R v Haidas

[2021] NSWDC 235

District Court

New South Wales

Medium Neutral Citation:

R v Haidas [2021] NSWDC 235

Hearing dates:

9/4/21

Date of orders:

9/4/21

Decision date:

09 April 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re Robbery armed with an offensive weapon - Convicted and sentenced to a term of imprisonment of 3 years 4 months with a NPP of 1 years 8 months (23/6/20-22/2/22).

I find special circumstances.

25 percent discount for plea of Guilty.

Re Drive whilst disqualified – I find the breach proved but I take no action on the breach of the CCO.

Catchwords:

Crime – Sentence – Robbery armed with an offensive weapon

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Henry [1999] 46 NSWLR 346

Bugmy v R (2013) 302 ALR 192

BP v R [2010] NSWCCA 159

Category:

Sentence

Parties:

NSW DPP – Crown
Zakariya Haidas - Offender

Representation:

Mr Kemp for Crown
Mr Shridhar for Offender

File Number(s):

20/37715, 20/185551

sentence

1. Mr Zakariya Haidas is for sentence on an offence of robbery armed with an offensive weapon, being an offence under s 97(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years’ imprisonment. The maximum penalty, of course, is an important guidepost in the sentencing exercise to which I have had regard. He has pleaded guilty at an early stage and is entitled to, and I have taken into account, a discount of 25% on account of the utilitarian value of that plea of guilty.

FACTS

2. The facts of the offence are agreed and relate to events on 19 May 2020. The offence occurred at a convenience store called the Mannix Convenience Store, which is located at Warwick Farm. That store is located within a small shopping complex and sells everyday items such as cigarettes, drinks, and some food items. The particular store was owned and operated at the time by Ms Ruan, who was the effective victim of the offence.

3. The offence occurred at about 4.45pm on 19 May 2020, when two males, one of them being this offender and the other being a young person, entered the Mannix Convenience Store, each of them wearing hooded jumpers and face masks. The victim stood up and walked towards the cash register and saw the two males were holding weapons. The co-offender in a black hooded jumper holding a silver baseball bat, and the male wearing a grey hooded jumper, that being this offender, holding what is described as a weapon with a blade, which, by reference to CCTV material that I was shown today and a photograph that is included in the facts, evidently was some kind of small tomahawk or axe.

4. The co-offender with the black jumper jumped over the counter while this offender knelt on the counter and directed his weapon towards the victim who was behind the counter. The victim said, “Please, please don't hurt me. You take anything you want.” At that point, the co-offender began grabbing cigarettes and placing them into a black sports bag, which he had with him while the offender told his co-offender to open the cash register.

5. The facts record that the victim could not hear what the two of them were saying when they were speaking to each other, but it seemed to her that this offender was directing the male with the black jumper and telling him what to do. The co-offender then told the victim to, “Open the register,” and the victim complied, opening it after entering a code. The co-offender then removed all the notes from the register, passing them to the offender who can be seen on the CCTV to place the notes into his pocket. The offender, according to the agreed facts, said to the co-offender, “Do not take the coins, only notes.” The two males then left with the offender saying, “Sorry,” as he did so, apparently to the victim.

6. The victim waited until she could no longer see the two males and asked staff at a nearby bottle shop to call triple-O. The victim gave a description of the two males. The first, which evidently was the co-offender being described, was about 20 years old with big eyes, about 180 centimetres tall, medium build, and fit looking, wearing a black hooded jumper, dark shorts and facemask, carrying a sports bat like a baseball bat. And the second male being of Islander appearance, about 20 years old, also with big eyes, being taller than the other male, and a medium fit build, wearing a grey hooded jumper, grey shorts, and a black face mask, and carrying an axe type weapon with a blade. It is, of course, agreed that this male was the offender, Mr Haidas.

7. As I have noted already, the incident was in part captured by CCTV cameras and some footage was played in court to me this morning. The agreed facts record that a review of other CCTV footage from the convenience store on earlier dates revealed that two males matching the description of this offender and the co-offender had previously attended on 12 May 2020, that is a week earlier, and had on that occasion unsuccessfully attempted to buy a carton of cigarettes. The footage from the CCTV depicted the co-offender wearing shoes that matched those worn by him on 19 May 2020 when the offence was committed.

8. As part of the police investigation, police published a post on the New South Wales Police Force Facebook page seeking public assistance in identifying the persons depicted in the CCTV footage of 12 May 2020. And in June 2020 police used a telephone intercept to record conversations between the offender and the co-offender. On 15 June 2020 at about 4.23 in the afternoon, the offender called the co-offender and the two of them had a discussion apparently relating to the police Facebook post. The co-offender said to the offender,

"So, I was just working with my stepdad. He comes up to me out of nowhere. He goes, ‘What the fuck is this.’ I go, ‘What.’ He showed me his phone. It was, like, this post on Facebook or something. There was this camera. Do you know how we went in earlier and our faces weren't covered?”

