R v Attar, Ali

[2010] NSWDC 199

CITATION:	R v ATTAR, Ali; HAWAT, Hasan & HUYNH, John [2010] NSWDC 199
JUDGMENT DATE:	11 June 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	ALI ATTAR: Convicted. Sentence to 2 years and 2 months imprisonment; a non-parole period of 20 months. Sentence be served by way of periodic detention. Balance of term of 6 months. HASAN HAWAT: Convicted. Sentence 20 months imprisonment. Sentence suspended John Huynh Convicted Sentenced 2 years and 6 months imprisonment; non-parole period of 22 months; balance of term 8 months; sentence be served by way of periodic detention.
CATCHWORDS:	Criminal law - sentence - co-offenders - robbery - department store takings - inside planning - takings $81,000 - roles assigned - planner, recruiter and loot delivery - target identifier - robber - getaway driver - $5,000 recovered - serious example of offence, early pleas.
CASES CITED:	Regina v Rause unreported NSWCCA 8 August 1992 Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329
PARTIES:	Regina Ali Attar Hasan Hawat John Huynh
FILE NUMBER(S):	2009/00073023; 2009/00256748; 2009/00057735
COUNSEL:	Defence for HAWAT: P Linegar Defence for HUYNH: G Heathcoate
SOLICITORS:	Crown: Ms T Roberts Defence for ATTAR: Mr R Macaulay

