R v Alen Yousif

[2024] NSWDC 540

District Court

New South Wales

Medium Neutral Citation:

R v Alen Yousif [2024] NSWDC 540

Hearing dates:

6 September 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The offender is sentenced to an aggregate term of imprisonment of 5 years and 8 months, commencing on 26 April 2023 and expiring on 25 December 2028, with a non-parole period of 3 years and 7 months, expiring on 25 November 2026.

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 21A(5AA)

Firearms Act 1996 (NSW), s 51(1A)(a)

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Moiler v R [2021] NSWCCA 73

Category:

Sentence

Parties:

NSW Director of Public Prosecutions (Crown)
Alen Yousif (Offender)

Representation:

Counsel:
Kay Marinos (Crown)
Ertunc Ozen SC (Offender)

Solicitors:
Jennifer Katrib (Crown)
Elie Srour (Offender)

File Number(s):

2022/320381

Publication restriction:

Non-publication order in place in relation to the actual names of the victim, SL, and SL’s father and mother.

JUDGMENT

Introduction

1. The offender Alen Yousif is to be sentenced having pleaded guilty to the following charges: That on 8 April 2022 at Sydney with knowledge of the offence committed on 9 April 2022 by Steven Hirmiz and Regan Yousiph, who in the course of an organised criminal activity fired at a dwelling house, with reckless disregard for the safety of another person, the offender counselled and advised Steven Hirmiz in relation to the commission of that offence. In other words, that he was an accessory before the fact in relation to, what I will term, the shooting offence by Steven Hirmiz and Regan Yousiph. I will refer to this offence as the accessory offence. Despite being an accessory offence, the offence has a maximum penalty of 16 years imprisonment and there is an applicable standard non-parole period of six years.

2. When I sentence him on the accessory before the fact offence, the offender has acknowledged his guilt in relation to two offences on a form 1 and asks that I take them into account when I sentence him on the accessory offence. The offences on the form 1 are an offence of between 13 and 28 August 2022 he knowingly directed the activities of a criminal group, and an offence of between those same dates he supplied a prohibited drug, being cocaine.

3. The second offence that the offender stands to be sentenced for is an offence that on 11 September 2022 at Sydney he knowingly took part in the supply of a pistol, namely, a black and silver-coloured pistol, to another person, without the other person being authorised to possess that pistol by licence or permit. That is an offence under s 51(1A)(a) of the Firearms Act1996 (NSW). It has a maximum penalty of 20 years imprisonment and there is an applicable standard non-parole period of ten years.

The Facts

4. The following is taken from the agreed facts.

5. Shortly before 11pm on Saturday 9 April 2022, a shooting occurred at a dwelling house located in a residential street in a Sydney suburb, with shots being fired from a motor vehicle. Steven Hirmiz and Regan Yousiph were the occupants of the hired utility vehicle used in the commission of that shooting offence. By the end of today I expect to have sentenced those two offenders for their involvement in that offence. I have already sentenced Regan Yousiph because there was agreed facts and when I finish sentencing this offender I will sentence Steven Hirmiz.

6. Much of what I say here in relation to the shooting offence I have set out in my remarks on sentence concerning the other two offenders and I propose to provide a more limited summary of that offence focusing on the agreed facts which concern this offender's role as an accessory before the fact.

7. An occupier of the premises was SL, a New South Wales police officer who at the time of the shooting was suspended from duties. SL resided at this address with his parents who lived inside the main house while SL lived in a detached granny flat at the rear of the property. SL's family have lived in their home for over 20 years.

8. At the time of the shooting, the occupants of the premises, being SL's parents, had been asleep in the front bedroom when they were woken by sounds of loud bangs. SL had been asleep in the rear so-called granny flat.

9. Once contacted by his parents, SL phoned triple-0 to report the matter to the police. Police attended the scene shortly thereafter.

10. The crime scene examination of the external and internal residence confirmed multiple fired 9-millimetre cartridge cases and bullets were located outside and inside the fibro premises including in the lounge room, adjacent sewing room, kitchen and bathroom areas at the front of the house. Two 9-millimetre pistols were fired during the shooting committed by Steven Hirmiz and Regan Yousiph from the hired utility vehicle.

11. Following an extensive police investigation, police identified the involvement of those two men in the commission of the shooting.

12. At about 12.10pm on the day of the shooting, the utility was hired by a Nathan Ackaoui, an associate of Mr Hirmiz, from the BP Service Station, Hoxton Park.

13. The utility's GPS tracker showed that it was driven from Mr Hirmiz's home to Wetherill Park. At 9.58pm, CCTV footage recorded the utility entering the Coles Express service station where Mr Hirmiz got out of the utility.

14. The utility's GPS tracker showed it drove to Regan Yousiph's home at 7 Kilkenny Avenue, Smithfield, arriving at 10.04pm. CCTV footage from a neighbouring house showed Mr Hirmiz leave the utility; at 10.07pm, Regan Yousiph left his home; both of them moved around the outside of the utility concealing the signage and a number of plates. The CCTV footage recorded at 10.16pm Mr Hirmiz and Regan Yousiph entering the utility. At 10.37pm the utility drove away and the GPS tracker in the utility tracked its route from Kilkenny Avenue, Smithfield to the street where the subject premises were located.

