R v Shareef

[2019] NSWDC 651

District Court

New South Wales

Medium Neutral Citation:	R v Shareef [2019] NSWDC 651
Hearing dates:	22 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 4 years 6 months with a non-parole period of 3 years
Catchwords:	CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 found at [2002] NSWCCA 518 R v Henry & Ors (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Mohammed Alfaaz Shareef (Offender)
Representation:	Andrew Kemp (Crown) Johnson Jiang (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Criminal Law Group (Offender)
File Number(s):	2018/00287599

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Mohammed Alfaaz Shareef appeared before me for sentence proceedings on 21 October 2019. The matter did not conclude until the end of the day and was adjourned therefore to the following day for the imposition of sentence, but due to the amount of work that I had before me on that occasion was adjourned once again to be concluded today.

2. He was committed for sentence to this court on 14 June 2019 from the Local Court in Penrith on a charge of robbery armed with an offensive weapon that occurred on the 19 June 2018 at Blacktown. The offence was against a man named Yussuf from whom the offender took $10,000 in Australian cash, an iPhone; a second mobile phone, a driver’s licence in the victim’s name, and a bankcard in the victim’s name. The offensive weapon was an object that was presented in such a fashion that it was thought to be a silver-coloured pistol.

3. The offender confirmed his plea of guilty in the Local Court and adhered to his plea of guilty in this court.

4. When sentenced for the robbery offence he asks that I take into account an offence of recklessly dealing with the proceeds of crime. That arose in respect of a portion of the money that he took in the robbery used to acquire a motor vehicle, a silver Nissan Skyline 350 GT.

THE PENALTIES

5. The offence of robbery armed with an offensive weapon is contrary to s 97 (1) Crimes Act 1900. The maximum penalty specified is imprisonment for twenty years. There is no standard non-parole period for the purposes of Pt 4, Div 1A Crimes (Sentencing Procedure) Act 1999.

6. The offence of recklessly dealing with the proceeds of crime is contrary to s 193B (3) Crimes Act 1900. The offender confirmed his wish that the offence be taken into account and admitted his guilt in respect of that offence. The maximum penalty for the Form 1 offence is imprisonment for ten years.

THE FORM ONE OFFENCE

7. The offender gained considerable advantage from having the additional offence taken into account. In the circumstances before me were he to be sentenced separately for that matter he would suffer a period of imprisonment in addition to the punishment that he must suffer for the armed robbery. At the same time he has provided utility clearing the slate in this way and that must be brought to his credit. Ultimately the sentence that he would otherwise have suffered for the robbery armed with an offensive weapon charge will be increased to reflect the additional offence taken into account, thereby addressing the greater weight to be given to the aspect of personal deterrence arising from the extent of his misconduct and the community’s entitlement to retribution for all of his misconduct.

8. I am aware of the statements of principle offered by Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 found at [2002] NSWCCA 518. I have brought that guidance to account.

PRE-SENTENCE CUSTODY

9. He has been in custody for this misconduct since his arrest on 19 September 2018. The sentence I impose today will commence on that date.

DISCOUNT

10. The offender is entitled to a discount for his plea of guilty in accordance with Legislation now contained within the Criminal Procedure Act 1986 by reason of a plea of guilty in the Local Court. The discount to be applied to the sentence that would otherwise have been imposed is 25%. That is applied to the sentence achieved on the synthesis of the objective and subjective factors including what I find to be demonstrated contrition and remorse and such prospects of rehabilitation as there are.

THE FACTS

11. The offender was known to the victim. They had met around 2003. From 2007 the victim operated a perfume and cosmetics business in Main Street in Blacktown and also worked as an agent for a money transfer company. In 2012 the offender relocated to premises in Main Street, Blacktown. These were a second floor office.

