R v Almoustafa, Ali

[2009] NSWDC 217

CITATION:	R v Almoustafa, Ali [2009] NSWDC 217
HEARING DATE(S):	15/01/2009 and 30/01/2009
JUDGMENT DATE:	27 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentenced to 3 years and 9 months imprisonment with a non-parole period of 2 years and 8 months.
CATCHWORDS:	Criminal Law - Sentencing - Robbery - Larceny of good from vehicle on Form 1 - Victim sales staff of liquor outlet - threat of concealed weapon - other threats - robber present for extended period - personal threat to victim to pursue him if matter reported to police - damage to vehicle in course of larceny - on bond at time of offending.
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Rause unreported NSWCCA 8 August 1992
PARTIES:	Regina Ali Almoustafa
FILE NUMBER(S):	2008/000011785
SOLICITORS:	Crown: Ms Barnes Defence: Ms Darcey

JUDGMENT
1. Between March 2004 and March 2005 Ali Almoustafa served a non-parole period of twelve months imprisonment. He celebrated, if that is the right word, his twenty-third birthday in prison. At 1.55 on Sunday 6 April 2008, that is three years after his release from prison, he was released from police custody at Newtown Police Station on bail.

2. If the doctrine of general and personal deterrence was ever going to work its magic on Ali Almoustafa surely it would have done so on 6 April 2008 at 1.55pm. Newtown and Enmore are adjoining suburbs in Sydney. The most direct route from one to the other is along Enmore Road. Enmore Fine Wines operates at 141 Enmore Road, Enmore. Twenty-five minutes after signing his bail papers and being released Almoustafa entered Enmore Fine Wines with serious criminal conduct on his mind. In a one on one robbery that must have taken at least twenty minutes to complete, he departed Enmore Fine Wines with $1,500 of its stock and $1,900 of its cash.

3. Police were notified. They were at his home by three o’clock. He was not there. By 4pm he was thieving items from a Mazda 626. It is likely he was also prepared to steal the Mazda for a house key had been jammed into the car’s ignition. By 4.45pm he was back in police custody. His larceny of items from the vehicle is a charge he also seeks to have dealt with on a Form 1.

4. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to resolve a number of competing tensions. As I strive to determine the appropriate sentence for this offence committed before this court by this offender harming the victim that he harmed in this community. My initial task requires an assessment of the objective criminality of the offence. I will need to have regard to matters personal to him, that is subjective matters. The starting point for such assessments requires me to make findings of fact from evidence before the court relating to both the offence and offender.

5. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. There are technical questions relating to deterrence, discounts, whether special circumstances are to be found, the Form 1 matter that I have mentioned, the length of the non-parole period and ultimately the length of the overall sentence of imprisonment. None of these can be commenced until the primary facts are determined.

6. What weight needs to be given to all of this against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined (see R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597 and R v Hayes [1984] 1 NSWLR 740).

Facts
7. At the time Almoustafa entered Enmore Fine Wines it was being staffed by a twenty-three year old Chung Chan. The offender approached the counter and said to Chan, “I need your help. I just got paid yesterday and I don’t know if the money has gone through yet. Do you take credit cards or cheques?” Chan responded that the store accepted credit cards. The offender said, “Okay, I need your help again. I need to buy two bottles for a present.” Chan endeavoured to assist the offender in selecting a purchase by asking questions about what he was after and making various suggestions. The offender asked Chan about a bottle of Hennessy VSOP and Chan retrieved it from a shelf for him. Chan noticed the offender was looking around after speaking and had what Chan described as an unusual expression on his face.

8. The offender lent over onto the counter and said to Chan in a soft voice, “Come closer”. Chan leaned over closer to him. The offender said, “Just be quiet. If I was going to tell you I have four bottles of Hennessy outside how much would you pay for them?” Chan responded, “I’m not the owner of the shop, so it’s no point for me to buy it”. The offender then said, “To tell you the truth, I’ve actually got four guys outside in a car that are about to jump in”. Chan felt fearful that the offender was going to bring more people in to rob him and did not respond. The offender said, “If you want to prevent that you have to listen to me”. Chan asked the offender what he wanted. The offender said he wanted three packets of Dunhill Blues, three packets of Winfield Gold, all the Benson & Hedges, all the Winfields and Dunhills.