15. The utility's GPS tracker showed that from 10.53pm, the utility drove down the street in which the subject premises was located and it contained both Mr Hirmiz and Regan Yousiph. It was during that period that the shots were fired from the utility into the premises.

16. The utility's GPS tracker shows its route from leaving the street in which the shooting occurred to when it arrived back at Regan Yousiph's premises at 7 Kilkenny Avenue, Smithfield at about 11.13pm.

17. Police later identified and examined the utility used in the shooting and located relevant items within it connected to the incident including a fired 9‑millimetre cartridge case on the floor of the front passenger seat footwell consistent with the calibre of ammunition located at the scene of the shooting, a plastic Aldi shopping bag, a black T-shirt and a box of disposable gloves. Regan Yousiph's fingerprint was located on the exterior of the Aldi bag and his DNA was located on the interior collar of the black T-shirt.

18. On 4 August 2022 Mr Hirmiz and Regan Yousiph were arrested by police and charged in relation to the shooting.

19. The police executed a search warrant at Regan Yousiph's home and located a black-coloured handgun and one magazine containing ammunition secreted underneath Mr Yousiph's house inside a pillowcase that was wrapped in Coles plastic shopping bags. Regan Yousiph's DNA was located on the pillowcase and his fingerprints on the Coles bags.

20. A ballistics examination confirmed that the seized handgun was a 9-millimetre Parabellum calibre Xinshidai M213 self-loading pistol and the forensic examination confirmed the pistol was one of the 9-millimetre pistols used in the drive-by shooting.

21. On 26 October 2022, police arrested and charged this offender Alen Yousif for being an accessory before the fact to the drive-by shooting and with a supply of pistol charge essentially arising from the offender's messages sent via an encrypted mobile application called "Threema" in the agreed facts.

22. Police had received information that on 27 August 2022, the offender exchanged messages in the encrypted mobile application “Threema” in which the offender told an associate that he had told "Blacky", a reference to Steven Hirmiz, to "cover up the signs he said he did". The offender’s username or handle was “Rick Sanchez” or “ricksanchino”. The messages were obtained by police in an unrelated investigation into the offender’s associate. The offender was friends and associated with both Mr Hirmiz and Regan Yousiph. He also was friends and associated with Mr Ackaoui. I will come back to the terms of the messages a little later.

23. During the investigation police analysed various mobile phones and located messages including the following:

24. A Cellebrite download of the offender’s iPhone 12, which was found in his possession at the time of his arrest, contained a contact name and mobile number saved as “Blacky Newest” with the number set out in the agreed facts which I will not put on the record other than to say it ended in “411”. Regan Yousiph’s mobile phone also had the same mobile phone saved with the contact name “BLK” and that same mobile phone number was the phone number found on Mr Hirmiz at the time of his arrest.

25. A Cellebrite download for the offender’s iPhone 7 contained a saved contact name “Rick” with the offender’s iPhone 12 number saved.

26. The offender’s iPhone 7 contained the “Threema” account in the username “RickSanchez”.

27. The offender’s iPhone 7 also contained the saved contact name “Regan work” with a mobile number ending in “815” which was the mobile number found in Regan Yousiph’s possession at the time of his arrest, and the saved contact name “Nathan 2” with a mobile number ending in “856” which was subscribed in the name of Nathan Ackaoui.

28. During an intercepted phone conversation on 16 May 2022, the offender received a call from “Blacky Newest” and the offender stated, “Yeah Blacky,” they discussed “Blacky” going overseas; they mentioned “Regan”. It’s an overwhelming inference that “Blacky” here was Steven Hirmiz and “Regan” is Regan Yousiph, and travel movement records confirm that Mr Hirmiz departed Sydney on 28 May 2022 and returned on 17 June 2022.

29. On 12 August 2022, “Threema” messages sent by this offender using the username “Rick Sanchez” to someone using the username “King Von” discussed the police “investigation”, payment by “Blacky”, clearly, as I say, a reference to Mr Hirmiz, for the hired vehicle, “R” in custody and the offender’s concern for himself being charged.

30. On 13 August 2022, “Threema” messages sent between the offender as “Rick Sanchez” and “KV”, being a reference to “King Von”, stated, “Bro u still got the pic of the 9mm”, “I'm trying to get it sold”, “or moved.” The offender replied, ““Nah bro”, “It was taken with my perso phone”, “I can get a pic later tonight”. “KV” replied, “Ok.” The offender stated, “I would've saved it if I had this burner".

31. On 15 August 2022, “Threema” messages were sent between the offender as “Rick Sanchez” and “King Von” about “Regal” rusting a pistol. The offender stated, “Regal rusted it,” and talking about getting a photo of “it” and “selling it”. The offender referred to “Black”, “Regal” and the “shooting”.

