R v Steven Hirmiz

[2024] NSWDC 532

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Steven HIRMIZ [2024] NSWDC 532

Hearing dates:

6 September 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

1. In relation to sequence 1, the offender is sentenced to imprisonment of 7 years and 6 months, commencing on 4 August 2022 and expiring on 3 February 2030, with a non-parole period of 5 years, expiring on 3 August 2027.   

2. In relation to sequence 3, the offender is sentenced to a community correction order for a period of 2 years, commencing on 20 September 2024 and expiring on 19 September 2026.

Catchwords:

SENTENCING - Crimes Act 1900 (NSW) s 93GA(1B) - Firing at dwelling-houses or buildings

Legislation Cited:

Crimes Act 1900 (NSW), s 93GA(1B)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5AA, 21A(2)(e)

Cases Cited:

White v R [2016] NSWCCA 190

Category:

Sentence

Parties:

NSW Director of Public Prosecutions (Crown)
Steven Hirmiz (Offender)

Representation:

Counsel:
Kay Marinos (Crown)
Derek Drewett (Offender)

Solicitors:
Jennifer Katrib (Crown)
James Drewett (Offender)

File Number(s):

2022/00229506

Publication restriction:

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

JUDGMENT

1. The offender Steven Hirmiz is to be sentenced having been found guilty by a jury after trial of the following offence: That on 9 April 2022 in Canley Vale in the course of an organised criminal activity, he fired a firearm at a dwelling house located at an address particularised in the count on the indictment of which the jury convicted him, with reckless disregard for the safety of another person. That is an offence under s 93GA(1B) of the Crimes Act 1900 (NSW). It has a maximum penalty of 16 years imprisonment and there is an applicable standard non‑parole period of six years imprisonment. I will refer to this offence in these remarks as the shooting offence.

2. The offender Mr Hirmiz is also to be sentenced having pleaded guilty to an offence that on 4 August 2022 at Abbotsbury he possessed a prohibited firearm, namely a replica pistol, not being authorised to do so by a permit or licence. That offence has a maximum penalty of 14 years imprisonment and there is an applicable standard non-parole period of four years.

The Facts

3. In relation to the shooting offence, as this is a sentence after trial, I am required to find facts consistent with the jury's verdict. To the extent that I find facts adverse to the offender I am required to find them beyond reasonable doubt. To the extent that I find them favourable to the offender I am required to find them on the balance of probabilities.

4. The offender was in a joint criminal enterprise together with Regan Yousiph (who I have already sentenced on the basis of agreed facts), when they, in the course of an organised criminal activity, drove past the victim's residential home at the residential address particularised in the indictment, in a hired utility and fired two firearms, being pistols, at the dwelling house shortly before 11pm on Saturday, 9 April 2022.

5. The shooting offence was committed by the offender together with his co-offender, Regan Yousiph, in the course of organised criminal activity and involved the use of two firearms, 9‑millimetre pistols, which are prohibited. Whilst there is no evidence to prove the specific identity of the person or persons who sourced and obtained the pistols that were used by the offender and Regan Yousiph in committing the offence, the sourcing and obtaining of those prohibited firearms for use in the offence obviously required extensive arrangements and planning with others.

6. As a result of the police investigation, one of the pistols used was discovered by police during the execution of a search warrant at Regan Yousiph's home when he was arrested. The second pistol used has not been recovered by police.

7. In committing the offence together with Regan Yousiph, the offender had a reckless disregard for the safety of other persons given that the shooting occurred in a suburban residential street and shots were fired into a home in that street.

8. The jury's verdict supports a finding that the offender actually thought about the consequences of his actions and realised the safety of the occupants of the dwelling house would be at a substantial risk by the act of firearms being discharged by either himself, Regan Yousiph, or both of them, into the front of the dwelling house on a Saturday night around 11pm. This was at a time when the occupants would likely be inside their home.

9. The evidence established that the parents of SL, a police officer who resided at the rear of the premises, were asleep in their bedroom at the front of the house at the time of the shooting, noting that no bullets or bullet damage was found in their front bedroom.

10. The circumstances in which the offender and Regan Yousiph participated together in the commission of the shotting offence established that at some point in time prior to, at least, 8 April 2022, an agreement had been reached between them that the crime should be committed.

11. The offender had a prior association or connection by way of friendship with Regan Yousiph. Alan Yousif, who I have just sentenced, as an accessory before the fact of the shooting offence, and Nathan Ackaoui, whose involvement will shortly be explained. The offender had telephone communications with Regan Yousiph and Alen Yousif prior to, on the day of the offence and after the commission of the offence.

