R v Regan Zia Yousiph

[2024] NSWDC 541

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Regan Zia Yousiph [2024] NSWDC 541

Hearing dates:

6 September 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The offender is sentenced to an aggregate term of imprisonment of 6 years and 8 months, with an aggregate non-parole period of 4 years and 5 months.

Catchwords:

SENTENCING - Crimes Act 1900 (NSW) s 93GA(1B) – Firing at dwelling-houses or buildings - ‘Drive-by’ shooting

Legislation Cited:

Crimes Act 1900 (NSW) s 93GA(1B)

Crime (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW) s 7(1)

Cases Cited:

White v R [2016] NSWCCA 190

Bugmy v R (2013) 249 CLR 571

Moiler v R [2021] NSWCCA 73

Category:

Sentence

Parties:

NSW Director of Public Prosecutions (Crown)
Regan Yousiph (Offender)

Representation:

Counsel:
Kay Marinos (Crown)
Thomas Jones (Offender)

Solicitors:
Jennifer Katrib (Crown)
Andrew Sant (Offender)

File Number(s):

2022/229882

Publication restriction:

Non-publication order in place in relation to the actual names of the victim, SL, and SL’s father and mother.

JUDGMENT

Introduction

1. The offender, Regan Yousiph, is to be sentenced having pleaded guilty to the following charges: that on 9 April 2022 in Canley Vale, he, in the course of an organised criminal activity, fired a firearm at a dwelling house located at an address which is particularised in the charge on the indictment, with reckless disregard for the safety of another person. That is an offence under s 93GA(1B) of the Crimes Act 1900 (NSW), and has a maximum penalty of 16 years imprisonment, and there is an applicable standard non-parole period of six years. I will refer to that offence in these remarks as the shooting offence.

2. The second charge is a charge that on 4 August 2022 at Smithfield, the offender possessed a pistol, namely a 9 x 19 millimetre black coloured pistol, not being authorised to do so by a licence. That is an offence under s 7(1) of the Firearms Act 1996 (NSW), and has a maximum penalty of 14 years imprisonment, and there is an applicable standard non-parole period of four years.

The Facts

3. The facts are agreed, and the following is taken from the agreed facts.

4. Shortly before 11 pm on Saturday, 9 April 2022, a shooting occurred at the dwelling house located at the address particularised on the indictment. This offender, along with the co-offender, Steven Hirmiz, who went to trial and was found guilty by a jury, and who I will sentence later today, were in a joint criminal enterprise, when shortly before 11pm on Saturday, 9 April 2022, they fired two firearms at the dwelling house particularised in the charge, as they drove past it in a hired utility vehicle.

5. A third offender, I will refer to as a co-offender, Mr Alen Yousif, who I will sentence once I've sentenced Mr Regan Yousiph, was an accessory before the fact to the shooting.

6. At the time of the offence, this offender resided at 7 Kilkenny Avenue, Smithfield, Steven Hirmiz lived at 20 Cochran Place, Abbotsbury, and Alen Yousif lived at 7 Forcett Close, Smithfield.

7. This offender had a prior association by way of friendship with Steven Hirmiz and Alen Yousif, and they were well known to one another. Later in the investigation, police seized the mobile phones of this offender, Steven Hirmiz, and Alen Yousif. The mobile phone records show that this offender, Steven Hirmiz, and Alen Yousif, had telephone contact with one another.

8. The dwelling house the subject of the shooting is in a suburban residential street with other residential houses surrounding it. The house is a modest older style, double fronted, single story detached dwelling of fibro construction.

9. An occupier of that dwelling house was “SL”. SL resided at the address with his parents who lived inside the main single storey house, while SL lived in a detached granny flat at the rear of the property. The family had lived in their home for over 20 years.

10. At the time of the shooting, SL was a New South Wales police officer. His rank at the time was Senior Constable. He had been suspended from duties in respect of proceedings relating to himself which were then before Liverpool Local Court. SL had been the subject of a police investigation by the Professional Standards Command, and was before the Local Court for a number of fraud related offences. He was employed as a New South Wales police officer from 1 April 2015 to 29 September 2022 when he resigned.

11. The Crown accepts that it cannot establish beyond reasonable doubt that this offender was aware that SL was a police officer at the time the shooting occurred on 9 April 2022.

12. At the time of the shooting, the occupants of the premises, SL's father and mother had been asleep in their bedroom at the front of their home when they were woken by sounds of loud bangs. At around 11pm, they went into the adjacent loungeroom at the front of their home and turned on the lights. They noticed one of the walls appeared to have a hole with an object embedded in it, another wall appeared to have a crack in it, and the toilet door appeared to be grazed. They found a piece of metal on the loungeroom floor and another on the floor in the bathroom, which were later confirmed to be bullet fragments.

