R v Samadi, Safi

[2008] NSWDC 307

CITATION:	R v Samadi, Safi [2008] NSWDC 307
JUDGMENT DATE:	24 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Robbery in company (Benjamin Ling): Convicted Sentenced to a non-parole period of 12 months to date from the 5th April 2008 and to expire on the 4th of April 2009, balance of term of 6 months expiring on the 4th October 2009. Robbery in company 3/11/06 (Zachery Degooyer): Convicted Sentenced to a non-parole period of 15 months to date from the 5th October 2008 and expiring on the 4th January 2010. Balance of term of 21 months expiring on the 4th October 2011. Form 1 matters taken into account. Robbery in Company (Lindsay Cluff, Timothy Cluff & Regan McDougall): Convicted Sentenced to a non- parole period of 15 months to date from the 5th of April 2009 and expire on the 4th July 2010. Balance of term of 16 ½ months to expire on the 19th November 2011 Robbery in company (Daniel Barabas & Chris Cooper): Convicted Sentenced to a non-parole period of 15 months to date from the 5th July 2009 and expiring on the 4th October 2010. Balance of term of 12 months expiring on the 4th October 2011
CATCHWORDS:	Criminal Law - sentence - robery in company (x4) - assault with intent to rob in company (x2) - Form 1 assault with intent to rob shist in company (x1) - receiving - numerous high school students aged 14 - 17 targeted over 3 month period - and subsequently whilst on bail - small sums of money and mobile phones demanded - some use of cricket bat, metal rod and golf club as weapons - offender's role in robberies prominent - breach of bail, bond - claimed psychological causal link rejected - single male aged 18 at time of offending - minimal past criminal history - refugee - compromised intellectual functioning - rehabilitation given emphasis on accountof youth.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Rause unreported NSWCCA 8 August 1992 The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38 R v Henry and Ors (1999) 46 NSWLR 346 R v Henry CCA (1999) 46 NSWLR 340 R v Thomson & Houlton (2000) 49 NSWLR 383 R v James Anthony Morris NSWCCA 25 September 1995 R v AEM snr- [2002] NSWCCA 58 Pham (1991) 55 A.Crim.R. 128
PARTIES:	Regina Safi Samadi
FILE NUMBER(S):	2007/21/0273
SOLICITORS:	Crown: Mr L Crepaldi Defence: Mr Aouad

JUDGMENT

1. On 13 December 2007 Mr Samadi was before the Court for sentence. On that occasion however there was no pre-sentence report. His matters were then stood over to 22 February 2008. On both occasions he had been before the Court it was at the District Court at Parramatta. He was then before the Court for sentencing in respect of four counts of robbery in company and two counts of intent to rob whilst in company. Hearing time ran out on 22 February and the matter was stood over for further hearing on 28 March 2008. For some reason the matter did not proceed that day but on 18 April 2008 it was in for mention to permit a change of representation by Mr Samadi. It was stood over for further hearing then on 13 June. There was again a change in lawyers with N A Lawyers taking over from Low Doherty and Strathford. That change was notified to the Court on 12 June 2008. It was stood over for mention before the list judge at Parramatta on 7 August 2008 and was before me again to finalise the hearing of the evidence and submissions on 17 October last, that is, last Friday.

2. On 29 March 2008, the day after the March hearing date, Samadi committed two further offences. These are before me by way of a Form 1. One is a further assault with intent to rob whilst in company, the other is a receiving charge. As a consequence of this last episode of criminality Samadi was refused bail after arrest. He has now been in custody since 5 April 2008. There has been a 10-month delay from the commencement of Mr Samadi’s journey through this Court. Such a delay is unusual unless the delay is one authorised by s 11 of the Crimes (Sentencing Procedure) Act. However the delay has been occasioned by adjournments sought by the offender. Regrettably during this delay he has offended again. I shall return to the significance of that later. Today Safi Samadi is to be held accountable for his criminality.

3. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by this offender harming these victims in this community. (R v Gladue (1999) 1SCR 688 [80])

4. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly.

5. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, and what is to be made of the Form 1 matters. Finally of course the ultimate length of the term of imprisonment or other penalties to be imposed will need to be determined. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. (See R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740)

6. Samadi’s offending falls into four discrete episodes covering the period from 17 August 2006 to 7 November 2007 and a fifth episode on 29 March 2008.

