R v Issa and Yousif

[2009] NSWDC 337

CITATION:	R v ISSA & YOUSIF [2009] NSWDC 337
HEARING DATE(S):	25 September 2009
JUDGMENT DATE:	25 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sean Issa is sentenced imprisonment. I set a non-parole period of three years to date from 3 January 2008 and a head sentence of five years. He is entitled to be released to parole on 2 January 2011. Yousif Yousif is sentenced to imprisonment. I set a non-parole period of three years to date from 18 August 2009 and to expire on 17 August 2012. I set in his case a head sentence of five years also.
CATCHWORDS:	Criminal law - Sentence - Form 1 - Aggravated kidnapping - Demanding money with menaces
PARTIES:	The Crown Sean Issa Yousif Yousif
FILE NUMBER(S):	DC 2008/11/1234; DC 2008/22/1235
COUNSEL:	M Gelbert - Offender Issa G Galuzzo - Offender Yousif
SOLICITORS:	Director of Public Prosecutions Michael Abboud & Co - Offender Issa Claude Harb - Offender Yousif

SENTENCE

1 HIS HONOUR: Sean Issa and Yousif Yousif appear for sentence today having each pleaded guilty at an earlier stage to an offence of aggravated kidnapping, the circumstance of aggravation being that they were in company. That is a very serious offence demonstrated by the fact that the maximum penalty provided by the legislature is twenty years imprisonment.

2 They each asked that when I sentenced them for that matter I take into account another matter on the Form One and that is an offence of demanding money with menaces, also in company. Were that to be dealt with separately the maximum penalty for that offence would be fourteen years imprisonment.

3 These two offences arose out of the events of 7 June 2007. In the statement of facts tendered on behalf of the Crown relating to each accused there is a significant amount of information which sets out the preliminary events to these two offences.

4 It appears what occurred is that a man by the name of Abraham Mavlian then aged twenty years had some difficulties with another group of men not involving these accused. The difficulties, if I can call them that, came to a head and Mr Mavlian was assisted by a group of Assyrian men. Once matters were resolved it appears that someone decided that Mr Mavlian would have to pay for the services of the Assyrian men. Indeed he handed over $1,000 that night. It is clear that the offenders had nothing to do with that transaction. They came in afterwards.

5 Having believed the whole unfortunate events were over, Mr Mavlian was disabused of that impression when he got a phone call. It came from a man named Alan Khamis. Mr Mavlian was told that he had to come down to Fairfield because “the boss” wanted to speak to him. Mr Mavlian replied that he had already paid $1,000 and thought it had all been sorted out.

6 In the early hours of the following morning he got another phone call from Mr Khamis. He was again told to come to Fairfield. A threat was made to Mr Mavlian in these terms:

“Get to fucking Fairfield now or I’ll fucking shoot you and your fucking family.”

7 It is not suggested that either accused was involved in that threat or that telephone call. However it explains why Mr Mavlian would leave the safety of his home and drive to Fairfield. There he met up with a group of six Assyrian men. There was also a Commodore motor vehicle driven by a man by the name of Gorges.

8 Mr Issa, one of the two accused in the present matter, was also there. So was the other offender Mr Yousif. Mr Khamis was there as well. Mr Mavlian was directed to drive into an alley. He did what he was told. One of the men was seated in the passenger seat of his car. When he got into the alley he saw the other five men, including the two present offenders, approach him. Thus the two present offenders were in a position to see and participate in what later occurred.

9 Mr Mavlian was pulled out of his car by Mr Gorges. He was pushed up against a roller door. Mr Gorges produced a knife which he presented towards Mr Mavlian. He grabbed Mr Mavlian’s neck with one hand and held up the knife with the other. Demands for money were then made. One of the unknown men said that they were not cheap and asked Mr Mavlian how much money he had. He said he did not have much money and repeated what he had earlier said, that he had already paid $1,000. Mr Gorges told Mr Mavlian that he wanted $20,000 and pushed him harder with the knife still in his hand. There were then some negotiations. In an attempt to get out of the very threatening situation in which he found himself Mr Mavlian lied, telling the men that he had $13,000 which he could provide. The large group of men seemed to have settled on $13,000.