12. On the evening of 8 April 2022 at 5.55pm the offender booked an Uber trip from a pickup point near 7 Kilkenny Avenue, Smithfield. The pickup was at 6.02pm. The drop‑off occurred at 6.38pm at a drop-off location in Pontville Close, West Hoxton, which is adjacent to Forcett Close. The co‑offender Regan Yousiph resided at 7 Kilkenny Avenue, Smithfield. The co‑offender Alen Yousif resided at 7 Forcett Close, West Hoxton.

13. On the evening of 8 April 22, the night before the shooting offence, the offender met with the co-offenders in connection with its planning.

14. On the day of the offence on 9 April 2022, the offender had phone communications with Regan Yousiph and Alen Yousif before the commission of the offence.

15. The offender instructed his associate or friend Nathan Ackaoui to hire a utility for the offender's use via a messaging app on either 8 or 9 April. The offender directed Ackaoui to deliver the utility to the corner street adjacent to his home, leaving the keys on the tyre.

16. On 9 April 2022 the offender transferred funds from his Commonwealth Bank account to Mr Ackaoui's bank account to cover the cost of hiring the utility and for Mr Ackaoui's assistance. The amounts concerned, according to the evidence, were $422, $50 and $500. Nathan Ackaoui was not alleged by the Crown to be part of the joint criminal enterprise between this offender and Regan Yousiph.

17. Acting on the offender's instructions, shortly after midday on 9 April 2022, Mr Ackaoui hired the utility and drove it directly to the offender's house in Abbotsbury and parked it on the corner of Glenton Street and Cochran Place. Shortly after 12.30pm, Mr Ackaoui left the key on one of the utility's tyres and departed the location.

18. From 2.15pm until 9.52pm that day, the utility was in the offender's custody or control and he did the following things:

19. At 2.15pm, the offender first approached the parked utility, retrieved keys from the tyre, drove around the corner and parked across the road from in front of his house, took something from another parked utility then drove the hired utility away at 2.19pm. The utility remained stationary or parked at 1 Province Street, Abbotsbury from 2.22pm to 3.58pm.

20. At 4pm, the offender returned and parked the utility in the same position on Glenton Street, near the corner of his home, where it remained.

21. At 5.32pm the offender briefly entered the driver's door of the utility. At 5.46pm, he again entered the driver's door of the utility.

22. At 9.49pm he approached the utility. He moved around the outside of the passenger side and rear of the utility in preparation before he entered the driver's door.

23. At 9.52pm, the offender departed his home and drove the utility from his home to the Shell Coles Express service station at Wetherill Park. At 9.59pm, CCTV footage captured the utility pulling into the service station. The offender got out of the utility and purchased two cans of iced coffee and a roll of silver PVC tape. The offender used his own credit card linked to his Commonwealth Bank account to make those purchases.

24. At 10pm, the offender departed and drove to Kilkenny Avenue, Smithfield. At 10.04pm, the offender parked the utility outside of Regan Yousiph's residence at that address.

25. Between that time and 10.16pm, the offender and Regan Yousiph moved around the outside areas of the utility. During this time, the offender and Regan Yousiph inferentially taped over signage and registration number plates in preparation for the commission of the shooting.

26. At 10.16pm, both the offender and Regan Yousiph entered the utility and remained within it until 10.37pm.

27. At 10.37pm, the offender and Regan Yousiph drove away in the utility together to the premises the subject of the shooting. The utility arrived at those premises at 10.53pm.

28. The “Move Yourself” GPS tracker data from within the utility shows the location of the utility on the street in which the premises were located between 10.53pm to 11pm on 9 April 2022.

29. The utility travelled in an easterly direction along the street in which the premises were located from 10.53pm to 10.57pm. The evidence at trial was that at times its speed slowed or in essence stopped before it was driven to nearby streets. At 10.59pm, the utility returned to that street and travelled in a westerly direction until 11pm, during which time the utility's speed slowed to 22 kilometres an hour and shots were fired at the residence the subject of the shooting before speeding up and driving away from the scene of the shooting.

30. At trial there was little in dispute in terms of the actual shooting occurring but the role of the offender was very much in dispute. I cannot find beyond reasonable doubt which of the offender and Regan Yousiph was the driver and the passenger when they were driving together in the utility at the time that the firearms were discharged at the victim's residential premises. It follows I cannot find beyond reasonable doubt whether one or both of them fired the firearms, but of course I note the Crown case was one of a joint criminal enterprise between the two of them.

31. Following the shooting, the offender and Regan Yousiph drove from the street concerned and returned to Regan Yousiph's home at 7 Kilkenny Avenue at 11.13pm.

32. Following their return, the offender and Regan Yousiph remained in the utility together with the internal lighting switched on briefly. At 11.20pm they alighted and moved around the outside of the utility. Inferentially it can be inferred that they were removing taping that they had put over the signage and the number plates.

