agreed facts at [22], reference is made to the injuries the victim suffered. I note this offence does not particularise infliction of harm as an element, but it is a factor that I can take into account. The victim had tenderness to the right side of his face with mild swelling, tenderness to his jaw, a facial bruise under the right eye and a one centimetre partially healed laceration to the left lateral chest wall. He reported having scratches to his hands and pain to the back of his head, cheeks and neck. He went to the St George Hospital and later reported the matter. The offender was arrested some days later on 17 November 2022.

Consideration

11. In submissions, both the Crown and Counsel for the offender referred to the relevance of the Henry guideline, R v Henry [1999] 46 NSWLR 346, which plainly applies. The various relevant factors identified in the guideline judgment are the use of the knife and the fact that there was physical violence. My assessment is that the violence in this matter is greater than that contemplated in the guideline judgment.

12. Consistent with the guideline judgment there was limited planning, this was an opportunistic offence. The victim did not have a vulnerable occupation such as a shopkeeper or a taxi driver. He was confined in his car but that was a circumstance, rather than something that was attached to his profession, or the reason that he was in a public place.

13. As with the guideline, the offender is still young. Contrary to the guideline, he has a record that is worse than was contemplated in the guideline judgment. It might also be considered that what was stolen was not a “relatively small amount”. As with the guideline, there was a guilty plea. These days, the discount for a guilty plea is not determined by the significance of a strong Crown case but as the Crown notes here, because of the late plea and the entitlement to a 10% discount, the guideline still has application.

14. On the offender’s behalf, it was submitted that the offence was in the mid-range, which I accept. In terms of the objective seriousness of the offending, I have identified the matters that make it somewhat more serious than the guideline judgment offence. In my view it is a relatively serious offence of armed robbery.

Criminal and custodial history

15. Mr Akil’s criminal history disentitles him to leniency. He does not have a juvenile record but since 2016 he has committed many criminal offences. In 2016 he was placed on a bond for common assault. In 2018 that bond was called up at a time when he was sentenced for an array of dishonesty offences, committed on various dates in the second half of 2017 and early 2018. He was sentenced to a term of imprisonment of 30 months, to be served in the community, and was required to carry out community service and accept treatment as directed. Even at that point, there was a concern about his need for professional intervention.

16. It was not long before he was charged again on 5 June 2019, with a number of dishonesty offences. Those matters were originally dealt with in the Local Court but there was an appeal against the severity of the penalty and on 3 February 2020, the District Court sentenced him to 14 months imprisonment from 1 September 2019 with a non-parole period of seven months.    

17. Unfortunately, not long after 7 October 2021, he was sentenced in the Local Court again for dishonesty-type of offences. He was given an aggregate sentence of 20 months with a non-parole period of ten months, commencing from 26 December 2020.

18. In February 2022, he was sentenced for more dishonesty offences, this time two years with a non-parole period of 12 months, commencing from 25 May 2021.

19. The offender’s long history of dishonesty-type offences is plainly associated with an ongoing drug addiction.

20. The Department of Corrective Services’ document included in the Crown bundle records that the offender has been involved in drug related disciplinary matters twice this year. This is not a helpful prognostic indicator for the future.

21. The Court also received a Breach of Parole Report, which was prepared after his arrest on 25 November 2022 and it is plain from reading that report that things were not going well.

22. The report refers to there being an unsatisfactory response by the offender to supervision. He had increased drug use, kept irregular contact, displayed chronic illicit drug problems and had anti-social companions. The report noted that his initial response to supervision had been good, but in the middle of 2022 there was a relapse and by September 2022, a couple of months before this offence, it was considered that his situation was poor.

23. The offender had been accepted into We Help Ourselves (WHOs) for treatment for his opioid dependency. The program was to start from 29 November 2022 however by then he was in custody for this matter. The author of the report noted that as this offence involved the use of a weapon, it represents an escalation in his previous offending. The report author expressed the obvious conclusion that the offender needs to address his drug addiction and he needs to do it in a residential rehabilitation setting.

Subjective matters

24. The Crown bundle included earlier letters written by the offender to the Court. In those letters, as has happened in this case today, he made statements about his remorse, the desire he has to address his addiction and that he wants a normal life. These letters highlight how challenging and difficult it is to cope with an entrenched addiction and all the willpower in the world is usually not enough without professional intervention. Until the offender can deal with his addiction, this sad cycle is likely to continue.

25. The bundle tendered by the Crown also included a report from a psychologist Kris North, prepared for earlier sentence proceedings. This report and the earlier letters from the offender made no mention of matters raised in mitigation today, being his difficult childhood and an experience of child sexual assault. The Court was invited to conclude that the offender’s account of these matters contained in a psychological report of Ms Dombrowski are a fabrication. I will come back to that shortly.

26. The Court received a report from Julie Dombrowski, who assessed the offender via AVL on 11 and 17 June 2024. Consistent with the Breach of Parole Report, the offender told Ms Dombrowski that at the time of the offending he was using heroin and ice. He gave evidence to the same effect today. He described the cycle he was in of gaol, release, return to drugs, re-offending and return to gaol. She noted this but did not consider that to this point he is institutionalised. That would be something one could anticipate should this cycle continue.

27. Ms Dombrowski referred in her report to the offender’s account of being sexually assaulted when he was 14 at school. The offender gave sworn evidence about this fact today and provided an explanation about why he had been unable to reveal it prior to the current proceedings. He did not give details but was not asked to do so. In the circumstances, on the balance of probabilities. I proceed on the basis that it is true.

