R v Ismal

[2025] NSWDC 79

District Court

New South Wales

Medium Neutral Citation:	R v Ismal [2025] NSWDC 79
Hearing dates:	20 March 2025
Decision date:	20 March 2025
Jurisdiction:	Criminal
Before:	Noman SC DCJ
Decision:	Imprisonment for 3 years and 4 months with a non-parole period of 2 years, to commence on 4 September 2023. The offender will be released to parole on 3 September 2025.
Catchwords:	SENTENCING – Imprisonment – demand property in company with menaces
Legislation Cited:	s.99(2) Crimes Act 1900 (NSW)
Category:	Sentence
Parties:	Rex; Hicham Ismal
Representation:	Counsel: Defence: D Grippi Solicitors: Crown: D Horsley Defence: S Black
File Number(s):	2023/248292

JUDGMENT

1. On 7 February 2025 I sentenced Salah Hamze for his involvement in an offence of demand money with menaces. The offender Hicham Ismal is a co-offender. The offender was involved in this offence with Hamze and Anwarulhaq Aymal. Another person or other persons were present although their identity is not known.

2. The offender is to be sentenced for a sole offence of demanding property in company with menaces. This offence is contrary to s.99(2) Crimes Act. The maximum penalty is 14 years imprisonment. The maximum penalty for an offence represents the legislature’s assessment of the seriousness of the offence.

3. The offender entered what is accepted to be an early plea. The timing of the plea in the Local Court warrants a reduction of 25% to the sentence.

4. I have had regard to the full facts and only recite key aspects. I note the facts are not identical to those tendered when sentencing Hamze. Some portions are redacted and other portions added.

5. The offender was aged 32, Hamze was aged 39 and Aymal was aged 20.

6. The offender was the instigator for what occurred. Lai La Yassin aka Alexia Mastropetros appears central to the dispute. The reason for this offending stemmed from personal relationships. The offender contacted the victim about Alexia, and specifically mentioned his conduct was ‘for Alexia’ in the communication seeking money. He had an interest and a role in the offending although he was not present other than as a voice on a telephone. The fact he was not physically present is of some significance when considering the roles of others. Hamze and Aymal presented a combined physical threat that accompanied the words expressed by Ismal. Some aspects of what occurred were captured on CCTV.

7. The victim, Mohammed Skaf was aged 41. He still resided in his family home with his parents and two siblings. The victim was in a sexual relationship with Ms Yassin for two months between January and March 2023. She ended the relationship. In March, the offender contacted the victim. They knew each other from meeting in gaol in 2018. The offender said he obtained the victim’s number from Ms Yassin. They discussed Ms Yassin.

8. On 15 May 2023, the offender again contacted the victim and sought to meet in person. The victim texted an address across the road from his home as he did not want to provide his address. About an hour and a half later two cars arrived. The victim exited his house and approached the front car. Hamze was the driver of this car and Aymal was in the front passenger seat. Neither person was known to the victim. Aymal told the victim to not do anything stupid or he would be hurt. The offender used a phone to enable Ismal to address the victim. Ismal threatened the victim due to his communication with Ms Yassin who was said to now be Ismal’s girlfriend. He demanded he be paid $20,000 and was told he would be seriously hurt if he did not pay. The victim was told there was an entourage present. This is inferred to be a reference to the other car and its unknown occupants. Another person at least was involved in this separate car. The victim indicated he did not have the money and there was further discussion. Hamze exited the car, opened the rear door and threatened they would not leave without payment. Ismal said the victim would be escorted by the others and that he would be seriously hurt if he did anything stupid. Aymal added he would seriously hurt the offender’s family and his mother if he did anything wrong. The victim walked towards his home with Hamze and Aymal in close proximity. Eventually the victim was able to enter his home and shut the door behind him. Hamze and Aymal ran away. Both cars drove away. The victim and his father ran after the cars.

9. The police were contacted and attended. Whilst they were present, the offender called the victim.

10. The offender was arrested on 4 August 2023. Clothing matching that on the CCTV was located in his home. A Cellebrite download of the offender’s phone captured contact between the offender, Aymal, Ms Yassin and another person prior to, during, and after the incident. Some of this contact is disclosed in the facts. The offender said he would transfer Hamze $1,000. I infer this is payment for his involvement.