JUDGMENT
1. In September and October 2008 John Huynh was an employee of Bing Lee. Ali Attar, known to Huynh through a family relative, was a customer of Bing Lee, served on occasion by Huynh in September 2008. Hasan Hawat worked out in a Bankstown gym where Attar also worked out. These three with one HA - I have used initials because he is an alleged offender yet to be tried - agreed to rob and did rob a Bing Lee employee of $81,000 in cash in circumstances I shall describe in more detail shortly.
2. Today, each of these three offenders is to be held accountable for his role in this robbery. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for each offender before the court harming this victim in the community in which it occurred, see Gladue v The Queen [1999] 1SCR 688 [80].
3. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to each of the offenders known as subjective matters. The starting point for these assessments requires me to make findings of fact from the material before the court relating to both the offence and the relevant offender. My fact finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts to which I will shortly return. It is sufficient that at this point I remind all that a judge is not party to an agreed set of facts. The tender of agreed facts does not relieve him or her from the fact finding task. It simply limits the material from which facts may be found. To the extent, if it be the case, that facts as agreed do not reflect the actual events that occurred it must be remembered the court can only find facts from the evidence placed before it.
4. Each of the offenders’ rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be pronounced there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, and, finally of course the ultimate term of imprisonment or other penalty to be imposed. None of those matters can be determined until the primary facts are determined. What weight needs to be given to all of this against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740 and R v Cuthbert (1967) 2 NSWR 329.
Facts
5. Bing Lee own a number of stores operating in New South Wales. In September and October 2008 Huynh was an assistant manager at the Bing Lee store in Bankstown. During 2008 he served a customer Ali Attar who purchased a plasma TV and other items. During that or some other purchases or contacts Huynh and Attar had a casual conversation about the banking procedures used by the store.
6. On 2 October 2008 they met at a coffee shop near the Bing Lee store. They discussed organising a robbery at Bing Lee. Huynh outlined the banking procedures to Attar. He explained in detail about who would walk out of the store with the cash, which car they would approach, where that car would be parked and occasions when this would be occurring. He told Attar that the weekly takings were usually banked on a Monday of the week. Attar informed Huynh it was better to stage a robbery outside the store or on the way to the bank.
7. Attar arranged with Huynh that a robbery would happen on Monday 6 October 2008 outside the store but that was a public holiday and the banks were not opened so the date was changed to the following 7 October. Attar further informed Huynh that two others would be involved in the robbery plan and the proceeds of the robbery would now need to be shared four ways with Huynh getting a share. Attar told Huynh that one of the others would be a driver of a getaway vehicle and the fourth would be the actual robber.
8. Attar told Huynh that a male would approach the expected victim, one Jenny W, and take the bag containing the week’s takings. That male would then run towards a waiting car with the driver who would then drive off. This meeting between Attar and Huynh lasted about fifteen minutes.
9. After it Attar starting looking for people to carry out those roles. He made contact with HA who, at the time, was working with Attar at a car wash in Bankstown. Attar asked him if he was interested in carrying out the actual robbery. HA agreed.
10. Attar then started looking for a driver of the getaway car. He approached Hasan Hawat who was training with Attar at the gym as I earlier mentioned. When asked if he was interested Hawat was struggling with a few personal debts. He thought about the offer for a day and ultimately agreed to become the driver of the getaway vehicle.
11. There were two telephone contacts at 11.39 and 11.43 on 6 October between Attar and Huynh. The contacts were initiated by Attar. Attar asked Huynh if the week’s takings had been banked and was informed that the banking had not been completed since the banks were closed. It is to be remembered that there is a long weekend the first weekend in October which I think if memory serves me is the Labour Day weekend. Attar and Huynh agreed that the robbery should take place the following day and there were calls that could have been confirmed in evidence if necessary. A time was set between 9.30 and 10.30 outside the Bing Lee store when the victim and Huynh were to walk towards Huynh’s car with the takings.
12. Attar advised Huynh to stay calm during the robbery and everything would be taken care of. There were further instructions to stay calm after the robbery and act as if he was a normal witness to the robbery. There was an agreement that Attar would contact Huynh shortly after the robbery to hand over Huynh’s share of the proceeds.
13. The night before the robbery Hawat, Attar and HA met at HA’s premises. Attar explained how the robbery was to be carried out. He planned the location where the getaway vehicle was to be parked and what HA and Hawat were supposed to do after the incident.
14. The three visited the location of the planned robbery together. About 8am on 7 October Hawat and HA attended Attar’s house. Again, Attar confirmed the plan and the roles of both men. At that time, HA was in possession of a white Mazda which had distinctive registration number. After a short meeting Hawat drove the vehicle to Canterbury Road Bankstown, parked it in the vicinity of Bing Lee. At that time HA was seated in the front passenger seat. On arrival HA left and waited directly outside the Bing Lee store while Hawat stayed with the vehicle. The ignition was on and, as I understand it, although it is not a detail here but I imply, the engine was left running.
15. On 7 October Huynh commenced to work at about quarter to nine fully aware of the timetable for the robbery. The victim, an administrative officer with Bing Lee, started reconciling the week’s takings which amounted to about $81,000 plus. Huynh approached the victim on numerous occasions saying that the banking had to be done immediately.
16. At 10.28 Huynh and Jenny W commenced walking from the store towards his red coloured car, a Ford Capri. As they approached the car he walked a little faster than she leaving her behind. He approached the driver’s door and entered the vehicle. She reached the front passenger side door, was about to open it, she felt an object getting pushed against her back. She felt a person present behind her. She heard HA say, “Give me the money”. On hearing this her response was to hold tightly to the bag. HA commenced pulling it from her shoulder. She started resisting by holding onto the bag. He grabbed her left arm, there was a brief struggle between them. She started yelling and screaming for help. She felt a sharp pain to her left hand and let go of the bag. As a result of the incident she sustained a deep laceration to her finger requiring stitching.
17. HA, now armed with the bag, ran east towards Canterbury Road. A witness, stationary in the traffic on Canterbury Road watched as he ran along Canterbury Road to the white Mazda. He took note of the number plate. HA entered the vehicle, how it drove along Canterbury Road and turned left into Clements Avenue. Another independent witness who happened to drive behind the Mazda started following it along Canterbury Road. That witness observed the Mazda turn left into Clements and travel straight onto Marshall Street. The witness saw the Mazda pull up beside a Mercedes driven by Attar. HA leaned from the Mazda and handed the backpack to Attar. Both vehicles left the scene.
18. Hawat and HA drove to Attar’s house where they counted the proceeds from the backpack. The cash was divided among Hawat, Attar, HA and Attar held on to Huynh’s share. Numerous enquiries were carried out on the mobile services used by HA, John Huynh, Ali Attar and Hasan Hawat. Numerous telephone calls were made between the services by HA, Ali Attar, Hasan Hawat including between HA and Attar on 7 October just minutes before the robbery.
19 On 14 October 2008 HA was arrested, charged with aggravated robbery and his matter is listed for trial sometime next week at the Sydney District Court.
20. John Huynh, on 31 March 2009 was arrested and charged. He made full admissions as to his involvement in the offence. A plea of guilty has been accepted to robbery on the basis that he did not contemplate any injury would be occasioned to the victim. Huynh also made a statement about Attar’s role in the offence which he was prepared to give as evidence.
21. Ali Attar on 23 June 2009 attended Bankstown Police Station. He was placed under arrest. He was cautioned and as was his right declined to be interviewed. On 20 October 2009 he voluntarily participated in an interview with police where he made admissions as to his involvement and implicated HA and Hawat and Huynh. He also agreed to give evidence in any proceedings against any of the other co-offenders or alleged co-offender. A plea of guilty has been accepted to robbery by him on the basis that he did not contemplate any injury would be occasioned to Jenny W.
22. Hasan Hawat was attended upon by police on 14 November 2009. They placed him under arrest, he was cautioned, taken to Bankstown Police Station, he willingly participated in an electronically recorded interview. He made full and what I described as frank admissions about his role and the role played by the two people he had contact with HA and Ali Attar. Hawat appeared to be remorseful for his actions. He participated in a computer photo board identification in which he identified HA as the person he met with on the night before the robbery and who he drove to and from the robbery location. A plea of guilty has been accepted to robbery on the basis that he did not contemplate that any injury would be occasioned to the victim.
23. There is a claim for compensation. That matter is yet to be determined and may even be the subject of consent agreement.
24. The statement of facts identifies areas of dispute. Those disputes concern and are maintained in this hearing as to who was the instigator of the robbery; as to who conceived the idea of the robbery; as to whether Huynh was paid his share of the robbery proceeds; as to whether the full robbery proceeds were divided and in any event Ali Attar says that he gave John Huynh $10,000 as his share of the proceeds consistent with there only being a $40,000 haul which Hasan Hawat asserts there was less than $40,000.
Objective Criminality

25. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of this offence as an essential step in assessing the seriousness of the criminal behaviour of an 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 this offence is evaluated. Not surprisingly the objective criminality has the most important impact upon the overall sentencing outcome.

26. The Crown has exercised its prosecutorial discretion in this case to charge each of the offenders before me with robbery when a more serious charge was certainly open on the evidence. Thus my assessment of the objective criminality must be confined to determining the seriousness of this conduct against the essential elements of robbery. I must be careful not to make assessment of criminality captured by a more serious offence unless that criminality is also captured by the essential elements of robbery.

27. The essential elements of robbery as they appear to apply in this case are: (1) the unlawful taking and carrying away of $81,000 belonging to Bing Lee; (2) from Jenny W who at that time had custody of the property; (3) against her will; (4) by force and by putting her in fear.

28. What is to be noted about the robbery is firstly, that it is an offence against the person because of the force used and the fear aroused in the victim. It is also an offence against property. Ownership of property and respect for the integrity of the person are two fundamental cause to the functioning of our society. The offence of robbery constitutes an attack against both.

29. Justice Gleeson, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and to the reason why substantial punishment is required in Regina v Rause unreported NSWCCA 8 August 1992. His Honour 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” (such as Jenny W) “to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others” (such as Bing Lee). “Offences of the kind committed by the present respondent 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 property which the law exists to protect. It is quite likely [these] young [men] do not understand and may never understand the seriousness of this anti social behaviour. But the courts understand it. Crimes of this kind especially when committed by an offender with a long criminal history deserve severe punishment.”

I should note immediately that none of the offenders have a long criminal history. 30. The Crown relies upon the doctrine of common purpose thus all players in this robbery share equal responsibility for the acts of others done in furtherance of the robbery once the player whose criminality is being assessed has joined in the common purpose. It will be seen that Hawat gets the benefit of that principle of law because he joined in the purpose well after it was established.

31. Interviews of each offender have been tendered. What is important to remember about an interview in respect of alleged criminal conduct by a person is that it can only be used against that person. What is said in that interview does not transfer as evidence against others. Such findings against a particular offender as I make in this hearing are based upon the facts I earlier read that it would seem all are prepared to be sentenced upon.