Facts

7. The facts as tendered by the Crown, whilst not signed as agreed facts, in respect of the matters occurring in 2006 have not been challenged by the defence. The hearing has proceeded as though the matters are not in issue. However the offender did challenge at least one fact relating to the matters on the Form 1. His challenge is that he was not the author of a conversation, which gave him a leading role in the attempt robbery set out in the Form 1. Nonetheless he did not seek to withdraw his request that I deal with the matter. I intend to deal with it on the facts before me assuming those facts originated from the victim.

8. The first offence that I deal with is the assault with intent to rob whilst in company against Benjamin Ling. That offence occurred about 3.20pm on 17 August. Ben Ling a seventeen year old and his friend Vineet Gorolay were walking home from their high school situated in Felton Road Carlingford. In the lane behind Carlingford railway station the offender, in the company of five other males, approached Ling and Gorolay from behind. The offender said to Ling “My friend wants your phone”. Ling ignored the male and the two continued walking. The accused is said to have been wearing an earring, dark T-shirt and jeans. Four of the males, including the accused, surrounded Gorolay and the other two males stood with Ling blocking his access to Gorolay. One male attempted to take Ling’s mobile phone from his pocket but was “stared down by the victim” and was not successful. The six males then converged and faced Gorolay and Ling. Ling was facing Gorolay when the leader of the group demanded from him “Give me your money you cunt, you fuck” then stepped towards Ling and hit him to the left side of the face with a closed right fist. Ling felt a shock to the left side of his face and stared at the group.

9. The group began to move away towards they railway station and Gorolay rang the police using his mobile phone. The males then ran towards the railway station. Ling identified the offender on 8 March 2007 by way of a slide show of photographs presentation. Ling described the group as consisting of teenaged Middle Eastern males and claimed that he recognised the leader as having worn a Cumberland High School uniform prior to and after the robbery. Ling said that prior to the offence he had seen the offender frequently in the company of the leader of the group walking to school together. Ling said he had also seen the offender in a Cumberland High School uniform. Ling said that he had seen the offender after the incident around the same area on a number of occasions.

10. I now deal with the robbery in company offence on 3 November 2006. about 9.20am on 3 November 2006 Zachary De Gooyer and his girlfriend seventeen year old Jessica Taylor were walking on Felton Street towards the Carlingford railway station to catch a bus for a school excursion. The offender was observed by Taylor to be wearing a green polo shirt and full length black and white camouflage cargo pants. De Gooyer and Taylor approached the vicinity where the offender was. The offender said to them “Do you have any money?”. De Gooyer said “No”. The offender said “Let me check” and put his right hand on the victim’s left shoulder as though to stop him from walking further. De Gooyer realising he was being robbed felt scared and threatened. A second Middle Eastern male of teenage years joined the offender. De Gooyer removed his wallet and opened it revealing $25 inside. The offender said “Give that to me”. In response De Gooyer handed over the $25. The other male then patted De Gooyer’s left pocket and felt his mobile phone. The other male asked “What’s that?”. De Gooyer showed him the mobile phone. The second man said “Give that to me”. De Gooyer surrendered the mobile but was permitted to keep his SIM card. De Gooyer was told by the second male to walk in the other direction for five minutes, then you can go where you want. De Gooyer and his girlfriend walked a short distance, turned around, observed the two offenders running with three other males.

11. The next three matters are all robbery in company and all occur at the same time and place. The victims were all students from Carlingford High. On 7 November 2006 somewhere around 3.10pm. Lindsay Cluff a sixteen year old caught her school bus, alighted from it at the corner of Jenkins and Pennant Hills Roads Carlingford. There she met thirteen year old Regan McDougall and walked down Jenkins Road where they were joined by Timothy Cluff, a fourteen year old. Three Middle Eastern teenage boys walked by. Two of them were wearing white school shirts and grey trousers and carrying cricket bats. The offender who was with them was wearing a red T-shirt and carrying a golf club. All of the males walked past the victims and to a different street. Shortly however they returned to the victims. One male took hold of McDougall by the shirt to bring the victims into a group and then the three males stood around those victims. One male demanded wallets or money from the victims. Lindsay Cluff said “C'mon man you don’t want to do this”. The male patted Lindsay Cluff down. Removed her mobile phone from her left pocket. He returned the SIM card from the phone to her but kept the phone. The male said “C’mon man I don’t want to have to hit you, where’s your wallet?”. The other male and the accused were saying similar things and the accused was holding his golf club up and the other male his cricket bat up.

