R v Chaouk

[2009] NSWDC 36

CITATION:	R v CHAOUK [2009] NSWDC 36
HEARING DATE(S):	27 February 2009
EX TEMPORE JUDGMENT DATE:	27 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to an overall effective period of imprisonment of four and a half years non parole period with a head sentence of seven years
CATCHWORDS:	CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Possess unauthorised pistol - Greed - Planned - Youthful offender
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Henry (1999) 46 NSWLR 346;
PARTIES:	The Crown Khaled Chaouk
FILE NUMBER(S):	DC 08/11/0870
COUNSEL:	Mr I McClintock SC (Offender)
SOLICITORS:	NSWDPP Advance legal (Offender)

SENTENCE

1 HIS HONOUR: The offender Khaled Chaouk appears for sentence today on two specific matters; an offence of armed robbery and an offence of possessing an unauthorised pistol. When I sentence him for the first of those matters he asks that I take into account another eight matters on a Form 1, two of those were also offences of armed robbery. The offender was eighteen when he committed these serious offences. He is but nineteen now, almost twenty.

2 He has a relatively minor criminal history but it is somewhat remarkable that a person as young as this offender has committed such serious offences that it is the duty of this court to send him to gaol for a significant period of time. Mr Chaouk has started at the very top, not for him the commonplace gradual escalation of offending. It is to be hoped that the deterrent nature of the sentence I will announce on him in a few minutes and his experience of life for an extended period of time in an adult gaol will be of help to him upon his release.

3 These armed robbery offences were offences of a most serious kind. In each case the offender was armed with a firearm and in each case the victims of the robberies were also armed with firearms. The potential for disaster was enormous and it is probably a matter of good fortune, together with the good training of the victims of the various robberies, that no one was hurt.

4 The first of the offences of which the offender is to be dealt with today appears on the Form 1. It was committed at 8.25 am on 14 January 2008 when an Armaguard vehicle arrived at Bankstown Shopping Centre. The four guards in the vehicle were there to collect some money from a supermarket inside the shopping centre. They also had to deliver some change about $7,000 in coins.

5 They had been there for but a short time when a silver Mercedes drove up. The offender and two other men got out each wearing balaclavas and each armed with handguns. They approached the Armaguard officers pointing their handguns towards them and took the officer’s firearms, they also took the coins that I mentioned earlier. They tried to get into the vehicle itself but did not succeed. The three men then got back into the car which was driven by a fourth offender and it drove off.

6 Emboldened perhaps by their success, the offender and his co-offenders did something very similar the following day. This further offence of armed robbery also appears on the Form 1. This time they targeted an Armaguard vehicle at the Shell Service Station at Lidcombe. Two of the Armaguard officers took money from their van and went into the service station, they then came back to the van with money from the service station and put it into the vehicle. It was then that a black Mercedes motor vehicle, that had previously been stolen, drove into the service station area.

7 Once more three men, including this offender, got out of the car and pointed their fire arms at the Armaguard officers. One of the officers did what was asked but the other sought refuge in the rear of the Armaguard vehicle, The man who remained on the ground had his firearm stolen by one of the offenders. The offenders then made repeated demands for this now unarmed and presumably terrified officer to grant them access to the inside of the Armaguard vehicle. This was not possible due to the mechanical workings of the Armaguard vehicle. The fact that this could not be done no doubt added to the fear that this unfortunate officer felt. How was he to know that the demands made by the offenders who were clearly armed and dangerous would not escalate to actual violence? Fortunately, however, this did not occur but the man lying on the ground was not to know that at the time. The three offenders, as in the offence the previous day, went back to the Mercedes Benz, got into it and it was driven away by the fourth offender.

8 Thus far the offenders had managed to steal four firearms from security guards. They did not cease their activities.

9 The next offence was committed on 22 January 2008 and it is this offence for which the offender is to be specifically sentenced. This time it was a Chubb security van which attended a service station in Granville, the officers were there to replenish an automatic teller machine. There were four guards at the service station, one remained inside the armoured vehicle, one stood on the footpath and the two remaining guards entered the service station to do what they had to do. They carried the cash in cassettes ready to be used to replenish the ATM inside the service station.