33. At 11.22pm, the offender and Regan Yousiph walked from the utility to Regan Yousiph's premises. At 11.23pm, the offender's mobile phone and Regan Yousiph's mobile phone both reconnected to the network. There was extensive mobile telephone analysis placed before the jury during the trial.

34. Between 11.23pm to 12.07am, the light inside Regan Yousiph's bedroom was periodically switched on, then off.

35. At 12.07am on 10 April 2022, the offender and Regan Yousiph left the house and returned to the utility. From time to time, they moved around the outside of the utility. One of them entered the driver's seat while the other stood beside the driver's door.

36. At 12.13am, a black hatchback vehicle arrived and either Regan Yousiph or the offender entered the hatchback, which then performed a U-turn, parking behind the utility.

37. At 12.16am, the utility departed, followed by the black hatchback. At 12.32am, the utility followed by the hatchback drove in convoy on Locke Street, Wetherill Park. The utility's GPS tracker data shows the utility was parked on Locke Street and left there from 12.32am.

38. Following the commission of the offence, the offender instructed Mr Ackaoui to collect the utility from the location where the offender left it parked with the key on the tyre, to facilitate Mr Ackaoui returning the utility.

39. At 12.34am Mr Ackaoui created a note on his mobile phone which read, "15 Gissing Street, Wetherill", being the location where the utility was located.

40. The following afternoon at 3.29pm, Mr Ackaoui collected the utility from the location. He found the keys on one of the wheels. He returned the utility to the BP service station in West Hoxton at 3.50pm.

41. I noted earlier that SL resided at his parents' home in a detached granny flat at the rear of the property. He'd been asleep in his bed in the detached granny flat at the time of the shooting.

42. After being woken by the sound of loud bangs, inferentially, the gunshots, SL's mother and father located bullet fragments on the floor in the lounge room and on the bathroom floor; they were placed on a table inside the living room, which were later seized by police. SL's mother phoned SL on his mobile phone to ask him to come to the house. He then observed the bullet fragments and damage to the house. At 12.12am on 10 April 2022, he phoned triple-zero to report he had been the victim of a ‘drive-by’ shooting and that he was a police officer.

43. At 12.20am, police attended the crime scene. Police identified that the dwelling house was the residential premises of SL and his parents.

44. SL was a NSW police officer with a rank of Senior Constable, who had been suspended from duty at the time of the shooting. He was employed as a NSW police officer from 1 April 2015 to 29 September 2022 when he resigned.

45. In August 2021 SL was charged following an investigation by Professional Standards Command in respect of fraud-related offences. SL's offences were unrelated to the shooting that occurred on 9 April 2022.

46. SL had previously completed a ‘street-level operative’ course in 2018 and had been employed as a ‘street-level operative’ a number of times in relation to one operation in 2019 in relation to low-level drug crime. As I understood the police evidence, a ‘street-level operative’ was in effect someone operating in a minor undercover role.

47. SL was deregistered as a street operative on 18 April 2019 as a result of a number of ‘risk assessments’ undertaken by police, as a result of the NSW Police becoming aware in April 2019 that two photographs in relation to SL had been circulated on social media. The photographs depicted SL and his former partner with a birthday cake in the shape of a police uniform, with a badge that depicted the words linking SL to the badge and also a photograph of the cake. Police received information that the photographs had been circulated on social media by an unknown person or persons with a message, "Is this person an undercover operative?" No threats accompanied that first social media post. Police undertook a formal risk assessment process in April 2019 and determined the risk was “very low”.

48. In September 2019, police received further information in relation to a second social media post in relation to the same photographs relating to SL with messaging. Police conducted a second risk assessment and determined the risk was “low”.

49. The Crown accepted that there is no evidence to prove a connection or link between the offender or Regan Yousiph or Alen Yousif with SL or his parents prior to the commission of the offence on 9 April 2022. I note the evidence at trial was that SL ultimately was imprisoned in relation to the offences that he had been charged with.

50. A crime scene was established at the premises the subject of the shooting. Crime Scene Officers recovered a total of five bullets from various areas of the crime scene. The house was described as a modest older style, double fronted, single storey, detached house of ‘fibro’ construction situated on a residential street.

51. In respect of the four bullets located inside the house, forensic examiners who gave evidence in the trial identified four bullet trajectories inside the fibro house:

1. One trajectory of a bullet was identified as relating to bullet damage on the wall inside the living room, but no bullet was recovered in situ by the examiners. Its trajectory was identified as having originated from the direction of the road towards the house. It was evidenced by bullet damage to the carport by way of perforation; perforation of the front window and bullet damage on the wall inside the living room.