Accessory Offence

32. On 27 August 2022, the offender using the username “Rick Sanchez” exchanged messages on “Threema” with someone using the name “Unstoppable”. There was a reference to “Black”, inferentially, Mr Hirmiz, and the offender stated, “He’s guns say if I knew I wouldn’t of done it blab la”; “About it being a cop or whatever”. “Unstoppable” stated, “Was it a shoorta house or relative”. The offender replied, “But bro cop or no cop how do u not get away with it”. “Unstoppable” replied, “Cuz they care more bro”. The offender replied, “We thinking one of the boys dads a shorta”, which I'm told in the agreed facts is Middle-Eastern slang for “police”. “Unstoppable” stated, “They went thru missions”, “How did he get done do uno yet”, “I reckon they got done coz of the plates”. The offender replied, “They did it coz the neighbour across the road had camera footage of the car and there’s a big sign of the company where u rent it” … “It’s a public shooting and easy to track down”, “Trust cop or not same outcome”, and then this is the critical part it seems to me, the message, “I remember telling black (a reference to Hirmiz) to cover up the signs he said he did.” And “Unstoppable” states, “Cuz I was watching a video this guy put like a tape on his plates.” The offender replied “Besliwa”, which I'm told in the agreed facts means “I swear”. “Unstoppable” stated, “So for example la the plate number has the letter l”, “U use the tape make it into a T.” The offender replied, “Yeah.” “Unstoppable” stated, “Or L”.

33. Police analysed mobile phone records for this offender, Mr Hirmiz and Regan Yousiph which, according to the facts, show that on the evening of 8 April, each of their mobile phone handsets were connected to mobile phone towers proximate to this offender’s home in Hoxton Park, as I understand it.

34. Police also obtained Uber records relating to Mr Hirmiz that show on 8 April 2022 at 6.02pm, he booked an Uber at 6.38pm from Kilkenny Avenue to Pontville Close, West Hoxton. Pontville Close is a street adjacent to the offender’s residential address at 7 Forcett Close, West Hoxton.

35. The agreed facts are that Mr Hirmiz and Regan Yousiph met with this offender in connection with the planned shooting the following evening. There are then details set out about the mobile phone analysis on 8 April, 9 April and 10 April showing contact between this offender, Mr Hirmiz and Regan Yousiph and I do not propose to read it onto the record.

36. Following the offender’s arrest, police examined his mobile phone and located the following messages:

37. On 17 May 2022, Regan Yousiph using the username “Uncle Drew” engaged in a conversation using the encrypted mobile application “Telegram” with the offender using the name “Rick Sanchez” regarding a 9-millimetre firearm. They discussed fixing the firearm and making it “look brand new”. The offender said, “I Wana get it refurbished…”, and Regan Yousiph said, “Let em know it’ll get fixed even with $ from next job”… “Yeah like if it doesn’t work”. The offender replied, “We can make it look brand new”, “Nah blacky used it”, “It worked”, “Works”. The offender later said, “Trust me”, “If we get bullets it should work”, “And won’t jam if u take 1-3 seconds every shot”, “Well test it at ur park”. Regan Yousiph later said, “I’ll clean it proper today with the kero then wd”. I presume it’s a reference to “WD-40”. The offender said, “Like trigger even pull the hammer back clean that”, “Like everywhere”… “U never know”.

38. On 1 August 2022, Regan Yousiph, using the username “$hunter”, engaged in a conversation using the encrypted mobile application “Threema” with this offender again using the handle “Rick Sanchino”, regarding his intention to get rid of a firearm, “Bro I actually need the thing picked up ASAP, Some boys I had the brawl with last year got raided and charged, I gotta clear my house in case”. This offender responded, “Nah it’s gunna get picked up today bro”, “I’m guna make a group chat”, “With pun”… “Done”.

39. A short time later, a group chat was commenced between this offender, Regan Yousiph and someone referred to as “Puni$her” regarding the movement of a 9-millimetre firearm from Regan Yousiph’s home.

40. The offender sent four photographs of the firearm, a magazine and a bullet to the group chat and he also sent his address. The photographs are shown and they are the photographs, as I understand it, of the items that were seized at Regan Yousiph’s premises on 4 August 2022 and they were clearly not collected because they were seized, ultimately, by the police.

Knowingly Take Part in The Supply of Pistol Offence

41. In terms of the knowingly take part in the supply of pistol offence without permit, following the offender’s arrest, the mobile phones seized by police from his person were analysed and downloaded.

42. Police reviewed the Cellebrite of his iPhone 7 showing “Threema” messages between the offender as Rick Sanchez and King Von.

43. On 13 August 2022, “King Von” sent a message to the offender, and this is of significance because the other firearm had already been seized by the police on 4 August. The message from “King Von” sent to the offender said, “Bro, u still got a pic of the 9mm”, “I’m trying to get it sold”, “or moved”. The offender replied, “Nah bro”, “It was taken with my perso phone”, “I can get a pic later tonight”.

