R v Alameddine, Ahmad

[2008] NSWDC 141

CITATION:	R v Alameddine, Ahmad [2008] NSWDC 141
JUDGMENT DATE:	27 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Count 1: Non Parole Period of 2 years and 3 months. Balance of term; 3 years and 6 months partly cumulative to fix term sentences. Count 2,3 & 4: 10 months fixed term. Count 5,6 & 7: 5 months fixed term.
CATCHWORDS:	Criminal Law - Sentence - Robbery with wounding in company - Pizza Hut - Obtain benefit by deception (x3) - attempt obtain benefit by deception (x3) - armed with knife - major wound laceration to left elbow - time-lock prevents access to safe and moneys - manager surrendes personal keycard and pin number - 3 successful ATM transactions - 3 unsuccessful ATM transactions - sum taken $1700 - cold case - assessing mid-range of seriousness - expert evidence - need to expose history or testing leading to psychological diagnosis before claimed psychological condition evidentially established - need to kink psychological condition to criminal conduct before causataive evidence established
CASES CITED:	R v Hearne (2007) 124 A. Crim.R. 457 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina Ahmad Alameddine
FILE NUMBER(S):	2006/00013232001
COUNSEL:
SOLICITORS:	Ms T Roberts Mr Abbas

JUDGMENT

1. Four days before the year 2004 was to begin Ahmad Alameddine then aged eighteen and a half, together with his cousin and another man robbed the manager of the Pizza Hut at Woodville Road, Guildford.

2. In his statement Yuan Jan Foo then aged 24 makes clear how traumatic this event was for him as he was harassed, menaced, threatened, bullied, punched and stabbed by three men. Playing a leading role in this violent criminal conduct was Ahmad Alameddine. In a psychological profile before me John Jacmon a psychiatrist reports Ahmad Alameddine was assaulted by a guard dog and a number of security guards so badly, he was traumatised and indeed continues to be traumatised to this day.

3. Ahmad Alameddine seeks to rely upon the traumatic event he endured in November 2003 to mitigate the sentence he is to receive for being callous enough to inflict an equal traumatic trauma upon Yuan Jan Foo eight weeks later when Ahmad Alameddine with two others robbed him of his mobile phone, $130 and his credit card.

4. Ahmad Alameddine is also to be held accountable for his criminal conduct in his use of and attempted use of the victim’s credit card. He succeeded in withdrawing a total of $1,700 from Foo’s account in three transactions. In a further three transactions he sought unsuccessfully to withdraw $1,300.

5. The court’s task today is to resolve a number of competing tensions as I strive to find the appropriate sentence for these offences committed by this offender harming the victim that he did harm in this community. That task requires an assessment of the objective criminality of the conduct before the court. Before that task can be embarked upon the actual facts of this each must be determined. Certain technical matters including the presence of a standard non-parole period of seven years must be analysed and determined, questions of discount for pleas of guilty, the question of deterrence, what if any impact the young age of this offender at the time of the offence can play in these proceedings will all need to be determined.

Facts
6. On the 29 December 2003 Yuan Jan Foo was on duty as the manager of Pizza Hut, Woodville Road, and Guildford. At about 10pm Mr Foo closed the store and secured the premises. He attended to administrative duties and dismissed his staff. After completing his administrative duties, Mr Foo turned off all the lights of the store and set the alarm. About 11.35pm the last of the other employees had left. The account of what then happened is best given by Yuan Foo. This is what he told police the following day:
“I was left at the store by myself. I was waiting for the daily reports to print out. The reports finished printing out so I made sure all the lights were out and I set the alarm. I walked to the delivery driver’s door to leave. I had the daily reports tucked under my left arm. I had my mobile phone in my left hand and my keys. I opened the door and shut it behind me. I immediately saw a guy jump out from behind the tree. The guy that jumped out from behind the tree was Arabic in appearance; about 17 - 21years of age, slim build, wearing a white long sleeve jumper, white cotton material gloves. He had a knife in his right hand. It was a black handled knife and the blade was about 20centimetres in length.

"A second guy jumped out from the corner of the building. He was also Arabic in appearance, about 19years of age, bigger than the first, broad across the shoulders, about 165, 170 in height wearing a white jumper and white cotton material gloves.