12. In 2012 the victim relocated to other premises in Main Street, Blacktown, consisting of a second floor office with the main counter facing to the entrance. Access to the street was via a staircase up to a corridor which led to the entrance to the victim’s premises. There were closed circuit television cameras operating in the premises and from there the victim continued to sell perfume and cosmetics and also continued to act as agent for two money transfer companies. I note that the Agreed Statement of Facts has referred to “the offender” and in this context which is clearly in error it should be “the victim”. As a money transfer agent he would receive cash from customers and about every two or three days that was deposited into the company accounts; he would typically receive about $10,000 cash per day. From about 2014 until late 2017 the offender would occasionally attend the business premises and borrow money from the victim.

13. Shortly before 2.03pm on 19 June 2018 multiple closed circuit television cameras in Blacktown captured the offender dressed in a dark hooded jacket, dark trousers, dark shoes and with three white stripes on their side, walking in the direction of the victim’s premises. At 2.03pm the victim was seated in a chair behind the counter when the offender entered holding in his right hand the object that looked like a silver-coloured pistol. He moved behind the counter where the victim was and he pointed that purported weapon towards the victim’s head and said, “Don’t talk, don’t shout, where’s the money? Get me the money”. Fearful, the victim retrieved about $10,000 cash and put it in a Commonwealth Bank bag and gave it to the offender.

14. The Facts specify “the victim”; I will correct the document replacing that word with “the offender”.

15. The offender also took the victims two phones, an iPhone in a case which also contained the victim’s licence, keycard, a Flybuys card and other business cards. There was also what is said to be a black Bix phone, a separate phone to the iPhone, and the offender then left.

16. At 2.06pm the victim called triple-0. He was significantly distressed. He reported the robbery by an unknown person. He believed the offender had a pistol. He reported the offender to have dark skin and that the offender had taken money. He also reported that the offender at some point kicked him. That is included in the Facts but I do not recall it being the subject of evidence by the offender before me. In any event there does not appear to have been any ongoing sequelae or injury as a consequence of that blow. In the minutes after the offender left the premises closed circuit television cameras tracked him throughout Blacktown. There was a short period when he was not captured but then was seen once more wearing a different jacket, still with a hood but without sleeves. His clothes were otherwise the same as worn during the robbery. He walked to Zolyomi Lane in Blacktown and put the dark hooded jacket into a bin. He was captured then walking away from that area.

17. Later that day the victim made a statement to police that accorded with what he had reported in the triple-0 call but with some further detail including that the perpetrator had a black balaclava with two holes for eyes and the object that the victim believed to have been a pistol had a silver barrel.

18. On the 21 June 2018 the Form 1 offence occurred when the offender purchased the motor vehicle from a man named Shaaban for $7,000 using money from the robbery. He did not complete the transfer of the registration of the Nissan to him. On 22 June 2018, after accessing and viewing the closed circuit TV from multiple locations, the police searched the bin in Zolyomi Lane and found the dark hooded jacket worn by the offender during the robbery. DNA matching the offender’s profile was found in multiple locations, as part of a mixed profile harvested in the course of the examination. He was arrested on 9 June 2018 and charged.

THE OFFENDER

19. He gave evidence before me and spoke to a document that he wrote expressing recognition of the seriousness of his conduct, the impact it has had on the victim, and upon the victim’s business. He represented in the letter that he has now changed his life once again and it is following its proper course. He spoke of the friendship he had with the victim. He represents that he realises that some of his decisions in his life have a causal relationship and in this event it caused the breakdown of the friendship that he had with the victim. He represents that he understands the damage that his misconduct has caused, that over the last thirteen months in gaol he has seen many people and their vulnerability in the grasp of substance abuse, and that this has been salutary it appears because he represents that his days of substance use or abuse have come to an end.

20. He speaks of the impact of substance abuse on his relationship and its breakdown five years ago. He suffered the loss of his grandfather and that had some deleterious impact upon him that contributed to his misuse of substances. Ultimately his representation is that his time in gaol has been beneficial and he is looking forward to completing the custodial component of his sentence, to return to the community and start life afresh.

