R v Charrouf (aka Obeid)

[2020] NSWDC 311

District Court

New South Wales

Medium Neutral Citation:	R v Charrouf (aka Obeid) [2020] NSWDC 311
Hearing dates:	05 June 2020
Date of orders:	05 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 11 years with a non-parole period of 7 years 6 months
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Aggravating factors — In company SENTENCING — Aggravating factors — Use of weapon SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Co-offenders — Parity SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Borkowski v R [2009] NSWCCA 102 Callaghan v R [2006] NSWCCA 58 Cheung v The Queen (2001) 209 CLR 1 Muldrock v R [2011] HCA 39 Munda v The State of Western Australia [2013] HCA 38 Neal v The Queen (1982) 149 CLR 305 Qutami [2001] NSWCCA 353 R v Henry [1999] NSWCCA 111 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Bassam Charrouf (Offender)
Representation:	Andrew Isaacs (Crown Prosecutor) Joanne Gallagher (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Rizk and Associates
File Number(s):	2017/00135881

EX TEMPORE REVISED JudgEment

INTRODUCTION

1. These are the sentence proceedings in respect of Bassam Charrouf, also known by the name of Obeid. He is for sentence today after his plea of guilty on arraignment for an offence contrary to s 112(3) Crimes Act 1900, expressed in the following terms, that he:

“On 26 April 2017 at Wentworth Point in the State of New South Wales did break and enter the dwelling house of TP, situated at Cornishe Drive, Wentworth Point, and then in the said dwelling house did commit a serious indictable offence, namely, the [offender] and Abdul Zahed did wound TP in circumstances of aggravation being in each other’s company, and in circumstances of special aggravation being armed with a dangerous weapon being a pistol.”

PENALTY

2. The maximum penalty specified for the offence is imprisonment for 25 years. There is a standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act1999; the term specified is seven years.

PRE-SENTENCE CUSTODY

3. The offender has been in custody since his date of arrest on 17 May 2017. When he committed this offence he was subject to parole, which was in due course revoked and thus he was required to serve a balance of parole from that date, 17 May 2017, until its expiration on 24 March 2018. Thereafter, from 25 March 2018, he was in custody solely referrable to this offence. Before then he was without bail in respect to this offence.

4. In accordance with the discretion that I have, as discussed by Simpson J in Callaghan v R [2006] NSWCCA 58, I propose to commence this sentence on 17 October 2017. This is partly concurrent and partly accumulated upon the balance of parole that he served arising from his previous conduct.

THE STANDARD NON-PAROLE PERIOD

5. The standard non-parole period is a matter of significance in the assessment of sentence.

6. The provisions introducing standard non-parole periods are contained in Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. These were amended into their present form after the decision of the High Court in Muldrock v R [2011] HCA 39. Thus, following the amendments, the standard non-parole period is a matter to be taken into account as part of a single stage process in determining the appropriate sentence, without limiting matters required or permitted to be taken into account in the course of the instinctive synthesis required in the exercise of the sentencing discretion. The standard non‑parole period and the maximum penalty are legislative guideposts to be brought into account in determining the appropriate sentence. The Court is required to assess the objective gravity of the offence both with regard to common law principles and upon the application of these provisions.

7. These provisions were discussed and summarised by Johnson J in Tepania v R [2018] NSWCCA 247 at para 110. His Honour continued at para 112:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

8. His Honour went on to discuss the concept of moral culpability used by the sentencing judge in a rather flexible way in the course of the determination of sentence and subsequently given appellate consideration.

9. His Honour also referred to the assessment of an offender’s environment through formative stages of life, discussed in Munda v The State of Western Australia [2013] HCA 38. An environment of abuse of alcohol, as was considered in that decision, is a matter always to be taken into account when assessing moral culpability, to be balanced against the seriousness of the offending.

10. Some of the comments by his Honour are apposite in this case in light of what is put before me regarding this offender and his misuse of prohibited drugs, said to have been instrumental in his decision to participate in this crime. I shall further consider those propositions when I come to assess the subjective case presented on behalf of the offender. For present purposes, however, I should observe that I agree with the Crown’s observation that this offence is to be assessed as falling above mid‑range of objective seriousness. Applying the principles to which I have referred I have come to the view that it falls perhaps midway between mid‑range and the upper end of the scale of seriousness in light of the factual matrix in which the offence was committed and bearing in mind the nature of the serious indictable offence that was the subject of the charge.

