R v Nazih Zantout

[2009] NSWDC 415

CITATION:	R v Nazih ZANTOUT [2009] NSWDC 415
JUDGMENT DATE:	30 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non parole period of 18 months. Balance of term of 18 months.
CATCHWORDS:	CRIMINAL LAW - sentence - robbery in company - co-offender armed with knife - serious crime - strong family support - ongoing health issues - significant degree of developmental delay - no prior convictions - unlikelihood of re-offending - higher than usual degree of planning - victim in vulnerable position - plea of guilty at earliest opportunity - guideline judgment
LEGISLATION CITED:	Crimes Act 1900 s 97(1) Crimes (Sentencing Procedure) Act 1999 s 50 Victims Support and Rehabilitation Act 1996
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina Nazih Zantout
FILE NUMBER(S):	2008/208363
COUNSEL:	Mr Gillett (for Mr Zantout)
SOLICITORS:	Mr White (NSW Office of Director of Public Prosecutions)

JUDGMENT

1. I have to sentence a young man named Nazih Zantout for a very serious crime. The crime is called robbery in company. It is made a crime by s 97(1) of the Crimes Act 1900. It is so serious a crime that Parliament has fixed a maximum penalty of twenty years imprisonment for anyone who commits this crime.

2. It is important for any judge in sentencing an offender to explain briefly what happened in the case so that everyone understands how serious the crime is. The crime was committed on 10 October 2008. A man who worked in a company which recycled car parts had been contacted some days earlier by either Mr Zantout or one of his accomplices. I cannot be satisfied beyond reasonable doubt that it was Mr Zantout.

3. The man who became the victim was told that someone had a lot of car parts for sale and that he should come to a block of units where he could buy them. Arrangements were made for him to go to an address in Auburn. The man parked his car outside and then one of the co-offenders came outside and asked him to drive his car into the underground car park. The number of car parts which were said to be on sale was very high so the offenders must have expected the man to come with a lot of money. They were right in this expectation.

4. When the victim drove his utility into the car park and started to get out he was challenged by one of the co-offenders who held a ten centimetre knife at the man’s throat. Then two other men appeared. One of them punched the victim in his face. Whilst the knife was still being pointed at him, he was told to hand over the money or he would be killed.

5. It must have been a terrifying experience for this victim. He was alone isolated in the car park with three men, one of whom had a long knife, and he was being threatened with his life. He offered them a $1,000, which was game of him, but the men, as I said, expected that he would have more so they challenged him. The victim wisely produced the rest of the money, which was a further $10,500. All in all he was robbed of $11,500. Not only did they take the money from him but they stole his GPS navigator from his station wagon.

6. Luckily someone saw what was going on and rang the police. The offenders ran away. The police saw Mr Zantout and chased him. They finally caught up with him and found the navigator in his pocket and a phone. He was interviewed and charged. Mr Zantout does not have any previous convictions.

7. Mr Gillett who appears for Mr Zantout as his counsel today frankly and realistically acknowledged this is a very serious crime. Mr Gillett called Mr Zantout’s sister, Sarah, who herself is a worker in the criminal justice system and she explained how Mr Zantout is one of five children. There are three girls and a boy, most of them in their twenties; they belong to a strong and supportive family.

8. Sarah Zantout said how much change she had seen in her brother since he was arrested last year for this offence. She said that he had not done well at school and in fact her parents had often been called in. She explained that the family only became aware of a particular medical condition which her brother has called Marfan syndrome when they saw a psychiatrist last month concerning this offence.

9. The family all support Mr Zantout and will back him up, whatever happens. He has employment with a brother-in-law as a motor mechanic and is doing a special class in motor mechanics at TAFE. He has strict bail conditions; he was kept in custody for some six days; he has kept a curfew which means that he cannot go out after 8 o’clock at night. He no longer associates with those people that he committed the crime with and his friends are no longer trouble makers. He is, all in all, experiencing much more support now that some of his difficulties have been exposed. Sarah said that his ability to plan is not very good and he needs help with this.

