R v Hussein Taoube

[2008] NSWDC 369

CITATION:	R v Hussein TAOUBE [2008] NSWDC 369
HEARING DATE(S):	12 December 2008
JUDGMENT DATE:	12 December 2008
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [18], [19], [20] & [21]
CATCHWORDS:	CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Robbery in company - Addiction to drugs
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	The Crown Hussein Taoube
FILE NUMBER(S):	DC 2007/11/0580; DC 2008/11/0011; DC 2008/11/1239
COUNSEL:	M. Coroneos - Offender
SOLICITORS:	Director of Public Prosecutions Hanby & Associates Lawyers

SENTENCE

1 HIS HONOUR: Hussein Taoube appears for sentence today on three offences involving armed robbery or being armed with intent to rob. These three offences were committed over a relatively short period when Mr Taoube was under the influence of drugs. When I say under the influence, what I mean is that the motivation for the offences was to get money so that Mr Taoube could buy drugs to feed the addiction. The offences were all very serious, in particular one I will shortly describe, where the shopkeeper was present with both his wife and two young children.

2 The offender pleaded guilty in this court to two of the matters and pleaded guilty in the Local Court, and was committed for sentence on the remainder. I will deal with the facts, not in chronological order, but in the order in which the matters were presented to me.

3 The first offence was committed on 17 April 2000. On that day, the offender went to a service station in Tempe. He selected a drink and asked for a Vodafone recharge. When the shopkeeper asked for the money, the offender produced a knife, saying to the shopkeeper “Give me whatever you have in the register.” The shopkeeper then did two things. He tried to hit the panic button and he picked up a blue baseball bat. He held that at his side. The offender grabbed the drink bottle and ran away, hopping into a getaway car that was positioned in the service station. He had previously filled up the petrol too. So the offender thus committed an offence of being armed with intent to rob. He also stole the Gatorade and the petrol. Those two matters appear on a Form 1 attached to the substantive offence. They are part and parcel very much of the substantive offence, and no extra punishment is appropriate. The offender was arrested a few days later. He denied, however, being the person who was identified in closed-circuit television footage committing the offence, and continued that denial until he appeared for trial in this court, when he eventually pleaded guilty.

4 The next offence is the most serious. It was committed on 9 March 2007. On this occasion, the offender went to a convenience store in Petersham. It was about 9.45pm on 9 March 2007. Behind the counter were not only the shopkeeper but his wife and their two children. One was six months old and one was three years old. The offender was with another person, both of whom were armed with knives. They clearly went into the store intending to rob the shopkeeper. One might have thought that the fact that the shopkeeper was present with not only his wife but also their very young children might have caused the offender to change his mind. The fact that he did not, the fact that he proceeded to commit the offence despite those circumstances I have just referred to, says a lot about the criminality of the offender.

5 What happened was that both the offender and another man pretended to be interested in sunglasses and cigarettes. They paid for those items, and when the shopkeeper had opened the cash register in order to put the money into the till, both the offender and his associate pulled out their knives. The shopkeeper, as the facts record, immediately began to fear for the safety of his family. His wife started to scream out and the shopkeeper tried to ring triple-0. Instead of running away, as they should have done, both of the males then began to wave their knives around and the offender said to the shopkeeper, “Hang up the phone.” He said to them, “Take anything you want but don’t hurt my family.” So the offender grabbed the cash register and pulled it from the counter. He and his co-offender then ran from the shop.

6 They got into a car driven by a man by the name of Yussef. A short time later someone dumped the till in a garbage bin. When the till was discovered and fingerprints were taken from it, a fingerprint of the offender was located, as well as that of Mr Yussef. I should mention now that Mr Yussef was sentenced by Judge Walmsley for being an accessory after the fact to an offence of armed robbery. He received a suspended sentence of eighteen months. The principles of parity, of course, apply, but there are substantial differences both in the offence for which Mr Yussef was sentenced and also the facts on which he was sentenced. It is to be noted that, perhaps consistent with the nature of the offence to which he pleaded guilty, there was no reference in the facts tendered in his case about the circumstance that the shopkeeper was accompanied by his wife and young children.

7 The final charge for which the offender is to be sentenced is an offence which he committed on 18 April. This time he went to a tobacco store in Pitt Street in the city. Again, he was with another person and again he was armed with a knife. He began by saying in Lebanese Arabic, “Don’t do anything stupid, you owe someone $20,000.” The shopkeeper understood what he was saying, and expressed some surprise at what had been said to him. It was at this stage that the offender removed his knife and said, “Don’t do anything stupid, open the fucking till and empty your pockets.” The shopkeeper opened the till. The offender reached over and took about $200 from it. He and the other offender then ran out of the store and got into a getaway car before driving away. He was identified as being the offender in a line-up which was held some time later.

8 The offender has a criminal history. He has only been to gaol on one occasion before. He is now thirty-two years of age and has been regularly committing offences for some time now. His family, and in particular his father, have done all that they could to assist the offender to rehabilitate himself. When he was getting in with the wrong crowd, they even sent him away to Lebanon so that he could be taken away from the environment in which he was taking drugs and committing offences. Whilst over there he was conscripted into the Lebanese army, he having been born in Lebanon and coming to Australia when he was very young.

