R v Islam Hassan

[2007] NSWDC 57

CITATION:	R v Islam Hassan [2007] NSWDC 57
JUDGMENT DATE:	16 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted, sentenced to a non parolel period 21 months, balance of term 2years 3months [Para 49].
CATCHWORDS:	Criminal Law - sentencing - after trial - robbery being armed - offensive weapon - knife - aggravating features - in company - vulnerable victim - planning - disenabling landline phone - prolonged encounter - subjective features - probably drug addict - past drug abuse - negative family upbringing and influences - impact of guideline judgments - special circumstances
CASES CITED:	Queen v Gladue [1999] 1 S.C.R. 688 at [80] Queen v Cuthbert [1967] 2NSWR329 Queen v Rushby (1977) NSWLR 597 Queen v Hayes [1984] 1 NSWLR 740 Queen v Rause unreported NSWCCA 8 August 1992 Queen v Henry & Ors (1999) 46 NSWLR 346
PARTIES:	Regina Islam Hassan
FILE NUMBER(S):	06/21/0165
SOLICITORS:	Mr C Brown - Office of Director of Public Prosecution Mr A Martin - (Accused)

SENTENCE

1 HIS HONOUR: 2006 did not begin well for Sewar Kabir. On 3 January 2006 he was working the nightshift at the Budget Petrol station located on the Hume Highway, Yagoona. Towards the end of his shift, at about 5.15am, he was restocking the fridge. He was interrupted by a buzzer indicating someone was at the shop door waiting to enter. He returned to the console area, released the lock, two men entered. They were robbers. One was armed with a knife.

2 On 5 September 2006 Islam Hassan was charged with being one of these robbers. He said he was not guilty. After a three day trial a jury determined that the Crown had proved he was the robber who was armed with the knife. Today Islam Hassan is to be held accountable for his part in this robbery.

3 As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender harming this victim, in this community. See Queen v Gladue [1999] 1S.C.R. 688 at [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, known as subjective matters. The starting point for such assessments requires a sentencing Judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

4 The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, whether special circumstances are to be found, the length of the parole and non-parole periods and finally the overall sentence to be imposed. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See Queen v Cuthbert [1967] 2NSWR329; Queen v Rushby [1977] NSWLR 597 and Queen v Hayes [1984] 1 NSWLR 740.

Facts:

5 Initially the accused perused items of food on shelves in the service station shop. From there he approached the console area, opened the door to that area. Kabir immediately noticed the knife, it was moving from side to side. Kabir was told “sit down, get down”. The offender grabbed his victim’s shoulder and pushed him to the floor. “Don’t try to look at me, put your head down”, Kabir was warned. Kabir was on his knees pointing his head towards his stomach. Kabir was ordered by the offender to open the till. By this time the second man, wearing a black mask, had joined the offender in the console area. I should note that the accused was wearing gloves. Kabir was very scared. His will had been overcome. He complied immediately with the demands. Money was taken from the till. The unknown robber opened a multi coloured bag and commenced to empty packets of cigarettes from the dispensing units. In the rush some packets fell to the floor. Kabir was ordered to pick up the cigarettes and put them into the robbers bag. He was told if he did not help “it will be hard for you”.

6 He was abused during his encounter with the robbers. They called him a “mother fucker” and a “bastard”. The key to the drop box or safe was demanded by the robbers. Kabir was unable to comply, the key was kept by the owner.

7 A second bag was opened to receive more packets of cigarettes. Kabir was told to hold the bag open. The cigarettes were put into the bag. In the rush some packets fell to the floor. The robbers then demanded their victim’s mobile phones. He had two. They rationalised the theft of the mobiles on the basis Kabir would phone the police. When they left with the two bags full of cigarettes, Kabir discovered the landline phone had been severed. The robbers ran across the Hume Highway.

8 The money in the till was approaching $1,500. The change-till was stripped bare of all its cash. The shelves had been restocked with cigarettes prior to Kabir commencing his shift. I am satisfied the bulk of the packets of cigarettes on the shelves were taken. The quantity would be measured in hundreds of dollars rather than of thousands of dollars. The weapon used was a 30 centimetre knife with a 20 centimetre blade. The co-offender has not been located.

Objective Criminality:

9 From the facts as he finds them to be the sentencing Judge is required to assess the objective criminality of the offence before the Court as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instance offence with the criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of this offence can be evaluated. Quite clearly the objective criminality has an important impact on the overall sentencing outcome.