"The third guy who must have been behind the second guy, appeared. He was Arabic in appearance, aged nineteen, medium/average build wearing yellow orange jumper and white cotton material gloves as well.

"The first guy came up to me, he grabbed me by the back of the shirt. I saw he had the knife in his right hand, ‘Open the door, stay calm and open the door and you’ll be all right’ he said. ‘Open the door, open the door’ I heard the fat guy say. I turned around and put in the pin code for the analogue door, which is the same door I came out of.

"The guy that had hold of the back of my shirt had the knife to my back. I opened the door and went inside the store first and they pulled the door open behind me. All three of them followed me in. As we walked into the store the skinny guy took my mobile phone off me.

"The skinny guy then said to me, ‘Let’s go turn off the alarm’. They were pushing me along towards where the code pad was as if they knew where it was. We went to the office where the code pad was and I typed in the code to disarm the alarm but I typed in the wrong code. I typed in the code again and the skinny said to me, ‘Switch it off or I’ll stab you’. I said, ‘It’s disarmed’ and the red light changed to green.

"The skinny guy then said, ‘Where’s the key to the video?’. I said, ‘They don’t have the key in store anymore’. I then saw the skinny guy and the fat guy try to force the door open to where the video is kept. This is the surveillance that monitors the store. I said, ‘You can’t open it, just break it, open it if you have to’. The skinny guy said, ‘Give me your keys’. I handed him my keys and I saw him fiddle around with the bunch of keys to try to open the door to the video.

"They pushed me to the ground and said, ‘Open the safe’. We know about the time delay. I typed in the code and it wouldn’t open. I said, ‘It won’t open’. The skinny guy said, ‘We know all about the time lock, there’s twenty minutes’. During this time I heard one of the guys say words to the effect of, ‘We know about the time lock because we did the last robbery’.

"The skinny guy said, ‘Do it again’. I said, ‘You can’t open it, they have changed it since last time’. The skinny guy said, ‘I don’t believe you, you’re lying’. I said, ‘It’s true’. He said, ‘If you don’t open it, I will stab you’. He continued to ask me to type in the code. The skinny guy said, ‘How much money is in there?’. I said, ‘It’s written on the yellow envelope’. I had left the yellow envelope on the top of the safe and it had the amount of money that I’d put in the safe written on it.

"I was sitting on the ground facing the safe at this stage and the skinny guy was standing near me. The skinny guy started poking me in the leg with his left index finger as if he were trying to find an appropriate spot to stab me. He was leaning over me when he was doing this, then he stabbed the left arm above my elbow. As he did this I flinched and bent my arm up into myself to protect myself. I saw blood on my arm.

"I said, ‘It’s not much money, it’s not worth dying for, don’t hurt me, don’t hurt me’. I heard the fat guy say, ‘Stay calm, stay calm’. The skinny guy then asked me, ‘Type the code in again’ so I typed it in again. Again the code didn’t work. The skinny guy asked me what the number was so I told him. I saw him type the number in but with a variation at the end of the number. I could see he was getting frustrated with the code not working and he punched me with a closed fist to the left side of my forehead. He said to me, ‘I’ll stab you in the heart, I will kill you if you don’t open it’.

"As he said this I could see and feel that he had the knife to the back of my neck. I was starting to get really scared now and I said, ‘Take my key card, take my credit card. There’s a few hundred dollars in my wallet. I then told them the pin number of my key card. They didn’t believe me so I told them again. I said, ‘There’s an EFTPOS machine at the front, take it and test it’. They asked me for the code for the safe again and then my pin number to my key card. They kept asking me over and over again to try and catch me out. The skinny guy and the fatter guy kept asking me, the other guy in the yellow jumper didn’t say anything the whole time.

"I then saw the skinny guy rip up the phone cords out of the wall. The phone is near the alarm pad. The skinny guy said to me, ‘Lie down, if you report this, I know where you live. I’ve got your address. I will drive by and shoot up your house’. As he was saying this he was tying up my hands behind my back with the phone cord that he had ripped out of the wall.

"I then heard them talk in Lebanese. I heard them go out the back door and I lay on the floor about two to three minutes to make sure that they had gone. I got up and typed in the panic code and then the alarm started sounding and I was scared that they were going to come back so I lay down on the floor again and put the phone cord around my hands. I was expecting the alarm to be silent not a loud one.