2. A second trajectory of a bullet was identified as relating to the bullet recovered in the heater flue in the kitchen. Its trajectory was identified as having originated from the direction of the road towards the house. It was evidenced by bullet damage relating to a perforation in the fascia board which continued through the living room and into the kitchen where it lodged in the flue.

3. A third trajectory of a bullet was identified as relating to the bullet recovered from a religious shrine in the living room. Its trajectory was identified as having originated from the direction of the road towards the house. It was evidenced by bullet damage to the front window frame of the house, where a bullet had perforated the window frame and continued through the living room and into the wooden shrine.

4. A fourth trajectory of a bullet was identified as relating to bullet damage to the bathroom tiled wall but no bullet was recovered in situ by examiners. Its trajectory was identified as having originated from the direction of the road towards the house. It was evidenced by bullet damage to the window shutter of the house where a bullet had perforated the window shutter, the window, and through to the sewing room through the passageway/hallway and into the bathroom tile wall.

52. Forensic examiners identified the bullets I have just referred to as 9‑millimetre/.38/.357 calibre fired impact-damaged bullets. A comparative microscopic examination of these damaged fired bullets revealed that they had been discharged from the same firearm.

53. The forensic examiners also identified 3 x .380 automatic calibre fired cartridge cases.

54. They also identified a single impact‑damaged portion of a fired bullet jacket, again a 9‑millimetre calibre fired bullet jacket. A comparative microscopic examination of the four impact damaged fired bullets recovered inside the house and the impact damaged portion of a fired bullet jacket revealed they had been discharged from two different firearms.

55. During the investigation police located the hired utility at Move Yourself at the BP service station at Hoxton Park. The utility contained a GPS tracker and police obtained the GPS tracker report for the utility and were able to identify that it had been hired by Mr Ackaoui and the route it had been driven on 9 and 10 April 2022 as I have referred to it, which led to the eventual identification of the offender and Regan Yousiph's involvement in the offence.

56. The utility, which had been found in a locked state by police, was forensically examined. A fired case cartridge was found in the front passenger side footwell of it. The fired case cartridge seized from the utility was forensically examined and compared with two cartridges seized from Mr Yousiph's residence on the date of his arrest on 4 August 2022, which were each found to have at one time been discharged in the same firearm.

57. A comparative microscopic examination of the fired case cartridge recovered from the utility with the three fired case cartridges on the roadway near the premises revealed that they had been discharged in the same firearm.

52. A further comparative microscopic examination between the four impact damaged fired bullets recovered inside the house with the impact damaged fired bullet jacket on the roadway, as I understand it, revealed that they had been discharged from two different firearms.

53. On 4 August 2022, as I say, police executed a search warrant at Regan Yousiph's home, where they located a black-coloured handgun and magazine containing ammunition wrapped within a pillowcase which was in three Coles plastic shopping bags hidden under the house. The firearm was forensically examined and confirmed to be a 9 millimetre Parabellum calibre self loading pistol, the serial number obliterated, and it had been identified by a forensic examiner.

54. The firearm was found to be in working order and ammunition was test fired from it. It was a prohibited pistol. The magazine was confirmed to be a detachable box magazine containing ammunition designed to suit a centre fire 9-millimetre Parabellum calibre self-loading pistol. Two of the test fired cartridges which were tested were forensically examined by way of comparative microscopic examination with an impact damaged fired bullet located at the crime scene on the roadway. It was confirmed that they had been discharged from the same firearm.

55. On 4 August 2022, this offender was arrested and conveyed to Fairfield Police Station. There was evidence that during the course of being conveyed to the station the offender asked Detective Senior Constable Erin Johnstone whether police officers were allowed to work where they lived. Johnstone gave evidence that she responded, "There was nothing to say that we couldn’t". Her evidence was that the offender asked whether it would be dangerous, "if someone was to find out where you lived as a police officer". Johnstone's evidence was that she said, "Why would it be dangerous?" And that the offender responded, "If someone was to find out where you live as a police officer". Her evidence was that she responded, "How would someone find out where you lived?" The offender responded, "What if they find your home?"

56. On sentence it was submitted on behalf of the offender that I could not find beyond reasonable doubt that this conversation occurred or that in the conversation there was an implicit admission by the offender that he knew that one of the occupants of the premises the subject of the shooting offence was a policeman.

57. The conversation was put in dispute in the trial and an alternative version of the conversation was put to Officer Johnstone which she did not accept. Johnstone's evidence was that she made no note of the comments she attributes to the offender until she made her police statement on 21 November 2022, more than three months after it was alleged to have occurred. Clearly the alleged comments were not electronically recorded in some way. Her evidence was that another officer was driving and she was in the back seat of the police vehicle when the comments were said to have been made by the offender.