12. This offender tapped the outside of Timothy Cluff’s pockets and removed $40 from one of those pockets. He tapped Timothy Cluff’s pockets again and heard coins rattling and asked “How much is this?”. Young Cluff replied “Three bucks”. The offender said “I’ll take that as well” removing those coins from Cluff’s pocket. Regan McDougall removed his wallet from his pocket and handed $20 to the first male. That male said “I’ll take this too”. He then reached into McDougall’s wallet and removed a $10 note. McDougall then handed to him coins from his wallet totalling $3.00 approximately. One of the males said words to the effect “not to go to the police or they would be back”. The victims walked away and the males ran away. The victims phoned police. All three victims felt threatened and shocked at the time of the offences. They felt that the bats and clubs were being held in a threatening manner.

13. Sequence seven and eight on these facts appear to occur five minutes later than the last, lot but I note the charge sheets have these offences occurring before. In a sense, they not being completed robberies, it makes more sense that these offences probably did occur before. For my part I will regard them as occurring at about 2.45pm. At that time fourteen year old Daniel Barabas and fifteen year old Chris Cooper, who were students at Carlingford High School were alighting from a school bus on the corner of Pennant Hills and Jenkins Roads Carlingford. Three Middle Eastern teenagers shouted to them to stop and then surrounded them so that they could not get away if they wanted to. The male, which the victims of this attempt robbery describe as the leader, was wearing a white Cumberland High shirt holding a cricket bat, as was a second male; this offender was holding a golf club. The apparent leader asked if they had mobile phones money iPods. Cooper replied “No”. The leader felt the victims’ pockets and the victims opened their wallets to demonstrate there was no money in the wallets. The leader asked if the victims had anything in their bags and the victims showed their bags. At this point other Carlingford High School students were walking down the street. The leader then said “Go, get out of here”. He then said that they were only joking and offered to shake the victims’ hands or pat them on the back. The victims quite rightly ignored that overture and walked away. They were scared and intimidated because the males were holding cricket bats and golf clubs. They felt that if they did not comply with the demands that the bats and golf club might be used.

14. On 3 November 2006 Sergeant Lofts, who had dealings with the accused in relation to matters that were unrelated, alluded that the accused was wearing a green T-shirt and camouflage pants. A Samsung mobile phone was booked into police custody and released to the accused later. That is the date on which the sequence 3 occurred. On 3 November police arrested the accused and seized a Samsung mobile phone, black and white camouflage pants and green T-shirt.

15. On 8 November the offender made admissions to participating in the offences. He also admitted to wearing seized items of clothing at the time of sequence 3, admitted the Samsung mobile was a stolen phone from the sequence 3 offence. He expressed remorse in relation to the commission of these offences. So that that may be understood the sequence 3 offences, the offence on 3 November 2006.

16. As I said there were then two offences that occurred on 28 March this year. In this case Yui Lam Chan was walking home from a train station at Carlingford at 11.15pm. Two males both holding twenty centimetre long metal rods, described as being the same width as a ruler, confronted him. One, who is said to be the offender said, “do you know what we are going to do now, we’re going to rob you?” The victim screamed “No.” The offender grabbed the victim and grabbed the victim’s bag on his back. The victim ran across the road. Male two, that is to say the male who did not demand the money, ran across the road after Chan. He then hit Chan some ten times with the metal rod causing injuries to him. Chan dropped his wallet and that second male picked it up. Chan walked back across the road, meanwhile the offender met up with the unknown robber. They walked away.

17. At some stage shortly after this the unknown robber gave the proceeds of the robbery, that is to say the wallet and the entirety of its contents, to the offender. The victim’s wallet contained various personal cards, house keys, a fifty dollar note, bus tickets and two mobile phone SIM cards. The basis of the 97 assault with intent to rob in company offence is, that at the point in time when the offender said “don’t chase, don’t chase” he exited himself from the robbery. When he and the unknown man met up shortly after and the offender was given the wallet and its contents, his criminality was of a different nature and that is the basis of the s 188 offence.