11. As was noted in the course of submissions the concept of a serious indictable offence extends from offences which carry a maximum penalty of five years, for example, larceny, up to those that carry maximum penalties extending to as much as 25 years. The serious indictable offence that was committed in this case is at the higher end of the scale of seriousness when considering the maximum penalties provided for serious indictable offences, and thus, though I accept that the purpose that these offenders had in breaking and entering the dwelling house of the victim was theft, they committed the much more serious offence of wounding, they were in company, and they have the burden of the circumstance of special aggravation that one of them, Zahed, was armed with a .38 calibre self‑loading pistol used to inflict the wound upon the victim.

12. It is always a matter of judgement where one should place the objective seriousness of an offence upon the scale and minds will differ, but I am satisfied that is where I should place this matter.

13. It does not follow as an automatic consequence though that the standard non-parole period of seven years, perhaps with some supplement to reflect the increased seriousness of the offence, should be imposed. The ultimate determination of sentence, including the non-parole period, will depend upon the synthesis of objective and subjective facts brought to account, including to the extent that there might be established contrition and remorse, to which one then applies the discount for the utility that the plea of guilty has provided.

THE PLEA OF GUILTY

14. Both parties have conceded that a discount of 10% for utility is appropriate in this case.

15. The history of the proceedings includes the committal for trial on 30 July 2018 at Burwood Local Court and arraignment on 23 August 2018 thereafter. The trial was first listed for 29 January 2019, but vacated on 4 February 2019 to allow the co-accused Najman to be sentenced. I presided in those proceedings and imposed sentence on that offender. A second trial was listed on 8 October 2019, but vacated on 17 October 2019 for trial on 25 November 2019 with the co-accused Zahed. The trial was vacated on 3 December 2019 due to a change in the offender’s legal representatives on the first day of trial and the matter was listed for trial on 30 March 2020. The trial was vacated on 1 April 2020 upon the offender’s plea of guilty.

16. Applying the statements of principle from Borkowski v R [2009] NSWCCA 102 I agree a discount of 10% for utility is appropriate in this case.

THE FACTS

17. This is serious criminal misconduct.

18. I shall now refer to the facts and circumstances that are before me by way of an agreed statement. These make reference to the three offenders, Mr Charrouf also known as Bassam Obeid as I noted, Qajin Najman, and Abdul Zahed. The victim, TP lived in a building in Wentworth Point. This is an apartment building consisting of eight floors with an underground car park. The building and the car park are secure and residents must, to access the property, swipe their individual security passes. Each security pass allows only the resident access via the lift to the level on which their apartment is located. I understand that it also gives access to the car park area.

19. On 28 April 2017 Najman knocked on the victim’s unit door and together they had a short conversation and exchanged contact details. This was the first occasion that she and the victim had spoken. Later that day Najman came to the apartment and asked to have a look around to compare her apartment to his. She stayed for about 20 minutes and then left. About 1.30am on 26 April 2017 the victim returned home to his unit and bumped into Najman. They both went to his apartment and smoked a cigarette on his balcony. She was using her mobile phone. About 2am she left suddenly; she said that she had to go. The victim found this to be strange. He retired to bed.

20. About 4.30am on 26 April 2017 the victim woke to a loud knock at the door. He looked at his phone and saw a message sent by Najman at 4.24am saying “I left my swipe can YU pls open”. The victim rose from bed and opened the door. Najman was standing there alone, wearing a black singlet top and tracksuit pants and thongs. She told him that she could not find her swipe card and asked if she could come inside to have a look for it. The victim allowed her entry and closed the door behind her. She began to look around the lounge room and then walked back to the victim and opened her wallet. He noticed her swipe card inside the wallet and said “Isn’t that your swipe card?” to which she said “Oh yeah it is, sorry babe, I’m just a bit fucked”. She then went to door and opened it.