11. This is an offence committed in company. Hamze and Aymal were present in the car, although at least one other person was nearby providing an intimidatory role. This was a planned meeting and others were recruited to participate. It was evidently planned for both cars to attend. It was planned and not spontaneous. The offender was the instigator although physically not present. His role on the phone was significant. He relied upon those involved in the joint enterprise to provide the physical threat and menaces. All three directly threatened the victim or his family with being hurt. The force of being confronted in company and having three persons threaten the victim would have been highly intimidating and well satisfying the requirement of menaces. There were threats without any actual violence. The offender presented as aggrieved in some way over the connection to Ms Yassin. The offending was of a limited duration. It was the offender who indicated familiarity with the victim’s home and who informed the victim the co-offenders would accompany him there to obtain the money. There was no sophistication beyond the impact of intimidation based on numbers and threats. The period of threatening words or conduct was relatively brief although it only ceased through the ability of the victim to extricate himself. Even after this, the offender still sought further contact.

12. The offender has accepted in the Sentencing Assessment Report he was involved for money. He suggested he was recruited and he would only have obtained a ‘cut’ of the amount demanded. I do not accept that any other person was involved higher up than this offender. There is insufficient evidence to persuade me of this even to the lesser standard. The facts reflect the motivation being based on an issue with Alexia and the offender acting in response to some action and seeking monetary recompense. They are the words he texted. Any issue with the victim was the offender’s issue.

13. The offence occurred due to the offender’s role and the involvement of others brought in to advance the offender’s interests. I accept the Crown submission that this offender was the instigator as this is supported in the facts and that he played an important and enduring role despite not being present. As at least three others were involved, and one at least was to receive $1000, it is likely that others would have been paid from any amount destined for the offender.

14. It is not necessary to assess this against a mid-range but I acknowledge the submission on behalf of the offender that it falls below mid-range. This was a relatively serious example of the offence provision and one to be evaluated at a level modestly higher than submitted.

15. The offender first appeared before the Court as an adult in 2011. He received penalties for various weapon offences, drug offences and miscellaneous offending. In 2014 he was sentenced to imprisonment for an offence committed in custody. In 2014 he received custodial penalties for offences of personal violence. In 2023 he received an aggregate term of imprisonment for various offences including firearm offences that were committed prior to the index offence. His record disentitles him to leniency. I note in the Sentencing Assessment Report his offending is referred to as being underpinned by entrenched anti-social attitudes and anti-social influences.

16. I observe his custodial record refers to his affiliation with Brothers for Life. In the Sentencing Assessment Report the offender advanced this was no longer current however he declined to discuss it further. In 2025 he was placed in segregation for assaults upon other inmates. In 2024 he was penalised for a drug offence and in 2025 he was penalised for an assault. These are more detailed in the Sentencing Assessment Report.

17. The offending occurred in breach of conditional liberty in the form of both bail and a community corrections order. Beaching of conditional liberty operates to aggravate the offending as it demonstrates a breach of the trust extended to the offender.

18. I am assisted by the Sentencing Assessment Report. Therein the offender’s family life and support are discussed. His friends and extended family are nominated as displaying anti-social and criminal attitudes. The offender previously ran his own gym.

19. The offender suggested he committed the index offence due to anti-social influences, financial gain and illicit substance use. He said he was working as a ‘legitimate’ debt collector. He said the victim owed a debt and he was asked to collect the debt. He indicated the victim deserved the conduct. The victim is protected by an APVO. I do not overlook that in the more recently prepared psychological report the offender said he felt bad for the victim, and he did not deserve the conduct. I consider this statement made soon before sentence and contrary to earlier contrary comments to not be credible and a statement of convenience.

20. Given the explanation for the offending and the blaming of the victim, I do not determine that the plea reflects remorse, and I do not determine that the evidence establishes remorse.

21. The offender is assessed in the Sentencing Assessment Report as falling in the medium risk of reoffending. If the offender is truthful about his focus now being on family and faith, then that bodes well. I consider him unreliable in his accounts given differing statements between reports. I do generally accept this assessment.