44. On 30 August 2022, “King Von” sent two photos of a 9-millimetre pistol to the offender and on that same date, “Threema” messages sent from the offender using the name “Rick Sanchez” to “Unstoppable” contained the following: The offender stated, “The 9 is for sale 20 to me I can probably push to sell if for 18 he asked me to sell it”. “Unstoppable” replied, “What 9?”, “The rusty one”. The offender replied sending two photos of a 9-millimetre and saying, “Yeh”, “But if u refurbish it”, “It’s nice you’ve seen it”. “Unstoppable” replied, “Ye.” The offender stated, “They paid 25+ I remember”, “I think 30”, “Or 29”, “It was a bundle of guns”, “They paid 180k”, “They calculated ea ones worth and they practically paid that much for that one”, “R the idiot rusted it”. “Unstoppable” stated, “I wish I could keep it”, “If I had the zooz I would take it”. The offender replied, “Yeh same tbh” - presumably “to be honest” - “If I said it’s for me they would maybe give it 15”. The offender referred to “Coz my hearing is next week.” The offender had apparently another court listing coming up. The offender later referred to, “He prob thinks I'm guna get grabbed,” and “Unstoppable” replied, “Not personal.” The offender replied, “For the investigation ongoing”, “Yeh I know”, “I’m not cut I’m more relived if anything”, “A step closer”. “Unstoppable” replied, “Where do u stash it?” The offender replied “In between my house and my neighbour”, “But it’s on their property” … “Nah it’s not clean it’s been used for drive ya”, “Bys”. “Unstoppable” replied, “Eh clean enough”, “Hasn’t knocked anyone lol”. The offender replied, “Nah bro”, “Those get tossed cuz”, “Like the boys don’t keep knock ones”, “Not even sell”, “They destroy it”.

45. On 2 September 2022, “King Von” messaged the offender, “Yoooo”, “The gun should be picked up tomorrow”. The offender replied, “Yo yo”, “Ok keep me posted bro”, “It’s still in the same spot I seen today”.

46. On 8 September 2022, “King Von” says, “He said 2 days”, “For the 9mm”, “But I said can use grab it.” The offender said, "Nah I know I got wd40 I'll make sure it looks as clean as I can", "It shouldn't be fucked bro I wrapped it well", "Where it's tucked the rain doesn't hit it it's like under shelter but from moister I'm worried it's gone in u get me", "It's like between my fence and my neighbour fence it's tucked in and there's a shed there so they can't see shit and from out side we got alasas sleepers".

47. On 9 September 2022, the offender messaged “King Von”, "Yo yo", "The guns good", "It's still the same just needs to be cleaned by a professional", "But I checked it properly there's no rust where the hammer is and I pulled the trigger kha 10-20 times", "If I had bullets I wouldve tested it".

48. On 11 September 2022, King Von messaged the offender, “Addy”, “Plz” - presumably “address”. The offender said “9 forcett cl west hoxton – tell them to park outside number 9 please”. The offender later said, “Bro it’s taped up lmao I did the best I can besliwa”, “It doesn’t look pretty”, “Erap Regal”. “King Von” messaged back, “Why taped?” The offender replied, “It’s in a plastic bag”, “I taped up the bag”, “It’s in a rag”, “The rag is in a plastic bag”, “The plastic bag is taped”, “Just easier for storage on my end”. Shortly after, the offender messaged, "What car white 4wd?", "Kluger I think?", "Done done", "15 la?", "I'll count it".

41. They are the agreed facts for the knowingly take part in the supply of pistol offence determined from clearly the exchanges of the text messages.

Offences on The Form 1

50. On 1 September 2022, police executed a search warrant relating to an unrelated matter at the residence of Bahra Youssef. Police seized 41 individual plastic bags containing a white-powdered substance. Subsequent analysis of the powder revealed it to be the prohibited drug cocaine and the total weight was 15.5 grams.

51. On 24 October 2022, police executed a search warrant relating to an unrelated matter at the offender’s residence at 7 Forcett Close, West Hoxton. The police seized three mobile phones which were subsequently examined.

52. Through forensic analysis of the mobile phones, police identified group chats between the offender again using the name “Rick Sanchez” and two others, namely Christopher Jabur who apparently used the name “Red” and Bahra Youssef who was apparently “Unstoppable” via encrypted applications “Threema” and “WhatsApp”. The “Threema” group chats included conversations relating to the price, weight and sale of cocaine. Police identified the group as operating a "dial a dealer" business via their group chats.

53. In “Threema” messages between 13 August and 28 August 2022, the offender discussed the supply and sale of the prohibited drug cocaine. He was what is referred to in the agreed facts as the "upline" for both co-offenders, being Mr Jabur and Mr Bahra Youssef. In turn, the offender had purchased the drugs from an unknown "upline". The offender had an amount of the drugs taken to the house of Bahra Youssef, before distributing the drugs and dictating the sales.

54. In his messages, the offender directed the co-offenders to attend different locations to facilitate the sale of cocaine. The offender provided advice to the co-offenders relating to the weight and price of each bag of cocaine. He provided advice to Bahra Youssef relating to “cutting agents” for the cocaine and at what weight to bag the cocaine. He facilitated the “face-to-face” contact between Christopher Jabur and the customers by directing Mr Jabur to attend various locations selling 1-gram bags of cocaine.