21. He held the door open for her to leave and she did. He began to close the door when Zahed and this offender barged through, forcing it open. The offender was armed with a knife and was wearing a baseball cap, jumper and tracksuit pants with a dark coloured bandana covering the lower half of his face from the bridge of his nose down. Zahed came into the apartment behind this offender, wearing a baseball cap, jumper and tracksuit pants, with a bandana covering half of his face. The offender approached the victim, holding the knife in his right hand and pointed it at him. He shouted “Move back, move back”. The victim took a step backward, but the offender continued to approach him. The victim then punched the offender on the face knocking his baseball cap from his head. Zahed then approached the victim and pointed a dark silver coloured handgun at him. He held the gun in his right hand and pointed it at the victim’s chest; he was about 2 metres away. The victim began screaming and Zahed yelled “Get the fuck out of the way”. The victim jumped to the right quickly to get away from Zahed and as he moved Zahed fired the handgun in his direction, however the bullet missed.

22. The victim ran around the back of a chair in the kitchen and Zahed, still holding the gun, went into the bedroom. This offender, who had dropped the knife, picked up the kitchen chair behind which the victim was hiding and pointed its legs at him. The victim was screaming for help. The offender threw the chair at the victim and then ran to the door of the unit. Zahed came out of the bedroom holding the gun and ran towards the door. The victim ran over behind both of them in an attempt to shut the door, and as he did so Zahed turned and fired the gun at the victim. The bullet struck his left thigh. Both of the offenders then fled.

23. Zahed, the offender, and Najman ran to the lift and went down to the ground floor. They then ran down to the underground car park of the building where they entered a purple Mazda, registration CEAXXX, and drove from the building hurriedly using Najman’s swipe card to activate the doors.

24. The victim called triple-0 and shortly after police and ambulance arrived. He was taken to Westmead Hospital and treated for the gunshot wound to his left lateral thigh at the level of the mid femur, as well as a superficial laceration over his right shoulder which penetrated the epidermis but not the dermis.

25. There was an examination conducted at both the victim’s apartment and Najman’s. Inside the victim’s apartment the police located a baseball cap, a tape lift from that revealed DNA. Upon analysis the offender was shown to be a major contributor of at least four individuals. A knife of about 220 millimetres length was found in the apartment; it matched the set of knifes located in Najman’s apartment. A green Aldi shopping bag was located inside the apartment beneath a dining table with an unopened can of coca cola, a claw hammer, a socket wrench, an emergency glass breaker, a chisel, two green pieces of rope, a white sock and a Phillips brand screwdriver. Both bag and screwdriver were analysed. A DNA trace swab of the handle of the screwdriver revealed that it was Zahed that was the major contributor of at least four individuals. A DNA tape lift from the handle of the shopping bag revealed both the offender and Zahed were major contributors of at least four individuals.

26. Inside Najman’s apartment the police located a cigarette butt; this was analysed for DNA; neither Zahed nor Najman could be excluded as contributors to the mixture that originated from at least two individuals.

27. Two .38 calibre automatic fired cartridges were located inside the victim’s apartment. These were confirmed to have been fired from the same weapon.

28. CCTV was recovered from the victim’s apartment building, together with information from the security swipe card access records. There is a table of events provided in the agreed statement of facts for 26 April 2017. This shows at 12:06:53 Najman exiting the lift and building at 12:23:20 she was standing outside the entrance with a phone. At 12:24:16 she was standing outside the entrance with a phone. Between 12:25:07 and 12:28:50 she was standing outside the entrance with a phone. At 12:30:11 she swiped the pass and entered the building and pressed the lift button. At 12:30:52 she pressed the lift button again and entered the lift. At 1:29:48 she exited the lift and building holding her phone. At 1:32:50 in the garage the purple Mazda sedan with roof racks entered the garage with a male driver and passenger visible. At 1:57:05 the purple Mazda exited the garage with a male driver wearing a cap, and making use of the swipe card. At 2:01:15 the Mazda entered the garage with the male driver and passenger visible. At 4.34:08 to 4:34:14 Najman exited the lift followed by two men with their faces covered. All three turned right and left the view of the camera, but did not leave the building. At 4:34:53 the Mazda was seen exiting hurriedly from the garage.