"I waited a short time and I went back to the back door and shut it. I then went to the phone at the front of the store near the freezer and called my sister and asked her to ring the police. I went into the freezer while I spoke with her. I then rang triple 0 and waited for the police to come. I did not give permission for any person to assault, stab, or threaten me in any way nor did I give any permission for any person to take my mobile phone from me. I gave them my money and my key card and credit card because I was scared they were going to hurt me more than they already did.

"As a result of the skinny guy punching me I have a lump to the right side of my forehead and I have cut underneath my left bicep from where he stabbed me.”

7. That’s the end of what Mr Foo said. There were also two other stabs, very small stab wounds which I’ll come to later.

8. The “skinny guy” is this offender, Ahmad Alameddine. Foo presented to the medical centre at Merrylands. He had a two centimetre bruises to his left cheek, a two centimetre laceration, that means a cut, to his lower left arm, superficial with no underlying muscular or tendon injury. There were no other physical injuries visible. However Dr Wong who treated him described him as mentally okay but nervous and upset about working at the Pizza Hut alone again.

9. There was also apparently two shallow puncture wounds to the left shoulder posteriorly. Between the event and 13 February 2004 Foo was having frequent flashbacks, his mental health was such that he was unable to return to work. He was cleared to return to work on 13 February 2004.

10. Within minutes of the offence this offender used the key card stolen from Foo at the Westpac ATM in Guildford Road, Guildford withdrawing $500. That transaction occurred at 11.50. A minute later he attempted to withdraw a further $500 from the ATM. That transaction was declined because it exceeded the daily limit. At 11.52 the offender attempted to withdraw $400 from the ATM but it was declined because an incorrect PIN number had been keyed in. A further attempt a minute later to withdraw $400 also failed but the offender succeeded in withdrawing $300 from the ATM a moment later. He then drove to Auburn hospital and it was now 12.04 the following day and he withdrew $900 using Mr Foo’s PIN number.

11. Later that day, that is later on the day following the actual robbery police were making enquiries at the Pizza Hut store. They were approached by the cleaner from the adjoining property who alerted police to missing fence palings dividing the property between the furniture store and Granville South Public School where white gloves were located. Three pairs of gloves were seized, DNA profile was recovered from inside one of the gloves. The same white glove revealed a DNA profile consistent with blood coming from Mr Foo.

Objective Criminality
12. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact as one might imagine on the overall sentencing outcome.

13. Justice Gleeson, now Chief Justice of the High Court, when Chief Justice of New South Wales encapsulated the essence of the legal wrong done by robbers and the reason why a substantial punishment is required in a case called the Queen v Rause unreported, NSWCCA 8 August 1992, His Honour said,

“ One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk about the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by present [offender] are not trivial instances of disrespect of private property, they are serious breaches of the peace. They are direct attacks upon the security of the person and the property which the law exists to protect.

"It is quite likely, (his Honour continued) that this young man (who he was dealing with), does not understand and he may never understand the seriousness of his anti-social behaviour but the courts understand it. Crimes of this kind especially when committed by an offender with a long criminal history, (not this case) deserve severe punishment.”

14. The principal offence was an offence of serious personal violence towards another human being. Robbery constitutes a crime against the person and a person’s property rights. In this case the initial robbery was aimed at the property of Pizza Hut. But it turned from an interest in the property of Pizza Hut into an interest in the property of the person who was doing no more than working for Pizza Hut.

15. The crime against the person is constituted or made up by putting that person in fear through threat or actual violence, in this case a stabbing and a wounding to such a point that he surrenders his own property against his will to the robber. In this case the offender secured an advantage for his violence, not just by the presentation of the knife but by its use on what would appear to be three discrete occasions. In doing so he demonstrated to his victim his own intention of being ruthless, menacing, using the exposed blade of the knife. It was in those circumstances that the victim volunteered his ownership of and surrendered his property to this offender.

16. The offence had been planned. The three men wore gloves. All appear to have worn long sleeve sweaters. They appear to have known the layout of the premises to the point of knowing there were time locks and how long they were to operate for, that there were videos which had keys and where they were. They had waited until all staff had left and the manager was departing before striking, believing they still had the balance of twenty minutes left before the time lock on the safe was sealed. Their priorities once within the premises also demonstrated planning and forethought.