Objective Seriousness

55. I will now assess the objective seriousness of the offences for which the offender is to be sentenced. Later in these remarks, I will consider the closely related issue of the offender's moral culpability for the offences once I have reviewed his subjective case.

56. In terms of the accessory offence, the offender's conduct is not extensive in that the Crown accepts that it is limited to the advice provided to the offender, Mr Hirmiz - referred to as "Blacky" in the agreed facts – essentially, to cover the signs on the hired vehicle that was used to do the shooting before it occurred, no doubt to hamper any attempt to identify the vehicle concerned.

57. The evidence of this offender's involvement arises from the text message exchange with an associate set out at para 41 of the agreed facts. The message from the offender to his associate indicates that Mr Hirmiz told him he had covered the signs. The CCTV footage referred to in para 15 of the agreed facts from premises near Regan Yousiph's home show Hirmiz and Yousiph moving around the utility shortly before the shooting concealing the signs on the utility.

58. The level of assistance provided by this offender to Mr Hirmiz was very limited. The level of objective seriousness of this offence falls below the mid-range of objective seriousness for such an offence.

59. In relation to the knowingly take part in the supply pistol offence, the offender had possession of a 9-millimetre pistol for sale and negotiated the sale of it for another person. He had secreted the pistol on his neighbour's property while he negotiated the sale of it. In his text messages to the person referred to as "Unstoppable" in the agreed facts, he acknowledged that the pistol was "not clean, it has been used for a drive”, and confirmed to “Unstoppable” that it had not been used to "knock anyone” - an obvious reference to the pistol not having been used to kill someone - although he clearly knew it had been used in criminal activity.

60. It is also established from para 59 of the agreed facts that the offender had checked the pistol and believed that if it was cleaned by “a professional”, it was in working order. It was also clear from his messages that he had no bullets and had not tested the gun. In para 60 of the agreed facts, the offender acknowledges that the car which was collecting the gun had arrived and he was counting the money he had inferentially given.

61. This is a serious example of this type of offence. The offender took a number of steps in negotiating the sale of a pistol which he understood was in working order and had been used in serious criminal activity. It is also an overwhelming inference that the person he negotiated the sale of the pistol to was part of the criminal element in our society. In my opinion, the offence falls within the mid-range of objective seriousness for such offending.

The Offender’s Subjective Case

62. The offender’s date of birth is 2 April 1994, so he is currently 30 years of age and was 28 years of age at the time of the offences.

63. He has something of a criminal history which is predominantly drug related. Of some note are the following: On 13 June 2014, he received a nine month intensive correction order for six counts of supply a prohibited drug. On 23 August 2023, after an appeal to this Court, the offender was sentenced to two years' imprisonment commencing on 27 October 2022 and expiring on 26 October 2024, with a non-parole period of 12 months which expired on 26 October 2023 for supplying prohibited drugs.

64. The offender's criminal record disentitles him to leniency in this sentence, but I do not consider it as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.

65. In relation to Mr Alen Yousif, I have the following documentary material before me:

1. a Sentencing Assessment Report dated 5 September 2024;

2. a psychological report dated 27 August 2024 by Dr Ann Marie De Santa Brigida, psychologist; and

3. letters from the offender and the offender's father.

66. The offender gave no evidence on sentence, and I have had regard to that fact in assessing the documentary material before me.

67. In terms of the offender's family background, the documentary material before me establishes that the offender was born in Australia. When he was a child, he reported that he was often bullied by his older brother in his childhood and was also bullied at school. He also reported that when he was young his father would occasionally hit him. The offender's father in his letter acknowledged that he would sometimes, under the influence of alcohol, hit and yell at the offender for no reason and then lock the offender up in his room. He said he treated the offender during that period in a way similar to how he was treated in his own childhood in the Middle East and he acknowledged that the approach he took was misguided and arose out of his then dependency on alcohol.

68. The offender stated to Dr Brigida that for several years he felt very alone. He stated in his letter to the Court that he had always bottled in his emotions and feelings because he was always afraid of rejection or being laughed at.

69. The offender stated to the psychologist, as well as in his letter of apology, that on one occasion when he was in year 7 at school, a teacher followed him, hit him, kicked him and then sexually assaulted him in the school bathroom. He stated that the teacher told him that he would be expelled if he told anyone about the incident. The offender stated that it is his intention to apply for the Redress scheme in relation to that incident but he has yet to submit any paperwork in relation to that claim.

70. The offender's father stated in his letter that he only learned about the abuse from the offender's older brother who was told by the offender about it one or two months before the offender was incarcerated.

71. The material before me indicates that after the abuse, the offender exhibited behavioural changes. He stated that he started to smoke cigarettes and marijuana. His father in his letter stated that when the offender was in year 8 or 9, he started to smell marijuana coming from the offender's room and the offender's mother once found a bong with marijuana in the room. He stated in his letter that the offender's behaviour got worse between year 9 and year 12.

72. The offender reported to the psychologist that he has never married and has no children. He reported that he has had two previous significant relationships, the end of which adversely affected him.