32. I am satisfied beyond reasonable doubt that Ali Attar conceived the robbery and persuaded without much difficulty John Huynh to be party to it. Huynh’s role in the robbery was to facilitate the execution in accordance with a plan Attar devised and Huynh felt free to make suggestions about. Huynh was also the source of vital intelligence as to time of transfer of cash, his employer’s habit as to banking, the location of the vehicle that would be used to transport the money from the car lot, I imagine, to the bank and ensured that the protection and support that his employers anticipated his presence would lend to Jenny W’s safety was absent when it was most needed. At the point of crisis for her he had separated himself by the car body and was ensconced within the car as she was being attacked. His acts are best summed up as a facilitator.

33. In addition to conceiving the robbery and designing the steps by which the robbery could be effected, Ali Attar was the recruiter and the ultimate destination for the stolen loot. I am satisfied about $76,000 was transferred to him into his Mercedes in accordance with a plan. Its transfer to him as witnessed by an independent witness is a crucial link in my determination that he was the architect of the plan. Another important factor in my coming to the conclusion was his selection of the co-offenders and their continuous and continual contact with him particularly in the moments leading up to the robbery. 34. All are consistent with his being the leader, conceiver and architect. His advice to the parties to stay calm during the early stage of the robbery is also consistent with his being in charge. He explains the night before the robbery how it was to be carried out, where the get away vehicle was to be parked, its rendezvous with the Mercedes and the handover of the booty. There was a site meeting so that locations could be understood or settled upon. Hawat was recruited well after the decision was made to conduct the robbery. In fact, I think he is the last recruit. His criminal involvement starts after HA agreed to be the robber. His criminality is limited to being involved in the planning sessions subsequent to his joining and his driving the get away vehicle. Of course it was also the vehicle that conveyed the actual robber to the scene. The vehicle he drove was not his. He also drove, I maybe repeating myself, the vehicle loaded with the $76,000 from the scene to the Mercedes and was a party to its transfer.

35. Each of the robbers’ motive for engaging in the robbery was financial gain. Each claimed to have debts although evidence before the court as to the nature and urgency of those debts is sparse indeed. While each offender bears responsibility for his particular role in the robbery the objective criminality is also to be assessed as I earlier remarked by the circumstances as revealed by the essential elements. The first element focuses upon the taking and carrying away of $81,000 belonging to Bing Lee. Bing Lee, of course, was Huynh’s employer. The robbery of his employer as facilitated by Huynh amounts to an aggravating feature of criminality against Huynh because it was a serious breach of trust by him towards his employer. That particular aggravation does not flow on to the other two. The taking and carrying away was carefully planned by Attar using Huynh as a sounding board. The planning which I have detailed earlier is a strongly aggravating feature against Attar less so against Huynh and even less so against Hawat.

36. The sum of $81,000 which was initially stolen assumes a seriousness that a small sum of say $81 would not. Measure of damage and loss is an aspect of criminality, the greater the loss or damage the greater degree of criminality. That feature counts against the three offenders. It does not constitute a feature of aggravation as such but nonetheless is a measure of criminality.

37. The second essential element focuses upon the victim who had custody of the money. In this case the victim was a woman who has become isolated against the robber because of the acts of Huynh and the planning of Attar. Jenny W does not qualify as a vulnerable person but the acts of Huynh and the timing of the attack saw her isolated and at her most vulnerable. This aspect heightens the criminality of the offence against all players. The property was taken against her will. She was deliberately led into a trap by Huynh, as set by Attar and executed by the robber pursuant to the plan. The ambush nature of the robbery was a breach of trust, as I have said, owed to Ms White by Huynh. That breach heightens his criminality. The fact that it was an ambush I guess I mean the other players also reap the consequence.

38. The final elements focus upon the mechanism of the taking. The robbery was intended to be a snatch. In reality it became a grabbing of the person and a struggle in which she experienced pain. The use of corporal violence is now regarded as an aggravating feature attracting a higher penalty. Thus the use of corporal violence and the wounding indeed is not to be taken into account, but the use of force can be taken into account, as can the creation of fear.

39. In these circumstances the robbery assumes a seriousness above that of many other robberies. It is not a circumstance of aggravation, but an incident of the robbery itself.