10 The demanding of that money with the menaces I have just described represents the offence on the Form One relating to each offender. What occurred later represents the offence for which the offenders must be sentenced.

11 Mr Mavlian was then dragged again by Mr Gorges over to the Commodore, which I have mentioned earlier. Mr Mavlian was told to get in the Commodore and that someone else would drive his car. The offender in this matter, Mr Issa, was the one who drove Mr Mavlian’s car with Mr Khamis in the passenger seat. The remaining men including Mr Yousif got into the Commodore. During the journey Yousif and two other unknown men kept telling Mr Mavlian “you better have the money, you better not be fucking us around.” He was also hit around the head by each of the passengers in the car including of course Mr Yousif. Mr Gorges said “we will fuck you if you don’t have the money.”

12 Not surprisingly Mr Mavlian was terrified at what he had heard. These were violent men. One of them was armed with a knife. They were prepared to not only threaten violence but to inflict it upon him in the Commodore. Of course part of his terror was no doubt related to the circumstance that he did not have $13,000 to give them. These were unpredictable, aggressive men and the victim Mr Mavlian was completely at their mercy. They did not demonstrate any mercy however.

13 Indeed at one stage Mr Mavlian was put in a headlock and his jumper was pulled over his head. As if this was not bad enough, at one stage the car was stopped and someone said “this guy is fucking us around. Look I don’t need the money. Let’s just get rid of this guy.” Clearly that was meant and interpreted by Mr Mavlian as a threat to kill him. It is worth repeating that Mr Yousif was in the car, Mr Issa was not.

14 As the car turned into the street where Mr Mavlian lived he again had a jumper put over his head and felt a hard object placed against his head. Someone said “You’d better not fuck us around. You better get us the money. You didn’t see us or anything and it will be all over.” He was allowed out of the car. He had been there for about twenty-five minutes. All the other men got out. The hard object which Mr Mavlian thought might have been a gun was put against his hip and one of the men said “You better not fuck us around you’ve got two minutes.”

15 Mr Mavlian then walked over to the car that Issa had been driving. He got into that car and drove the short distance to his home. Mr Khamis remained in the front passenger seat of that car as he did so. Finally Mr Mavlian was able to reach the sanctuary of his home. His parents were awake waiting for him. He told them what had happened and the police were immediately called. The men hadn’t given up however. Mr Mavlian’s sister and mother heard tapping on the windows and the front door and a voice yelling out “give us the fucking money.”

16 Police managed to stop the Commodore soon afterwards and they arrested a number of men including the two offenders. They participated in electronic recorded interviews with the police in which they denied the allegations. Of course those denials are now to be treated as being false in view of the pleas of guilty entered by the appellants.

17 One of the most important matters in assessing the seriousness of an offence is the harm that that offence causes. In this case of course the harm which Mr Mavlian felt is most important. He says that he was subject to a terrifying ordeal and he did not know that anything like that could ever happen. He said he had never experienced such fear and such terror. He was convinced that he was going to die.

18 Those emotions are entirely foreseeable. The two offenders must have known they were causing a high level of fear and indeed terror in the mind of Mr Mavlian. In fact that is precisely what they wanted to occur. They wanted him to be frightened so that he would provide them with some money. Also foreseeable is the effect on Mr Mavlian in the longer term. Although the Victim Impact Statement he prepared is dated two years after the incident, he says that still to this day he is experiencing flashbacks to that night and the events that occurred. He says he is continuously worried for his safety when he leaves his house and he worries about the safety of his family also. He says:

“I live in constant fear and cannot enjoy myself or relax in any way when I am outside my home. When I am at home I worry about who is approaching the house and worry about any strange vehicles or any people who may be walking past. I feel paranoid now and I was never like that prior to this incident.”