10. In a helpful pre-sentence report prepared by a probation and parole officer, the supportive family upbringing is confirmed. Mr Gillett emphasised the reference to Mr Zantout being influenced a lot by his peers. He acknowledged that what he did was wrong but presented with a lack of insight to the probation officer.

11. In addition there is an extensive report from a psychiatrist, Dr Roberts, dated 26 October 2009. Mr Gillett emphasises the diagnosis of Marfan Syndrome and referral of Mr Zantout to a cardiologist. It remains an ongoing issue as far as Mr Zantout’s health is concerned. Dr Roberts noted that there was a significant degree of what he called developmental delay with Mr Zantout’s medical history and that delay has affected his education and behaviour. He further pointed out that such developmental delay can affect a person’s capacity to make sound judgment which is, as the doctor described, significantly compromised. The treatment plan included some limited medication and the developmental delay can be compounded by the presence of Marfan’s syndrome. He also has a shoulder injury which was picked up by, as part of the history, Dr Roberts. Dr Roberts thought that he could be victimised in gaol and was particularly vulnerable.

12. Mr Gillett acknowledge the aggravating features of the case but pointed to some features such as an unlikelihood of re-offending, which I find is the case, and no prior convictions. Mr White who appears for the Director of Public Prosecutions does not dispute Mr Gillett’s submission that Mr Zantout pleaded guilty to this charge at the earliest opportunity to him.

13. Mr Gillett argued that any prison sentence should be adjusted so that the non-parole period is less than usual. Mr White compared this case with the guideline judgment delivered by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346 by reference to common elements of this kind of offence. Mr White pointed out that Mr Zantout is a young man with no criminal history; there was a knife involved in the offence; however this offence involved more than a limited degree of planning it was in fact a higher than usual degree of planning and obviously the unfortunate victim was, as Mr White said, lured to the block of units so that he could be robbed at knife point.

14. Mr White went on to say that there was a limited degree of violence, he argued that the victim in this case was in a vulnerable position not because of his employment but because he was placed there by the offenders. I accept that submission.

15. The amount stolen was Mr White argued relatively small although $11,000 is probably a lot more than many people obtain from an armed robbery.

16. There was a plea of guilty, in this case it was at the earliest opportunity. The range of sentences for a typical case is between four and five years as a head sentence. Mr White argued that the only appropriate sentence would be a custodial sentence. It could not, he said, be less than two years.

17. This is a difficult case to sentence someone on because it is a such a serious crime but committed by a young man with some significant problems. However, I regard a full-time custodial sentence as inevitable and the question is what that sentence should be.

18. Taking into account the guideline judgment I would regard this case as so serious - given the degree of planning involved - that a head sentence of five years would be appropriate. I appreciate that the guideline judgment includes or assumes a plea of guilty but I am going to, as a benefit to Mr Zantout, discount that head sentence of five years by twenty-five per cent because of his plea of guilty. I want to make the impact of his plea very clear, that would reduce the head sentence to some three years and nine months. Because of the fact that he is significantly affected by developmental delay and, because of this condition, was more liable to be influenced in what he did, I regard the case as one where general deterrence is slightly less important than usual.

19. Accordingly, I have determined that the appropriate overall sentence is one of three years imprisonment. I accept Mr Gillett’s submissions that there are special circumstances which warrant an adjustment in the normal ratio between the non parole period and the head sentence. Those special circumstances include the fact that this will be Mr Zantout’s first significant period of custody and there will need to be some attention to his reintegration into the community including employment when he is released from prison. I regard an appropriate non parole period as one of eighteen months.

20. I am now going to sentence you Mr Zantout, if you would stand up. I set a non parole period for your sentence of eighteen months, to commence today 30 October 2009 and to expire on 29 April 2011. The balance of the term will be eighteen months, to commence on 30 April 2011 and to conclude on 29 October 2012.

