R v Charrouf

[2006] NSWDC 142

CITATION:	R v Charrouf [2006] NSWDC 142
HEARING DATE(S):	08/12/2006
JUDGMENT DATE:	8 December 2006
EX TEMPORE JUDGMENT DATE:	12/08/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [19]
CATCHWORDS:	Criminal Law - Sentence
LEGISLATION CITED:	Crimes Act
PARTIES:	Crown Bassam Charrouf
FILE NUMBER(S):	06/21/0310; 06/11/0564
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Bassam Charrouf appears for sentence today on two matters appearing on separate indictments. The first matter concerns an offence committed on 11 December 2005, the second, an offence committed on 6 July 2005. In each case Mr Charrouf has pleaded guilty. He has been in custody continually since 12 December 2005.

2 The offence on 11 December 2005 was committed with a number of other people. Originally Mr Charrouf stood trial with two of them, Mr Fajajo and Mr Alameddine, but part way through the trial I discharged the jury as far as Mr Charrouf was concerned. In the event the jury found Mr Alameddine and Mr Fajajo guilty and on a later occasion Mr Charrouf pleaded guilty to his involvement in that offence. However, as the entirety of the material from the trial was not necessarily admissible against Mr Charrouf, I have dealt with that matter separately from the matter of Mr Alameddine and Mr Fajajo.

3 A statement of agreed facts was tendered in relation to that offence, which does not differ significantly, if at all, from the evidence called at trial. But, in any case, as I have said I will sentence him on the basis of the material put before me today, rather than the material that I heard during the trial.

4 What occurred on 11 December 2005 was that Mr Gargan, who was a twenty-one year old Irish tourist in Australia on a working holiday, was walking towards his home at Kings Cross. As he got close to his apartment he saw a number of young men standing together in a group. He walked past them but sensed that they, or some of them, had begun to follow him. As he got close to his apartment block he heard a male voice behind him say, “Give me your keys”, to which he succinctly replied “Go fuck yourself”. Mr Gargan then turned around and saw two males confronting him. One of them snatched the keys from his hand and then both of them started to hit into his face, jaw and his temple with closed fists. At first Mr Gargan tried to hit back but eventually he was left in a situation where all he could do was protect himself. He placed his hands over his head accordingly. As he was doing that a third person ran up and joined the first two. Mr Gargan said that he saw three people attacking him, although I am satisfied that there were in fact four. This is because unbeknownst to both Mr Gargan and the men attacking him police were conducting a surveillance operation. They actually saw the offence being committed. They saw that one of the initial attackers was this offender, Bassam Charrouf. They saw this offender and Mr Fajajo grab Mr Gargan, push him into a small alcove and begin attacking him. The police managed to see all four people attacking Mr Gargan as he attempted to cover his head with his hands. Police intervened as quickly as they could apparently, running towards the group with firearms drawn. Bassam Charrouf ran away as the police approached and was arrested the day after.

5 As a result of the attack upon him the victim lost his keys and suffered abrasions to his elbow and tenderness to his face.

6 The offence which occurred earlier in time, on 6 July 2005, occurred in the following circumstances. The offender was at the home of Colin Baldwin on 6 July with a number of other people, including his brother, Mohammed Charrouf. They decided that they wanted some food and so the offender telephoned the Dominos Pizza outlet, ordered six pizzas, two garlic breads and some drinks. One of the people who was present at the time removed some money from his pocket and offered it to Bassam Charrouf as his contribution to the cost of the food. The offender replied “No, don’t worry about it, mate”, and the offender’s brother said “We’ll just jump him”. Thus, there was some planning which went into the offence which later occurred. Twenty minutes after the telephone call made by the offender he and his co-offenders left the unit and went to the address where they had asked for the pizzas to be delivered. The victim, the pizza delivery man, arrived at that address. He carried the food inside the foyer of the block of units where he was confronted with the offender and a number of other young men. He said “Okay, that’s $39.45, thanks”. What happened then was that someone knocked the food out of his hand, it was picked up by others, the offender was one of those who took the food and ran away. In fact what happened after that was that the pizza delivery man noticed that one of Mr Charrouf’s co-offenders was armed with a bat and taken from him was a mobile phone, a wrist watch, his personal wallet and fifty dollars in cash.

7 The statement of facts records, and I will sentence the offender on the basis that, the offender was not a party to the production of the weapon or the theft of the personal items belonging to the victim and was not aware that the weapon was going to be produced. He is to be sentenced on the basis that he had planned only the theft of the food and drinks from the victim and had not been aware of any agreement to steal personal items from him.

8 The offender was detected after some DNA analysis was conducted on partially eaten pizza crusts which police later located. The fact that the offender was identified through that means shows the remarkable progress that has been made through the use of DNA analysis to detect and identify offenders. The DNA analysis was also confirmed when the older technology of fingerprint identification was used to identify one of the offender’s fingerprints on one of the paper bags that the pizzas had been in. The offender remained at large in relation to that matter until his arrest, as I have said earlier, on 12 December 2005.

9 The offender has been brought up in a loving family. He has had many opportunities in life, but he does not appear to have taken all of them. He was born on 21 May 1983 and he is thus now twenty-three years old. His parents separated when he was approximately nine years of age, and the offender remained living with his mother. He has a close relationship with both of his parents, despite their separation. He was educated at Riverwood Public School and then Narwee High School. However, he began getting into trouble a lot at high school because he was mucking up, fighting and missing school. He was suspended numerous times before finally he was expelled halfway through year ten. He then commenced an apprenticeship as a spray painter and has held various occupations. However, he has not been able to work since he sustained injuries in a motor cycle accident on 26 December 2004. He does not drink alcohol and uses drugs only occasionally.