13. At 11.45pm, SL's mother phoned her son on his mobile as he was in the granny flat, and around the same time, he called back and came into the house and told his parents that he had phoned the police.

14. At 12.12am on Sunday, 10 April 2022, SL telephoned triple-0 to report the shooting and requested police attendance, telling the operator that he was a current serving police officer and that he found multiple rounds in the loungeroom.

15. At approximately 12.20am, police arrived at the residence. Neighbours near the premises had heard a number of gunshots but they were unsure of where they came from.

16. At about 1.30am, SL was spoken to by police, and he declined to provide a statement, but he ultimately did a few days later. None of the residents at the premises, including SL, knew who had committed the shooting.

17. Following the shooting, New South Wales Police commenced an investigation, and during that investigation, a number of overt and covert investigation strategies were utilised. Police obtained CCTV footage from various nearby locations. The footage obtained from a home nearby showed that the shooting occurred shortly before approximately 11pm. The CCTV footage from another premise captured audio of loud bangs, which were the gunshots. GPS data from the utility showed the location of the utility on the relevant street between 10.53pm to 10.57pm on 9 April 2022.

18. Police eventually identified a white coloured utility with South Australian registration plates, set out in the agreed facts, as being involved in the shooting. The utility was owned by a hire company called ‘Move Yourself’ and contained a GPS tracking device used by the company to protect its assets.

19. The vehicle used in the commission of the shooting offence had been hired by a Nathan Ackaoui. The Crown accepts that it cannot prove beyond reasonable doubt that Mr Ackaoui knew before or at the time he rented the utility that it was to be used in the commission of the shooting offence.

20. Police executed a Crime Scene Warrant in respect of the property the subject of the shooting. The Crime Scene Examination of the external and internal residence confirmed multiple fired cartridge cases were located on the roadway outside the house, bullet damage to the exterior of the house, including bullet holes in front windows and the fascia. And bullet damage and multiple bullets were located inside the premises, including strike marks and bullet holes through walls in the loungeroom, adjacent sewing room, kitchen, and bathroom areas at the front of the house. No bullets or bullet damage were found in the front bedroom occupied by SL's parents at the time of the shooting.

21. The Crime Scene Examination found a total of three fired case cartridges on the road outside the premises; one impact damaged fired bullet jacket was recovered on the roadway in the vicinity outside the residence, and four fired impact damaged bullets were recovered inside the house. Ballistics experts confirmed that two 9-millimetre pistols were used during the shooting.

22. Subsequent investigations led to police locating one further fired case cartridge in the footwell of the passenger side of the rented utility used in the commission of the shooting.

23. Subsequent investigations and ballistics and forensic firearms examinations confirmed that the four bullets recovered inside the house had been discharged from the same firearm. Three of the fired case cartridges on the road had been discharged in the same firearm. Comparative examination between the four bullets and the one bullet jacket revealed they had been discharged from different firearms. The bullet jacket was later linked as having been fired from the 9-millimetre pistol later discovered by police hidden under the offender's home during the execution of a search warrant on 4 August 2022.

24. Subsequent investigations linked the one further fired case cartridge later discovered by police in the footwell of the passenger side of the utility, which I mentioned earlier, as matching the cartridge casings found hidden, together with the 9-millimetre pistol and bullet, under the offender's home during the execution of the search warrant on 4 August 2022.

25. Subsequent forensic examination in relation to the 9-millimetre pistol, detachable box magazine, and cartridges located by police under the offender's house confirmed that those items were all wrapped in a pillowcase, which in turn were wrapped in three Coles bags. The pillowcase was found to contain DNA matching the offender’s. The Coles bags were found to contain fingerprints matching his fingerprints.

26. GPS tracking data from the utility, in combination with CCTV footage, revealed that at about 12.10pm on 9 April 2022, Mr Ackaoui attended the BP service station at Hoxton Park and hired the utility for $478. He then drove the utility and parked it on Glenton Street, Abbotsbury, on the corner of the co-offender Steven Hirmiz' corner-block house, and placed the keys on a tyre and departed.

27. GPS tracking data indicates that the utility departed from Glenton Street at 2.17pm, and arrived at Cochran Place, Abbotsbury, at 2.19pm. CCTV from neighbouring properties captured Steven Hirmiz driving the utility at those times and parking across the road from his home at 19 Cochran Place, Abbotsbury. The utility remained in the Abbotsbury area until approximately 9.52pm.

28. At 9.52pm, Steven Hirmiz departed his home at Abbotsbury and drove the utility to Horsley Drive, Wetherill Park. At 9.58pm, he entered the Coles Express service station and purchased two canned beverages and a roll of silver PVC tape using a Mastercard in his own name.