58. If the comments were considered to have had any consequence, as far as Johnstone is concerned, it is impossible to understand why no record of them was made for more than three months. The fact no record was made for over three months suggests that the officer did not consider at the time that the comments were consequential. Therefore common sense suggests that she had no reason to commit them to memory such that she could give an accurate statement about them more than three months later.

59. I also note no evidence was called from the other officer in the vehicle at the time of the alleged comments to support the evidence of Officer Johnstone. In these circumstances, I am not able to find beyond reasonable doubt that the offender Mr Hirmiz made the comments to Johnstone about which she gave evidence. I am therefore not satisfied beyond reasonable doubt that the offender Mr Hirmiz knew that one of the occupants of the premises the subject of the shooting was a policeman.

60. I note SL, who was one of the occupants of the premises the subject of the shooting, had been stationed at Cabramatta Police Station from May 2015 when he first joined the police. At some time after he was promoted to senior constable in 2020, he was attached to Fairfield City Police Area Command, after its amalgamation. The suburbs of Cabramatta and Fairfield where SL was stationed as a police officer are of course neighbouring suburbs to the suburb in which the shooting occurred.

The Agreed Facts concerning The Possess Replica Pistol Offence

67. NSW Police commenced an investigation following the shooting offence that occurred on 9 April 2022.

68. On 4 August 2022, the offender was arrested in relation to the shooting. Police executed a search warrant at his residence in Abbotsbury. They located a black replica pistol inside the wardrobe of the offender's bedroom. The pistol had silver tape wrapped around its handle. It was confirmed by ballistics that it was an imitation/replica firearm. It was a Chinese‑manufactured lighter or imitation of a 9‑millimetre Parabellum calibre Glock select-fire pistol, which is in fact a prohibited firearm. Its external features were similar to the form and size and appearance of a real pistol, although it was not designed to propel a projectile by means of an explosive. It was said to be an imitation of a Glock pistol, but of course it was not capable of propelling any projectile.

69. The offender made admissions in accordance with the agreed facts in an interview regarding his possession of the item. He told the police, “No it’s a little, it’s a toy gun man. It’s a black toy gun. … It’s just a … piece of plastic man”. He went on to say, “Um, but yeah it is, it is um, it is a little toy that we had around for a while, me and my little brother … Um, and it shouldn’t have even been in the house but obviously it was”.

Charging of Michael Hirmiz

70. On 18 October 2022, the offender's brother, Michael Hirmiz, was charged by police in relation to the possession of this replica pistol. He entered a plea of guilty on 31 October 2022 at Fairfield Local Court.

71. The facts tendered on his sentence stated that after being cautioned in relation to the replica pistol, Michael Hirmiz said it was “just a Halloween toy” that he purchased several years ago from a Halloween store and the Magistrate sentenced him to a 12‑month Community Correction Order and a $1,000 fine.

Objective Seriousness

72. I will now consider the objective seriousness of the two offences for which the offender is to be sentenced.

73. The shooting offence was the subject of extensive arrangement and planning by this offender with other persons, including the co-offender Regan Yousiph. The planning commenced a number of days prior to the actual shooting. The shooting offence was clearly targeted at the premises the subject of the shooting; 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. For reasons I gave earlier, I am not satisfied beyond reasonable doubt that this offender knew that one of the occupants of the premises was a serving police officer. I am satisfied, however, that the premises was specifically targeted for the shooting and that it is highly likely they were because a corrupt police officer resided there.

74. This offender Steven Hirmiz organised and paid for the utility used in the shooting through an associate, Nathan Ackaoui, and he paid Mr Ackaoui for doing so. Steps were taken by this offender and the co-offender Regan Yousiph to cover signage on the utility prior to its use in the shooting.

75. Two firearms were used by this offender and the co-offender Regan Yousiph to perpetrate the shooting pursuant to a joint criminal enterprise. I am not able to find beyond reasonable doubt whether one or both of them discharged the firearms. Five rounds were discharged into the front of the fibro premises, some of which penetrated its facade and entered the lounge room, the kitchen, bathroom and the front room of the premises.

76. 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, SL, in the back flat at the time of the shooting.

77. Noting the elements of the shooting offence and the jury's verdict, this offender realised that the safety of other persons may possibly be at risk from the discharge of the firearms, yet he went ahead and engaged in the offence. The risk to the wellbeing of the occupants of the premises, users of the suburban street where the shooting occurred and those living in the street was very high.

78. I assess the objective seriousness of the offence as being within the midrange of objective seriousness.

79. The possession of the replica pistol offence is toward the lower end of the spectrum of objective seriousness for such an offence given the nature of the replica pistol that was the subject of the offence.