9. One notes that there is a change in what the offender wanted even as he spoke from three of something to all of them. Chan grabbed a plastic bag and placed numerous packets of cigarettes from the shelf behind the counter into it. He placed the full plastic bag on the counter for the offender. As Chan was doing this the offender put the bottle of Hennessy in a plastic bag as well. The offender then demanded that Chan get two bottles of spirit off the shelf behind the counter. Chan retrieved them and put them on the counter. The offender also packed those bottles into a plastic bag. The offender then told Chan to fill up another plastic bag with cigarettes. He indicated the cigarettes and demanded, “Open the drawer. I know where you guys hide your shit. I’m not a newbie”. Chan opened the drawer with a key and filled up another plastic bag with cartons of cigarettes. The offender said, “Do you want to do this the easy way or do you want me to get my guys in to come in and drag you to the back of the shop?” Chan responded, “It’s all right, the easy way”.

10. The offender had his right hand in his back pocket as though he were holding something and said, “You sure you don’t need me to take out the stuff?” Chan said, “No, you don’t have to take it out”. The offender told Chan to open the till and then leaned forward and took its contents. He demanded Chan give him all the notes. Chan gave him all the fifty-dollar and twenty dollar notes, totalling about $300 to $400. Chan told the offender that was all he had but the offender said, “You must have a safe or something?” Chan explained that to open the safe would take fifteen to twenty minutes. The offender said, “Yeah that’s all right, I’ll wait”. And Chan entered the PIN number into the safe.
11. About this time a female customer came into the shop and was served by Chan. Chan did not say anything to her because he was afraid of what happened. She left the shop. The offender then grabbed a bottle of Jim Beam, more cigarettes from the shelf behind the counter, placed them in a plastic bag. Chan said to the offender, “Don’t come inside the counter. You are trying to make it obvious”. The offender walked back out and told Chan to grab more cigarettes. He pointed to a Johnny Walker Blue Label and said, “Grab me that bottle and the bottle next to it. Calm down and don’t be a smart arse.” Chan said, “I’m just trying to help you and get you out of here quicker”. The offender responded, “Yeah I’ll never do that again, open the till again.” Chan opened the till, the offender took another look and demanded Chan hand over the rest of the notes. Chan gave him the five and ten dollar notes.

12. Around this time a second male customer came into the shop. While Chan was serving him the offender asked, “What’s a good bottle of alcohol for all the guys?” This clearly was an attempt to pretend he was a customer. After the second customer left the store the safe opened and Chan gave the offender all the notes from it. The offender asked, “Is that all?” Chan responded, “That's all. How much do you think we carry in a bottle shop? We don’t carry that much money. There’s coins if you want them.” The offender asked for all the coins and Chan gave them to him. The total amount of money taken from the safe was $1,500. Hence the total of $1,900 all up.

13. The offender said, “If I come over and look in the safe and there’s nothing in there but if there is what’s going to happen?” Chan said, “Do whatever you want. Come and have a look if you want.” The offender did not respond. The offender then told Chan to take out his wallet. Chan said, “You are not going to take my stuff, are you?” The offender said, “Just give me your licence.” Chan gave his driver’s licence to the offender. The offender grabbed a pen and paper from the counter and wrote down Chan’s address, returned the licence after wiping off any potential fingerprints.

14. The offender then said, “If you dob me in I’m going to come back and get you”. Chan said, “I’m just going to close the shop after you leave.” The offender again said, “If you make noise or scream after I leave I’m going to come back and get you straight away. Chan was scared and shaking. Before the offender left he demanded Chan obtain another bottle of spirits or cigarettes. The offender finally left the premises with six bags of cigarettes, alcohol and money. As he left he said to Chan, “Follow me and look out the door”. Chan felt scared and was shaking. Before the offender left he demanded that Chan obtain another bottle of spirit or cigarettes. The offender finally left the premises with about six bags of cigarettes, alcohol and money. In total there was at least $1,900 cash and $1,500 worth of alcohol. After the offender left the store Chan reported the robbery to the owners. About 3pm police attended the offender’s residence.