17. The use of threats particularly by this offender were designed to be effective and produce compliance. I regard poking in the leg by this offender as a menace and threat. Foo understood what it was about seeking a place to stab him. I am satisfied the three sites selected by the offender were chosen to puncture the victim’s skin so as to terrify him, in fairness, without causing serious injury. The most serious of the wounds was to the left arm and it was described as superficial. Likewise the physical blow was administered with a view to overcoming the will of the store manager.

18. Unlike many robberies the time during which the robbers confronted their victim was extensive. I am satisfied the intention of the robbers when they entered was to rob Pizza Hut of its money. It is clear they were frustrated in that attempt. While I am conscious Foo was robbed of his mobile phone, he was otherwise not deprived of his property until he became so terrified that he volunteered, “Take my key card” et cetera. His volunteering is a measure of his terror. It is to be remembered earlier he had said in respect of the day’s taking, “It’s not much money, it’s not worth dying for, don’t hurt me”.

19. What was to be the robbery of a business became an opportunistic robbery of Mr Foo. As earlier remarked the criminality of this offender extended beyond the robbery of Foo to include his use of the key card in the ATM. The nature of that offence is the use of deception to obtain a financial benefit or to attempt to obtain a financial benefit. For the offender the benefit obtained was $1,700. Ripping off money from. and the further attempts to take money out of Mr Foo’s account demonstrate ruthless heartlessness by this offender towards Mr Foo who was a working man. He was no Kerry Packer. This was a criminal fleecing of struggling worker by this offender.

20. One of the offenders in the course of the robbery said we know about the time delay. One of the offenders said we know about the time lock because we did the last robbery. Selection of a prior robbery site and using information gained from prior experience of robbing the same premises, constitutes a serious aggravating feature. While I would be satisfied on the balance of probabilities that this offender was embraced in the term “we” when used by the unidentified offender or offenders, because there were three robbers I cannot be satisfied beyond reasonable doubt that he was one of those earlier robbers. He explained his knowledge by claiming to have visited the premises as a customer with others who were customers. While I do not accept that as entirely the full story I cannot, as I say, be satisfied beyond reasonable doubt adversely to him.

Standard Non Parole Period
21. Robbery in company with wounding is regarded by parliament as an offence sufficiently serious to merit a standard non-parole period of seven years for an offence falling within what is called the mid range of seriousness. There are aspects of this offence I have highlighted that aggravated seriousness. Three wound sites, substantial manhandling of and violence towards the victim, some level of planning, an extended period in company with the victim, a potential two victims if one counts the business of pizza hut but as events turned out only one, and the use of the items stolen for further illegal activity.

22. What, however, saves this offence from falling into the mid range of seriousness is the superficial nature of the wounding and the modest proceeds from the actual robbery. In assessing the proceeds of the robbery, I have not counted the $1700 obtained from other criminal activity that constitutes separate charges before me.

23. I am conscious that Judge Quirk of this Court when sentencing Mohammed Alameddine, found four reasons for finding his criminality below the mid range of seriousness. Only two of her criteria apply here. I have found there was some psychological sequelae, although it would appear it was resolved within a six week period. Further this offender possessed the knife, was the leader and administered all wounds and most of the other physical violence. I have inferred Judge Quirk found Mohammed Alameddine’s criminality falling substantially below the mid range. I take that finding from the ultimate sentence imposed upon him. In this case I have put the seriousness of this as significantly but not substantially below the mid point.

Subjective Features

Background family relationships and dynamics
24. Ahmad Alameddine was an eighteen and a half year old single man at the time of the robbery. He is now approaching his 23rd birthday. There are seven siblings. Ahmad is the fourth child. The probation and parole reports a close supportive family. I have received a letter from his eldest sister. It is obvious from her reference the probation and parole are correct in their assessment. His eldest brother has been or is presently incarcerated for a serious offence. The nature of the offence is not disclosed but he was in full time custody for five and a half years before reaching a “C” classification and day leave in August of 2007. His mother has been battling thyroid cancer for five and a half years. His father gave up employment to be her carer. The offender’s sister describes them as experiencing financial difficulties. His sister says that in his youth Ahmad was seen within the family as the “cheeky and naughty one” but having “a positive and joyful spirit”. As a teenage his choice of friends is described as “not well thought through” leaving him to be negatively influence.