9 His father has made other efforts too to deal with his son’s drug problem. He is the only member of his family to be in trouble with the law and he retains to this day the support and love of his family. They are a close family and as I said his father has made many attempts over the years to help his son, all to no avail. He gave evidence before me today as to the difference between his son in March/April 2007 and his son as he is today, after having been in custody for a lengthy period of time, presumably not using drugs. He looked healthier, said his father, has better colour and has put on some weight. It is clear that as I mentioned at the outset of these remarks the offender’s crimes are related to his addiction to drugs. That is not a mitigating factor, however. It is relevant to the prospects of the offender’s rehabilitation. It is clear and recognised by the offender that if he wants to avoid committing further offences he needs to avoid taking drugs.

10 There are prospects of rehabilitation. The offender I am satisfied genuinely desires to rehabilitate. However, I cannot say that his prospects of rehabilitation are good or that he is unlikely to re-offend. Much of course will depend on how he goes upon his release from custody. The need for him to be supervised upon his release, or at least the desirability of him being supervised upon his release from custody in order to deal with his addiction to drugs, and the prospect of him taking drugs again is perhaps the most important factor suggesting special circumstances in this case.

11 I am satisfied that the offender is remorseful and that he, now that he has not taken drugs for some time, is a different person to the person he was in March/April 2007. A pre-sentence report makes reference to some mental health issues concerning the offender. They are at least partly related to his drug use. I have taken the offender’s mental health issues into account, both in reducing the sentence I would have otherwise have imposed upon him, but also to the extent of the accumulation. However, it is certainly not the case that the offender’s mental health issues allow a lenient sentence to be imposed. To the contrary, a significant sentence is necessary both to deter the offender from relapsing into drug use and then crimes, but also to reflect the significance to the community of offences such as these, which are frightening, dangerous and committed for what is often very small reward.

12 Community concern, or at least judicial concern, about sentences imposed on armed robbers led to the second guideline judgment in New South Wales, that of R v Henry (1999) 46 NSWLR 346. In that case the Court of Criminal Appeal postulated a reasonably common situation, or reasonably common case, which would ordinarily result in a sentence in the range of four to five years. Of course, that judgment is only a guideline, but it is one which I must bear firmly in mind. As was recognised by Mr Coroneos, there is a close relationship between the present case and the standard case postulated in the guideline judgment.

13 Of course, the standard case in Henry involved a plea of guilty which was in later cases clarified to be a plea of guilty with limited utility. That is the case for two of the matters which the offender needs to be sentenced. Those pleas came in very late in the piece. On the other hand, the third offence for which the offender is to be sentenced involved an early plea with the offender being committed for sentence to this court. Accordingly, the sentence I would otherwise have imposed for that matter is twenty-five per cent less to reflect the utilitarian value of a plea of guilty. That of course does not mean that it is necessarily the lowest sentence that I will impose, because the timing of a plea of guilty is but one matter which affects the sentence to be imposed for any particular offence.

14 It is a fundamental rule of sentencing that the sentences reflect the objective gravity of an offender’s conduct, so even where a person pleads guilty early it does not mean that the sentence is necessarily lower than other offences where a late plea of guilty was entered.

15 The offender is currently serving his sentence on protection. It is no longer automatically assumed that those serving their sentences on protection will do their time in custody harder than the general prison population, nor can it be assumed that the offender will serve the remainder of his sentence on protection. I will take into account, however, that there are two risks. One is the risk that he will serve the entirety of his sentence on protection, and the second is the risk that this will involve him doing his time in custody harder than others in the general prison population. The fact that he is and may well be on protection in the future is another matter suggesting not only a reduction in sentence but also special circumstances in this case.

16 Mr Coroneos suggested an appropriate overall sentence with a non-parole period to be imposed in this case. That suggestion was fairly close to what I ultimately propose to impose. There is a need, of course, to impose sentences which are partially cumulative on each other. Each matter involves a separate act of criminality. Each matter involves a new victim, subject to the frightening experience of having a knife presented to them, and it is certainly not the case that the offender should feel that he has been able to commit any of these offences “for free”, as it were.

17 On the other hand, of course, the principle of totality applies such that the overall sentence reflects the overall criminality. The sentences I impose are these.

18 For the offence committed on 17 April 2007, taking into account the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of two years, to date from 20 April 2007. I set a head sentence of four years.

19 For the offence committed on 18 April 2007, the offender is sentenced to imprisonment. I set a non-parole period of two years, to date from 20 April 2008, and a head sentence of four years.

20 For the offence committed on 9 March 2007, I sentence the offender to imprisonment. I set a non-parole period of two years to date from 20 April 2009, and I set a head sentence of five years.

21 Thus, the overall sentence is one of seven years with a four year non-parole period, and the offender is eligible to be released to parole on 19 April, 2011.

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