40. The getaway is the final aspect. Chronologically of course it occurs at the end of the robbery, but in reality is part of the taking and carrying away and therefore part of the first element. There was an aura of professionalism marred only by the fact that two witnesses were able to identify a car that was apparently traceable. That professionalism was the result of planning. The presence of a traceable numberplate was an oversight in the planning. All share in the criminality associated with the getaway of the offence.

41. The offence when measured objectively falls into a midrange offence, particularly as against Huynh and Attar and while I have placed it against them in the midrange, it falls in the upper quadrant of that range. As against Hawat, he is in the midrange, but in the lower quadrant.

42. Only $5,000 of the $81,000 has been recovered. The last person to have the money was Attar. It would seem that he did share with Hawat and AH. I can make no finding as to whether he gave $10,000 to Huynh, although it seems likely that he did. It is likely that Huynh knew the sum taken and was looking in fact for the twenty. That finding I cannot make beyond reasonable doubt.

43. Imprisonment is a sentence of last resort in New South Wales. It is the most serious sentence known to the law in this State. It should only be imposed when no other sentencing outcome is appropriate. I am satisfied this offence when viewed against this objective criminal conduct is one requiring significant terms of imprisonment for Huynh and Attar and a lesser term of imprisonment for Hawat.

Subjective Features

44. I turn now to the subjective matters for each of the offenders. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing each offender present before me for it. All offenders coming before a court vary from each other and from others who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this offence by him and some reason why a more or less sentencing outcome is appropriate.

John Huynh
Family, relationships, background

45. John Huynh is a single man aged thirty, the eldest of three children. He was born in Malaysia of Vietnamese descent and migrated with his parents to Australia when he was one year old. There is no suggestion his upbringing was in any way problematic. He enjoys a close supportive relationship with his parents who with his brother were present in court at the sentencing hearing in April.

46. He became engaged some eighteen months after the robbery. He is helping to support his fiancé’s children from a prior relationship. He has a daughter himself from a prior relationship with whom he has apparently lost contact.

Education, skills and employment

47. He completed education to Year 10. He was employed as an assistant manager with Big Lee at Bankstown. As a consequence of his involvement in this offence he lost that employment. He is employed now as a joiner and has been so employed since April of last year. He earns between $750 and $900 weekly.

General health

48. So far as can be gleaned from his court appearances, he appears to be in good physical health.

Mental health

49. Again there is nothing before the Court to suggest any mental health issues.

Drugs and alcohol

50. Again there is nothing before the Court to suggest any rehabilitative issue arising from drugs or alcohol.

Financial issues

51. Whether there is any issue relating to money management is unclear. As with his co-accused, he complains of pressure and tension arising from his financial situation at the time of the robbery and points to it as a cause for his being involved. The causes of any financial mismanagement have not been explored. As I say, it is said to have motivated his involvement in the offending conduct. Whether this is as a result of poor financial management or something more worrying such as gambling, I am unable to say. I have no reason to believe the problem, whatever it is, has been addressed.

Character and antecedents

52. John Huynh presents at sentence as a thirty year old man prepared to take on family responsibilities and having a good work ethic. He clearly has strong community and family support. One of his peers describes him as hard working, helpful to others, private, remorseful. His present employer also classifies him as thoughtful.

53. He has a midrange PCA in 2006 for which he received a s 9 bond for eighteen months. He is otherwise a person of prior good character so far as the law is concerned.

Rehabilitation prospects

54. There appear to be good rehabilitation prospects. He has good family support, close family ties including his partner and children, strong community support, good work ethic, current employment, good general and mental health. The only matter of concern to me is the unresolved question of financial management. Given its strong link to his offending conduct, one would have thought it would have been addressed in evidence.

Ali Attar

55. Aged twenty-eight at the time of sentence, Ali Attar is one of four children with a strongly supportive family it would seem. He is married with a fourteen month old child and a second child expected in the next half year or so.

56. He and his wife currently live with the wife’s grandparents as their primary carers. His upbringing it is said was in a supportive family and Probation and Parole inquiries reveal his own relationship with his wife is a supportive one.

Education, skills and employment

57. He completed Year 12 and commenced an advanced diploma in accounting as I understand it at TAFE, which he has but half completed. Study is presently deferred. He has an employment history that appears undirected and unfocussed so far as a career is concerned.