25. His girlfriend is currently pregnant. My understanding is that there was a prior miscarriage. This relationship may be in some difficulty as a result of tensions caused by the attitude of senior members of one family to the relationship. The fact of a custodial sentence outcome, as must happen in this case is also likely to create tensions in the relationship. The birth of his child and the offender’s separation from that child and the relationship’s tensions will make this offender’s time in custody more arduous for him than it would be absent those considerations.

Education, skills and work experience
26. This offender left school, having completed Year 10. Since leaving school he has been employed in a number of casual unskilled positions. He told the Court he was employed more recently as a stonemason by this brother-in-law and sister, she being the one who had supplied the reference. It has been full time employment for the past two years in marble and granite cutting and polishing.

Health
27. On the material before me there is nothing to suggest any physical ailment that would impede this offender’s rehabilitation prospects. Indeed he looks to be a fit, well and health young man.

Mental Health
28. John Jacmon who prepared a psychological assessment report records no personal history on psychological issues other than a history of the traumatic dog and security guard attack referred to earlier. References give a contradictory observations of his moods. A neighbour describes him as “always happy with a big smile on his face”. Another referee who is a project officer with DOCS describes him as “positive, confident ... and [having] a great sense of humour.” His sister Rhonda’s description of him as a youth has already been referred to. Of more recent times she writes, “Ahmad has experience traumatic migraines, he suffers insomnia and has been treated for anxiety.”

29. Mr Jacmon’s expert opinion is that Mr Alameddine’s description of daily functioning led to identification of the following symptoms. Thereafter are listed eighteen symptoms of post traumatic stress disorder and eight symptoms of major depressive disorder. There is absolutely nothing in the history recounted by Mr Jacmon that could justify a finding of twenty-six symptoms in the thirty-three lines he has devoted to this topic. The psychological profile tests were conducted by Mr Jacmon in September of 2007. That is nearly four years after the robbery. Changes in psychological profiles between a male aged eighteen and the same male aged twenty-two can vary from minimal to profound. Extrapolating from a psychological profile four years after an event of interest the psychological profile at the time of the event is necessarily subjective and speculative. The lines of argument, logic, scientific knowledge to reach the earlier profile should be exposed in the report so that others may understand why they should or perhaps why they cannot accept the expert opinion of an earlier profile. Regrettably none of that has been done in this case. So far as that aspect has been concerned, the family has simply wasted its money.

30. Nor have causal links between the criminal behaviour and any aspect of the psychological profile been explained. To assert, “the testing and clinical interview have gathered considerable information on the offender’s state of mind currently and at the time of the incident” is not to make it so, nor does it make it obvious. There was no attempt to compartmentalise the earlier psychological profile, nor the latter profile, nor as have I just said is there any explanation of which test or which part of the history supports any particular finding made. Simply to state post traumatic stress disorder is likely to have existed at the time of the incident now before the court, bearing in mind the incident was only eight weeks after the dog attack without pointing to symptoms present at the time is inadequate for purposes of proof. In any event, symptoms must persist for a period longer than eight weeks before post traumatic stress becomes a diagnosis of disorder. Even if the symptoms of post traumatic stress existed at the time of the criminal conduct which has not been proved on the balance of probabilities, no nexus between those symptoms and the actual conduct undertaken has been proved on the balance of probabilities.

31. Further, I reject the diagnosis of major depressive disorder, either at the time of the offence or currently. There is no personal history recorded that supports the eight symptoms said to be disclosed by the testing. Nor as I read the results overall would the diagnosis dysphoria, that is a mood, rise to reach any “major depressive status”. His anxiety may have an obvious explanation. This court proceeding and the degree and uncertainty about the outcome where the real prospect of unpleasant life altering consequences arising from incarceration.

32. There is nothing in the mental health that suggests any pathology likely to interfere with this offender’s prospects of rehabilitation or his capacity to lead a full active and well adjusted life in the future.

Alcohol and drugs
33. The accused reports to probation and parole and indeed to Mr Jacmon that he does not consume alcohol or drugs. If this is so, it is difficult to understand his risk taking behaviour, in taking as he claims to have done, a single ecstasy tablet one hour before this robbery. I shall return to that topic later.