73. In terms of his educational history, according to the psychological report, the offender attended King Park Public School until the completion of year 6. He stated that he was in the mainstream class and was not in trouble from misbehaviour, however, during this period he was bullied and reported that had a significant effect on him. He reported that he subsequently attended Bossley Park High School until year 12 but did not complete his final year. He stated that he was formally suspended on two occasions for fighting and was also given in-school suspensions on several occasions. He stated that eventually he was given the option to sign out rather than being formally expelled.

74. According to the psychological report, after leaving school, the offender did not work for one year and then started working in demolition but left after one month as he did not like the work. He reported that he subsequently worked in a call centre but left after one month. He stated that he then started an apprenticeship in aluminium fencing and attended Miller TAFE for 12 months. He reported that he then ceased the apprenticeship and started working in construction, installing aluminium fences and windows for a period of one to two years. He stated that he then applied for an ABN and started working as a subcontractor in the building industry installing aluminium doors and windows. He stated that he did this work for five to six years but he had ceased working shortly prior to being placed on remand.

75. According to the Sentencing Assessment Report, the offender has held custodial employment in several institutions and his current employment commenced as a cleaner/general hand at Macquarie Correctional Centre on 14 June 2024.

76. The offender has a history of illicit substance abuse. He reported to the psychologist that he started using cannabis at the age of 15 and has smoked cannabis for ten years. He reported that he ceased smoking between 2013 and 2015 and when he subsequently resumed cannabis he was smoking between ten or 20 “cones” a day.

77. He reported that he started using cocaine at the age of 17. He reported that, up until his early 20s, he would use cocaine on Friday, Saturday and Sunday each week and from age 24 to 25 up until his incarceration, he would use cocaine for two to three days in a row and then stop for one to two days before using cocaine again. He reported that on the days he used cocaine he would insufflate 1 to 2 grams a day and would also take on average three to four Valium tablets a day. He also reported that in the last year prior to being placed on remand, he started to use Xanax, and he was taking three to six bars of Xanax per day.

78. In relation to his cocaine use, the psychologist stated that the offender reported a paradoxical effect from cocaine which occurs when an individual has ADHD, however, the testing did not indicate that the offender has that condition.

79. As to Xanax, the psychologist explained that Xanax works as an anxiolytic, attenuating or removing the feelings of anxiety in an individual. She noted that any dependency on substances such as Xanax interferes with many of the neurotransmitters in the brain and this imbalance can lead to a multitude of problems such as low mood, anxiety, memory impairment and sleep impairment. She also stated that the use of Xanax can lead to the development of aggression-like behaviour upon chronic use.

80. According to the Sentencing Assessment Report, the offender claimed that he had been using Xanax on a regular basis around the time of the offences.

81. The offender also reported to the psychologist that he was using 200 milligrams of Tramadol up to two or three times per day prior to being placed on remand, and had started to use Lyrica six to 12 months prior to his incarceration. He reported that, prior to incarceration, he was spending up to $3,000 per week.

82. The psychologist opined that at the time of the subject offences, the offender met the criteria for moderate Stimulant Use Disorder in relation to cocaine, severe Sedative Hypnotical Anxiolytic Disorders and severe Opioid Use Disorder.

83. The offender stated to the psychologist that after he was incarcerated, his withdrawal symptoms became so severe that he was taken to Blacktown Hospital and was admitted for four to five days in order to undertake withdrawals. He stated that he was placed on a Valium reduction regime, and he then returned to the prison. He has not previously completed any inpatient detoxification or rehabilitation programs. He reported that he did consult a psychologist for a few sessions but could not recall their name.

84. In terms of the offender's psychological history, the psychologist stated that the offender reported that his moods were sometimes unpredictable, but a mood chart was completed, and there was no indication of cyclical fluctuating mood swings.

85. The psychologist stated that the offender meets the diagnosis of Post-traumatic Stress Disorder. She stated that the offender evidences the classic symptoms of PTSD with intrusive thoughts, dreams and nightmares, avoidance of stimuli associated with the trauma and problems relating to others. She stated that individuals with PTSD are consumed by concerns for their personal safety and they persistently scan the environment for threatening stimuli. To the individual with PTSD, the psychologist explained, the threat is always present and they sometimes act inappropriately as they construe their environment as dangerous and threatening.

86. It is the psychologist's opinion that the offender has been exposed to a type 1 trauma, which means a single event or a single exposure to a traumatic event. She stated that exposure to psychological trauma, particularly in childhood while the brain is undergoing rapid development, can lead to a negative cascade which begins with involuntary self-protective factors in the brain, implicating three areas of the brain, being (1) Nucleus Accumbens, (2) Limbic, and (3) Executive Systems, and impairments in these parts of the brain have been linked to the earlier onset of alcohol and drug use, criminal behaviour and engaging in modelling and encouraging delinquent behaviour in adulthood.

87. In terms of the effects of sexual abuse, the psychologist stated that there is a strong causal relationship between childhood sexual abuse and the problem of drug use and psychiatric disorders. It is the psychologist's assertion that all forms of sexual abuse, regardless of the extent or severity of abuse, carried the same potential psychological toxicity and capability to result in long-term psychological problems.