18. At about 2.40am the following morning, that is on 29 March, Chan’s wallet containing certain property was located in a search of a vehicle in which this offender and one Mohammad Nasri were found sitting, parked outside Nasri’s residence. The vehicle in which they were sitting is registered to the offender’s address under his mother’s name. The wallet was located in the passenger footwell. The offender was in the driver seat and Nasri in the passenger seat. Missing from the wallet was fifty dollars, bus tickets and one of the mobile SIM cards. As a consequence of his involvement in that offence he was arrested on 5 April and charged. He has been refused bail. No co-offender has yet been charged.

Objective Criminality

19. I turn now to the objective criminality. From the facts as he finds them to be a sentencing judge is required to assess the objective criminality of the offences before the Court as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

20. Justice Gleeson when Chief Justice of New South Wales encapsulated the essence of legal wrong done by robbers and would-be robbers and the reason why substantial punishment is required in R v Rause unreported NSWCCA 8 August 1992. The Chief Justice said:

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

His Honour said:

“It is quite likely that this young man does not understand and he may never understand the seriousness of his antisocial behaviour but the courts understand it. Crimes of this kind ... deserve severe punishment.”

21. Each of these offences was an offence of serious personal violence towards another human being. Robbery constitutes a crime against both the person and a person’s property or property rights. The crime against the person is constituted by putting that person in fear through threat or actual violence to such a point that he surrenders against his will, property to the robber. In this case the offender secured the advantage for his violence by relying upon the presence of other persons expressing malice towards his victims. It was the force of numbers by which his victims’ will was overcome, in a number of offences and in some of the later offences, not only by force of numbers but also by presence of cricket bats and a golf club.

22. Although not stated in terms, all of the victims of the 2006 offences appear to be high school students. It is unclear so far as Chan is concerned whether he was a student or not. At 11.15pm it is not likely. But so far as the students appear, the eldest appears to be seventeen years old, the youngest thirteen years. At least two of the victims were young teenage girls. School children are entitled to come and go from school free from threat of violence by gangs of youths preying upon them. I find these acts of robbery and assault committed particularly on 7 November, that is, assault with intend to rob, were predatory in nature.

23. While the accused does not appear to be the leader I am satisfied he did take a prominent part in all of the robberies. The offences occurring on 7 November are but minutes apart from each other. On this occasion the accused was armed with a golf club. Some at least of his co-offenders were armed with cricket bats. I am satisfied these items were being deliberately carried as weapons to provide threat of force per medium of the weapon as well as threat of force by numbers.

24. That threat of force per medium of weapon in these cases provides aggravation of the criminality over and above the criminality that derives from use of force of numbers to terrorise the children. I should indicate there is no evidence other than the presentation of the weapons that satisfies me they were used. In respect of the matter on the Form 1 the weapons were metal rods the width of a ruler. That would be roughly I would imagine an inch or so thick. They were twenty inches long. In fact, the criminality of its use is not attributed to the accused, one of them was used in robbing Chan.

25. The very fact that they are present makes more likely the fact that they may be used. It justifies in that sense the fear felt by the children on 7 November that they might be used.

26. On 3 November 2006 this offender was charged with shoplifting. It is unclear from the evidence whether he was charged before or after the robbery committed on 3 November. What is clear is that the offending on 7 November was done at a time after he had been charged but before that matter had been finalised. What though is not clear is whether he was on bail on shoplifting charge or whether bail had been dispensed with.

27. The Local Court though placed Mr Samadi on eighteen month good behaviour bond for offence of violent disorder on 27 March 2007. That bond was current and binding on him in March of 2008. Further, Samadi was on bail in respect of the matters before me. That bail had been continued the day prior to his offending on 28 March. This offending is aggravated by virtue that he breached an undertaking to be of good behaviour that he made to the Local Court. It is also aggravated by his breach of bail undertaking that he would not commit any offences whilst on bail.

28. There are no victim impact statements before the court in these matters but I am satisfied these offences caused fear and trauma to his victims. I am also satisfied that sense of trauma lasted beyond the incident. However in the absence of specific evidence I cannot say the sense of trauma or upset lasted beyond the day of its occurrence. The proceeds of the robberies that were accomplished included small sums of money and a mobile phone. While the robberies may have been opportunistic in the sense that victims needed to be present before the gang pounced I have already noted they were predatory. I should also note there was some modus operandi about it. They appear to occur near a school or pathway to a school or railway station where students are likely to be found. With the exception of the offence on 29 March last they targeted students, all were committed whilst in company. The last offence, the Form 1 offences, does not appear to have been committed against a school child on his way to or from school. Clearly they are offences that call for incarceration.