The Form 1 matter
15. About 4pm the same day which must have been within the hour and a half the offender entered an unlocked vehicle at Tamar Street, Marrickville. Two nearby residents saw the offender sitting in the driver’s seat rummaging through items in the glove box. The offender alighted from the vehicle, walked to the front, looked at it for a couple of seconds, he returned to the driver’s seat and continued rummaging through items on the passenger side. He then exited the vehicle again and walked up the road.

16. He was seen doing all this and two witnesses alerted the owner. They inspected the vehicle and found the offender’s white jacket on the back seat and blue beanie on the front. From the vehicle small change and a street directory were missing. A spare house key kept in the vehicle had been jammed into the ignition. Consequently the ignition was damaged. The offender walked back towards the car while these folk were inspecting it and came within fifty metres of it when presumably he saw them and ran away.

17. At 4.55 he returned home. His sister asked where he had been and he said I was with you. The sister and father drove him to the Marrickville Police Station. The sister noted that the offender appeared drug affected.

18. During conversation with the police when he was charged the offender is reported to have said, “I’ll break his bones if I wanted to bro, I’m going to pull out a gun”. And words were said while he was apparently drug affected, they are alarming to say the least.

19. The facts as before the court do not resolve a number of matters, particularly what happened to the six bags of items taken from the shop and indeed the mechanism by which the offender arrived at the shop.

Objective Criminality
20. From the facts as he finds them to be a 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 this case with criminality of offences of a similar kind that the courts have dealt with before. It is in this way that the objective seriousness of this offence can be evaluated. Objective criminality has an important impact on the overall sentencing outcome.

21. Justice Gleeson when Chief Justice of New South Wales encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in R v Rause unreported NSWCCA 8 August 1992. The Chief Justice said:

“One of the primary purposes of the system of justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and 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 the 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.”

22. The essential ingredient of robbery that distinguishes it from other forms of stealing is the use of force or the threat of force against a person thereby overcoming the will, the power of that person, so that he surrenders goods or money that are his or for which he is the custodian.

23. There was no physical force as such applied to the victim Chan. However he was subjected to threats of force so real that he was not only fearful for his safety and the safety of two innocent customers but he surrendered against his will stock and money to the robber. The threats of force were two distinct ones. A threat that there were four other thugs outside waiting the word to enter. The second was a threat by Almoustafa that he was armed with a concealed weapon which he was prepared to show and presumably prepared to use.

24. The use of the two distinct themes of threat aggravates the severity of this offence by comparison to those offences where only one form of threat is used. There is nothing in the conduct of Chan to suggest that he was not already complying with the demands of the robber when the second threat was uttered. He had already filled two plastic bags with cigarettes and another with alcohol. The offender had already helped himself to a fourth plastic bag and a bottle of Hennessy.

25. A second aggravating features is the length of time the offender remained, sustaining the period during which his victim was the subject of his threatening conduct. Robbery is most frequently an offence committed with speed. Whereas in this case the robbery is prolonged, the impact of threatening conduct upon the victim is equally prolonged. By comparison with most robberies the duration of the threats becomes an aggravating feature of the robbery.

26. The offender took steps to try to prevent his detection by wiping the counter and bottles with his sleeve. The detection of serious crime is in the public interest. The wearing of disguises to prevent detection is regarded as an aggravating feature. So too in this case the taking of steps to prevent detection can be regarded as an aggravating feature by comparison to those robberies where it does not happen. However the offender went further in his efforts to avoid detection. In so doing he intruded into the victim’s privacy. He required Chan to hand over his driver’s licence, obtaining his address from the licence and then threatening him physical harm if Chan contributed to his being caught. That was the second threat that occurred after his possession of the stolen goods.

27. Having received money from the safe Almoustafa said “If I come over and look in the safe and there’s nothing in there, but if there is what’s going to happen?” These further threats made by Almoustafa aggravate his criminality. The offence was committed upon a shop assistant working alone in a liquor outlet. The court regards such persons as vulnerable, easy targets, particularly requiring such protection as the court can give to them.