34. The offending conduct on his case is not motivated to any desire for money to fund drug or alcohol consumption. Indeed motivation remains entirely unexplained. On his case, drug and alcohol issues will not impede his prospects for rehabilitation.

Character and criminal history
35. Ahmad Alameddine is a twenty-two year old man with strong family ties. He appears to have support and a favourable character assessment by members of his family and other community members. He has shown a community spirit in mowing the lawns of a seventy-eight year told woman known to him. His criminal antecedents reflect a disregard for motor traffic laws and regulations. Such attitude is antisocial. Likewise he has shown a disregard for orders of the Local Court by driving when he has been disqualified by that court. That disregard for orders of the court is further illustrated by his failure to comply with the court’s order to accept supervision by probation and parole.

36. On the other hand, his sister speaks of a maturing by him in recent times. For the past two years he has been working for her husband and helps the family out financially. I note, however, the driving offences I have referred to have occurred since this offending conduct. Putting to one side the driving offences, his other criminal convictions are few and for minor matters.

Attitude to offence
37. No motive has been given for this offending conduct. The offender has sought rely up on the impact upon him of a single ecstasy tablet taken one hour before this offence. He told probation and parole he was so shocked by his offending actions that he has not used anything since. He told Mr Jacmon he had met a friend who seemed particularly happy, who slipped a single tablet into his hand as they shook hands, saying trust me, take the tablet. The offender claims to have “trusted” his friend and taken the tablet. Why so, as I say is difficult to understand. He is not a drug taker. The tablet turned out to be ecstasy.

38. So far as taking the tablet is concerned, I note his psychological profile assesses his character as “tough minded and sceptical”. It would seem contrary to his character to have taken the tablet. Thereafter the incident followed in which the offender took the leading role. I note his psychological profile which Mr Jacmon seeks to base his conclusions upon, says this offender’s test results indicate a person who may be modest, retiring, and lacking skill in asserting himself, a very meek and unassertive person. That certainly was not the person who committed this robbery. The offender told Mr Jacmon he does not have clear memories of his action and waking up the following morning realising what he had done and feeling remorseful over the event. It is to be remembered, having left the pizza shop the offender was at Guildford Westpac ATM and Auburn Hospital ATM using the victim’s card on six occasions. It is a well known fact that drugs alter the personalities of individuals in different ways. Sometimes for good. For example, antidepressants; and sometimes in unexpected and detrimental ways. There is a whole body of science relating to the impact drugs may have upon those who consume them. The science of pharmacology. The onus of proving one single ecstasy tablet turned this apparently very meek, unassertive person into the forceful, tough- minded and determined criminal who conducted the robbery rests with the defence.

39. Mr Jacmon included in his report a paragraph obtained from the National Institute of Drug Abuse study giving an overview of chronic use of ecstasy. If one understands chronic to mean “long term” usually more than a year of use, these findings have absolutely no relevance to this case. This offender claims one single tablet is responsible for his behaviour. It is highly unlikely any respectable pharmacologist could, using his knowledge, skill and experience in pharmacology, validate this offender’s claim. However, that is not a matter I need to speculate upon. It is enough to note there is absolutely not one drop of scientific evidence in this case supporting his claim of personality change caused by ecstasy reacting upon his metabolism. The onus of proper proof rests with the defence. I note it was not even attempted.

40. I reject any claimed impact or adverse reaction of ecstasy upon the metabolism or psyche of the offender as playing any part in the commission of this offence. I regard his reliance upon the claim as an attempt to minimise his offending conduct. Why he seeks to minimise his criminality is unclear. It does not appear he has confided in any of the family prior to his arrest. I say that because of the family’s expressed resentment to having police, who from the family’s point of view, seeking to put one of the family members on the spot for this offence.

41. Since his arrest he has disclosed his claimed remorse. He has told Mr Jacmon he was remorseful immediately after. Yet he did nothing to ameliorate his own family’s anxiety about the police investigation. Thus there were limits to what his sense of remorse and contrition would permit him to do.