29. The pass used has the number 11091 allocated; it was the only pass used for access to the building and car park or lift between 15.48.11pm on 25 April 2017 and 6.50.08am on 26 April 2017. That pass was issued to Najman.

30. The motor vehicle was registered to a person of the name Gursoy. On 16 March 2017 he sold the vehicle to Zahed for $5,500. Zahed did not have his licence to complete the transfer and undertook to provide details in due course, but he never did so. Thus the vehicle was never transferred into Zahed’s name. The identity of the vehicle was confirmed by this person. Zahed was stopped by police driving the Mazda at 2am on 24 April 2017.

31. He thereafter was captured on CCTV attending Green Valley Police Station. Telephone and mobile phone records between the accuseds’ phones reveal contact between Najman and Zahed Abdul, the name appearing in her contact list. There was communication using the online Facebook Messenger application between Zahed Abdul and Najman from 14 January 2017 up until 13:31:01 on 26 April 2017. There is a list of the contacts identified. There is reference to further communication by SMS.

32. A photograph was obtained on 14 April 2017 of Zahed and the offender depicting them holding a pistol. This was examined by a ballistics expert and confirmed to be a Walther PP self-loading model, the same model as that used to shoot the victim on 26 April 2017. The actual pistol used in this crime was recovered on or about 12 July 2018 at an address in Granville.

33. Najman was arrested on 27 April 2017. She participated in an interview and in due course she pleaded guilty in proceedings before me and I determined her sentence. In the course of the interview and consistent with the facts upon which I determined sentence for her she agreed that she had seen the victim earlier in the evening and had gone back to look for her swipe card. She referred to two men, who were unfamiliar to her, who had run into the apartment, whereupon she fled. She described what she claimed to observe of these two people and what she did thereafter. This, of course, was inconsistent with what she admitted in due course and inconsistent with what was captured in the course of the investigation by way of CCTV images.

34. The offender was arrested on 17 May 2017. He initially provided a false name; when challenged he fled and was chased down on foot. He participated in an interview and agreed that he knew Zahed and that they had grown-up together. He claimed not to recognise Zahed in the CCTV images shown to him. He denied knowing Najman and denied ever having been to Wentworth Point.

35. Zahed was arrested on 5 May 2017 and declined to participate in an interview. His trial is listed later this year.

THE OFFENDER’S ANTECEDENTS

36. The offender has an extensive record of criminal antecedents. He is 37 years of age now. The antecedents extend over nine pages. The offences include robbery in company on two occasions, assault occasion actual bodily harm on two occasions, taking and driving a conveyance on one occasion, larceny on one occasion, enter a vehicle without consent on one occasion, common assault on one occasion, break, enter and steal on one occasion, offensive behaviour on one occasion, entering enclosed lands on one occasion, aggravated steal from a person on one occasion, assaulting an officer on one occasion, resisting an officer on one occasion, robbery with an offensive weapon on one occasion, maliciously wound with intent to cause grievous bodily harm on one occasion, negligent driving on one occasion, drive whilst suspended on one occasion, disobey a traffic light once and not disclose driver’s identity on one occasion.

36. The more serious offences have led to significant periods of incarceration, and as was pointed out in submissions, he has spent a significant part of his adult life in gaol. His custodial record shows that he entered custody with Corrective Services as an adult on 27 June 2001 and remained until 26 March 2003. After a little more than six months he was returned to custody on 3 October 2003 and remained until 1 July 2004. About seven months later he returned to custody on 30 January 2005 and on the same day was released to bail. About two weeks after that on 13 December 2005 he returned to custody until 11 September 2009. He was released to parole for about 11 months until 8 August 2010 and returned to custody until the expiration of his sentence on 28 December 2010. He was thereafter at large for a year and three months until arrested on 27 March 2012. He remained in custody until 5 July 2016 and was at large for a little more than ten months until taken into custody on 19 May 2017. This is the Corrective Service’s custody. He was in police custody upon his arrest 17 May 2017, which is not recorded in the Corrective Service’s records.