19 He says that he can see no end in sight to these feelings and he describes it as if he has been given a life sentence of his own.

20 As I said the consequences for Mr Mavlian were entirely foreseeable and to a large extent intended by the two offenders. That must be firmly borne in mind when I assess the appropriate sentence for both men.

21 Mr Yousif has no prior convictions. He is twenty-two years of age and the youngest of seven children. He was born Iraq and came to Australia about eleven years ago when he was twelve. His parents separated about five years ago and he remained living with his mother. He cared for his mother in many ways, assisting her with her medical condition, she being an insulin dependant diabetic, and also assisting her as an interpreter.

22 He left school in year 11. He remained there for that long because it was what his parents wanted. He realised he was not going to do well at school so he left and has not pursued any other training or studies since then. At school he found some subjects hard but did well in others. He told a psychologist that since he left school he could not find a job and went on to unemployment benefits. Eventually he got a job in a factory making building products but was asked to leave when the work dried up. He then worked in a pizza shop but that also did not last. He worked for his sister Kim as a cleaner but again that job ceased because of lack of work. He is now unemployed and supported by his family.

23 One significant positive matter in his favour is an aspect of his personality referred to in references tendered on his behalf, in particular he performs valuable service for the unfortunately named Granville Rage Soccer Club.

24 Mr Issa, in contrast to Mr Yousif does have a criminal history and appearing on it is a very significant matter indeed. In 2004 he was dealt with for an offence of ongoing supply of drugs for which he received a sentence of four years imprisonment. There are other less serious matters on his criminal history as well.

25 Mr Issa was born in Sydney, he is the second oldest child in his family, his parents are Assyrian migrants from Iran. The offender told Dr Jacmon that his relationships with his parents were good, although Dr Jacmon expressed some doubt as to whether he could accept what Mr Issa was saying for reasons which I could never identify.

26 The offender left school in year 10 and worked for his father, however he was argumentative, lacked focus and inattentive and so on regular occasions he would stop working for his father and return later. He was diagnosed with diabetes in 2002 and formed a relationship with a woman in 2003. However he was then sent to prison for the offence that I have referred to and his relationship with this woman broke up. He then began to gamble which resulted in depression and anxiety. He became part of a group of youths of Assyrian background, that group, including the co-offender and the other men who kidnapped Mr Mavlian on that night.

27 Dr Jacmon says that Mr Issa suffers from a borderline personality disorder and ADHD. The Crown Prosecutor cross-examined Dr Jacmon to suggest that in fact he did not have a borderline personality disorder and the Crown submitted that I would prefer the evidence of Dr Allnutt who did not agree with Dr Jacmon’s conclusion. I do not need to resolve whether I should favour the opinion of the psychologist, Dr Jacmon, or the psychiatrist, Dr Allnutt. Even if he does suffer from those two conditions it may be that he is less able to control his offending behaviour but does that mean that the sentence should be more lenient (or more severe). It may suggest that he is deserving of leniency because his behaviour is harder for him to control, but if it does then personal deterrence becomes of more importance.

28 Dr Jacmon gave evidence. He agreed that in almost every one of the reports he prepares for courts a sentence similar to this appears:

“Mr Issa’s actions which led to offending reveal highly impaired judgment because there appeared to be little thought given to the consequences.”

It was his opinion that at least to some extent everyone who commits a crime demonstrates highly impaired judgment. In those circumstances, it would not be surprising that Dr Jacmon told me that the conclusion that I have just read out does appear in almost every one of his reports. Dr Jacmon seems to be saying that anyone who commits a crime has impaired judgment because they might get caught.

29 It has to be said that I do not accept that opinion at all. Many offenders adopt a completely rational thought process. Indeed one can see exactly what the offenders were hoping to achieve in this case. They wanted money and they thought that by threatening Mr Mavlian and kidnapping him they could get it. No doubt they felt confident that having threatened Mr Mavlian with a knife, threatened to kill him and terrified him as they did, he was going to hand over the money and not go to the police. Just because they were wrong about what Mr Mavlian did does not mean that they had highly impaired judgment.