10 Justice Gleeson when Chief Justice of New South Wales encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in the Queen v Rause unreported NSWCCA 8 August 1992. His Honour said:

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and go about their daily affairs [including working] without fear of physical violence. It also embraces respect of the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect of private property. They are serious breaches of the peace. They are direct attacks upon the security of the person and the property which the law exists to protect.”

11 The essence of armed robbery is to overcome the will of the person having custody of the property by means of a threat, or actual physical violence. In this case the will of the victim was initially overcome by the presentation of the knife at his person. He described himself as being “very much scared”. The presence of the co-offender is an aggravating feature of this accused’s criminal conduct. The presence of the second robber strengthened this accused’s hand against the victim, loading the odds even more in favour of the robbers. The co-offender also brought the bags into which the cigarettes were placed. Given time constraints that must be present in any robbery, the presence of a co-offender allowed the robbers to take more cigarettes than the offender acting alone may possibly have captured, certainly have captured in the time frame that was occupied.

12 The manhandling of Kabir as he was pushed to the floor constitutes and aggravating feature; likewise the degree of interaction between the robbers and the victim, and the coercion of the victim into holding open the bag, are all aggravating features of this robbery.

13 This was no quick scoop of the money till, but a more prolonged encounter, where the victim was pressed into aiding the robbers in the stealing of the cigarettes.

14 The taking of the mobile phones and the disenabling of the landline meant the victim was unable to contact help until a customer arrived. In so doing this offender left his victim without access to help at a time of trauma; and in so doing he aggravated his criminality.

15 At the time of the offence, the offender was subject to a s 12 good behaviour bond, which he agreed to enter as a condition of the District Court suspending a 12 month sentence. His commission of this robbery in circumstances where his liberty was granted, conditional upon him being of good behaviour, is a significant aggravating feature of this offender’s criminality.

16 There is some evidence of planning. The robbers targeted only the cash and cigarettes. The phone line had been disconnected. One robber came with a mask; the other with gloves. This offender had a 30 centimetre knife. The robbery occurred at 5.15am, that is, at a time when there would be minimal traffic on the Hume Highway or at the gas station. On the other hand the level of planning is relatively minimal or limited.

17 The victim was working alone on the nightshift in a service station. There is ample authority that such a victim is to be regarded as vulnerable by virtue of the circumstances in which he is operating. The vulnerability of that victim aggravates this offender’s criminality.

18 I have had regard to the matters of aggravation enumerated in s 21A Crimes (Sentencing Procedure) Act. My approach has been to deal with all matters of aggravation by reliance upon the common law and relevant factors of aggravation in assessing the objective criminality. This is not a case where I would regard the factors of aggravation being so prominent as to require them to be considered anew by the statutory provisions contained in the Crimes (Sentencing Procedure) Act.

Subjective Factors:

19 I turn now to the subjective factors, I am both entitled and required to do that. Not only am I sentencing for this criminal offence but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood the sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this offender, or some reason why a more or a less sentencing outcome is appropriate.

Family Dynamics and Background:

20 Islam Hassan was born in July 1985. He is twenty-one years old now and was twenty years old at the time of offending. He is a single man living with his parents at the time of offending. Along with his twin sister he is the eldest of five children. It would appear the family have been subjected to unrealistic expectations of the father and quite probably the mother. The father presents as a religious fanatic. The author of the pre-sentence report opines that Mrs Hassan appears to hold similar cultural and religious beliefs to those of her husband.

21 Aged fifteen, Hassan formed a tumultuous relationship with a girl four years his senior. There is now a four year child from that relationship. The relationship was complicated by drug abuse. Hassan owns up to abusing cannabis. He claims his partner abused heroin. He also has abused heroin it would seem because he has been on methadone. He blames his wife for relapsing back “a few times”. I am satisfied he was using heroin although whether he was using it at the time of the robbery is unclear.

22 Not surprisingly that relationship failed. The child remains in the custody of - I’ve got it’s mother, but I think it’s - the grandparents. Hassan returned to living with his family. His own parents had separated. It would seem sometime after the offender first left home to live with the nineteen year old partner.

23 Dr Kay Attia-Soliman, the offender’s treating psychiatrist, describes the father as being schizophrenic. Her basis for so saying is unclear; whether from a history given by the offender or some more direct knowledge is not revealed. No doubt his mental condition, that is father’s mental condition, may well have had some impact on the quality of life the offender was living.