Objective Aggravating Factor

80. As with the submissions the Crown advanced in respect of Regan Yousiph, the Crown submitted that the aggravating factor in s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made out here, arguing that the offence was aggravated because it was committed in company with the co‑offender Regan Yousiph as they were both in the utility when the shots were fired.

81. When I sentenced Regan Yousiph I referred to observations of Simpson JA in White v R [2016] NSWCCA 190. I will not repeat what I said in the previous remarks but I will repeat the fact that in my opinion I am not satisfied beyond reasonable doubt that the aggravating factor is made out here relied upon by the Crown. I adopt the reasons I gave in the sentencing of Regan Yousiph and I will not repeat them here.

The Offender’s Subjective Case

82. The offender’s date of birth is 18 November 1993. He is currently 30 years of age and was 29 years of age at the time of the offence.

Criminal History

83. He has a limited criminal history. He was dealt with in the Local Court for certain driving offences in November 2011 and June and September 2013 and received fines.

84. He was fined in the Fairfield Local Court for offences of dishonestly obtain property by deception in June 2012 and July 2019. On the latter occasion he was also fined for one count of larceny.

85. In May 2019, in relation to two counts of possess prohibited drug he received fines. In September 2019, he was placed on a conditional release order for two counts of possess prohibited drug.

86. In July 2020, he was dealt with for four counts of dishonestly obtain property by deception and received as 12‑month community correction order. In February 2021, he received a fine for possessing prohibited drug.

87. In August 2024, he received a two-year community correction order in this Court for an offence of being in a conveyance without the consent of the owner.

88. The offender has no matters of violence on his record and has never previously been sentenced to a term of any type of imprisonment. I do not consider that his criminal history is such as to completely disentitle him to some leniency in this sentence.

Documentary Material

89. The only documentary material before me is a psychiatric report prepared by Dr Christopher Bench dated 26 August 2024. The offender gave no evidence on sentence and I have had regard to that in assessing what weight to give to the content of Dr Bench's report where it is sourced solely to information told to him by the offender.

90. In terms of the offender's family background, according to Dr Bench's report, the offender was born in Iraq and left Iraq at less than 12 months of age in 1994 with his family and moved to New Zealand. He later immigrated to Australia in 2000 with his family. He reported that his father is in receipt of the Disability Support Pension after a back injury at work and described his mother as a ‘stay-at-home’ mother. He told Dr Bench that he was the middle child of his parents, who remain married, that he remains close to his siblings, and that his relationship with his parents has gotten better over the last few years and is now good. He reported that there was some domestic violence between his parents and recalled seeing his father striking his mother when he was very young.

91. The offender told Dr Bench that he was in a relationship for seven to eight years and there were no children of that relationship, and he also had three other short-term relationships. As of the date of Dr Bench's report, the offender was single. Prior to his arrest on the offences the subject of this sentence, he was living in Abbotsbury with his parents and brother.

92. According to Dr Bench's report the offender reported that he had been repeatedly sexually abused by two perpetrators during Years 1 to 3 of school, regarding which he is currently going through litigation. He told Dr Bench he lacked support from his parents, who are not educated and failed to teach him life skills. He said he felt let down by his parents.

93. In terms of his education and employment, according to Dr Bench's report the offender had attended King Park Primary School, St John’s Park High School and Prairiewood High School, and completed Year 12 and attained his Higher School Certificate. After leaving high school he commenced a Bachelor of Policing at Western Sydney University, which he never completed. After that he worked as a technical support officer for a couple of years and was then a self‑employed concreter for the five years leading up to his arrest on the offences the subject of this sentence.

94. The offender described to Dr Bench a substantial history of substance abuse. That history is inferentially supported by the number of drug‑related offences of a minor nature recorded on his criminal history.

95. According to Dr Bench's report, the offender started drinking alcohol at the age of 13. Prior to his arrest, he was drinking one bottle of spirits approximately on a weekly basis. He reported having a history of alcoholic blackouts.

96. The offender reported having been using cannabis on a daily basis from the age of 12 up until the time of his arrest in 2022. Prior to his arrest, he was smoking 4 to 5 grams of cannabis daily. He told Dr Bench that he had been prescribed medicinal cannabis for the six months leading up to his arrest.

97. He reported having been using cocaine on a weekly basis from the age of 18 up until his arrest. He would buy 3.5 grams of cocaine per week. He reported that he has not used cannabis and cocaine since his incarceration.

98. The offender also reported having been using amphetamines on a daily basis from 2020 to 2022, smoking approximately a gram on a weekly basis.