9. To which the offender replied, “Yeah.” The co-offender continued:

"Yeah, they knew it was us. So there is a photo of me looking, like, to the side, like they have my sideview. And your one is kind of hard to tell. But - yeah - it is a photo of us, saying, like, ‘If you - uh - have any information, footage, CCTV, this, this, this, shit like that.”

10. To which the offender replied, “Yeah, did it have clear photos of both of us?” And then he repeated that question. And then the co-offender replied, “No, it’s - they’re okay. They’re decent.” To which the offender replied simply with the word, “Fuck.”

11. Later in that same conversation, the co-offender asked this offender,

"Fuck man. Hey, what - hey, but what’s the story? Regardless, we're fucked, bro. There's no, ‘It was self-defence.’ There was no, fucking - there's no explanation. So do you want to say how it is?”

12. The offender in reply told the co-offender not to worry as, “They don't know who we are yet.”

13. The facts record over a number of conversations on that date and following where the two young men discussed deleting photographs that they had of them wearing masks, getting rid of the weapons, clothing and shoes they were using and wearing at the time, and perhaps changing their appearances. In a further call on 15 June 2020, at about 5 o'clock in the afternoon, this offender could be heard speaking to another male, saying the following words, “The whole time, bro, I swear to God. Now I wish I bashed the fuck out of her, the fucking Asian bitch.” To which the co-offender replied, “Straight out, cuz, those are some nice cigarettes, so I don't give a fuck.”

14. On 22 June 2020, in other words, about seven days after that conversation, police contacted this offender in relation to the matter, requesting that he attend Liverpool Police Station. Although he told police he would attend on that date, he failed to do so. And, indeed, the next day at about 9.30 in the morning, he was arrested at Sydney Airport, having checked in to a New Zealand airways flight. He was taken to Mascot Police Station and offered the opportunity to be interviewed and to participate in an identification parade, but he declined. On the same day, that is 23 June, the co-offender attended Liverpool Police Station and was placed under arrest. He also declined an interview and an identification parade. Those are the facts on which the offender is to be sentenced.

OBJECTIVE SERIOUSNESS

15. It is important, of course, in any sentencing exercise that the court make some assessment of the objective seriousness of the offence. All robberies are serious, of course, as this one IS. The offence carries a maximum of 20 years’ imprisonment, which clearly confirms that the offence must be regarded as objectively serious. Anyone who commits armed robbery must expect to receive a full-time custodial sentence unless there are exceptional circumstances. That is in part because personal and general deterrence are of great importance.

16. This particular armed robbery, while not sophisticated, is rendered more serious not only by reason of the carrying and display of weapons, but also by reason of the offender having directed his weapon at the victim. There was also the fact that while in the shop the offender, to some extent, directed the actions of his co-offender to only take the banknotes and not the coins from the register. The offence was also committed in company and involved some planning by the offenders in arming themselves and donning masks.

17. The victim was clearly in a vulnerable position, being a lone shopkeeper. While the amount of property was relatively small, this does not significantly reduce the seriousness of the offence, which lies more in the fact that armed robbery is not simply a crime against property, but a crime against persons: see R v Henry [1999] 46 NSWLR 346. In my view, the objective seriousness of this particular robbery falls slightly below the middle range of objective seriousness.

18. In 1999, as I just noted, the Court of Criminal Appeal delivered its guideline judgement in the case of R v Henry. That was a guideline judgement relating to sentencing for armed robbery offences. As the Court said in that case: “Robbery is not simply a crime against property, but a crime against persons.” As the Court also said: “The fear engendered by the perpetrator of this crime, together with the continued adverse effects on victims, establish armed robbery to be a serious crime which requires condign” - that is serious - “punishment.” The decision in Henry provides a list of common features for this type of offence which are relevant to determining the nature of and the term of an appropriate sentence. Of course, the Henry guideline judgement is just that. It is a guideline intended to foster consistency and it is not prescriptive.

19. I have had regard to the various factors discussed in Henry and I make the following observations by reference to them. Firstly, the offender in this case is relatively young, being 20 at the time of the offence, and 21 now. He has a limited criminal history, mostly consisting of driving related offences, although on 16 February 2020, about three months before this offence, he committed the offence of affray for which he was placed on a Conditional Release Order from 27 May 2020, which admittedly was after the current offence.