29. GPS tracking data then showed that Mr Hirmiz then drove the utility to 7 Kilkenny Avenue, Smithfield, the residential address of this offender. CCTV footage also captured the utility stopping across the road from the offenders' home at approximately 10.04pm.

30. At 10.05pm, Steven Hirmiz exited the driver's door of the utility and walked to the rear of it. At about 10.06pm, he walked around to outside the passenger's side of the utility, and moved around the passenger side of it.

31. At 10.07pm, the offender then exited his home and walked towards Mr Hirmiz and the passenger side of the utility. Between 10.08pm and 10.14pm, the offender and Mr Hirmiz moved around the sides of the utility, concealing the signage and number plates. From 10.14pm, the offender moved between the utility and his home.

32. At 10.16pm, Mr Hirmiz and the offender entered the utility, one via the passenger door, and the other via the driver's door, and at 10.37pm the utility drove away from 7 Kilkenny Avenue.

33. GPS data shows that the utility left the offender's residence at approximately 10.37pm and travelled to the street in which the shooting occurred. At 10.53pm, the utility was recorded travelling east on that street by a CCTV camera. At 10.59pm, the utility was captured travelling west on the same street by the same CCTV camera.

34. At approximately 10.55pm, GPS tracking data showed the utility travelling east on the street in which the shooting occurred, slowing down and stopping until 10.57pm. The utility then travelled on nearby streets before turning back onto the street where the shooting occurred at 10.59pm and travelling west. At about 11pm, the utility slowed to a speed of about 22 kilometres per hour before accelerating. This is consistent with CCTV footage showing the utility slowing down as it travelled past the premises which were shot at. It is at this time that the rounds from the two 9-millimetres pistols were fired from the utility at those premises.

35. The shooting at the relevant premises was committed, as I say, by the offender and Mr Hirmiz pursuant to their joint criminal enterprise to commit this offence, on the second occasion the utility drove down the residential street. Either this offender or Mr Hirmiz, or both, fired the shots from the two 9 mm pistols that they used to commit the offence pursuant to their joint criminal enterprise.

36. The combination of both GPS data and CCTV footage recorded the utility travelling from the location of SL's premises and returning to the offender's home.

37. At approximately 11.13pm, the utility returned to 7 Kilkenny Avenue, Smithfield, and parked across the road and turned off its lights. The offender and Mr Hirmiz remained within the utility for a period with the light on inside the cabin, during which time their movement could be seen within it. The cabin light was switched off at 11.17pm.

38. At 11.19pm, the internal cabin light in the utility was switched on again, during which time there appeared to be movement of persons within the cabin. At 11.20pm, the driver's door was opened, and either the offender or Mr Hirmiz exited and walked to the back of the utility, and at 11.21pm, the passenger door opened, and either this offender or the co-offender exited the vehicle.

39. At 11.22pm, the offender and Mr Hirmiz walked from the area of the rear section of the utility in the direction of the entrance to the offender's residence and out of sight.

40. Mobile phone records in relation to the offender's mobile phone and the mobile phone of Mr Hirmiz showed that at 11.23pm, each of their mobile phones reconnected to the network.

41. Between 11.23pm to 12.07am, the light inside the offender's bedroom was periodically switched on and then off.

42. At 12.07am on 10 April 2022, the offender or Mr Hirmiz walked from 7 Kilkenny Avenue back to the area around the rear section of the utility.

43. At 12.09am, the offender or Mr Hirmiz walked from 7 Kilkenny Avenue towards the opened driver's side door of the utility.

44. At 12.13am, a black or dark coloured hatchback vehicle arrived at Kilkenny Avenue and approached the utility. The hatchback parked in front of 7 Kilkenny Avenue, and the CCTV depicts Mr Hirmiz opened the driver's door of the utility and entered the vehicle. The offender opened the front passenger door of the hatchback and entered the vehicle.

45. At 12.16am, the utility, followed by the hatchback, drove along Kilkenny Avenue. The utility, according to the agreed facts, travelled in convoy with the hatchback to Locke Street, Wetherill Park. The utility was parked at Locke Street at 12.23am on 10 April 2022. The utility remained there until the afternoon of 10 April 2022 when it was collected by Mr Ackaoui and returned to the BP service station at approximately 3.48pm.

46. On 15 April 2022, police located and seized the utility from the BP service station. A crime scene examination was conducted, which located relevant items within it connected to the shooting, including the one fired cartridge case on the floor of the passenger seat well, which I referred to earlier.

47. Inside the utility, police also located a plastic Aldi bag, a black T-shirt, a box of disposable gloves, and an energy drink bottle. A forensic examination was conducted on the items located inside the utility, and the offender's fingerprints were identified on the Aldi bag collected from behind the middle console of it, and his DNA was located on the inside or interior collar of the black T-shirt that was found there.