58. His jobs have been in accounting, labouring factory work, commercial cleaning and currently he is a supervisor for a rendering company. He has been so employed for six months. I sense that he is intelligent and yet I wonder whether he is intellectually challenged by his work.

59. He is said to be responsible and reliable.

General health

60. He presents as a fit man, in good general health.

Mental health

61. He denies the presence of any mental health issues. There is no evidence before me suggesting any mental health issues.

Drugs, alcohol and gambling

62. He denies any drug, alcohol or gambling issues.

Financial management

63. On this topic I repeat all I said in Huynh’s case. He was, he says, facing financial stress and tensions for some reasons at the time of the robbery. They were his motive for involvement. There is no evidence before me suggesting they have been addressed.

Character and antecedents

64. Ali Attar, as was his right, chose not to give evidence in the sentencing proceedings. It is in those circumstances difficult to assess his character from a Probation and Parole report.

65. I note he appears to have leadership and planning skills, as exhibited in the offence. Hopefully those qualities can be harnessed for legitimate purposes.

66. He presents as undisciplined and unfocused in his work choices and probably working below [his talents] in areas that offer him little intellectual stimulus. He enjoys good family support. He appears to have no convictions recorded against him and prior to this offending was for the purposes of the law a person of good character.

Rehabilitation prospects

67. These appear on the evidence before me as generally positive for much the same reasons as Huynh; he has family support, employment, good physical and apparently good mental health. There are no identified drug or alcohol problems. He says he is not a gambler.

68. As with Huynh and Hawat, the issue of his financial management and his finances is still unresolved, at least on the evidence. I am unable to predict what part financial pressures play in his or the other offenders’ lives. I simply note that they are the claimed motivation for his offending conduct.

Hasan Hawat

69. He is a single man aged twenty-two, the youngest of the three, living with his family. His family are embarrassed, bewildered and resentful at his involvement in this offence. Hasan Hawat is aware of the family’s response and feels the shame brought upon the family by him. He is the second eldest of three brothers and one sister.

Education, skills and employment

70. Hawat must have completed Year 12. He is currently spending three days weekly studying construction management at UWS. He has worked part time as a security guard at the Bankstown Gym for five months. Currently he is said to hold two part time positions; one with a commercial cleaning firm, the other as a storeman at his father’s place of employment.

71. There is also a reference from RPS Security who claim the offender is working as a guard within that organisation and has been doing so for the past twelve months, even though he has been charged with robbery. That fact, if it be correct, causes me some concern; not that he is working, but that he is allowed to work without further security clearance.

72. I do not blame him for trying, but I certainly blame the Government for allowing somebody with a likely conviction for robbery and an admission of being involved in robbery to be involved in security.

General health

73. As he presents in court, he appears as being in general good health. I would also describe him as presenting as fit.

Mental health

74. There is a useful report before the Court outlining his personality profile, including mental health issues. While he is currently stressed, no doubt primarily from his offending conduct and the court based sequelae, he presents with a good mental health profile. He is in the average to high range in his IQ verbal and performance scores. There is some depression and withdrawal from social and perhaps more intimate contacts. Hopefully that will resolve once these court matters are finalised.

Alcohol and drug issues

75. There is nothing in the report suggesting any issues with alcohol or drugs.

Financial issues

76. His offending was also said to be related to financial matters. He claimed at the time he was unemployed. My sense is at the time the offence occurred, he was doing security guard work with the Bankstown Gym. In any event his father appears to have chastised him for failing to look to the family for support which I take to mean financial support as well.

77. In his case he took time to consider his involvement, suggesting his family moral standing was strong enough for him to hesitate. Even so, there is no evidence before me of any easing of the financial pressures originally upon him.

Character and antecedents

78. He has a reference from one of his employers describing him as honest, reliable and trustworthy as an employee. This referee also knows the offender on a personal level and describes his offending conduct as causing the offender remorse and empathising with the victim.

79. He appears to have a good work ethic, doing what I understand to be casual employment whilst studying at university.

80. In 2001 he was convicted of driving on the roads whilst having his licence suspended. The offence could not have been all that serious because he was given a s 10 bond to be of good behaviour for two years. So on the one hand he presents to the court as a person of prior good character, but unfortunately for him the breach of the bond is something the law regards seriously. The bond was a personal an solemn undertaking by him to be of good behaviour for two years. This offending conduct occurred about half way through the life of the bond. In the circumstances the criminality of the offender’s conduct is aggravated by being done in breach of his personal and solemn undertaking to be of good behaviour.