20. Secondly, the offence, in this case, involved the use of weapons being a tomahawk and baseball bat, which were clearly capable of inflicting serious injury or death and causing real terror in the victim, increased by the fact that this offender actually directed his weapon towards the victim.

21. Thirdly, there was a degree of planning and preparation in the offender and co-offender arming themselves with the weapons and disguising themselves with face masks.

22. Fourthly, as postulated in the Henry guideline, the offence involved no actual physical violence, but a very real threat of it, given the presence of the weapons. There is no doubt that the victim felt very seriously threatened given her plea: “Please don't hurt me. Take anything you want.”

23. Fifthly, the victim clearly was in a vulnerable position, being a shopkeeper working alone.

24. Sixthly, the amount of money and property taken was relatively small.

25. Seventhly, there is the plea of guilty. The Crown argued that the significance of this is reduced, in this case, by the presence of a strong prosecution case, given that the offence was captured on CCTV and that the offender had earlier been recorded on CCTV attending the shop without his face covered. There is also the fact, of course, that the Crown case included telephone intercept material, which provides significant support for the Crown case. Overall, I accept that there was, based on the combined effect of this material, a reasonably strong Crown case.

26. In my view, the circumstances of this case share a lot of common factors with those set out in the Henry guideline judgement, and I therefore approach that guideline as being of real relevance in determining the nature and term of the penalty required. In circumstances where the Henry factors are present, a head sentence in the approximate range of four to five years is indicated as a guide. That range, however, is applicable where there is a late plea of guilty, whereas in this case, the offender pleaded guilty at the earliest opportunity. There is also the aggravating factor in this matter that the offence was committed while the offender was subject to conditional liberty, being at the time of the offence on a Community Corrections Order, which was imposed only about one month earlier for a driving related offence.

27. The offender also has a prior history of convictions, although most of them are for driving related matters. The offence was also committed, in part, for monetary gain, although this is a feature inherent in most robbery offences and not an aggravating feature, in my view, of any real significance.

SUBJECTIVE MATTERS   

28. Turning then to subjective matters relating to this particular offender. As I have already noted, he is currently aged 21, and he was 20 at the time of the offence. He gave evidence on sentence today and affirmed the contents of a psychological report from Mr Awit, as well as affirming the contents of a letter from the offender and the contents of the Sentencing Assessment Report. His background, as reported to the psychologist, indicates that he was born in New Zealand and moved to Australia in 2004 with his family when he was about five years old.

29. The offender reported some history of domestic unrest between his parents over the years and some violence towards himself at the hands of his father. He told the psychologist that the home was not a happy place growing up and that the family had to move several times due to problems in meeting rental payments. As a result, the offender moved schools a number of times and ultimately, he left school in year 11. While I take into account this background, it is not such as to engage Bugmy v R (2013) 302 ALR 192 type principles. Since leaving school, he has been employed in a variety of jobs and prior to his arrest, he was working in the air conditioning industry, which he hopes to pursue through TAFE studies.

30. The offender’s parents left Australia three years ago, and as a result, he and his older brother took on a parental role to the younger siblings. The offender says that this led to financial struggles and that the stress of these matters led to his struggling with low mood, sleeping problems, loss of interest in normal pastimes and a feeling of being on edge. These, of course, are the things that he reported to the psychologist, Mr Awit. The psychologist also administered a number of tests and concluded, based in part on these, that the offender suffered from extremely severe depression and mild anxiety in the lead up to the offence and that he currently suffers from severe depression and mild anxiety.

31. The psychologist concluded, somewhat boldly in my view, that based on the history provided by the offender, it is “clear and evident” that the offender was suffering a mental health condition prior to and during the offending period, and that there was a link between this condition and the offence based on his having an impaired decision-making ability. In my opinion, and after taking into account all of the evidence, including that given by the offender this morning, the situation was not as “clear and evident” or as simple as this. This was not simply an offence carried out to support the offender's family and which was committed due to a mental health condition. Rather, in my view, it was committed partly for the thrill of copying activities depicted in movies and video games, engaged in by the offender and his associate, as well as, no doubt, the disinhibiting effects of regular cannabis usage.

32. Having said that, I do, nonetheless accept and take into account that the offender was in the lead up to the offence under a deal of financial and other stress, given his family responsibilities and his inability to work arising from the pandemic. This provides some explanation, although, of course, no excuse for the offence.