28. After the robbery the offender utters a further threat against Chan. In a sense that does not aggravate the robbery but what it does do is demonstrate an absolute absence of consideration for or contrition towards his victim. The final feature of aggravation is that the robbery was committed in circumstances where the offender was on a bond to be of good behaviour and bail conditions. That is he had been given liberty by police and on the understanding he would not commit crime whilst bailed. He was also given the good behaviour bond on the basis that he would not commit crime whilst he was on the bond.

29. There are some aspects that mitigate the offence. The offence must have been determined upon very shortly before it was committed. That is to say it must have been opportunistic. The offender was not part of an organised criminal activity. Given that prosecutorial discretion was exercised to charge robbery I am prepared to accept he was not in the company of others even though he claimed to be.

30. While items and cash appeared to have disappeared within an hour or so of the robbery that may have occurred without organisation or other criminals being knowingly concerned. The objective criminality of this offence demonstrates it as being substantially more serious than many robberies coming before this court.

Subjective Matters

31. I turn now to the subjective matters. I am entitled and required to do so. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from others who stand or who have stood for sentence. Circumstances personal to this offender may offer to the court some explanation and insight into the commission of this offence by this offender or some reason why more or less seriously a sentencing outcome is appropriate.

Background, Family Dynamics, Relationships

32. Ali Almoustafa is a twenty-seven year old Australian born to Lebanese parents. He is the only son and second eldest of four children in a Muslim family. All are adult, the eldest thirty, the youngest twenty-four. The offender grew up, he claims, in a supportive environment. He says his family experienced financial difficulties but he did not want for anything. He married his partner in late teens or early twenties. There are two girls aged six and four. He has separated although his former wife is supportive of him. She sees him in custody, bringing the children.

33. There is material before me that leaves open the real possibility she picked him up from the police station after the robbery and I do not exclude the possibility that she was the one who conveyed the six bags of loot from the scene. He claims they separated because of his drug abuse. I note however that he self reports hitting his wife a couple of times.

Education, Skills and Employment

34. He claims he was a good student at primary school. However his high school years were troubled. There were behavioural problems. He claimed to have been stood over by school bullies who were Vietnamese youths. He in turn associated with negative peer group. There were truancy issues. He was asked to leave school at the age of seventeen after completing his Year 10 certificate. His stronger subjects were maths and English. He claims to have worked off and on from the age of fourteen in a number of areas: rendering, plumbing, tiling and building. Nine months is his longest period of uninterrupted employment. That occurred in 2005. He expressed an interest in boiler making at TAFE. Prior to arrest he was unemployed for eighteen months. He lost some of his jobs as a result of substance abuse.

General Health

35. He suffers a form of psoriatic arthritis and has mild swelling of the finger joints. That at times and his knees and ankles as well can be affected. He suffered a jaw injury in 2001 from a single gun shot wound. He claimed the attack was unprovoked, that he did not know the identity of the gunman. And the gunman told the court at sentence it was a case of mistaken identity. None of that evidence has been tested or led in correct form. Frankly I am sceptical, however, in respect of that event there is a diagnosis of post traumatic distress disorder. While I may be sceptical as to the circumstances of the gunman’s attack upon him I am prepared to accept it was a source of ongoing traumatic sequale.

Mental Health Issues

36. I have just referred to the post traumatic stress diagnosis. He also reports symptoms of depression, anxiety, including panic attacks, auditory hallucinations, persecutory delusions and delusions of reference. There have been episodes of self harm, particularly in response to stress. There are some readily identifiable stressors including custody, this court case, a $6,000 debt for outstanding fines and family issues.

37. Danielle Castles, who conducted a psychosocial assessment for the Legal Aid Commission opined Almoustafa had acquired a brain injury as a consequence of a serious head injury in 2001. That serious head injury could only have been the bullet wound which passed through the right cheek and lodged near the vertebrae at C4, that is, as it would seem to me to have been going downwards.

38. He underwent surgery for the repair of the wound and recovery of a projectile at the Royal Prince Alfred Hospital. He was hospitalised for two weeks. There is no suggestion of any time spent in the brain injury unit. From the qualifications supplied in her resume I am unable to determine the depth of her study into brain functioning. Clearly she is not an expert. She simply comes to the view by examination of documents. Her background seems to be one of social welfare.