88. In terms of the relationship between early abuse and criminality, the psychologist stated that research demonstrates that trauma, such as injury, harm, torture, violence or sexual abuse, is a risk factor for violent behaviour and incarceration for young males. She stated that, along with trauma, substance abuse is also demonstrated to be a major risk factor for aggression, violent behaviour and incarceration, with there being a strong temporal association between substance abuse and violence and the use of alcohol and substances typically occurring prior to the commission of violent acts. The various forms of childhood abuse have links to the probability that an individual may engage in criminality and be incarcerated.

89. The psychologist stated that extensive research has shown that early trauma may cause an enduring vulnerability to addiction, particularly because substance abuse results in dissociation from earlier painful events, and research indicates that childhood abuse interferes with the development of the capacity for emotional regulation.

90. For the purpose of the preparation of the psychological report, the offender was administered several standardised tests. He was administered the Personality Assessment Screener (PAS) and obtained a raw score of 25; that roughly 82% of persons obtaining this score would report some type of difficulty in a comprehensive self-report evaluation. The offender also scored in the marked range on the problems with Acting Out, Suicidal Thinking, Alienation and Social Withdrawal. The psychologist reported that these results indicated that the offender is likely to be impulsive and sensation-seeking; likely to have little apparent interests or investment in social interactions and be viewed by others as cold, unfeeling and unable to display affection and commit to personal relationships, and such social withdrawal may stem from apathy, marked shyness or anxiety, trauma-induced alienation, autistic withdrawal, distrust or instability of relationship and very likely to feel unsupported and treated unfairly by others.

91. The offender was also administered a Public Health Questionnaire 9 (PHQ9), which is a measure of depressive symptoms, and generalised anxiety disorder and had a result of "moderately severe" for each. However, regarding the results, the psychologist stated separate diagnoses related to depression and anxiety were not made due to two reasons: (1) as the offender is currently in custody, there would be some elevation of his scores; and (2) research has revealed that PTSD is frequently associated with a myriad of core morbidities.

92. The psychologist expressed the opinion that, as the offender's drug use and dependency has escalated, he has become caught up in criminal activities to try and finance his increasing substance abuse problem and this forms the nexus between the sexual assault, substance abuse and the offending.

93. According to the Sentencing Assessment Report, the offender was subject to an Intensive Corrections Order that included community service work in 2014 and he appears to have successfully completed that Order. It recorded that the offender has not participated in any programs targeted at his criminogenic risk factors during his recent incarceration period. He is also recorded in that report as expressing a willingness to undertake interventions to address his offending behaviour.

94. In terms of his attitude to the offence, the author of the Sentencing Assessment Report expressed the opinion that the offender displayed genuine remorse for his actions and easily identified the victims of his offending behaviour as being his family, the community, and the victims of the shooting. It was recorded that the offender described his imprisonment as “being what he needed” to break his cycle of antisocial behaviour.

95. The offender denied to the author of the Sentencing Assessment Report being involved in any organised criminal activity but stated that his motivation for attempting to sell the firearm resulted from wanting to fit in with his antisocial peers at the time and to gain their respect by trying to show he had contacts. Given the offences he has pleaded guilty to and the offences on the form 1, I do not accept his denial to the author of the Sentencing Assessment Report concerning his involvement in organised criminal activity. The agreed facts before me establish clearly that he has been involved in such organised criminal activity.

96. The offender also stated to the author of the Sentencing Assessment Report that a further motivation behind the sale of the firearm was to enable him to afford more illicit drugs for his own use. It is clear that the selling of the firearm was being negotiated for someone else, it seems to me, from the agreed facts.

66. In his letter of apology, the offender states that he had reflected during his incarceration on his actions and how he hurt the community, the victim and the victim's family. He said he feels shameful and disgusted when he thinks of his actions. The offender's father in his letter records that the offender has expressed his remorse to the father for the offending.

67. The Sentencing Assessment Report assessed the offender as having a medium risk of reoffending.

Moral Culpability

99. I mentioned when assessing the objective seriousness of the offending that after I had reviewed the offender's subjective case, I would consider the issue of the offender's moral culpability for the offences for which he is to be sentenced.

100. It was submitted on the offender's behalf that the offender's moral culpability was reduced because of his mental health, in accordance with the well-known principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194. It was also submitted that, while committing an offence under the influence of prohibiting drugs is not a mitigating factor, when an offender's drug use or addiction is linked to a deprived or traumatic childhood, there can be some mitigation of the sentence in that the rehabilitation of the offender can be given more significant weight in the exercise of the sentencing discretion.

101. Here all the evidence supports a finding that his mental health is linked to his traumatic childhood as is his drug addiction. In my opinion, there is some reduction in his moral culpability for the offences because of his disadvantaged and traumatic background, consistent with the principles concerning the relevance of social disadvantage to sentencing.

102. Frequently, as here, there is an overlap between an offender's disadvantaged background leading to mental health problems and involvement in illicit substance use. As I said when sentencing Regan Yousiph, the Crown in submissions correctly stressed the importance of s 21A(5AA) of the Crimes (Sentencing Procedure) Act1999 (NSW) which excludes the Court having regard to self-induced intoxication of an offender at the time the offence as a mitigating factor.