48. At approximately 6.15am on 4 August 2022, police conducted the search warrant at 7 Kilkenny Avenue, Smithfield, which I referred to earlier. The offender, Regan Yousiph, was placed under arrest and conveyed to the local police station and introduced to the custody manager. He exercised his right to silence, but he did participate in a forensic procedure by way of a buccal swab.

49. During the execution of the search warrant, police located three mobile phones which were later analysed. Police also located a black-coloured handgun and magazine with ammunition, secreted in a pillowcase and wrapped in three Coles plastic shopping bags under the offender's house, which I've referred to earlier.

50. The items were subsequently examined by a forensic firearm examiner and ballistics expert. The pistol was confirmed to be a 9-millimetre Parabellum calibre XINSHIDAI M213 self-loading pistol with the serial number obliterated. The pistol was test fired and found to be in working order. It was a prohibited pistol under the relevant provision of the Firearms Act. It was consistent with the type of firearm capable of firing the 9 millimetres rounds used in the shooting.

51. The police also located one detachable box magazine containing ammunition. It had the capacity to hold eight 9 mm Parabellum calibre cartridges. The magazine was suitable for use with the seized pistol. It is defined to be a firearm part under the Firearms Act.

52. Police also located four parabellum calibre cartridges, which are suitable for use in the seized pistol. The ballistics/forensic firearms expert concluded that the cartridges bear microscopic breech face markings on the head of the cartridge case which are due to having been previously discharged.

53. The ballistics/forensic firearms expert concluded that the five test fired cartridges and the impact damaged fired bullet jacket located on the roadway outside the residence had been discharged from the same firearm.

54. The ballistics forensic expert concluded that the one impact damaged fired bullet jacket recovered on the roadway had been discharged from a different firearm to the firearm that discharged the four bullets that were recovered from within the premises. As I've said earlier, the ballistics evidence was to the effect that two firearms had been involved in the shooting.

55. The offender's fingerprints were located on the three Coles shopping bags and his DNA was located on the pillowcase.

56. Police analysed the mobile phone records that had been seized and other electronic records for this offender, Mr Hirmiz, and Alen Yousif, which show that on the evening of 8 April 2022, the evening before the shooting, each of their mobile phone handsets were connected to mobile phone towers proximate to the offender's home.

57. Police obtained Uber records relating to Mr Hirmiz that show on 8 April 2022 at 6.02pm, he booked an Uber at 6.38pm from Kilkenny Avenue to Pontville Close, West Hoxton, which is adjacent to Alen Yousif's residential address.

58. Other contacts between them on 9 April 2022, 10 April 2022, and 11 April 2022, insofar as the analysis of the mobile phone records are concerned are set out in the agreed facts, and I don't see the need to read them onto the record.

59. Following the offender's arrest, police conducted a Cellebrite download of his mobile phones and located the following messages.

60. On 1 August 2022, the offender, using the username ‘$hunter’, engaged in a conversation using the encrypted mobile application referred to as ‘Threema’ with ‘ricksanchino’, which is said to be the username of Alen Yousif, regarding the offender's intention to get rid of a firearm. A message set out in the facts is to the following effect, “Bro I actually need the thing picked up ASAP, Some boys I had the brawl with last year got raided and charged, I gotta clear my house in case”, and the ‘Ricksanchino’, on the agreed facts, Alen Yousif, responded that he would make a group chat with “pun”.

3. A short time later, there was commenced a group chat regarding the 9‑millimetre firearm. The offender sent four photographs of the firearm to the group chat, and they're set out in the agreed facts. The offender was told by the usernamed ‘puni$her’ that the firearm would be collected. In response, the offender sent the following message, "So 12 Kilkenny ave Smithfield there's a little park there if he can park on that side better". The park is nearby the offender's residence.

4. Arrangements were made for the firearm to be collected; however, the agreed facts are that this did not eventuate, and on 4 August 2022, I've already indicated what the police located when they executed their search warrant.

Objective Seriousness

63. I'll now consider the objective seriousness of the two offences for which the offender is to be sentenced. Later in these remarks, after reviewing his subjective case, I will consider the closely related issue of the offender's moral culpability for the offences.

64. The shooting offence was planned and organised and was clearly targeted at the premises; it was not spontaneous or some random shooting. It was committed in a suburban residential street. One of the occupants of the premises was a police officer who was suspended from duty at the time. There is no evidence that this offender knew that one of the occupants of the premises was a serving police officer.

65. Two firearms were used by this offender and the co-offender, Mr Hirmiz, to perpetrate the shooting pursuant to a joint criminal enterprise. I am not able to find, beyond reasonable doubt, whether only one or both of them discharged the firearms. A number of rounds were discharged into the front of the fibro premises, some of which penetrated its façade, and entered the loungeroom, the kitchen, bathroom, and the front room of the premises.