21. He adopted the effect of the letter when he gave evidence. He also confirmed, apart from a minor matter of little significance, the information contained in the psychologist’s report that was presented. He spoke of his circumstances but acknowledged that he engaged upon this crime to buy more drugs and discharge debt that he had accumulated in his acquisition of prohibited drugs for their consumption.

22. He was born in 1982 and therefore this year will be thirty-seven years of age. He is not a young man. He is about middle age. He has a record of antecedents that is relevant to the assessment of sentence in this case. His antecedent record is an aggravating factor but not so as to increase what is otherwise a proportionate sentence nor the objective gravity of the particular offending with which I am concerned.

23. He was in court in August 2002 for driving whilst his licence was suspended. In August 2006 for robbery in company armed with a dangerous weapon. That led to a sentence of imprisonment of five years and seven months with a non-parole period of three years. In July 2012 he was dealt with for intimidation and common assault.

24. In August 2018 for driving while suspended and possessing a prohibited drug he was convicted in his absence and then subsequently was fined and disqualified and in respect of the failure to appear he was convicted without penalty. There are other offences outside of that sequence in May of 2002, driving whilst suspended; May of 2004 using an unregistered, uninsured motor vehicle and driving whilst disqualified; in March 2016 to possessing a prohibited drug; in May 2017 for possessing a prohibited drug; in July 2017 for the possession of a prohibited drug. In April 2018 for possession of prohibited drug and so too for the same offence it appears, when he was called up for breaching a s 10 bond which had been given to him earlier for that offence, in response to which he was convicted and fined.

25. The Courts throughout have used various options at their disposal obviously to address the purposes of sentencing, reflecting opportunities for rehabilitation, but ultimately leading to incarceration for the most serious of the offences on his record, the robbery armed with a dangerous weapon whilst in company. He has had a drug use problem, as reported by him and others, consistent with the pattern of offending that is available from his antecedent record.

26. There is a sentence assessment report speaking of his circumstances with access to the offender’s brother who could provide some background and support for the representations the offender made in the course of the assessment. His brother gave evidence before me. Clearly he holds the offender in great affection and is there to support him once he is released into the community. He has been visiting him regularly in gaol.

27. The offender has two children, who are in the care of his wife, from whom he is separated. There has been some limited contact with his wife since his incarceration. His past employment involved work as a truck driver on a casual basis. He attributes his offending history to his illicit substance use and subsequent dependence.

28. He did not try to justify his misbehaviour. He acknowledged there had been a measure of planning with regard to the offence, which must be so, to mask his identity from the victim who knew him, but at the same time the level of planning was limited and I will not take that into account as an aggravating factor. It is, upon my assessment, conduct one would have expected from the commission of such an offence.

29. His substance use is discussed in the report, beginning with cannabis and ultimately evolving into the use of methylamphetamine. His marriage collapsed about five years ago and that, in conjunction with other stressors, led to his increased consumption of methylamphetamine, upon which he was dependent at the time of his arrest. He claims to be abstinent in custody; the psychological assessment reports that he had a substance use disorder at the time of the offence.

30. His custodial record does not reflect any misconduct in this recent incarceration. The last punishment in gaol was in July 2006, when he failed a urine test, but since then there is nothing to indicate ongoing use of drugs whilst he is in custody, supporting his representations that he has been abstinent.

31. The offence was to support his dependency, according to the report. He acknowledged his breach of trust and betrayal of the victim, who had also been his friend. He did not think it warranted but he would engage in whatever intervention was required of him. His supervision in 2002, 2005, 2012 and 2018 was considered satisfactory.

32. There is a medium risk of re-offending; there is reference to supervision and his suitability for community service, but they are not options that will be available in this case. I find that the line in s 5 Crimes (Sentencing Procedure) Act 1999 is crossed, as conceded by Mr Jiang who appeared on his behalf in the course of submissions made in the proceedings.