37. He has an array of offences in custody. These extend to almost three pages. Since coming into custody in 2017 he has been dealt with for failure to comply with the centre routine, possessing drugs, unlawfully receiving an article, possessing drugs, possessing tobacco, possessing an offensive weapon, disobeying a direction and refusing to provide a drug sample.

38. He has not given evidence before me to explain his misconduct in gaol, but when given the opportunity to take instructions counsel informed me that the failure to provide a drug sample was because he was unable to urinate at the time. The disobedience of a direction was when he was required to remain away from his cell while there was a search, but returned to his cell in contravention of that direction. The possession of the offensive weapon was a screwdriver, which he acknowledged he had, but claims that he was paranoid, from when he was stabbed at age 21 when in custody. There is nothing in the custodial record about that, except that in 2004 the movement details show that between 26 February 2004 and 30 March 2004 he was in Long Bay Hospital. He has been attributed with representations by the psychologist that at some point when in custody he suffered ten stab wounds and that as a consequence he suffers, according to what was noted, traumatic stress.

39. He has instructed counsel that the possession of the screwdriver on this occasion in custody was the product of paranoia arising from the event in 2004 when he was aged 21. That is 16 years ago. The other challenge to that proposition is that he took a knife into the home of the victim of this crime which he used to threaten the victim in the pursuit of their nefarious goal that was their purpose.

40. I am given access to the Parole Authority documents. The breach of parole report tells me that he was in breach of parole for two reasons. First, he committed offences whilst he was subject to parole, and secondly, that he moved from his address to live where he was found in due course, not approved to do so by the officer. His response to supervision was not entirely compliant. He remained untruthful about the extent of drug use it appears. He was detected using drugs in November 2016, and then directed to engage in community based psychology. His attendance thereafter was sporadic, but appeared to be more honest about his issues during the most recent session in which he participated, and then failed to attend the most recent appointment in May 2017. There was a positive drug test on 15 February 2017 and he was thereupon directed to engage in Drug and Alcohol counselling. He accepted the referral, but he could not commence the program until April 2017 because of the amount of work that they had before them. It is said that although he failed to attend his initial appointment as scheduled he appears to have attended all subsequent appointments until 10 May 2017, when he missed an appointment. He was thereafter approaching the point of his arrest in relation to these matters.

THE CO-OFFENDER NAJMAN

42. As I said earlier I sentenced Najman. I have been provided with my judgement in the material tendered by the Crown. She was allowed a discount of 50%, reflecting utility for her plea of guilty at 25% and 25% for assistance in accordance with s 23 Crimes (Sentencing Procedure) Act1999. This was broken down into a discount for past assistance and future assistance I apportioned 12½% to each to add up to the 25%.

43. Her offence was much less serious than that with which I am concerned here. She was charged with an offence contrary to s 113(2) Crimes Act1900, namely, breaking and entering the dwelling house with intent to commit the serious indictable offence of larceny when in company. The maximum penalty specified was imprisonment for 14 years without a standard non‑parole period. I noted in my judgement that the event in which she participated included a much broader range of criminality in which she was not involved and in respect of which she could not be held accountable from the material that I had before me.

44. She indicated her desire to plead guilty at an early stage in the proceedings. There was a breach of bond with which I was required to deal. I assessed her objective seriousness to be below mid‑range. In looking at the offence in which she participated, and with which she was charged, the facts that I had before me reflected those which were before me in this matter save that there was more detail with regard to the intended stealing upon which the plan was developed.

45. I am asked to accept that the planning and organisation in this case does not evolve until the point when the two male offenders and the female were together in her apartment. The difficulty with that is that the other male offender must have had the weapon with him at some point before he went to the apartment and the plan was executed.

46. On the other hand, consistent with that submission is that the knife used by this offender I find came from the knife block or the set of knives that were in Najman’s apartment. If the planning was to be found to have arisen at some point before I am asked to determine it was, I would have to be satisfied that there was no other inference available from the objective facts and circumstances that are before me, or in other words I would have be satisfied beyond reasonable doubt that there was earlier planning and organisation. I am not in a position to come to that view.