42. It is not clear whether he has disclosed his offending conduct to immediate family. His eldest sister makes no reference to any disclosure. Indeed her claim is that because of family financial difficulties he was advised to plead guilty, suggesting serious consideration by the family to funding a trial. While I am satisfied the guilty plea has been properly entered, there is a sense the offender may be maintaining a claim innocence in family circles. If that was so, it would be difficult to reconcile that conduct with genuine contrition.

Plea status
43. The plea of guilty was entered on 10 May 2006 on arraignment. There has been substantial delay between arraignment and sentencing hearing. There was a trial of the cousin that commenced on 6 August 2007. His sentence was finalised in December of 2007. I understand that there was some attempt to have this sentence placed before her Honour Judge Quirk, as events turned out, unsuccessfully.

44. While there has been a delay, it does not appear to impact upon the utilitarian value of the plea. There has been no suggestion the plea has not been maintained, nor has there been any dispute on the plea as to the available facts. In New South Wales the utilitarian value of the plea is recognised as meriting a mitigation of penalty. The case is established that where the utilitarian value of the plea are at their greatest, a discount in the order of 25% is appropriate. Even for a late entered plea a discount of 10% or perhaps more can be appropriate. This plea was entered on arraignment, that is at a very early stage of the District Court process. I will allow a discount of 20% for this plea to the sentence I would have otherwise set.

The Offender’s Youth
45. A significant factor in setting the sentence revolves around recognition of the offender’s youth at the time of offending. The starting point is to recognise that full time custody should be a sentence of last resort. Sometimes that policy can be given effect by determining a sentencing disposition other than full-time custody. Regrettably, given the seriousness and the adult nature of this offender’s criminality, that is not an available outcome in this case. Sometimes though that policy can be given effect by selecting a lower rather than a greater period in full-time custody. Such an outcome can be achieved by finding special circumstances, provided such a finding is permissible.

46. The cases establish that in appropriate cases, youth of an offender, being one such group of cases, a greater emphasis can be given to rehabilitation purposes of sentencing rather than punitive purposes particularly in setting the non-parole period. This appears to me to be such a case because:
* Age of offender at the time of offending, eighteen and a half;
* No suggestion that further offending since December of 2003;
* The offender is developing masonry skills and can develop them better in the community than in custody;
* Offender is demonstrating a strong work ethic, an important rehabilitating factor;
* The offender has strong family support; and
* Drug and alcohol do not appear a major aspect of this offender’s profile.

47. The further advantages of finding special circumstances are, the court can acknowledge the seriousness of the criminality in a total sense, yet give to the youth a real opportunity to rehabilitate with the strong personal deterrence of parole conditions hanging over his head. In the circumstances of this case parole will not be automatic. For this offender to obtain parole on the due date, he will be required to impress the parole authorities with his rehabilitation progress whilst in custody.

48. The youth of the offender is of relevance to determination between the relationship of the non-parole period and the head sentence. In this case a greater range of proportion between the total term of imprisonment and the non-parole period is permitted, provided the non-parole period still bears in mind the overall criminality of the offender, see Hearne (2007) 124 A. Crim. R 457.

Standard non-parole period
49. There are two reasons why the standard non-parole period of seven years does not apply in this case. Firstly, the plea of guilty takes this case outside those cases attracting a standard non-parole period, R v Way (2004) 60 NSWLR 168. Secondly, when reviewing the objective criminality I have found the offence on its objective circumstances fell below the mid range of seriousness. Nonetheless the seven year non-parole period is to be taken as an indicator that even where the case falls outside the standard non-parole period there will be a leavening upwards of the sentence by reason of the fact that the legislature has indicated all s 98 offences are to be subject to tougher sentencing regime than was previously the case. This must necessarily be harsher than it would have been prior to the introduction of standard non-parole periods.

Delay
50. There has been a delay approaching four and a half years between the commission of this offence and the sentencing by a court for it. For a young man aged eighteen at the time of the offence and twenty-two now, delay of four and a half years constitutes a significant portion of his adult life. During those years there have been changes involving some maturation, employment and emotional development. The offender is shortly to be a father. His right to silence shields him from any responsibility to report his criminality. Delay in the investigation of the offence cannot be put at his doorstep. I intend to make some allowance for delay in setting the non-parole period. As delay can be measured, this delay is not great. In the normal course of events it can take up to two years or so after the commission of an offence to finalise the matter in this court. Most matters are finalised well within that timeframe. Indeed we try to finalise matters within the year. In this case I sense there may have been difficulties in the investigation and further difficulties finalising after arraignment.