33. There is reference in the report to his breach of a section 10 bond. According to the Crown sentence summary though that is not so and I look to the record. It does not appear to me to--

34. KEMP: If I can assist, your Honour, that bond was called up and he was resentenced to - I forget what - but something other than a bond by the time of this offence.

35. HIS HONOUR: Is that the very last entry on 6 June - at page 6, rather, of 6, the possess prohibited drug?

36. KEMP: Yes, that’s right, and it was called up. The middle reference indicates it was called up, there was a fine on 11 April 2018 before the robbery.

37. HIS HONOUR: The Crown corrects me; notwithstanding what is contained in the sentence summary that he was subject to a section 10 bond at the time; that was called up and dealt with by a magistrate so I need not be troubled by it.

38. KEMP: Sorry, your Honour, just to clarify, he was not subject to that, it had been called up before the commission of the sentence offence.

39. HIS HONOUR: Thank you, Mr Crown. I will go back and revisit this.

40. Although in the sentence assessment report there is reference to a section 10 bond, the Crown acknowledges that the call-up for the breach of that bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 was dealt with before the commission of this offence.

41. There were a number of documents tendered in his case, beginning with the psychologist’s report. This was provided by Susan Homeh Hawil on 14 October 2019. I have had not only the benefit of the report but also the opportunity to see the offender give evidence and also evidence from his brother speaking in support of the offender. All of the evidence, including the contents of this report, allows me to conclude that he was brought up in circumstances where there was some challenge in his early life.

42. He was born in Fiji and came here in 1987. His parents worked in factories. His brother, from whom I heard, has a position of some responsibility at a university. The offender is the youngest sibling in his family and the family is close and loving, but when he was 20 his family lost their assets and their home because of his father’s gambling addiction. His mother found a suicide note from his father. The offender located his father at the local mosque in response to that discovery.

43. His marriage was an arranged one. There are two children born to the union. There was a separation in 2013 arising from issues with his father-in-law and he thereafter would stay with the family, that is with his wife and his two children, only three times each week. He continued in that arrangement until his incarceration

44. His maternal grandfather, to whom he was close, confirmed by his brother, died in April 2018. He was unable to attend his grandfather’s funeral. A video was delivered to him showing his grandfather’s body and that, he said, continues to impact upon him. That is what one might expect as an appropriate grief reaction from the loss of a close relative. It could not of itself justify his deterioration into the misuse of prohibited drugs or the commission of this offence but I bring it to account as part of the matrix of facts and circumstances which explain his evolution into his present situation.

45. His education was to Year 12 in high school. There is no behaviour problem reported. He enrolled in an Automotive Mechanical Engineering course between 2001 and 2003, which he did not complete. He completed a Warehouse Distribution and Logistics course in 2003. The report incorrectly specifies 2006; that was corrected in the course of his evidence. He has a forklift licence and an HR truck licence. His employment history is set forth in the report. This demonstrates that he has a work ethic and, if he can clear himself of drugs and the propensity for criminal misconduct, he has scope for rehabilitation and to lead a more productive life once he is returned to the community.

46. His substance abuse is summarised, beginning with cannabis at 20. That became a problem and led to chronic use, costing him up to $150 per day. Alcohol began at the age of 20. He was introduced to methylamphetamine at the age of 24. A business that he had in 2009 was lost due to his illicit substance use. He participated in rehabilitation programs, including the 12 Step Program at Kirkconnell in 2007 and then at Mount Druitt in 2009. He relapsed to cannabis on his wedding day when he was 30 and he began using up to one or two cones per day when not using methylamphetamine.

47. After two years of marriage his substance use increased; he was using up to two grams of methylamphetamine per day for a week at a time before he would abstain for a period of months. Upon his grandfather’s death he was using about two grams of methylamphetamine per day, all of which he said he ceased upon incarceration. He said that at the time of the offence he had not slept in three days and had used one gram of crystal methylamphetamine per day for three days. There is a substance use disorder diagnosed, including periods of relapse following the breakdown of his marriage, the death of his grandfather and loss of finance.