33. The offender is supported by a large number of character referees who speak highly of his ordinarily being a good friend, a hard worker, and someone who they would not have expected to have committed this serious crime. Of significance also is the fact that he continues to be supported by his employer, who operates his own air conditioning company, and who is prepared to offer the offender work upon his release. Whether he will be able to take up that offer of employment is unknown as it is possible, perhaps probable, that he will be deported from Australia. In accordance with authority, however, I do not take his possible deportation into account on sentence.

34. The fact that he has a good work history, remains relevant to his prospects of rehabilitation, whether he be living in Australia or New Zealand or elsewhere.

35. The psychologist says that the offender has expressed significant remorse and has placed himself in the position of the victim and understands that this would have been a traumatic experience for her, and that being in custody for ten months has taught him a lesson. The character referees also support the suggestion of remorse. The offender himself has provided a letter to the court in which he apologises, effectively, for his actions and expresses remorse and shame for the harm the offence has caused, and in particular for its effects on the victim.

36. I take all of this evidence into account and I have balanced it against the somewhat contradictory actions of the offender in June 2020 when, in speaking about the offence with his co-offender, he referred to the victim as an, “Asian bitch,” and referred to his regret at not having, “Bashed the fuck out of her.” This has given me some hesitation in relation to a finding of remorse. However, having seen the offender give evidence and having regard to the contents of the Sentencing Assessment Report and the psychological report, as well as the passage of time since the offender's arrest, I do accept that there is some genuine remorse in this case.

37. The Sentencing Assessment Report assesses the offender as being a medium-low risk. In my view, this offence is somewhat out of character for this offender and arose largely from his immaturity, his use of cannabis, and his having too much time on his hands at that particular time. His upbringing, while not perfect, is not like that of many offenders who come before the court. And he is, I accept, a person of generally pro-social habits with a good work ethic.

38. Also, he impressed me in his evidence as being a fairly intelligent and thoughtful young man. It is to his credit that, while in custody, he has engaged in employment and self-improvement courses and is regarded as a cooperative and good inmate. I believe that with further maturity and the experience of this current custody behind him he is someone who is likely, if he puts his mind to it, to lead a useful life and avoid reoffending in the future. I assess his prospects of rehabilitation as reasonably favourable.

28. I note that the co-offender was convicted in the Children’s Court and sentenced to a Community Service Order. While I have had regard to that penalty, it is of limited weight in terms of parity, given that the co-offender was considerably younger than this offender, and indeed a child, and was dealt with under an entirely different type of criminal jurisdiction. I have, nonetheless, as I have said, had regard to the outcome in that matter.

29. Although this offender is not a juvenile, he still is a fairly young person, and was only 20 at the time of the offence, and, as I have noted, is only 21 now. As was said by Hodgson JA in BP v R [2010] NSWCCA 159 at para 5, “In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-20s.” That is a principle which is frequently applied in sentencing young and reasonably young persons, and, indeed, has been said to be of particular relevance with respect to young male persons.

30. In those circumstances, while the offender is not a juvenile, I find that less weight is to be given to aspects such as deterrence and retribution and more weight to the importance of rehabilitation. That, of course, is only one of the factors to which I have had regard in this sentencing exercise. And as I have said, I have tempered the aspect of youth, given the fact that this offender is not a juvenile, but nonetheless is a relatively young man still.

DETERMINATION   

42. Turning to the determination of sentence, I am satisfied that the s 5 so called threshold in the Crimes (Sentencing Procedure) Act 1999 is crossed and that no sentence other than one of full-time custody is appropriate. I note that no submission to the contrary was made to me in any event. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I intend to impose a full time custodial term. However, I make a finding of special circumstances for varying the ordinary ratio between head sentence and non-parole period. I make that finding based upon this being the offender’s first period in custody and based on his relative youth.

43. The sentence I impose comprises a head sentence and a non-parole period. The head sentence is one of three years, four months. This is, of course, after the 25% discount. The non-parole period, again after the appropriate discount and after my finding of special circumstances, is one of 20 months. That is one year, eight months. Each of those will date from 23 June 2020, which was when the offender went into custody. The head sentence, therefore, will expire on 22 October 2023, and the non-parole period will expire on 22 February 2022, on which date the offender will be eligible for parole.

44. In relation to the matter of the breach of Community Corrections order, I find that breach proved, however, I take no action on the breach. As I have previously noted, nonetheless, I have had regard to the fact that he was subject to conditional liberty by reason of that order.

45. So, Mr Haidas, you will be eligible, assuming that you behave yourself in custody, you will be eligible for parole on 22 February next year. That will be a determination made by the Parole Board and you will be subject to the head sentence until 22 October 2023. Whether you will be deported or not is not a matter for me to decide. That is a matter for immigration authorities.

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Decision last updated: 08 June 2021