66. The co-offender, Mr Hirmiz, organised and paid for the utility used in the shooting through an associate, Mr Ackaoui, although there is no evidence that this offender was aware of that at the time. The shooting occurred around 11pm at night, at a time when it might be expected that the occupants of the premises would be at home, increasing the risk that an individual would be shot. Two of the occupants were in fact asleep in their front bedroom, and one in the back flat at the time of the shooting.

67. Comments made by the offender to third parties contained in the material tendered on his behalf indicate he involved himself in the offence for financial gain. Those comments have not been tested under cross-examination, and I am not able to make any determination concerning the extent of that financial gain.

68. I assess the objective seriousness of that offence as being within the mid-range of objective seriousness.

69. In terms of the possession of a pistol offence, the pistol was in working order and was one of the pistols used in the shooting, and its number had been obliterated. The police also found with the pistol a magazine suitable for use with it and capable of holding eight 9-millimetre cartridges. The police also located four cartridges suitable for use in the pistol. Here, the possession of the pistol was not for a short period of time, and was linked to criminal activity. I consider the objective seriousness of this offence as falling within the middle of the range of objective seriousness.

70. The Crown submitted that the objective aggravating factor under s 21A of the Crime (Sentencing Procedure) Act 1999 (NSW), that the offender being in company with the co-offender, Steven Hirmiz, was present here as they were both in the utility together when the shots were fired.

71. In White v R [2016] NSWCCA 190, Simpson JA, with whom Bathurst CJ agreed, observed the following in relation to the issue of whether a person was in the company of another at the time of the offence:

"Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions:

(i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise;

(ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or “emboldening” that person;

(iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender.”

72. Clearly, the first question posed by her Honour has no application here. I also do not think I can find beyond reasonable doubt that the presence of Steven Hirmiz in the vehicle was, in essence, offering support or encouragement or emboldening this offender. Clearly, however, this offender and Steven Hirmiz had a common purpose.

73. I consider, though, there is some difficulty in concluding that the presence of Steven Hirmiz in the vehicle as amounting to the aggravating factor of the offence being committed in company, when it is an element of the offence that it be committed in the course of organised criminal activity, and the Crown case was one of joint criminal enterprise. I'm not of the opinion, given the nature of the offence and its elements, that the presence of Steven Hirmiz in the utility at the time the shots were fired was an aggravating factor as that term is used in s 21A of the Crime (Sentencing Procedure) Act.

The Offender’s Subjective Case

74. Turning then to the offender's subjective case, his date of birth is 2 April 1996, so he was 26 years of age as at the date of the offences and is now 28 years old.

75. The offender has a limited criminal history. In 2016 he was dealt with for possession of a prohibited drug and for the same type of offence on 22 September 2021, when he was placed on a nine-month community correction order. There are also certain driving offences on his record, including an offence of driving with an illicit substance in his blood. In the past, he has not received a sentence involving any form of imprisonment. His criminal history is not such as to completely disentitle him to leniency here.

76. As at the time of the offences for which he is to be sentenced, he was subject to the Community Correction Order I referred to earlier, so the offences were committed on conditional liberty, which is an aggravating factor on sentence.

Documentary Material

77. In terms of the documentary material I have before me, I have a Sentencing Assessment Report concerning the offender. There was tendered on his behalf, the following material: a psychological report dated 12 August 2024 by Dr Thea Gumbert, a registered psychologist, together with a letter from the offender, and a number of letters of support from friends and family of the offender, together with a letter from two psychologists dated 19 May 2023 who have treated the offender whilst he has been in custody, along with a number of certificates concerning courses the offender has completed since he has been in custody.

78. The offender did not give evidence on sentence, and I have had regard to that fact in considering the weight to be placed on statements he has made to third parties about his involvement in the offences, as those statements have not been tested under cross-examination.

Family Background

79. In terms of his family background, the offender is one of two children from his parents' marriage, having an older sister. According to Dr Gumbert's report, the offender's mother passed away when he was only 20 months old, and his father became the primary carer of himself and his sister.

80. The offender told Dr Gumbert that he had a turbulent relationship with his father when he was growing up and was exposed to abuse and neglect. He reported to the psychologist that his father was a problem gambler, and the gambling caused financial hardship resulting in evictions, and he and his sister spending periods living with extended family members.

81. According to what the offender told Dr Gumbert, his father was emotionally and physically abusive towards him from early childhood, favoured his sister, and he was “scapegoated” for anything that went wrong. He reported both verbal and physical abuse by his father.

82. Doctor Gumbert records that the offender finished school at age 17, and immediately moved out of home and began working to support himself.