10 The motor vehicle accident that I mentioned has resulted in the offender suffering some permanent injuries, in particular he has lost his hearing in his left ear, and now suffers from problems with his memory. A psychologist’s report suggests that the head injury has not resulted in any diminishing of his IQ, but he does have problems with new learning and recent memory functioning. It is possible, says the psychologist, that there might be some further improvement in his memory difficulties, although it is likely that they will continue indefinitely.

11 The offender has a criminal history which is significant because it demonstrates a continuing attitude of disobedience towards the law. There are matters on it which are of significance, for example, an offence of maliciously wounding a person with intent to inflict grievous bodily harm, for which he was sentenced to imprisonment, in the Sydney District Court. It is to be noted that this offence predated the motor vehicle collision, and so it could in no way be attributed to any consequences of the head injury he suffered. There are also offences of common assault, for which he was sentenced to imprisonment, two offences of assault occasioning actual bodily harm, again which resulted in imprisonment, and an offence back in 2001 of robbery in company. He was dealt with in the Children’s Court for that matter and put on community service. At the time of the Kings Cross offence he was on a bond for offensive behaviour and entering inclosed lands. That is a matter of significant aggravation. The offender was also on that bond at the time of the pizza offence in July 2005, again a matter of aggravation.

12 Whilst dealing with matters of aggravation it is to be noted that the offence of 11 December 2005 was committed whilst the offender was in company and resulted in Mr Gargan suffering actually bodily harm. It may well be that many offences involving corporal violence result in actual bodily harm, and so I have to be careful not to double count, but there is that circumstance of aggravation, which it is appropriate to take into account.

13 In relation to the offence in July 2005 I am satisfied that the pizza delivery man was vulnerable in the sense that that word is used in s 21A of the Crimes Act and that the offence involved a degree of planning. Indeed, it is apparent that the offender was planning this for some time because of the false address that he gave when he ordered the pizza in the first place.

14 The pleas of guilty are to be recognised. There is a utilitarian value attached to those pleas. In the case of the Kings Cross offence the plea of guilty was quite late, it occurring after a trial had commenced in relation to that matter. I will discount that sentence by ten per cent to reflect the utilitarian value of that plea.

15 In relation to the pizza matter, that plea came only after the offender was committed for trial, but it came before any trial date was set. I will discount that sentence by twenty per cent to reflect the utilitarian value of that plea.

16 Mr Adler who appeared for the offender said that I should take into account that the offender was remorseful. The only evidence to suggest that came in a letter which the offender wrote addressed to me. Despite the Crown making clear its attitude towards that material, there was no evidence which could be tested by way of cross-examination to suggest that the offender was remorseful. I am not satisfied that the offender has discharged the onus of proving that he is remorseful. It is a simple matter to write what the offender wrote, but in circumstances where there is no sworn evidence to back it up and where the offender has not put himself in a position where he can be cross-examined about the genuineness of those expressions of remorse, I am not prepared to find that the offender is in fact remorseful. Nor am I prepared to find that he has good prospects of rehabilitation. As I think I said earlier, the offender has displayed a continuing attitude of disobedience towards the law and there is nothing in the material that I can see which suggests that there is any good prospect of that changing.

17 The offender will do his time in custody harder than might otherwise be the case for two reasons, the first is that because of his low level intellectual functioning, as Mr Adler suggests, the offender will be less able to deal with the issues that come up whilst in custody. However, I have not placed too much weight on that given the circumstance that those with low level of intellectual functioning are vastly over-represented in custody. The offender in common with many other offenders is functioning at a lower level than many people in the population. There is however, one more important feature and that is this, the offender was attacked and stabbed whilst in custody on an earlier occasion. He will have understandable fears that that violence might be repeated. Those fears will mean that he will do his sentence harder than would otherwise be the case.

18 In each case the property taken was of relatively low monetary value, some pizza and other food in one case, and a set of keys in the other. But, the value of the property taken is the least of the concerns which victims of such offences express. The objective gravity of this offence comes from the fact that people going about their lawful occupations, or people simply heading home after a night out, are confronted by groups of young men intent on obtaining for themselves property, caring nothing for the consequences of their actions to the victim of such offences. These offences were both objectively serious. They carry with them maximum penalties of twenty years imprisonment, which indicates the concern expressed by parliament, and also the community, at the prevalence of such offences. No suggestion was made by Mr Adler that I would find special circumstances in this case. I decline to do so.

19 The sentences I impose are as follows; for the offence of 6 July 2005 the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to commence on 12 December 2005 and a head sentence of four years. For the offence commenced on 11 December 2005, I set a non-parole period of two years and nine months to commence on 12 December 2006 and a head sentence of four years. The non-parole period will expire on 11 September 2009 on which day the offender is eligible to be released to parole.

20 The overall sentence is one of a non-parole period of three years and nine months, with a head sentence of five years.

21 I will make a recommendation that Mr Charrouf’s medical condition be investigated in accordance with the suggestions made by Dr Pulman in her report of 5 December 2006, in particular that he undergo an MRI scan and be referred to a neurologist, and consideration be given to a review by a brain injury unit at a major hospital.

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