Education, Skills, Employment History:

24 Islam Hassan’s early schooling was interrupted with frequent moves from place to place. He attended six primary and four secondary schools. He left Birrong Boys High at the beginning of Year 11. He was then aged seventeen. He gives to Probation and Parole as an excuse that he was in conflict with his father. However my understanding was his father had disowned him by that time and he was living with his girlfriend’s parents. It is likely the pressures of being a parent himself, in a difficult relationship, played some part in his capacity to devote himself to his study.

25 He worked in unskilled casual jobs, primarily in the building trade. Just prior to the offence he was working as a brick layer. The offender told his psychiatrist that because of his prior suffering he may be able to identify with and counsel others. He says he wants to do a welfare counselling course, I have presumed at TAFE, and then follow that up with university study.

General Health:

26 He presents as a thin young adult male. So far as one can tell from observing him in Court he appears to enjoy good physical health.

Mental Health Issues:

27 He is said to be of average intelligence. His treating psychiatrist diagnosis chronic dysthymic disorder, that is, chronic depression, but of less severity than a major depression. I note the condition of the s 12 bond required psychological treatment and counselling for his mental health issues as a condition of the bond.

28 His psychiatrist opines his childhood, background tensions and conflict precipitated his depression. That is to say that it was a reactive depression. She has prescribed anti-depressants and a mood stabiliser for him. Whether he has been able to continue with this medication whilst in custody is unclear but not unimportant. He reported symptoms to her including sleep disturbance for which she also prescribed medication.

Drugs and Alcohol:

29 The author of the Probation and Parole report notes. “There is no problem related to drugs or alcohol abuse”. There is evidence before me past abuse of cannabis and probably heroin with several relapses. He reports at one stage on being on methadone. There is an armed robbery at a service station in January 2006. I am uncomfortable accepting the Probation and Parole assessment. That is to say, I believe there to be drug issues that need to be addressed.

Character and Criminal History:

30 Islam Hassan is a twenty-one year old single father of a four year old child. He is clearly concerned about the welfare of his son and the messages the child must be receiving seeing him only fortnightly in custody. To his credit the offender is concerned about that. He has accepted financial responsibility for the child. He is reported as recognising responsibility for his parents, he being the oldest son in the Muslim household. Both of his parents have mental health issues. One it would seem depression, the other schizophrenia. He has some work experience since leaving school. In those ways he presents as a young man making a useful contribution to the community in difficult circumstances.

31 His criminal antecedents are not extensive. But there is one serious offence involving his participation with others in violence towards his sister. At the time of this offence he was on a s 12 bond for twelve months, and a suspended sentence, for taking and detaining in company with intent to gain advantage and in so doing occasioning actual bodily harm to his sister. His sister, however, has been present in Court on occasions when this matter has been before me. I am told that there has been reconciliation and have no reason to reject that proposition.

Attitude to Offence:

32 Islam Hassan told Probation and Parole that he continues to deny his involvement in this offence. His psychiatrist reports him as being ashamed and uncomfortable in discussing the guilty verdict. What exactly that means is unclear. But I take it to be consistent with his denial and an embarrassment and shame arising from the verdict, rather than from his offending conduct. In circumstances in which the trial was run it is pure speculation as to why he was involved in or participated in the robbery.

Rehabilitation Prospects:

33 The youth of this offender requires the Court to promote, if at all appropriate, the rehabilitation of the offender. Factors favouring his rehabilitation include his youth, apparent good physical health, his family support particularly from his mother and sister, his desire to further his education and develop vocational skills in an important welfare area, his past work experience and such work skills as he developed there. Some attention has been given by him to post release plans.

34 There are however negative factors to be considered.

• This offence occurred in breach of a s 12 bond at a time when he was suppose to be supervised and participating in counselling.
• Poor record of cooperation with Probation and Parole
• An alleged failure to comply with treatment conditions on the s 12 bond. I say alleged because the psychiatric report makes mention of him being counselled or at least seeking treatment there.
• Past drug abuse, under reporting of it and
• Absence of completion of any rehabilitation programme relating to drugs.
• An apparent reluctance to admit his role in the offence, and
• An apparent lack of insight into his offending conduct.

35 Probation and Parole assess his rehabilitation needs as being best addressed by a medium to low level of supervision. Their case plan would include provision of social skills training and professional counselling to address his symptomatology. I would also commend to them drug and alcohol counselling.