51. I have made a very modest allowance to the sentencing outcome based upon a delay of about eighteen months. Again that has been to the non-parole period rather than the total sentence.

Custodial history
52. This Offender has spent no time in custody for this offence. He was arrested on 18 January 2006. His bail conditions have required him to report daily to police since 18 January 2006. Those conditions are arduous. Mostly, when bail conditions are required, there is either weekly or bi-weekly reporting. Again some allowance has been made for that arduousness in the sentencing outcome.

Parity
53. Co-offender Mohammed Alameddine was sentenced by Judge Quirk after trial to a non-parole period of two years and an additional term of two years. There seems little dispute that offender was found by her Honour to have played the least aggressive role in the robbery. He was there for numbers only. The victim described him as being, “in the background”. He played no part in any of the woundings or the physical assaults but may have manhandled the victim by pushing or bustling him to various locations.

54. The Crown argues and the defence concedes this offender must receive a greater sentence. That must be so for the robbery. Then of course there are six other offences for which he must be punished. While they occurred subsequently to the robbery I shall be dealing with them by way of fixed terms.

55. The robbery in company with wounding carries a maximum penalty of twenty-five years imprisonment. So stated it must be recognised this offence falls on the second tier of offences of seriousness. The first tier of sentences have a maximum of life imprisonment. So stated it can be seen that parliament reviews robbery in company with wounding as a highly serious offence. The obtain and attempt to obtain benefit by deception has a maximum penalty of five years. The attempt will be regarded as less serious because no harm was done to the victim. There was less criminality than in the case where $1700 in total were taken.

Totality - partly cumulative, party concurrent sentences
56. There is a substantial difference between the criminality of the offender at the Pizza Hut and his criminality at the two ATMs. I regard all ATM offences as amalgamated into one escapade of criminality. Thus I am dealing with seven offences but two episodes of criminality. I intend to reflect the existence of the two episodes by partly accumulating the sentence for the robbery to the terms of imprisonment imposed on the ATM offences. Totality also requires some adjustment downward on the robbery in company sentence so that that sentence reflects the total criminality involved.

Setting the sentences
57. In setting the sentences I have had borne in mind, as I say, the maximum penalty and their deterrent purposes. The sentence I would have set for the successful ATM offences of deception would have been twelve months for the three offences where money was obtained and six months for the offences where money was not obtained. Discounted by 20% and rounded out, they become sentences of ten months and five months respectively. The sentence I would have set for the robbery in company with wounding would have been a sentence of seven years. That will be reduced by seventeen months to a sentence of five years and nine months.

58. Ahmad Alameddine, for the offence that you on 29 December at Guildford in the state of New South Wales by deception did dishonestly obtain for yourself a sum of money, you are sentenced to ten months, a fixed term to date from 27 March 2008 and to expire on 26 January 2009. Likewise, for the other two offences of obtaining for yourself the sum of money the following day, you are equally sentenced to terms of imprisonment of ten months to commence on the same date and to expire on the same date.

59. For the offence that you on 29 December 2003 at Guildford did attempt to obtain by deception dishonestly for yourself a sum of money, for each of those three offences you are sentenced to a fixed term of five months to date from 27 March 2008 and to expire on 26 August 2008. You are convicted of those offences.

60. For the offences that you on 29 December at Guildford being in company with Mohammed Alameddine and a person unknown robbed Yuan Jan Foo of a National Australia Bank key bard, a National Australia Bank visa card and a sum of money, all the property of Mr Foo and at the time you wounded Mr Yuan Foo, you are sentenced to a non-parole period of two years and three months to date from 28 September 2008 and to expire on 27 December 2010. You are sentenced to a balance of term of three years and six months to expire on 27 June 2014.

61. So that you can understand what I have done, I have given you an effective non-parole period of two years and nine months to date from today. That two years and nine months will mean that you will be in custody until 27 December 2010. On that date, provided your progress is sufficient for the parole board, you will eligible to be released. As I said your release is not automatic. It is something you will need to work for. Is there any other order I need to make?

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