99. He told Dr Bench that he had smoked heroin for the first time in his life after his incarceration.

100. According to Dr Bench's report, since February 2024, the offender commenced using buprenorphine on a daily basis, smoking approximately a quarter of a strip per day. He reported that he last used buprenorphine on the day of the evaluation for the preparation of Dr Bench's report. It is clear, if those assertions are true, it is very easy to get prohibited drugs within the prison system.

101. The offender has never participated in a detoxification or rehabilitation program.

102. The offender also reported that he has difficulties with a gambling problem dating back to when he was 23.

103. In terms of his psychiatric history, the offender told Dr Bench that his first mental health contact occurred at the age of 27. He described seeing a general practitioner who diagnosed anxiety and depression and prescribed medicinal cannabis. He has never been treated with any other psychiatric medicines. He reported having a number of other episodes of depression in his life such as during the breakdown of his seven‑year relationship.

104. According to Dr Bench's report, the offender has never had a psychiatric admission and never made a suicide attempt. He reported that he had commenced engaging in deliberate self‑harm at the age of 26 and has not engaged in any such harms in the last two years.

105. The offender reported having been exposed to significant trauma. He described that the family had left a warzone which had affected his parents. As I understand it, the offender was referring to the time when he left Iraq, although he was very young at that time. The offender reported having been sexually assaulted on a repeated basis and witnessing domestic violence between his parents. He also told Dr Bench that he witnessed the aftermath of his best friend being murdered by a knife plunging through the neck. He reported having had nightmares and frequent flashbacks and reported longstanding difficulties with hypervigilance and insomnia. He reported being isolated and withdrawn and described that his main form of avoidance throughout his life has been the use of drugs. He also told Dr Bench that he has engaged in meditation or distraction techniques.

106. According to Dr Bench, the offender has never been diagnosed or treated for post-traumatic stress disorder.

107. The offender reported that he had smoked 4 to 5 grams of cannabis up until approximately 7pm on 9 April 2022, being the date of the offence, and had snorted approximately 2 grams of cocaine up until 30 minutes prior to the offending behaviour. The offender denied the consumption of alcohol or the abuse of any other illicit or prescription drugs around the time of the offending. He reported that he was not on any medication at that time.

108. He also reported having some serious stresses, most notably financial stresses of different types, including drug debts and debts to the Australian Taxation Office.

109. Dr Bench opined that no symptoms consistent with hypermania or psychosis around the time of the offending could be elicited, and there was no evidence of any motor disturbance. Dr Bench described the offender as calm, settled and cooperative throughout the evaluation, and had thought processes that were logical, relevant and coherent. He stated the offender's observed emotional tone was constricted within the anxious range, and there was no other delusional material.

110. In his clinical diagnoses, Dr Bench opined that the offender met the diagnostic criteria for Cannabis Use Disorder, Stimulant Use Disorder, Posttraumatic Stress Disorder at the time of the offending, and the diagnostic criteria for Cannabis Use Disorder in enforced remission, Stimulant Use Disorder in enforced remission, Opioid Use Disorder, Gambling Disorder in remission and Posttraumatic Stress Disorder.

111. It is Dr Bench's opinion that the most significant causal connection between the offender's mental health condition and his offending behaviour related to his Cannabis Use Disorder and Stimulant Use Disorder. However, Dr Bench stated that he could not explore the connection between any mental health conditions and the shooting itself as the offender stated that he was not aware of the shooting until he was arrested. I note in that regard that, s 5AA of the Crimes (Sentencing Procedure) Act provides that, in determining the appropriate sentence for an offence, the self‑induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

112. Dr Bench also opined that the offender's Posttraumatic Stress Disorder could have played a “secondary or flow-on effect” with regard to the causation of his substance abuse issues. He stated that the offender freely acknowledged that substance abuse has been a significant form of avoidance for him dating back to childhood. He also stated that the Posttraumatic Stress Disorder made a material contribution to the offending behaviour and individuals with such a disorder report difficulties with irritable behaviour and angry outbursts and engage in reckless and self‑destructive behaviour. He suggested that the offender's offending behaviour would meet such criteria.

89. There are two difficulties in giving any weight to the opinion expressed by Dr Bench as to there being a causal connection between the offender's mental health and the commission of the offences. Dr Bench records in his report in terms of the offender's involvement in the offences, in particular the shooting offence, the offender stated that his only role in the offending behaviour was driving a hire car from one location to another, and adamantly denied having been in the vehicle when it engaged in the offending behaviour itself. He stated that he was at his friend's house throughout the period of time in which the offending occurred. Insofar as the shooting offence, the offender's account of his involvement in the conduct leading up to and during the offence, is totally inconsistent with the evidence adduced in the trial by the Crown, which was clearly accepted by the jury. The other difficulty is that the offender gave no evidence on sentence, and apart from his criminal record recording certain drug offences, there is no corroboration of any of the information he provided to Dr Bench from any other source.