19. He needed money to support his drug habit. He said he failed to think about consequences. I find that difficult to accept. It is inconsistent with the way he presented himself in the witness box and what he said to me and what is contained in his letter and, having had the experience of a prior robbery offence and a period of imprisonment for it, I would find it extraordinary that he would not have had at least something in mind about what would happen as a consequence of his commission of this crime.

20. The psychologist offers the opinion that incarceration would be of little assistance to the offender. I reject that opinion offered at page 6 of 17; that a psychologist would purport to advise this Court on what to do in the case I find inappropriate.

21. He underwent psychometric testing, the results of which are set forth in the document. The suggestion is that upon his intelligence assessment he presented with an age equivalent of 15. Having had the opportunity to see him and hear him and view the document that was written by him, I find that result a little hard to understand, and should be considered against what the psychologist wrote of the scores, which she said indicate that he can see logical and abstract relationships, can reason without words, can solve mental puzzles that involve complex elements and can form meaningful associations between objects and designs.

22. His personality was assessed by psychometric testing. It is said that there is a marked potential for problems within the alcohol problems domain. There is marked potential for problems within the negative affect domain, with potential for emotional and/or behavioural problems greater than typical for community-dwelling adults.

23. A PTSD checklist was completed but the results of that are attributed to his recent stressful life events. I take that to mean the fact that he committed a robbery and he is in gaol for it now. There are said to be severe levels of depression, moderate levels of anxiety.

24. Then there is a risk assessment, which places him in the low to moderate risk for re-offending. The assessment was made upon self-reporting by the offender, the statement of facts, his criminal history and the results of the psychometric testing. It does not tell me how the clinical assessment was performed and whether it was face-to-face, but I take it that it was, in the absence of what is becoming a common representation in these reports that the assessments are made by way of audio-visual link, with, on occasions assessments made by way of telephone calls.

25. The report provides at page 2 that the offender was assessed over two and a half hours at Long Bay Centre.

26. The additional material before me includes a reference from the principal in the cleaning company. This person has known the offender for six years, he has been found to be a good person who cares for those around him, always willing to help. He is willing to offer the offender work. There is another reference from somebody who works in a mental health centre in the western suburbs of Sydney as a registered nurse; this person is friends with the offender and has been in touch with him since he was incarcerated, and supports him as someone who has turned the corner.

27. Another reference is provided, this is a friend of the offender and his older brother who gave evidence before me; he is employed as a truck driver. He finds that the misconduct is out of character; that might reflect a misunderstanding of the antecedent history the offender has, but I accept that the representations regarding the offender are sincere and reflect the esteem in which he holds the offender.

28. There is a series of certificates showing his achievements; these were issued in 2008, in the year 2001 and, finally, there is a document from a doctor in Western Sydney speaking of Hasnul Shareef born in 1961 and listing the afflictions for which treatment has been given. The offender’s mother suffers from a number of ailments which require ongoing care and treatment and this must add to the burden of the offender while he’s in custody with that worry whilst he cannot be there to assist. Of course his mother did not suddenly become unwell and but for the intervention of the police following the commission of this crime he might not ever have been in any meaningful way available to assist his mother because of the lifestyle he was following. I would accept that the intervention of these proceedings has been salutary and might well be the means whereby he will redirect his life.

SUBMISSIONS

58. Mr Jiang, who I have come to appreciate as very thorough in the presentation of these matters but at the same time does not shirk from the responsibility he has to present the cases recognising the reality of the predicament in which the offender is placed, acknowledges the need for a custodial sentence but urges upon me a finding of special circumstances. He concedes that all of the aspects of s 3A Crimes (Sentencing Procedure) Act are engaged and that there must be punishment, there must be general and specific deterrence, although it is said that the general deterrence perhaps should be modified in light of what has been found by the psychologist.