83. The Sentencing Assessment Report records the offender telling the author that at the time of the offending, he was associating with negative peers and pro-criminal persons.

84. The offender has no children and was single when he was assessed by Dr Gumbert. He reported being well supported by his father, sister, and numerous friends while he was in custody.

85. It is evident from the number of letters of support that are before me, and the number of his supporters who attended Court when the sentence proceedings were heard, that the offender enjoys considerable support from members of the community.

86. I note the offender now suffers from diabetes and is required to manage it by taking insulin.

Education and Employment History

87. In terms of his education and employment history, the offender reported to Dr Gumbert that he was a “strong” student, and at high school he was placed into the “Gifted and Talented” stream and completed the Higher School Certificate with a high ATAR score.

88. Dr Gumbert records that the offender reported that while he was in high school, he was sexually abused by a teacher at the age of 15, and that the abuse continued for some six months. He did not disclose the abuse to anyone at the time, but reported that he was aware that the abuser had been charged in relation to other victims. I note in that regard that one of the letters that is before me is a letter from a solicitor at the firm Just Law, indicating that the firm has commenced investigations into the offender's child abuse claims.

89. In 2014, the offender commenced a Bachelor of Commerce degree at the University of Sydney, but discontinued that course with only six units remaining as he had begun working at Macquarie Bank, and found it difficult to balance work and study. After six months at Macquarie Bank, he moved to Westpac where he worked as a credit analyst, but was made redundant in July 2021 as a consequence of the pandemic. The Sentencing Assessment Report also records that the offender experienced a period of unemployment due to the COVID-19 pandemic.

90. After his redundancy, according to Dr Gumbert's report, the offender invested his savings in a business, being a music studio. He told Dr Gumbert that the business ended up costing more than it was earning, and “furthered [his] connections with the criminal world” due to the people it was attracting.

91. The offender expressed the hope of being able to, at some point, return to work in the finance field. One of the letters of support that is before me is from a Victor Sem who worked with the offender when he worked at Westpac. He indicates in his letter that he operates his own finance broking business and is willing to offer the offender employment when he is ultimately released from custody.

Substance use

92. In terms of his substance use, the offender reported to Dr Gumbert that he began smoking cannabis at 15. When he turned 18, he reported that he became involved in the “club scene”, and for a few months used MDMA nearly every weekend until he became a regular cocaine user, which he said he used up until he entered custody.

93. In the lead up to the offences, the offender told Dr Gumbert that he estimated he would usually use 7 grams of cocaine a week. He was also said to be taking Xanax or Valium each day, engaging in binge drinking and cannabis use.

94. According to what the offender told Dr Gumbert, upon entering custody, he detoxified, and that while in custody, he has not used substances that have not been prescribed.

95. The Sentencing Assessment Report records that the offender completed the Remand Addictions course on 23 May 2023.

Psychological History

96. In terms of his psychological history, Dr Gumbert considered that the offender showed symptoms associated with Post-Traumatic Stress Disorder associated with the child abuse he suffered when a teenager. The offender also reported a history of social and performance anxiety. The offender was said to have identified a nexus between his mental health and his drug use, indicating that the latter was linked to his difficult childhood growing up without a mother. The offender reported a very limited history of mental health treatment.

97. After psychological testing, Dr Gumbert recorded that the offender’s scores were in the following ranges: for depression, severe symptoms; for anxiety, extremely severe symptoms; for stress, he was in the moderate range. The testing by Dr Gumbert also revealed a score well above a score that would indicate a likely diagnosis of PTSD.

98. Dr Gumbert noted that she had seen a treatment summary concerning the offender dated 19 May 2023 provided by two psychologists from John Moroney Correctional Centre. The offender had been referred for treatment concerning symptoms of anxiety and depression. The summary, which is part of the material before me, records that the offender participated in 12 group cognitive behavioural therapy sessions, and was noted to have participated to a very high standard, and reported improvements in his mood at the conclusion of the program.

99. Dr Gumbert, based on what the offender told her, considered that at the time of the offending, the offender would have met the criteria for a diagnosis of Substance Use Disorder with severe symptoms. Dr Gumbert considered the symptoms were now in remission.

100. Dr Gumbert also considered that the offender met the criteria for a diagnosis of Post-Traumatic Stress Disorder related to his child sexual abuse and his difficult childhood. His psychological distress was linked to his substance use.

Response to Supervision

101. In terms of his response to supervision, the Sentencing Assessment Report records that the offender has incurred five institutional misconduct charges concerning the possession of illicit substances, prohibited goods, and drug implements while in custody. The report notes he has had no previous contact with Community Corrections.

102. Despite those institutional misconduct matters, I note while in custody, the offender has diligently applied himself to the courses that have been made available to him while on remand, and there are a number of certificates from those courses before me.