28. The offender was also asked about the difficult childhood he had described because of his father’s physical abuse towards him and his family, as detailed in Ms Dombrowski’s report. This was something he had not previously revealed. Once again, he gave sworn evidence, which I am prepared to accept on the balance of probabilities, that he unfortunately did suffer that type of home life when he was very young.

29. In her report at page 6, Ms Dombrowski wrote that she had carried out a psychometric assessment. She found the offender’s responses reflective of an individual who exhibited a willingness to self-disclose and admit to problems, with a tendency to accentuate these symptoms and problems rather than minimise them. She said that with these considerations in mind, there is no evidence that he has a severe personality pathology. However, a depressive, avoidant, masochistic personality style was evident in his profile.

30. Ms Dombrowski noted that individuals with this personality style tend to view themselves, their experiences and their future in negative terms. They typically consider themselves to be inadequate and undesirable, have low self-esteem, feel undeserving of happiness or pleasure, disparage personal achievements and are often anxious and mournful individuals. They tend to live solitary lives and the few interpersonal relationships they have tend to be self-sacrificing and allowing of others to exploit them.

31. Ms Dombrowski considered the offender was a high to moderate risk of further offences and the results that she obtained from the testing supported the conclusion that Mr Akil needs professional assistance for his substance abuse as an underlying cause of his re-offending. She noted that because of his drug use, his judgment and decision making was impaired.

32. A combination of a nexus between his difficult childhood, particularly his child sexual assault, and related drug abuse are matters that reduce his moral culpability to some limited extent.

33. Ms Dombrowski recommended professional intervention, referring to an eight-month intensive drug and alcohol treatment program run within the correctional system. Undertaking this program may be difficult given the amount of time the offender has already spent on remand, but it highlights his urgent need for professional intervention. She noted that until he can control his drug abuse, treatment for any psychological disorder such as post-traumatic stress disorder needs to wait.

34. In essence, there is a strong compelling need for supervision and support for Mr Akil upon his release.

35. In the offender’s bundle there is another letter authored by the offender. He refers to being drug free, remorseful and feeling sorry about his conduct. He notes that he now has a better relationship with his family and believes that he has rehabilitated during this period of incarceration. As I have said, I find that hard to accept. He has been in this cycle before and willpower alone is not enough for him to be rehabilitated. He needs professional intervention.

36. Positively, he has done the Remand Addictions Program in custody and the Court has received certificates to this effect. He attended 12 sessions before the program was terminated because of resource issues. It is a positive thing that he completed that course. The offender tendered a Certificate II in Hospitality that he achieved whilst in custody during 2023, which is also a positive development.

37. It is submitted that he is genuinely remorseful, despite his late plea. He has, in both his written material and on his evidence today, displayed genuine remorse.

38. Ms Dombrowski considered that he is not an inherently antisocial person and linked his current circumstances with the developmental history referred to. In her view, he meets the criteria for having a post-traumatic stress disorder. She does not elaborate on this, so I am left uncertain as to whether that is the case or not.

39. The Court also received a further letter from WHOs dated 11 July 2024. Unfortunately the offender cannot go to that program because the nature of his offence precludes it. A letter from his mother was tendered. Ms Akil is obviously a committed parent and will be there for him upon his release. In her letter she stressed how important rehabilitation will be and that the family is committed to assisting him.

40. Submissions were made about the discretionary commencement date for the sentence. Specific deterrence is an important feature in this case, because of the repeated offending and the escalation and seriousness of the offending.

41. It was submitted this is a crossroads case. Mr Akil, as he has been in the past, is motivated to change but has so much work to do. For this reason, it is not approaching a crossroads case. It was submitted that it is a case where a finding of special circumstances should be made and I agree. The protection of the community is going to be best effected if he achieves rehabilitation. It is very unlikely that can happen other than in the community.

42. I accept that his moral culpability is somewhat reduced because of his addiction beginning at such a young age and in the context of the factors that affected him in his early teenage years. On his behalf it was accepted that his mental health issues are not causatively linked to his offending however prison would be more difficult and I accept that.

43. I cannot be satisfied that his prospects of rehabilitation are good or that the likelihood of his re-offending is low.

44. The Crown made submissions in writing urging the Court to be cautious in accepting the offender’s history with regard to physical abuse at home and the sexual abuse as it was not something that had been raised before. In the circumstances of the offender giving evidence, that submission wasn’t pressed.

45. This case is more serious than the typical Henry armed robbery, because the violence is worse and this offender’s record is worse. His record does not entitle him to leniency. General and specific deterrence are important, as are denunciation and protection of the community because of the escalation in offending. The other important feature is that a structured sentence enhances his prospects of rehabilitation.

46. I accept that the threshold is crossed. The only appropriate sentence is one of full time imprisonment. I intend to commence the sentence on the date that was submitted by his Counsel, 20 February 2023. I keep in mind the principles of totality given that that extends to some extent the sentence to be now imposed. I find that there are special circumstances because of his urgent need for intensive rehabilitation and long term supervision.

Sentence

47. The starting point of the sentence is 4 years and six months, reduced by 10% to 4 years [1] . The offender is sentenced to serve a non-parole period of two years and three months from 20 February 2023, with the balance of the term being one year and nine months. The offender’s earliest release date is 19 May 2025.

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1. The six month discount is rounded up from 5.4 months.

Endnote

Decision last updated: 25 October 2024