59. I do not agree that his decision to embark upon the misuse of drugs because of some things in life that he found challenging would justify the commission of this crime or perhaps even sufficiently explain it. In my view, this man has chosen to use drugs and it is shameful that he would rob someone with whom he had formed a friendship. It was said that he did not realise that he was going to recover $10,000 in the commission of the crime and that the amount was purely fortuitous, but it should not be overlooked that he used $7000 of that money to buy a motor vehicle leaving only $3000 for use in his continued consumption of drugs.

60. The objective gravity of the offending is below mid-range but not by a great deal. I know that there could be no harm arising from the use of this device as an offensive weapon but in the mind of the victim the perpetrator had a weapon capable of causing significant injury and that should not be overlooked. I do not bring to account the proposition that he used corporate violence in the course of the offence; that was not explored sufficiently in my view in the conduct of the matter to justify finding that corporal violence should be taken into account as an aggravating factor.

61. There is a comparison to be made between this and the guideline judgement in R v Henry & Ors (1999) 46 NSWLR 346. This is not a young offender, there was a weapon used not capable of causing any harm, unlike the offender in Henry this offender has a significant record of antecedent offences including a prior armed robbery involving the use of a dangerous weapon committed in company. He has already served a sentence of imprisonment for that offence. There was a significant amount of money taken. $10,000 to some is not a huge amount but for others it is a lot of money, at least sufficient to buy a second‑hand motor vehicle with some left over.

62. The victim was situationally vulnerable being alone in his office but he does not fall within that category of vulnerable victims articulated in the guideline judgement such as cab drivers or those operating convenience stores in the middle of the night. Ultimately, there are sufficient comparisons in my view to allow this matter to fall within the parameters of the Henry guideline judgement. I accept that there is contrition and remorse; I accept that there are prospects of rehabilitation; I accept that he has made good progress in custody away from the misuse of prohibited drugs. But he has a history of relapse when things have toughened up for him, so one must be guarded in that respect.

63. There are special circumstances because he should have an extended period on parole to make sure to the extent possible that he continues along the path that he has so far indicated and does not return to the criminal justice system.

64. The other aspect of the Henry guideline is the plea of guilty which must be brought to account, but the significance of course is to be measured against what I perceive to be strong Crown case. I could not see an acquittal at the end of a trial if the evidence was presented in such a way as to reflect the facts upon which I have determined sentence.

65. The contrasts between this case and Henry are offered by Mr Jiang in his written submissions. I agree with what he says about the offensive weapon incapable of causing harm in fact, the limited degree of planning although there must have been some requiring him to acquire dress to mask his identity some of which he discarded in due course before ultimately making his escape. His submissions do not address the proposition that he is said to have kicked the victim in the leg although he does acknowledge a limited act of violence with no physical injury. He urges a view that there does not appear to be a strong Crown case, a proposition with which I do not agree.

66. I have referred to the psychologist; I have referred to his drug use and my view of it. I have not overlooked what Wood J CJ at Common Law said in Henry para [273]. His misuse of drugs and his continued use of drugs explain his crime but it does not in any way offer any excuse for it and I see nothing in his background that would in any way provide adequate justification for him to embark upon the misuse of cannabis or methylamphetamine; they appear to me to be lifestyle choices. I have also not overlooked what Simpson J had to say in that same case.

THE SENTENCE

67. The offender is convicted, Bringing to account the Form 1 offence and upon the synthesis of all the material that is before me I am shall sentence him to a term of imprisonment of 4 years and 6 months including a non‑parole period of 3 years. Thus he is sentenced to a term of imprisonment of 3 years, a non-parole term of imprisonment, from 19 September 2018 to 18 September 2021. Thereafter he is subject to a period of parole that will expire on 18 March 2023.

68. I certify the Form 1.

**********

Decision last updated: 11 November 2019