39. Nonetheless he was sent to Dr Leila Cavanagh, a consultant psychiatrist, who rejects the acquired brain injury diagnosis. On her examination in history supplied by the offender she says “I have no evidence to support [acquired brain injury] and no history is suggestive of it. His psychotic symptoms appear to be secondary to elicit substances as opposed to a major mental illness of psychotic spectrum.

Drug and Alcohol Issues

40. There is a thirteen year history of drug and alcohol abuse. He began smoking cannabis at the age of eleven or twelve. By fifteen he was using “speed” and ecstasy on weekends. He was abusing benzodiazepines well before he claimed “self medication” on Rohypnol for his voices and post traumatic stress. He has been using heroin since at least twenty-four. His drug addiction was costing him in excess of $2,000 daily when arrested. That is a huge sum if one remembers he was unemployed. He was using criminal conduct to support is habit.

41. He had sought to confront his addiction. He participated in the MERIT program, it was then thought with some success. As a consequence of MERIT he commenced Buprenorphine in the community. Not withstanding it is claimed to be a blocking agent, he continued to use heroin. He simply added Buprenorphine to his daily drug cocktail which also included; heroin, cannabis, benzodiazepine, Rohypnol and ice.

Dr Cavanagh said:

“When asked why Bruprenorphine did not help him cease his heroin use Mr Almoustafa explained how, although he did not experience withdrawal symptoms while on Bruprenorphine he did not experience the ‘rush’, the ‘high’ that he experienced on heroin. This only confirms that while the initial stimulus for increase in Mr Almoustafa’s substance use was to self medicate untreated symptoms of post traumatic stress disorder and related conditions, his more recent use is perpetuated by the pleasure he receives from using substances despite his knowledge as to its harmfulness.”

42. He has indicated a willingness to enter a full time rehabilitation program. I have taken him at his word. There is no doubt his poly drug abuse is long standing, well entrenched and extensive in its scope.

Criminal History

43. He first came before the Local Court in May 2005 for a charge of possessing prohibited drugs. Since then there have been two other occasions for this offence. He has received bonds for assault, 2002 and a s 12 bond for assault occasion actual bodily harm, 2000. He has been before the District Court in 2004 for being armed with intent to commit an indictable offence (imprisoned nine months) and threatened to injure a witness for which he was sentenced to imprisonment for fifteen months.

44. In November of 2007 he was placed on a section 9 twelve month good behaviour bond. His commission of this offence is in breach of that bond. There are other convictions directly related to his drug abuse in 2007, September 2005 and March 2004.

Deterrence

45. This offence is a serious instance of robbery. The sentence called for must take into account the need for general deterrence for persons likeminded to the accused. Notwithstanding my concern about the impact of deterrence in the community, the law requires that I take it into account. It is important, if it is at all possible, that persons of similar mind to this offender should be reminded that significant terms of imprisonment will be imposed for this kind of offence.

Custodial History

46. I understand he has been in custody since 6 April 2008. His sentence will be backdated from that date. He has pleaded guilty to the offence before the Local Court and I am going to give him the full twenty-five percent discount. Stand up please Mr Almoustafa.

47. Ali Almoustafa you are convicted that you were on 6 April 2008 at Enmore in the State of New South Wales robbed Chung Chan of certain property, namely money, cigarettes and alcohol which was the property of Enmore Fine Wines. I take into account the other matter in respect of the motor vehicle that you have asked me to take into account on the Form 1.

48. But for your plea of guilty I would have given you a sentence of five years imprisonment for this offence. I have reduced that by twenty-five per cent on account of your plea of guilty. I set a non-parole period of two years and eight months to date from 6 April 2008 and to expire on 5 December 2010. I find special circumstances, in particular your need for drug rehabilitation within a community setting, particularly after the course that I now plan for you to take.

49. I set a balance of term of one year and one month. I order that you be referred to the compulsory drug treatment program with a view to your being accepted into that program to be compulsorily treated in respect of your drug abuse. The papers are to be forwarded to the drug court forthwith.