29. Samadi is a single man aged twenty years. He was eighteen at the time of these offences. Indeed the first offence occurs nine days after his eighteen birthday. He is the youngest of five siblings. All his siblings are sisters. His natural parents’ relationship has remained intact. He is a native of Afghanistan. The first half dozen to nine years or so were lived in Asia. As I gather the first half dozen in Kabul. He carries memories of an extended family from that period. During these years he witnessed acts of war and experienced loss from war in that his cousin was killed in circumstances where he was close by, his mother was beaten by Taliban, resulting in permanent injury to her back.

30. He saw damaged and bombed buildings, blood on walls where people had been confronted and either killed or belted. He felt frightened and unsafe as a child. His family fled the war initially as refugees to Pakistan and subsequently to Australia. Conditions as a refugee in Pakistan were harsh. Hs family was poor and disadvantaged. In Australia the family environment was warm, stable and supportive. He is still receiving support from his family. His mother is still plagued with back problems that incapacitates her to the extent that her husband is her caregiver. Neither of those have been able to get to Court. Two of his sisters supported him when he attended appointments with Miss Katie Seidler, a forensic psychologist, who reviewed him for the defence.

31. His brother-in-law is married to one of the sisters and is also supportive. He gave evidence in support of the offender on two occasions. The brother-in-law is a partner in Primo Smallgoods who with his partner gave employment to the offender in January 2008. There is evidence before the Court that he will be re-employed upon his release. At the present time Samadi has no romantic relationship. His parents and all three sisters have written letters to me in support of him.

32. Testing by Miss Seidler established this offender’s non verbal or performance intelligence is superior to only nine per cent of the population. Much of his education and employment history necessarily needs to be reconciled with this assessment. In Afghanistan and Pakistan his early primary school education was also compromised because of war and refugee circumstances. He attended several years of primary school in Pakistan. Without any academic or behavioural concerns he arrived in Australia in time to commence Year 5 in primary school. Even with English as a second language support, adjustment was difficult.

33. In secondary school his behaviour deteriorated. He was suspended from school, distracted at school, truanted school. He was asked to leave in Year 9. He complained to Miss Seidler that at nineteen in 2006 he was several years older than his classroom peers in the school certificate. The problem with this account is that gives a birth date of August 1988 making him then either seventeen or perhaps eighteen in 2006. Even so I do accept that he was several years older at that age than other school certificate pupils. I mention the point to illustrate he is not a good historian.

34. He started three TAFE courses. Abandoned each of those courses. His sister claims he has obtained work as a cleaner but was reticent to attend. At Primo he worked in the warehouse as a storeman, was found to be slow but persevered and those employing him persevered. Ultimately he was regarded as satisfactory. He did some training in carpentry through his contact with Mission Australia, an employment agency.

35. Samadi is a tall, slim, twenty year old man. He does not appear to present with any general health ailments. Nor, however, does he appear to be particularly physically fit. He sits in Court with his head bowed for most of the time. At what level he is taking in events in the courtroom it is difficult to assess.

36. Samadi gives a history of breathing difficulties at times. There is some suggestion, although no firm diagnosis, that these symptoms may be associated with anxiety and possibly panic episodes. There is also history of sleeping difficulties and nightmares for the past eighteen months or so. Reading through Ms Seidler’s reports it is likely Samadi lacks the capacity to be a fulsome, relevant or articulate historian.

37. Much of the pertinent information comes from his siblings. That must make any diagnosis problematic. In the first report Ms Seidler said:

“According to Mr Samadi, he was raised within a stable and supportive family environment through which he was not exposed to any notable risks. However his developmental experience was compromised by spending his early years living in Afghanistan where he was exposed to the ongoing consequences of war. It is possible that this was quite traumatising to Mr Samadi as evidenced by a possible history of panic disorder in childhood. Moreover these experiences may still effect Mr Samadi in terms of his alleged sleep disturbance and fearfulness of a night-time.”