Setting the Sentence:

36 This is a sentence in which general deterrence need to be a component. My approach to general deterrence is to recognise the very extensive raft of criminal law as passed by the Federal and State Parliaments. The chief purpose of the criminal law put in place by Parliament is to deter those who are tempted to breach the provisions of those laws. Parliament does that prescribing penalties for those who engage in conduct prohibited by the criminal law.

37 Consequently when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by statute for the breach. In this case the maximum penalty to deter people from offending is one of twenty years imprisonment. Sentencing for breaches of the criminal law requires the sentencing Judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind that maximum penalty available and its deterrent purpose.

38 There is also a specific deterrence aimed at individuals like minded to the offender who but for such deterrence would be willing to commit crimes similar to those for which this offender is being sentenced, and in particular I harken to the unknown offender.

39 Finally there is a component of deterrence to be considered personal to this offender with a view to deterring him from re-offending.

40 The starting point in all sentencing is to understand the purpose of sentencing proceedings.

“The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. The prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law so that when people have committed offences the law considers that they merit punishment. But its prime purpose is to preserve society from the depredations of dangerous and vicious people. See King v Porter (1993) 55 CLR 182 per Dixon J”.

41 Armed robbers using knives to terrify their victims qualify as dangerous and vicious people because of the violence and trauma inflicted upon their victims as affects which the victim may experience for years.

Impact of the Guideline Judgment:

42 The guideline judgement, Queen v Henry & Ors sets a starting point for sentences sharing seven common characteristics one of which was “plea of guilty limited by a strong Crown case”. That characteristic has no application in this case. The other six appear to apply. Further aggravating features referred to earlier are also present, extended interaction with the victim and pressing the victim into acts to facilitate gathering items to be stolen, that is, behaving in a sense disloyally to his employer. There was the further aggravating feature the commission of this offence whilst on a s 12 good behaviour bond.

43 Factors that would mitigate a sentence commencing above the figure nominated in the guideline judgment is the youth and disruptive background of this offender; the potential to exacerbate his depressive condition by imposing a crushing term; the need to focus upon rehabilitation, and the counter rehabilitative effect of full time custody.

44 There is evidence demonstrating that absence from his young son, prison bears heavily upon him making his custody more arduous for him than many other prisoners.

45 Taking all matters into account the overall sentence that I would set is one of four years imprisonment.

Special circumstances:

46 This is a case in which it is appropriate to find special circumstances. The factors that I take into account include: the youth of the offender; this is his first period of full time custody; he has experienced more than simply hearing the prison gates clang behind him (Sergeant); a substantial parole period is a potent force for personal deterrence while ever that parole continues to run; he needs community based rehabilitation programmes and motivation, that is, a threat of a breach of parole to encourage him to commit to those programmes.

47 I would commend to the Parole Board that it requires the offender to be supervised by Probation and Parole upon his release to parole. Further that the Probation and Parole case manager consider those matters I mentioned earlier including drug and rehabilitation, drug and alcohol rehabilitation, focus on personal skills development, psychological counselling and assistance in securing employment, or a TAFE course suitable to his needs.

Custody:

48 This offender has been in custody since his arrest on 11 January 2006. His sentence will commence from that date.

49 Islam Hassan you are convicted of the offence; that you on 4 January 2006 at Yagoona being armed with an offensive weapon, namely a knife, robbed Md Sewar Kabir of a sum of money, a quantity of cigarettes and telephone cards, the property of Roger Dah Dah and two mobile telephones the property of Md Sewar Kabir. I set a non-parole period of 21 months to date from 11 January 2006 and to expire on 20 October 2007. I set a balance of term of two years and three months to expire on 20 January 2010. You will become eligible to be released on parole on 20 October next. Release is not automatic. Whether you are released or not at the time will depend upon a decision of the Parole Board. The Court has no influence on whether parole is granted or not. It remains to you to persuade the Parole Board that you have rehabilitated to a point where the Parole Board feels it can release you. They will take note of all that has happened whilst you have been in custody. Programs that you have done, programs that you might have failed to do. Whether there have been breaches of discipline and the like. It will be upon your conduct in prison and your offence when they come to determine whether you will be released to parole. I simply want you to understand I have not ordered your release because I cannot.

Any other matter?

BROWN: No your Honour.

MARTIN: No your Honour.

HIS HONOUR: Mr Hassan may be returned to custody.

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