10 The Mercedes Benz turned up once more and once again three men, including the accused, wearing balaclavas and armed with handguns, got out of the Mercedes Benz. It was this accused who approached the guard standing near the footpath, demanding his firearm. He actually removed the guard’s revolver from his holster. He stayed near this guard with his firearm pointed at the unfortunate security guard whilst the other two offenders ran into the service station. When they got there they ordered the security guards inside to lie on the ground, which the security guards did. Each of the offenders in the service station took the revolvers from the holsters of the security guards and grabbed two of the three cash cassettes that the security guards had brought in. The money that they took amounted to approximately $160,000. The three offenders then left by getting back into the Mercedes which was driven away at high speed.

11 It is worth noting that at the time of this offence the service station was open for business and a number of customers were filling their vehicles with petrol. All of these offences committed by armed offenders on armed security guards had, as I mentioned at the outset of these remarks the potential for many innocent bystanders to be harmed. No doubt they were frightened. The possibility of physical injury or death was very much a real one.

12 As a result of some information which police obtained they were granted a search warrant relating to the accused’s residence in Merrylands. Police went to that residence where they spoke to two of the offender’s brothers. One of the brothers, Farouk, told police that one of the bedrooms in his house was his. In fact the bedroom really belonged to this accused. When police forced entry into the room, it being locked, they found two fully loaded Smith & Wesson .38 revolvers in an open wardrobe. It appears that those two were two of the six revolvers that had been stolen in the course of the robberies that I referred to.

13 Farouk maintained the lie that it was his room, not surprisingly therefore he was arrested, entered into custody and later released without charge. Also located in the bedroom were a further three revolvers, and a number of other items, including ammunition, a significant amount of Australian currency, balaclavas, gloves and clothing all connected with the offences that I have set out. To make things easy for the police, the offender had retained items which clearly connected him to the offences. Police soon worked out that Farouk was not telling the truth about whose bedroom it was, as the only items that they could identify in the room belonged to Khaled Chaouk. In those circumstances the offender surrendered himself to the police voluntarily.

14 Mr McClintock submits that that is consistent with his desire to assist the authorities and as evidence of his remorse. It is also to be noted that one of the things that his surrendering achieved was that police were finally able to determine once and for all that his younger brother was not involved in the offences.

15 As I mentioned before the offender has a relatively minor criminal history and certainly there are no offences even approaching the seriousness of the ones I have just described, on his criminal history. The offender has had an uneventful childhood, his father has been working as a plumber and his mother cared for the children at home. The offender was raised in a close and loving family and his decision to engage in these offences is very difficult to understand indeed. Mr McClintock suggested that the evidence established that the offender was a good student achieving success at school, particularly in the area of graphic design until falling in with the wrong crowd. Since doing that the offender has left school, barely worked, commenced to use drugs and committed these most serious offences.

16 The offender suggested in material tendered before me that he was motivated to obtain money to buy drugs and to pay off a drug debt. It has to be said that Mr McClintock accepted the reality of the situation, so that whilst this partially explained why his client did what he did, a significant motivation for his client’s offending was simply greed.

17 It is said that the offender has expressed his remorse since committing these offences. Evidence was tendered in the form of documents signed by the offender’s father and brother as to what the offender had said to them regarding his involvement in these offences. The offender’s brother’s statement is of particular relevance, he is employed as a security guard and the fact that his brother committed all of these offences against security guards was a matter of concern to the offender’s brother.

18 The offender expressed his remorse by speaking to others but gave no evidence about that today. The offender did not give sworn evidence about his feelings, about what he had done. The offender did not expose himself to cross-examination so whilst there is evidence that he has accepted responsibility for his actions and acknowledged the consequences of his offending to the victims of it, the offender was not prepared to back that up by saying such things in the witness box today. There is evidence to establish remorse but I will frankly not place too much reliance on it in those circumstances.

19 Of course the starting point in determining the appropriate sentence to impose upon the offender is the guideline judgment in R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R, it could not be said that a small amount of money was taken. It could be said that the weapons used were significantly more dangerous than the weapon contemplated in the Henry guideline. In the offender’s favour the pleas of guilty were entered at an early stage and were not of limited utility as the Henry guideline contemplated. Of course these offences were also committed not only when the offender was armed but in company and it is a more serious offence to commit an offence of this type whilst armed and in company than whilst armed and alone.