After the second consultation, Ms Seidler’s opinion was:

“...Samadi’s offending behaviour can be conceptualised as the end result of a complex process of development risk. Mr Samadi was exposed to severe trauma as a child from being raised in a war-torn and violent community and this left him an emotionally and socially vulnerable child who was forced to leave his country and adjust to the demands of living in a new environment where he did not speak the language.

Further to this Mr Samadi is a low functioning individual intellectually. This compromised his ability to cope with these changes as well as engage in and profit from schooling. Unfortunately however given the cultural meanings around school and success Mr Samadi felt unable to discuss his concerns openly with his family and rather he withdrew from his family and from school and he appears to have drifted in an aimless routine whereby he has shied away from positive goals that it is likely Mr Samadi felt unable to achieve.

Further to this, given his other vulnerabilities, Mr Samadi drifted into a negative peer group of similarly disaffected youths where he found a sense of belonging and identity. However, as a result of Mr Samadi’s limited intellectual skills and social naivety, he felt unable to assert himself with these people and rather followed their direction even when this involved criminal behaviour.

In summary Mr Samadi’s offending is understood as the unfortunate actions of a low functioning, socially disadvantaged and disaffected youth who lacks the assertiveness and social skills to stand up to people who have taken advantage of him and placed him at risk, including encouraging his involvement in antisocial behaviour.”

Zakiahmed Giary gave evidence the offender had visited a psychologist [sic] Dr Pashyar who he had visited more than the half a dozen times allowed by Medicare. Regrettably no report from this practitioner has been tendered. In her second report, Ms Seidler seeks to make a causal link between the offender’s behaviour and his intellectual, environmental and mental health background.

38. She speaks of him “drifting” into a negative peer group. His family speak of him choosing that group over and above his family. A choice causing some tension in the family. She also speaks of him “following their directions”. From the facts of the offences reviewed, it is quite clear although not the leader, he takes a prominent role. In fact in at least two that spring to mind, he is the one who made the first demand.

39. It is not without significance that in the last offence, the Form 1, he is the sole beneficiary of the robbery committed by his co-offender. That result does not sit well with a suggestion “he followed their direction”.

40. Samadi gives a history of having no issues with drugs and alcohol. My reading of Ms Seidler’s report gives me an impression she has little confidence in the reliability of the offender on either of these topics. I am not sufficiently confident to make any finding in respect of the offender’s use or abuse, whichever be the case, of drugs or alcohol.

41. The offender is a young man of twenty with significant intellectual deficits. He feels more comfortable associating with youths younger than he. He feels more accepted belonging to a gang. Within this group he is able to secure an identity that is not so readily available in the community. No doubt at the urging of his family he has made some attempts to find employment from carpentry, cleaning and ultimately a storeman. Those supporting him say that in the last position, although a little slow, he was making good progress. Regrettably whilst in this position he committed his last offence.

42. The offender presents with a minimal past criminal history. I have already referred to the shoplifting charge which was laid on the day of the second offence and the violent and disorder matter which appears to have occurred after the November 2006 episodes of criminality but before the March 2008 offences. 43. His past offending, subject to my earlier observations, given both its timing and the Local Court’s penalties, does not constitute any real basis for denying leniency to the offender for the August and November 2006 criminality. I have already noted however the aggravating features arising from the existence of the shoplifting charge and the breaches of bond and bail.

44. There is a real difficulty determining what motivated the offender’s participation in the offending conduct. He was found in possession of the mobile phone taken in August of 2006. He was given all the proceeds of the robbery on 29 March. That would suggest it was not simply a case of reacting to peer pressure. It would appear there was some gain to him.

45. Attached to exhibit A there is a letter of apology written ten days after the offences committed in November of 2006. In that he says:

“I know and understand that what I did was not only wrong and shameful but also unacceptable through the eyes of the law and the public alike. I can only hope and wish that these few words can take some of the anger and hurt out of the heart of those who I have betrayed and hope it will at least heal some of the emotional scarring.”

Samadi finished that letter declaring a firm intention, “I will never do wrong again.”

46. In evidence last week he told the court that as a result of his incarceration he now knows more about life and has a clear understanding of what is right and wrong. Again he reiterated that he would not do anything criminal again. He has been studying religious training. Whilst in custody his relationship with his family has improved. He has written to his parents from custody for Father’s Day and Mother’s Day and written to his nephew Sam. He indicated he would not be “hanging around” with the “wrong crowd” any more.