47. However, clearly there was a measure of planning and organisation in the commission of this offence. Both offenders armed themselves. They employed a ruse with which to enter the victim’s apartment, making use of the status Najman had as an occupant in the building with a swipe card that gave her access to her floor and to where the motor vehicle could be placed while the crime was committed.

48. I sentenced her to a term of imprisonment. It consisted of a head sentence for two years and six months, including a non-parole period of one year and eight months. Overall, one might see that as a modest sentence, but bringing into account that her discount was 50% and that she was charged with a much less serious offence, attracting a lesser maximum penalty, it would not be in breach of a parity principle, in my view, to impose the sentence I contemplate against this offender, notwithstanding that it is significantly longer than that which she is required to serve.

THE OFFENDER’S SUBJECTIVE FACTORS

49. Included in the offender’s case is a psychologist’s report. This is provided by Jessica Cortez, written on 31 May 2020. Candidly, the author notes the limitations in the report as a consequence of the assessment being made by way of a telephone call with a time constraint of two hours approved for the purposes of the assessment. Thus the circumspection that Smart AJ urged in Qutami [2001] NSWCCA 353 is apposite in this case. I cannot understand how anyone can make a proper and reliable assessment of veracity or reliability in the circumstances in which this assessment was performed.

50. The report asserts that he meets the criteria for opioid use disorder, of severe severity in a controlled environment, an unspecified anxiety disorder and an unspecified depressive disorder. It is said that he would meet the criteria for Type II Trauma, or complex post-traumatic stress disorder. The basis for that are the representations attributed to the offender of abuse said to have been suffered in his developmental years, given the name developmental trauma, and consequently trauma associated with a stabbing and a motorcycle incident in 2005.

51. I have no material before me regarding the precise nature of those events or, indeed, the subject given the name “developmental trauma”, save that the history attributed to him includes the separation of his parents when he was young. He is unable to recall specifically when this was, but he noted that he resided with his mother predominantly thereafter. He has three brothers, one who is older, a twin, and one who is younger and a younger sister. His father was physically and verbally aggressive towards his mother and to him as well. I take that to have been in the period before the separation of his parents when he was younger, the precise time of which is not available to me.

52. He had behavioural issues at school, both in primary school and at high school. He was involved in physical altercations with other students and was expelled in year ten. He was average, but was not interested in learning. He undertook a TAFE apprenticeship as a spray painter when he was about 17. He completed one year, but suffered a prison sentence after that. He has had no stability in employment, because of his entry to prison, as I have earlier outlined.

53. He was 15 or 16 when he began using drugs, smoking cannabis on a daily basis. He turned to heroin at about 21, smoking it. He also took Xanax daily in conjunction with heroin. This report tells me that Xanax is used as a counterbalance to the impact of heroin. It is said that at 5.7;

“Mr Charrouf reported that these offences occurred in the context of his significant substance abuse problem. It is noted that Mr Cheroot’s substance abuse problems have developed against a background of developmental trauma, with his father’s verbal and physical abuse growing up, as well as the stabbing and motorcycle accident he was involved in.”

54. The proposition advanced in the report to the effect that he committed this crime under the influence of drugs is a matter that I do not take into account in the mitigation of penalty. I am not permitted to do so, because of s 21A(5AA) Crimes (Sentencing Procedure) Act1999. That said I accept that the assistance provided in the guideline judgement in R v Henry [1999] NSWCCA 111 at paras [273] and [274] with regard to the significance of a history of drug use does have application here. If he has been using drugs to the extent he claims, which I might say is consistent with his criminal antecedents and with the breach of parole report that I have, there must have been some impact upon his judgement with regard to the decision he made to participate in this crime.

55. It is always difficult though to make an assessment about these matters in the absence of evidence from the offender. An opportunity was taken for instructions upon whether he should enter the witness box when concerns were raised with regard to the psychologist’s report but in due course I was informed that he would not be giving evidence. He cannot be compelled to do so and he should not suffer any penalty upon the decision he has made not to enter the witness box and provide sworn evidence tested by cross‑examination to establish the bases upon which this psychologist asserts that she has come from for her opinions.

56. Equally however one cannot then with confidence accept the premises upon which the opinions are offered, or, indeed, the opinions that ultimately are provided.