21. The overall sentence is three years, commencing today 30 October 2009 and expiring on 29 October 2012.

22. Under s 50 the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 29 April 2011.

Take a seat Mr Zantout. I will explain things to you in a moment. First are the mathematics correct? I think they are.
WHITE: Yes, they are correct. Did your Honour allow for the six days?
HIS HONOUR: I am going to say something about that, yes. The second thing is whether conditions of parole, because I am fixing parole, obviously good behaviour. I am not sure that he needs supervision because the probation report thinks he is unlikely to need supervision and he has a strong family. He has been to see a doctor.

GILLETT: Usually your Honour just makes an order that he be subject to the usual orders under the Crimes (Administration of Sentences) Act. That is all in my submission.

HIS HONOUR: But I think I need to fix conditions of parole, don’t I because I am ordering his release on parole, it is not the Parole Authority.

GILLETT: No you are probably right, your Honour.

HIS HONOUR: Because it is me doing it, because his sentence is three years.

GILLETT: Yes, your Honour is right.

WHITE: I think that is right your Honour and perhaps if your Honour just simply sets a condition--

HIS HONOUR: A good behaviour is one condition.

WHITE: Yes, your Honour and that he be supervised by Probation and Parole for as long as that Service deems necessary.

HIS HONOUR: All right, okay.

23. Conditions of parole will be:

1. That he be of good behaviour.

2. That he accept any supervision from the Probation and Parole Service which that Service deems necessary for whatever period that Services deems necessary.

24. I had intended to mention in my remarks on sentence - and omitted to and was reminded by Mr Gillett - in reducing the sentence to three years and fixing the non parole period at fifty per cent, I have taken into account that Mr Zantout has already served six days in custody.
Now is there anything else?

WHITE: Your Honour I am instructed to apply for an order for compensation in relation to the amount stolen from the victim, but I don’t wish to be heard at length about that application.

HIS HONOUR: What provision of what Act do I make that order?

WHITE: It is the Victims Support and Rehabilitation Act your Honour I believe and unfortunately I have not brought the legislation with me. I am sorry I cannot assist your Honour further in relation to that.

HIS HONOUR: I think without the legislation, I am not going to make the order.

WHITE: Yes your Honour.

HIS HONOUR: I don’t want to be cavalier about it, so far as the victim is concerned he has been lured to that place and had been relieved of eleven and a half thousand dollars, if you want to make an application then do it by notice of motion. I am here for another month. You would obviously need to bring Mr Zantout and his representatives along. Just without your assistance with the legislation and any criteria by reference to which I make an order, I don’t think I should.

WHITE: Yes your Honour.

HIS HONOUR: anything else Mr White or Mr Gillett, before I explain the sentence to Mr Zantout?

GILLETT: No thank you your Honour.

WHITE: No thank you your Honour.

HIS HONOUR: All right.

25. Mr Zantout, I have sentenced you to three years gaol and I have said that you have to serve eighteen months, half of that. Normally you serve about seventy per cent so it would be about two years - over two years you would serve - but because of what Mr Gillett argued and Mr White acknowledged I am allowed to readjust it and I have done that. Your three years starts today. There is a minimum of eighteen months and that finishes on 29 April 2011. On that day I have ordered that you be released and you are on parole for the following eighteen months. You have to behave yourself and stay out of trouble and you have to report to Probation and Parole and if they think you need supervising then they will. If you don’t behave yourself then you are back before me and you might have to go back into gaol, do you understand that?

OFFENDER: Yes.

26. All right. It is not easy sending a young man like you to gaol, but the crime you got involved in was very serious for the reasons that I have explained and the impact on the victim, it must have been a dreadful experience for him to be where he was. I also expect that if I had given you anything less than full-time gaol that the prosecution may have appealed and that the Court of Criminal Appeal may have sent you to gaol in about three or four months time. I am not saying that is their fault. The Court of Criminal Appeal says what I need to do and I have decided that you should go to gaol but I am just pointing out that if I had not have sent you to gaol somebody else might have.

HIS HONOUR: Now is there anything else?

WHITE: No thank you your Honour.

HIS HONOUR: I am going off the bench now and you may wish to talk to your sister and relatives, she might want a few minutes with you just before you are taken down.

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