Attitude to the Offence

103. In terms of his attitude to the offending, the Sentencing Assessment Report records that the offender attributed his offending to his antisocial, pro-criminal associations and his drug use. He is recorded in that report as saying that at the time of the offending, he had no insight into the potential consequences of his behaviour, and the sole focus was to clear an accrued drug debt, stating that he was to be paid to commit the offence. He also claimed to the author of that report that his intention was not to cause harm to the victims, but to instil fear. He told the author of the Sentencing Assessment Report that his offences were financially driven as he committed them to “even an accrued drug debt”. As I noted earlier, none of those assertions were able to be tested under cross‑examination.

104. The author of the Sentencing Assessment Report noted that while the offender acknowledged committing an act of violence, he considered that the offender minimised his behaviour, although noted that the offender said he regretted his actions, acknowledging his behaviour caused harm and fear to the victims.

105. According to Dr Gumbert's report, the offender expressed remorse and regret for the offending, identifying that people were in the house and could have been seriously harmed or killed. He is recorded in that report as expressing shame for his offending.

106. While not tested under cross‑examination, the offender in his letter to the Court appears to express fulsome remorse for his offending and insight into the trauma that the victims of the shooting offence experienced.

The Future and Risk of Re-offending

107. Dr Gumbert considered that the offender showed good prognosis for change and rehabilitation if he engages with treatment in relation to his identified needs.

108. The Sentencing Assessment Report reports that the offender has a medium risk of reoffending.

Moral Culpability

109. The evidence before me is that the offender had a difficult and somewhat traumatic upbringing when he was a young person, an upbringing that included being sexually abused when he was an adolescent. It was submitted on behalf of the offender that the evidence concerning his disadvantaged background was such as to attract the well-known principles in Bugmy v R (2013) 249 CLR 571 concerning the relevance of a disadvantaged background to sentencing, and that the offender's background reduces his moral culpability for the offending.

110. The Crown submitted that those principles had no role to play here because of the offender's past economic and employment achievements. I consider that those principles do have some role to play here. On balance, the offender's disadvantaged and traumatic background can be seen as directly linked to his mental health conditions, leading to his drug use and his poor judgement in becoming involved in such serious offending.

111. In my opinion, there is some reduction in his moral culpability for the offences because of his disadvantaged and traumatic background. The fact that the offender was capable in the past of academic achievement and employment achievement does not mean that it is not appropriate to have some regard to the principles from Bugmy. In considering what weight to give to those principles, I have considered the fact that the offender engaged himself in a well-planned criminal offence which he committed in the course of organised criminal activity.

112. It was also submitted on the offender's behalf that his moral culpability was reduced because of his mental health conditions discussed in Dr Gumbert's report. Frequently, as here, there is an overlap between an offender's disadvantaged background leading to mental health problems and involvement in illicit substance use. The Crown in submissions correctly stressed the importance of 21A(5AA) of the Crime (Sentencing Procedure) Act, which excludes the Court having regard to self-induced intoxication of an offender at the time of the offence as a mitigating factor.

113. In this regard, I note that in Moiler v R [2021] NSWCCA 73, Button J, with whom Basten JA and Davies J agreed, said at paragraph 61 the following:

"Whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other".

114. Having regard to the content of the psychologist's report, I consider that there is some limited further reduction in the offender's moral culpability as a consequence of the offender's mental health at the time of the offending. It must be recognised though, that the offender's disadvantage and traumatic upbringing is linked to his mental health conditions and to his illicit substance use, so to compartmentalise the impact of his disadvantaged and traumatic upbringing from the impact of his mental health conditions is to some degree an artificial approach to these issues. I record though, that I have not considered that his use of illicit substances at the time of the offence is a mitigating factor. I do, however, to a limited degree, consider that the offender's moral culpability is reduced because of his disadvantaged and traumatic upbringing, and his mental health conditions that are linked to that upbringing. I also note that the offender's shooting offence was one involving some considerable planning, and that reduces the weight to be given to the factors that reduce his moral culpability.

114. I do not consider that his mental health reduces the need to reflect general deterrence when imposing sentence upon this offender. I do accept that, to some degree, his time in custody is more onerous because of his mental health conditions.

Other Relevant Sentencing Principles

116. It was common ground that the offender's late plea of guilty attracts a discount of 5% for its utilitarian value.

117. I am satisfied that when I have regard to the fact that the offender has pleaded guilty, although late, his statements to third parties and his letter to the Court about his attitude to the offence, that he now does have genuine remorse for his involvement in the offending.

118. The offender has good prospects for rehabilitation, in my view. He has applied himself well to rehabilitation courses since he has been in custody. He is a person of considerable intelligence, and in the past, has maintained employment. He has considerable support from family and friends in the community. Much, however, will depend upon his ability to stay away from prohibited drugs and negative peers who are involved with such substances when he is released from custody.