47. While I accept his contrition as sincerely felt at the moment and in the circumstances in which he finds himself, I am far from confident this remorse will impact upon his conduct once outside the gaol gate.

48. Samadi’s rehabilitation prospects are cloudy. So far as the positive rehabilitation indicators are concerned, he has strong family support and interest. He has been willing to discuss his offending with family members and is able to express regret and an intention of reforming to them. He appears to have insight into why his offending conduct amounts to criminal conduct. He has a past history of some interest in employment and is being assisted and encouraged by family to accept employment in a family-connected business. And he is giving some focus to positive post-custodial plans.

49. But on the other hand his pattern of offending has seen him offending over a two-year period. His past attempts at rehabilitation had been unsuccessful. He returns to seek company of antisocial associates. There are concerns as to whether he is fully disclosing any addiction-type problems. He has offended even when restrained by court orders requiring his good behaviour. He is likely to be a concrete thinker with limited capacity to reason or make a value judgment when confronted with antisocial choices.

50. He has pleaded guilty to all matters from the outset. His pleas are motivated by the contrition I spoke of and a willingness to be held accountable for the criminal conduct. I intend to allow a twenty-five per cent discount for his early pleas.

51. The offences are all offences requiring for reasons which will become apparent shortly, an ingredient of deterrence notwithstanding his young age. In Australian society there is very extensive raft of criminal laws passed by federal and state parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those tempted to breach its provisions. Parliament does that by prescribing penalties for those who engage in conduct prohibited by the criminal law.

52. Consequently, when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. In this case the maximum penalty for the statute breached, insofar as the robbery and attempt robbery charges are concerned, is one of twenty years imprisonment.

53. Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind that maximum penalty available and its deterrent purpose. There is also a specific deterrence aimed at individuals likeminded to this offender who but for such deterrence would be willing to commit crimes similar to those for which this offender is being sentenced. Finally there is a component of deterrence to be considered personal to an offender with a view to deterring him or her from re-offending.

54. I said that I would need to take the Form 1 matter into account in the third charge. The effect of that will be to drive the sentence for that third charge upwards. The chief justice speaking for the Court of Criminal Appeal in a guideline judgment relating to Form 1 matters, The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38 made clear the rationale for the increase in penalty. He said:

“The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence which the commission of those other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused engaged.

The second is the community’s entitlement to extract retribution for serious offences which...are offences for which no [isolated] punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.”

55. R v Henry and Ors (1999) 46 NSWLR 346 is a guideline judgment that authority establishes is clearly a matter that I must take into when sentencing for these offences. Many of the features discussed in Henry are present here:

“(i) Young offender with little or no criminality

(2) Weapon (like a knife), capable of killing or inflicting serious injury” -

(in this case the weapons present, when they were present, were cricket bats and a golf club)

“(iii) Limited degree of planning

(iv) Limited, if any, actual violence but a real threat thereof

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken

(vii) Plea of guilty, the significance of which is limited to a strong Crown case.”

56. R v Henry CCA (1999) 46 NSWLR 340 was determined before the guideline judgment on plea discounts R v Thomson & Houlton (2000) 49 NSWLR 383. The Henry guideline reflects the jurisprudence then applicable to pleading guilty. Note, “The plea of guilty, the significance of which is limited by a strong Crown case.” My view is that the Thomson & Houlton guideline judgment resulted in a far more favourable benefit for a guilty plea based upon a utilitarian value of the guilty plea and quantified up to usually for an early plea, all other things being equal, of twenty-five per cent.

57. It is safe to accept the sentences that underpin the Henry guideline range were touched by the general oversight acknowledged in Thomson & Houlton of insufficient discounts for pleas of guilty prior to that judgment which I think was in 2003. Regrettably no modification was ever sought to Henry guideline as a consequence of Thomson & Houlton guideline.

58. There is other jurisprudence to be taken into account when sentencing a person who was young when offending. It is to be remembered this offender, whilst strictly at law an adult, was but eighteen when most of the offending occurred. It is a well accepted principle of sentencing that generally when sentencing a young person issues of general deterrence and public denunciation will play a subordinate role to the need to have regard to the individual treatment and to rehabilitation.

Qualification to this principle was summarised by Justice Hunt, CJ at C.L. in R v James Anthony Morris NSWCCA 25 September 1995 when he said:

“Where a youth conducts himself in a way an adult might conduct himself and commits a crime of considerable gravity, the function of the court to protect the community, requires deterrence and retribution to remain significant elements in sentencing him”.