20 Although the use of a weapon is an element of the offence the fact that the weapon in this case was of such potential lethality makes this offending more serious than would otherwise be the case. In the Henry guideline case, the postulated offence has a limited degree of planning. It is difficult to accept that that description applies to these cases. It could not be suggested realistically that the offenders were driving around in a stolen Mercedes with their gloves, balaclavas and firearms by their sides, waiting to come across a convenient armoured van.

21 Whether the offender was involved in the detail of the planning as to who was to do what or simply received instructions is not made clear on the evidence. But what is clear is that these offences were well planned and the offender accepted his role apparently.

22 Of course I could have already noted, but will do now that there is a significant amount of overlap between the circumstances in the Henry guideline and aggravating and mitigating features set out in s 21A of the Crimes Sentencing (Procedure) Act. One of those concerns the question as to whether the security guards were vulnerable, I want to make it quite clear that the fact that I have mentioned the factor under s 21A does not mean that I have double counted when that factor is also referred to in the Henry guideline.

23 Perhaps it was unnecessary to say, but it is best to make things clear. I do find that the security guards were vulnerable because of their occupation. The fact that they were armed does not reduce their vulnerability, they are obvious targets and vulnerable by reason of their occupation. I also take into account that it was not only money that was stolen, the theft of lethal firearms is a matter of great concern to the community, such weapons are highly valued by those who would, like the offender, commit offences using them. It is fortunate that most, but not all, it would seem, of the firearms stolen have been recovered.

24 The offence of possessing an unauthorised pistol carries with it a standard non-parole period of three years, of course that standard non-parole period is not of direct application because of the plea of guilty but it remains as a guidepost which I will have regard to. I am satisfied that the offence is in the middle of the range for objective seriousness of offences of this type. There is, for reasons identified in the course of submissions an overlap between the armed robbery offence and the possess unauthorised pistol offence and I have been careful to take that overlap into account in formulating the length of the appropriate sentence.

25 It is certainly not the case that the fact that many of these matters are on a Form 1 leads to only a small increase in penalty to be imposed. The offences are of such seriousness that there needs to be a substantial increase in the sentence to reflect the matters on the Form 1. Indeed it has to be said that there might be good arguments for suggesting that the placement of two armed robbery matters of this type on a Form 1 is inappropriate. Nevertheless that is not for me to decide, I deal with the matter as it is presented to me.

26 Mr McClintock appropriately relied significantly on the offender’s youth. As I mentioned he was only eighteen at the time of these offences, he is nineteen now, shortly to turn twenty. A person does not magically achieve on their eighteenth birthday the level of maturity that comes with becoming an adult. Specific sentencing principles apply when sentencing those under the age of eighteen, all or almost all based on the proposition the immaturity is a significant factor in determining what to do with an offender who commits a serious crime. Those principles, whilst not statutorily present in the present case, do not cease to be relevant simply because the offender has reached his eighteenth birthday.

27 I will take account in a significant way the youth of the offender. Because of his age he probably did not have the maturity to fully understand, and I emphasise the word “fully” understand the consequence of his actions. On the other hand the authorities with which the Crown, Mr McClintock and I are all familiar, make it very clear that when a young person commits an offence of an adult nature, these offences fully fitting that description, the weight that can be given to an offender’s youth is reduced. In any case the offender’s age clearly amounts to a special circumstance which allows me to vary the relationship between the non-parole period and head sentence that would otherwise apply.

28 Mr McClintock said that his client was unlikely to re-offend. I simply cannot make that finding based no the material presented to me today. There are prospects for the offender’s rehabilitation but I cannot say that he is unlikely to re-offend. Much will depend on how the offender matures over the next few years whilst he is in custody. In his favour, he has a loving family which has stood by him, they are present here in court today. If he is willing to accept their help then it is possible that he will be able to put offences of this type behind him.

29 I have structured the sentence in this way, I will impose a fixed term on the offence of possessing an unauthorised pistol and then taking into account the matters on the Form 1, impose a sentence for the armed robbery which is partially accumulated upon the fixed term.

30 The sentences are as follows:

31 For possessing an unauthorised pistol, I set a fixed term of imprisonment of two years to date from 25 January 2008, the day on which the offender went into custody, that is a fixed term because of the sentence I will now impose on the other matter.

32 For the offence of armed robbery I set a non-parole period of three and a half years to date from 25 January 2009 and an overall head sentence of seven years. Thus the overall effective sentence is a period of imprisonment of four and a half years with a period of eligibility for parole of two and a half years, making a head sentence of seven years.

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