57. The report is sympathetic, but as the Crown correctly points out, the timeline that is evident in his record of criminal antecedents, drawing upon when it is said that he suffered the stab wound, and when it is said or thought that he might have been involved in the motorcycle accident, all fell at a point at or about the occurrence of the fifteenth of the offences appearing in his antecedence report, which sets out a total of 26 separate occasions when he has offended.

58. I agree with the submissions of the Crown that the opinions offered by the psychologist are in large measures speculative. The attribution to this conduct of limitations said to be the sequelae or consequences of past stressful events and drug misuse does not sit comfortably with the measure of planning or organisation that was implicit in this crime.

59. I should make clear that planning and organisation is not brought to account as an aggravating factor, but as part of the factual matrix upon which sentence is to be determined.

60. It is also noted that the offender’s representations are many years after the offence, and there is no independent source of information regarding the impact of his drug use and the contribution his past life has made to it.

61. There was psychometric testing performed, but again the reliability of the outcome achieved in that exercise must be qualified in light of the limitations implicit in the way this assessment was made. It is suggested that he has a moderate range of overall risk of reoffending. Again, that must be viewed with a significant measure of circumspection.

62. At p 13 in this report there is one passage portions of which I have emphasised:

“Taking into account what was reported by Mr Charrouf pertaining to excessive substance use, there is a possibility that Mr Charrouf’s cognitive functioning could have been compromised in the timeframe leading up to the current offence and at the time of the current offences. This specifically pertains to substance use (Xanax, ice and alcohol) at the time of the offending behaviours (such as difficulties in processing information, reacting to stimulus, responding appropriately, self-control and flexible thinking)”.

63. I found the report to be of limited value overall.

SUBMISSIONS

64. Ms Gallagher has said all that could be said on behalf of the offender and has, I might say, been thorough in everything that had to be addressed in the assessment of sentence in this case.

65. The Crown provided written submissions, to which I have had access and to and which there were some further submissions in the course of oral argument. I have dealt with the assessment of objective gravity and the extent to which there is utility in the plea of guilty. I have noted that the offender’s history does not assist him, nor does the fact that he committed this offence while he was subject to parole. The offence included violence, which is implicit in the crime and also an element of the offence charged and not, therefore, brought into account in aggravation, but as the factual matrix on which sentence is to be determined.

66. His antecedent record, including his conditional liberty, does not aggravate the misconduct or the sentence which is proportionate to the misconduct, but it does inform specific deterrence and the extent to which he has lost the opportunity for leniency which would have been available had he come before the Court without blemish. I have noted what has been said about parity and the distinctions to be drawn between Najman’s case and the case in this instance. This brings me to the point where I can determine the sentence.

67. The case I would accept involves a number of special circumstances. The offender does require an extended period in the community under supervision, bearing in mind his age and the point in life where one would hope that he will appreciate that he cannot continue to follow the style of existence that he has pursued to date. He has spent a significant, if not a predominant part of his adult life in gaol. There is a grave risk of institutionalisation such that he will be of no use to the community or himself if he is kept there beyond an acceptable period of time. Thus I find special circumstances to allow him a longer period on parole.

68. But there must be a significant measure of punishment in this case in light of the nature of the offence and the circumstances in which it was committed.

69. I have allowed a discount for the plea of guilty of 10%. I have rounded the sentence down to years and months, both in terms of the head sentence and the non‑parole period. I am satisfied that there should be a period of imprisonment in custody of seven years and six months with an additional term extending to a head sentence of 11 years.

THE SENTENCE

70. The offender is convicted. I sentence him to a non-parole period of imprisonment of 7 years and 6 months, commencing on 17 October 2017 and expiring on 16 April 2025. I impose a further period of imprisonment upon the expiration of the non-parole period, of 3 and 6 months, commencing on 17 April 2025 and expiring on 16 October 2028.

71. The dates I shall announce again.

72. 7 years, 6 months, 17 October 2017, which is 16 April 2025 when he will be eligible for parole, with a balance of 3 years and 6 months, to expire on 16 October 2028.

73. I shall leave the exhibits on file for such need that the parties might have of them.

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Decision last updated: 19 June 2020