119. I am not able to make a finding that the offender is unlikely to reoffend. Much, as I say, will depend upon his ability to stay away from prohibited drugs and negative peers when he is next in the community.

120. I am satisfied on the evidence, as I say, that the offender has good prospects of rehabilitation, and has commenced his rehabilitation in custody, although it is not yet complete. I note this is his first time in custody. His prospects of rehabilitation will be assisted if he has a longer period on parole, so I will make a finding of special circumstances when I fix the non-parole period.

121. The offender has been in custody since his arrest on 4 August 2022, and I will backdate the sentence to that date.

122. The two offences are separate acts of criminality, however, I note the pistol he possessed was used in the shooting offence, and his possession of it was linked, if not inherent, in the commission of that offence. I think in these circumstances, there should be a limited degree of accumulation of the two sentences.

123. It is appropriate that I consider the issue of parity in relation to the sentence that I will impose on Steven Hirmiz later this afternoon. Steven Hirmiz and this offender are both to be sentenced in relation to the shooting offence which they committed pursuant to a joint criminal enterprise. The agreed facts that are before me here show that this offender and Mr Hirmiz essentially played an equal role in the commission of the actual shooting, in that they both were in the utility at the time of the shooting, and clearly were acting in concert on the day of it.

124. Steven Hirmiz played a greater part in the planning of the shooting offence through having his associate, Mr Ackaoui, hire the utility used in the shooting in his name, and paying Mr Ackaoui for doing so. There is no evidence before me on this sentence that allows me to find that this offender knew of Mr Ackaoui being requested by Steven Hirmiz to hire the utility or of the payments made by Steven Hirmiz to Mr Ackaoui for doing so.

125. The subjective cases have a number of differences which are favourable to this offender, although this offender committed the offences on conditional liberty, and Steven Hirmiz did not. However, this offender pleaded guilty, admittedly late, and Steven Hirmiz went to trial. This offender has remorse, a reduced moral culpability, as I have explained, and good prospects of rehabilitation. It will later be seen this afternoon that I do not make similar findings in respect of Steven Hirmiz.

126. I consider that insofar as the common shooting offence is concerned, the sentence I impose on this offender should be less than that which I will impose on Steven Hirmiz.

127. I've had regard to the objectives of sentencing referred to in s 3A of the Crime (Sentencing Procedure) Act.

128. The offences that the offender is to be sentenced for are very serious offences, and the risk to innocent members of the community from the shooting offence was very high. It is trite to say a civilised society ought not involve members of it engaging in driving by a suburban home and discharging multiple bullets into it. The possession of the pistol offence is also very serious when the circumstances of the possession are concerned, and the fact that gun crime is prevalent and inherently dangerous to our community. General deterrence always looms large when sentencing for such offences, as the sentences imposed should not only deter the offender concerned, but also other members of the community who might be tempted to engage in such serious criminal conduct.

129. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors, some of which pull in different directions, as is the case in this sentence.

130. The maximum penalties and the standard non-parole periods have been taken into account as legislative guideposts. I will be seen to have departed from the standard non-parole periods due to the length of sentences I consider appropriate to be imposed in relation to each of the offences and my finding of special circumstances. There can be no doubt that the only appropriate sentence is one of full-time imprisonment

131. I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and indicative non-parole periods. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all the objective and subjective factors I referred to earlier.

132. Mr Regan Yousiph, would you please stand, sir?

133. You are convicted of the two offences to which you have pleaded guilty. The sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up the two indicative sentences. When announcing the aggregate sentence, I will tell you the date it starts from, the date it ends, and the date when you are first eligible for parole.

134. On the offence of fire a firearm at a dwelling house in the course of an organised criminal activity with reckless disregard for the safety of another person, I consider the appropriate starting point for the sentence prior to the application of the discount for the plea of guilty to be six years' imprisonment. After application of the discount, there is an indicative sentence of five years and eight months imprisonment. I record an indicative non-parole period of three years and nine months imprisonment.

135. On the offence of possessing a pistol not being authorised to do so, I consider that an appropriate starting point prior to the application of the discount for the plea of guilty is a sentence of three years' imprisonment. After the application of the discount for the plea of guilty, I record an indicative sentence of two years and ten months' imprisonment with an indicative non-parole period of one year and ten months' imprisonment.

136. I impose an aggregate sentence of six years and eight months' imprisonment, and an aggregate non-parole period of four years five months. The sentence commences on 4 August 2022, the aggregate sentence expires on 3 April 2029, and the aggregate non-parole period expires on 3 January 2027.

137. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which is 3 January 2027. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

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Amendments

20 November 2024 - Spelling corrected.

Decision last updated: 20 November 2024