103. I again refer to the remarks of Button J with whom the other two judges agreed in Moiler v R [2021] NSWCCA 73 which I referred to when I dealt with Regan Yousiph. I have not treated the offender's drug use and addiction at the time of the offence as a mitigating factor on sentence. I have had regard, however, to his disadvantaged and traumatic background and his related mental health in accordance with the principles I referred to earlier. I have also had some regard to the fact that the two offences that he is to be sentenced for involved a considerable degree of planning.

104. I do not consider that the mental health conditions of this offender reduce the need to reflect the sentencing principle of general deterrence when sentencing this offender. I accept that his time in custody is more onerous because of his mental health conditions.

105. His pleas of guilty came late and it is accepted that that will result in a 5% reduction in his sentences for the utilitarian value of his pleas.

106. I think there is some evidence of remorse here but not a total recognition of the serious nature of his criminal activity, given his denial in the Sentencing Assessment Report that he had involved himself in organised criminal activity.

107. Given the offender's criminal history and his issues concerning his use of illicit substances over some period of time, I consider that his prospects for rehabilitation are no better than guarded.

108. I note in considering the impact of the offences on the form 1 on the sentence to be imposed on the accessory count, that I was informed that the offender had entered pleas of guilty in relation to them when the charges were in the Local Court and the Crown had agreed to place them on a form 1 in this Court. The offences that are on the form 1 were uncovered during an investigation that was unrelated to that concerning the two principal counts on which he is to be sentenced.

109. The offending the subject to the offences on the form 1 is quite serious drug-related offending and has some impact upon the sentence to be imposed on the accessory offence.

110. The offender will need considerable assistance when released from custody, in particular in relation to dealing with the issue of his drug. I propose in these circumstances to make a finding of special circumstances when fixing the non-parole period.

111. The offender has been in custody since 26 October 2022, being the date of his arrest. During the period 27 October 2022 to 26 October 2024, he was serving a two-year sentence for an offence of supply prohibited drugs. The non-parole period of 12 months attaching to that sentence expired on 26 October 2023, meaning that since that time he has been in custody solely in relation to the offences that I am to sentence him for. Having regard to the principles of totality, I propose to commence his sentence from 26 April 2023.

112. The two offences for which the offender Alen Yousif is to be sentenced are unrelated as the pistol the subject of the knowingly take part in the supply of pistol offence was not used in the shooting offence for which he was an accessory. There should be a reasonable degree of accumulation in those circumstances.

113. I have had regard to the objectives in sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.

114. The offences that the offender is to be sentenced for are serious offences and the offender involved himself in the criminal element of our community in committing them. While his involvement in the shooting offence on the agreed facts was limited, any involvement in such an offence is serious given the risk to members of the public. Knowingly take part in the supply of a firearm which had been used in criminal activity to another member of the criminal element is obviously a very serious offence. General deterrence always looms large when sentencing for such offences as the sentences imposed should not only deter the offender concerned but also other members of the community it might be tempted to engage in such serious criminal conduct.

115. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors some of which pull in different directions such as in this sentencing.

116. The maximum penalties and standard non-parole periods have been taken into account as legislative guideposts. It will be seen I have departed from the standard non-parole periods. In relation to the accessory offence, I have done so as a consequence of my assessment of the objective seriousness of the offence and the length of sentence I consider appropriate. In relation to the knowingly take part in the supply of a pistol offence, it is due to the length of the sentence I consider it appropriate. I propose to utilise the aggregate sentencing provisions.

117. Alen Yousif, you are convicted of the two offences to which you have pleaded guilty. I will firstly record the indicative sentences and an indicative non-parole period for each offence. In determining the indicative sentence and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I have referred to in these remarks.

118. The sentences Mr Yousif will hear me first announce are what are called "indicative" sentences. He will then hear me announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up the indicative sentences. When announcing the aggregate sentence, I will tell him the date it starts from, the date it ends and the date when he is first eligible for parole.

119. In relation to the indicative sentence on the shooting offence, having regard to the offences on the form 1, I consider that an appropriate starting point for the sentence prior to the application of the discount for the plea of guilty is two and a half years' imprisonment. After application of the discount there is an indicative sentence of two years and four months' imprisonment. There is an indicative non-parole period of one year and six months' imprisonment.

120. On the knowingly take part in the supply of pistol offence, I consider that the starting point for the indicative sentence, prior to the application of the discount for the plea of guilty is five years' imprisonment. After application of the discount, there is an indicative sentence of four years, nine months' imprisonment and an indicative non-parole period of three years, one month.

121. I impose an aggregate sentence of five years and eight months' imprisonment with an aggregate non-parole period of three years and seven months. That sentence commences on 26 April 2023 and expires on 25 December 2028. The non-parole period expires on 25 November 2026. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 25 November 2026. Whether you are in fact released on 25 November 2026 is a matter of the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released that day or on another.

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Decision last updated: 19 November 2024