22. I am further assisted by a psychological report authored by Dr Mamta Sidhu. Within this report the offender described his pro-social parents and upbringing. He obliquely referred substance abuse issues in his home without further specification. There is insufficient detail to determine any relevance. He said he was raised in an area where he was exposed to drug use, violence and crime. He advanced he was exposed to anti-social behaviour, and this became entrenched in his conduct. The offender described finishing year 12, working as a fencer for a year and developing a gang affiliation before receiving a sentence of imprisonment. His sister died from cancer at the age of 14. The offender already had committed offences and been sentenced to gaol prior to this traumatic event. The offender seeks to rely on this trauma as having bearing on his subsequent conduct and drug use. He said he was re-employed as a fencer upon release and moved away from gang affiliation. The offender described recreational drug use that only became problematic about a year prior to the index offending. He presented at hospital with an infection and suffering drug withdrawal in June 2023, the month after the index offence. I note it is recorded that he was not working at that time and had not worked the previous month. He engaged in drug rehabilitation as an outpatient and attended drug counselling. The medical and counselling notes refer to this occurring in both 2022 and 2023, and a period of counselling commencing about 11 days after the index offence. The offender indicated previous involvement for 2 years with a psychologist.

23. Contrary to the content of the Sentencing Assessment Report, the offender said his peers were largely positive influences. He said he is now focussed on family and faith. His wife provided evidence that the offender connected with his faith prior to the offending so the role of faith in the offender’s life and its connection with reform is unclear.

24. The offender advanced an explanation for the offending not reflected in the facts. No debt is referred to. Ms Yassin seems to be the impetus. The offender advanced in the Sentencing Assessment Report that the victim deserved the treatment occasioned during the offending and appeared to suggest the offender’s own criminal history warranted the outcome. The offender said he was under the influence of cocaine and prescription drugs at the time of offending and advanced this usage to explain his conduct.

25. I do not accept the submission that the offender is at extreme risk of becoming institutionalised. The evidence reflects otherwise.

26. I accept the offender made a poor decision to commit this offence at a time he was using cocaine and other drugs. It informs his poor judgement. I do consider the life experiences and his drug use warrant moderating moral culpability.

27. In sentencing, I recognise the harm done to the victim of the crime and the community. Although relatively brief, this would have been a frightening experience.

28. The offender has a drug misconduct offence in custody. This reflects a continuation of his drug use in custody. The benefit of any rehabilitation course commenced before entering custody did not endure. Specific deterrence continues to be of significance.

29. General deterrence and denunciation are of importance in senseless acts of intimidation. I do not accept the submission advanced on behalf of the offender that deterrence, general and specific, is lessened.

30. I am required to consider parity.

31. Both co-offenders similarly to this offender received a reduction of 25% to reflect the plea. Both were the person recruited to be present and contribute to the threats and menaces.

32. Aymal received a CCO for 18 months. He was on ‘strict house arrest’ for 454 days whilst on bail pending sentence and there was a level of assistance provided to investigators. He had a limited criminal history although he was on conditional liberty at the time of offending. Mental health issues applied. Based on youth, rehabilitation was of significance. The sentencing remarks reflect mental health being a factor and that this lessened moral culpability.

33. I sentenced Hamze. He was acting under direction and contributed to the physical threat. He had served a term of imprisonment. Differing from this offender, he was not on conditional liberty. I determined moral culpability was lessened based on the disadvantage experienced. Hamze already had a conviction and sentence for a not dissimilar offence.

34. I am required to consider totality. The offender was arrested on 4 August 2023 and remained a remand prisoner until 29 August 2023. He received a sentence of 3 months imprisonment to date from 30 August 2023 until 29 November 2023. Thereafter he reverted to a remand prisoner. The sentence related to separate offending warranting accumulation. The offender submitted that it was appropriate that this sentence be subsumed within the sentence to be imposed.

35. Having considered all other available options, I am satisfied that no sentence other than imprisonment is appropriate. The term of the sentence does not allow for the imposition of an Intensive Correction Order. Given the sentence of 3 months within the period in custody, I propose to allow 1 month concurrency. Sentence will commence one month after entering custody.

36. I make a finding of special circumstances. It is evident that the offender requires extended supervision and support to foster his abstinence from drugs. He requires supervision to assist him to attain the goals concerning substance abuse and achieving pro-social contacts.

37. The offender is convicted.

38. I impose a term of imprisonment of 3 years and 4 months with a non-parole period of 2 years. The sentence will commence on 4 September 2023. The offender will be eligible for release to parole on 3 September 2025. The term will expire on 3 January 2027.

39. This is a variation to the statutory ratio to 60% to reflect the finding of special circumstances.

40. No lesser sentence would reflect the criminality.

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Decision last updated: 24 March 2025