The Court of Criminal Appeal in R v AEM snr- [2002] NSWCCA 58 noted:

“True it is ... that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided. However there is a point at which the seriousness of the crime committed by a man of nineteen, even though a young man, is of such a nature, is so great, that that the principle in the public interest give way”.

There is an earlier case of Pham (1991) 55 A.Crim.R. 128, which says:

“It is true that courts must refrain from sending young persons to prison unless that course is necessary but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are persons committing grave crimes”.

59. I have come to a view that particularly because of the quantity of criminality exhibited in these offences substantial sentences of imprisonment are required. It is never easy to sentence a young man to a custodial sentence. S 5 of the Crimes (Sentencing Proceedings) Act provides that the Court should not do so unless it is the only appropriate penalty. There are cases, and this is one of them, where not to do so would be to fall into clear appealable error. The youth of this offender is particularly relevant though, to the determination of the relationship between the non-parole period and the head sentence and despite the significance of deterrence and the need to protect the public, youth is still relevant to the assessment of overall criminality, bearing in mind s 21A(3)(j) of that Act and the observations of the Court of Criminal Appeal in R v Hearne (2001) 124 A.Crim.R. 451.

60. Likewise the intellectual capacity of the accused is a matter requiring mitigation of the deterrence aspect of sentencing. That mitigation may impact both upon the overall sentence and the minimum term, or put another way, it is also properly a factor to be taken into account in determining special circumstances. As I said earlier this offender has been in custody since his arrest on 4 April 2008.

61. Now all that remains after those remarks is to impose the sentences to be imposed. Mr Samadi would you stand up please? This may take a bit of time because we have got to do the mathematics as we go along.

62. Mr Samadi for the offence of assaulting Benjamin Ling with the intent to rob him of certain property whilst you were in company with five unknown male offenders, for that offence you are convicted. For that offence you are sentenced, but for your plea of guilty I would have sentenced you to two years imprisonment overall. Because of your plea of guilty and your contrition that is reduced to a sentence of eighteen months. I set a non-parole period of twelve months, to date from 5 April 2008 and to expire on 4 April 2009. The additional term will expire on 4 October 2009.

63. For the offence that you on 3 November 2006 at Carlingford did rob Zachary Deguyere of property, namely his Samsung mobile phone and $25 whilst you were in company with an unknown male you are convicted. I take into account the two offences that you committed on 28 March last which are on the Form 1. But for your plea of guilty I would have sentenced you to an overall sentence of four years. Discounting that it becomes an overall sentence of three years. I set a non-parole period of 15 months to date from 5 October 2008 and to expire on 4 January 2010. The balance of twenty-one months will expire on 4 October 2011.

64. In respect of the offences 3, 4 and 5, that is that on 7 November 2006 at Carlingford in the State of New South Wales you did rob firstly, Lindsay Clough, secondly Timothy Clough, thirdly Regan McDougall of property whilst you were in the company of unknown males but for your plea of guilty I would have set an overall sentence of three years and six months for each of those offences. Applying a twenty five per cent discount that becomes an overall sentence of two years seven months and 15 days. All of these sentences will be served concurrently and they are to date from 5 April 2009. Did I say that in respect of them I am setting a non-parole period of fifteen months? The non-parole period will expire on 4th July 2010.

65. So the three offences I am now dealing with there is a minimum term of fifteen months, to date from 5 April 2009. So that will be 4 July 2010 and an additional term of seventeen (sic-should read sixteen) and a half months.

66. For offences six and seven those two are together also. That is that on 7 November you attempted to rob Daniel Baras and Chris Cooper whilst you were in the company of an unknown male I would have sentenced you to an overall sentence of three years which I have discounted to two years three months and in respect of those I have also set a non-parole period of fifteen months. I have commenced those sentences on 5 July 2009 and they will expire on 4 October 2010.

67. The sentence itself will expire completely on 4 October 2011, if my maths is correct. Subject to the maths being correct what I had intended is that there would be an overall minimum term running from 5 April 2008 to 4 October 2010 which should be two and a half years.

68. I order the release of the offender on each of the expiry of the non-parole dates. Three years ten months thirteen days is the overall sentence. The offender may be returned to custody.