30 I am also prepared to accept, in relation to Dr Jacmon’s report, that Mr Issa is a follower rather than a leader but both generally and as regards this offence once more personal deterrence must be borne in mind. Even “followers” who commit serious criminal offences deserve serious punishment and it may well be and it is in this case that he needs to be deterred more if he is unable to extricate himself from the position he puts himself in because he is a follower.

31 Both offenders pleaded guilty but at a late stage. Indeed the pleas were only entered after the trial was due to commence. There is therefore a utilitarian value in the pleas but that is of limited value. Some court time would have been saved but witnesses were ready, the prosecution was ready, and court time had been allocated. In those circumstances a discount of ten per cent or approximately that, is the most that I can allow.

32 One of the issues which is of course relevant concerns the question of parity. I must ensure that neither offender has a justifiable sense of grievance when he compares the sentence I impose on him with the sentence I impose on his co-offender. In this case I will accept what Mr Galluzzo said and that is that there is a balancing out of some factors, such that they should effectively receive the same sentence. Whilst Mr Yousif was more involved, he being in the car, and he actually hitting the victim, his client was younger and did not have a criminal record. Those matters to my mind do balance each other out such that the sentences imposed on the offenders will be identical.

33 In each case I take into account that the offenders were subject to stringent bail conditions. In Mr Yousif ‘s case they were relaxed over time. These conditions included a curfew and daily reporting. I am able to take those into account and indeed I should in assessing the appropriate sentence.

34 Counsel for both offenders asked me to make findings in favour of their clients, that they were remorseful. That is very difficult to do in the absence of evidence from the offenders themselves. In Mr Issa's case, he is not assisted by Dr Jacmon’s failure to actually bring along any notes he may have made as to what Mr Issa said on the question of remorse and was forced to rely on Dr Jacmon's summary, Dr Jacmon’s interpretation of what was said. In any case Mr Issa did not expose himself to cross-examination on that issue and so I give little weight to Dr Jacmon's summary of what the offender said for those two reasons. In Mr Yousif’s case Mr Galluzzo clearly acknowledged that much of what he said on the question of remorse came only from the Bar table. I am unable to find that the offenders are remorseful.

35 Similarly I am unable to find that they have good prospects of rehabilitation, that is not to say they have no prospects but I cannot find that they are good. The circumstances of this offence themselves suggest that that is the case. It may be that, and it probably is, Mr Yousif’s prospects of rehabilitation are better than Mr Issa’s given the lack of his criminal history. In each case I have to assist their rehabilitation by imposing a sentence on them which will personally deter them from acting this way in the future. I do consider that they would both benefit from an extended period of supervision on parole. For that reason I will make a finding of special circumstances in their favour.

36 These offences were very serious. It is to be remembers that I am sentencing not only for the aggravated kidnapping matter but taking into account the demand money with menaces matter as well and the sentences that I will shortly announce will have to be looked at in that light.

37 It is also to be borne in mind that these offences were committed out of pure greed. This group of men was prepared to terrorise Mr Mavlian simply because they wanted some money. They cared nothing for how he was feeling and regarded him simply as a means by which they could unjustly enrich themselves. The time during which Mr Mavlian was held captive was twenty-five minutes, not a long period, but not an insignificant one either, but for each of those twenty-five minutes he was in great fear.

38 It is a fundamental rule of sentencing that a sentence imposed on an offender reflect the objective gravity of the offence. As I have to have made clear, this was a very serious offence indeed and has had lasting consequences for the unfortunate Mr Mavlian.

39 Sean Issa is sentenced as follows, he is sentenced to imprisonment. I set a non-parole period of three years to date from 3 January 2008 and a head sentence of five years. He is entitled to be released to parole on 2 January 2011.

40 Yousif Yousif he is sentenced to imprisonment. I set a non-parole period of three years to date from 18 August 2009 and to expire on 17 August 2012. I set in his case a head sentence of five years also.

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