Pleas of Guilty: All Offenders

81. All three offenders pleaded before the Local Court at Burwood: John Huynh on 10 August 2009, Ali Attar on 30 November 2009 and Hasan Hawat on 11 April 2010. Each offender presents with appropriate insight into his offending conduct and contrition. The pleas as early entered will be taken as an acknowledgement by each offender of a willingness to be accountable for his offending conduct.

82.- 86 HIS HONOUR DEALT WITH MATTERS THAT ARE NOT REPORTED

Setting the Sentence

87. As the law presently stands in New South Wales, one of the matters that must be taken into account, even though the sensibility so of doing is well under attack by researchers, is general deterrence. Given that I am obliged to ignore my commonsense, but to comply with principles of law binding upon me, I take general deterrence into account.

88. I also take personal deterrence into account in the way in which I have structured each of these sentences.

89. The maximum penalty for robbery is fourteen years imprisonment and a quite substantial fine. There is no standard non-parole period relating to it.

90. But for the plea of guilty in respect of John Huynh I would have set a sentence of four years imprisonment. That overall sentence will be reduced by thirty-seven and a half per cent. That makes it a sentence on my calculations of thirty months or two and a half years.

91. Likewise for Ali Attar, but for the plea of guilty I would have set a sentence of four years. Again that sentence reduced by forty-five per cent becomes an overall sentence of twenty-six months or two years and two months.

92. In respect of Hasan Hawat, but for the plea of guilty and the assistance I would have set an overall sentence of three years imprisonment. When reduced by forty-five per cent, that becomes a sentence rounded out to twenty months.

93. I have considered whether special circumstances should be set and have decided against it. The Crown has not sought fulltime custody. I have decided in all the circumstances not to impose fulltime custody. Therefore each will be presented with an opportunity to advance his rehabilitation in the community. In the event that he is unable or unwilling to do so, that lack of rehabilitation should in my view be a factor telling against him when any breach is considered either by me or by the parole authorities. In the meantime each will have the benefit of remaining in the community.

94. John Huynh you are convicted of the offence that you between 10.20am and 10.45am on 7 October 2008 at Bankstown did rob Jenny W of certain property, namely $60,017 in cash, the property of Bing Lee Store in Bankstown. For that offence you are sentenced to a non-parole period of twenty-two months and a balance of term of eight months. That will be served by way of periodic detention.

95. Ali Attar you are convicted of the offence that you at 10.15am on 7 October 2008 at Bankstown did rob Jenny W of certain property, namely $60,017 in cash, the property of Bing Lee Store in Bankstown. For the offence you are sentenced to twenty months non-parole and a balance of term of six months. That sentence is to be served by way of periodic detention.

96. Hasan Hawat likewise you are convicted that at the same time and place at Bankstown you did rob Jenny W of certain property to which $60,017 in cash, the property of Bing Lee Store in Bankstown. In your case I decline to set a non-parole period. Your sentence will be suspended conditional upon you entering a bond to be of good behaviour for a period of twenty months from today, expiring on 10 February 2012.

97 - 98.. DISCUSSION BY HIS HONOUR

98. DISCUSSION BY HIS HONOUR

99. Mr Huynh the sentence that I imposed on you will commence on 23 June 2010. The non-parole period will expire on 22 April 2012 if my maths is correct. And the whole sentence will expire on 22 December 2012, so just before Christmas on 2012.

100. Mr Attar your sentence will likewise begin on the 23 June 2010. The non-parole period will expire, if my maths is correct, on 22 February 2012. And the whole sentence will expire on 22 August 2012.

101. Both of you however even though your sentences begin on the 23rd are to turn up to Silverwater Gaol on the 24th at 8.30am. Now remember if there is a failure to attend it then becomes very serious and you don’t come back to court and argue, it’s an administrative decision that you go to gaol for those times that I’ve just announced. All right. And it’s entirely up to you whether you keep what you’ve been offered or you blow it.

102. My thanks to everybody for the assistance I received earlier and I apologise again for the delay. I’ll adjourn.