90. To the extent that Dr Bench's report might be said to form a basis for a conclusion that the offender's mental health in some way was causative in relation to the commission of the offences, I intend to give that opinion no weight.

91. I otherwise accept that Dr Bench's opinion that the offender currently meets the diagnostic criteria for a Cannabis Use Disorder in enforced remission, Stimulant Use Disorder in enforced remission, Opioid Use Disorder, Gambling Disorder in remission and Posttraumatic Stress Disorder.

92. I do not consider that the offender's mental health reduces the need to reflect the sentencing principle of general deterrence when imposing sentence upon him. I do find that his time in custody will be more arduous due to his mental health conditions and have made some allowance for that finding when sentencing this offender.

93. In terms of his response to supervision, as an adult in custody, the offender says he has completed some group activities including a Certificate I and Certificate II in Business. No certificates concerning those courses were adduced in evidence on his behalf. It is clear to me that the offender continues to use illicit drugs while in custody, in particular buprenorphine. He told Dr Bench that, "Bupe makes the day go faster".

94. The offender told Dr Bench that being incarcerated for the offending behaviour has caused a significant rethink. I can only hope that is so. He told Dr Bench that he needs to avoid any of his previous drug using and antisocial peers. He reported he is attempting to abstain from all substance of abuse, including cannabis, and that he has reconnected with his family and has built relationships with his parents and his brother and that he would like to engage in further study as a way to improve himself.

95. In terms of his attitude to the offence, when asked how he feels about the offending the offender told Dr Bench, "It was a tragic occurrence… thank God no one was hurt." He reported he frequently thinks about the potential consequences such as a victim dying or suffering a serious injury.

96. These statements, which might be thought to be consistent with some type of remorse, are untested by cross‑examination. Given the offender's inability to acknowledge his extensive role in the offence, and the fact that these statements were untested by cross‑examination, I do not consider that the offender has any genuine remorse for the shooting offence.

97. Dr Bench opined that the offender's prospects for rehabilitation largely depend on whether he can abstain from all substances of abuse; if he can, the offender's prospects of rehabilitation as well as his prognosis would be greatly improved, however, if the offender continues to abuse substances of abuse, his prospects for rehabilitation would likely be greatly impaired. I consider that the offender's prospects for rehabilitation are guarded.

98. I do not consider that the evidence here provides a basis for a finding that the offender's moral culpability for the offences, in particular the shooting offence, is reduced. I have, however, had a limited regard to the content of Dr Bench's report concerning the offender's background in arriving at the appropriate sentence to be imposed.

99. The offender clearly has a significant issue in relation to his use of prohibited drugs. I note that this will be his first time serving a custodial sentence. The combination of those two factors leads me to make a finding of special circumstances when I fix the non‑parole period in relation to the shooting offence.

100. It was accepted by the parties that the appropriate commencement date for any sentence of imprisonment was the date of his arrest, being 4 August 2022.

101. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.

102. As I said when I sentenced Regan Yousiph and Alen Yousif, the shooting offence that the offender is to be sentenced for is a very serious offence committed in the course of organised criminal activity. The risk of significant injury and death to innocent members of the community from the shooting offence was very high. As I said earlier, it is trite to say that a civilised society ought not involve members of it engaging in driving by a suburban home and firing multiple bullets into it at a time when it is highly probable it would be occupied. General deterrence always looms large when sentencing for such an offence as the sentence, as I have said earlier, 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.

103. Turning then to the issue of parity with Regan Yousiph, this offender's involvement in the shooting offence was greater than that of Regan Yousiph, as it was this offender who organised through Mr Ackaoui and paid him in relation to the hire of and return of the utility involved in the shooting. That was a significant step in the necessary planning of the offence. Mr Ackaoui was used, in my opinion, in an attempt to distance this offender from the offence.

104. The subjective case for Regan Yousiph is a more favourable one, although he did commit the offence on conditional liberty. I found there was some reduction in Regan Yousiph's moral culpability for his offending due to his disadvantaged and traumatic background and his mental health. Regan Yousiph ultimately pleaded guilty and I have found that he now, somewhat belatedly, has genuine remorse. I also found that he has good prospects of rehabilitation. I consider that this offender will not have a legitimate sense of grievance if the sentence I impose on him on the shooting offence is greater than the one I imposed on Regan Yousiph in these circumstances.

105. In relation to the possess replica pistol offence, the offender's brother Michael Hirmiz was sentenced in the Local Court to a 12-month community correction order and a $1,000 fine. It appears that the Crown accepted that the replica pistol was in essence a toy, which is what the offender's brother told the police. Given the nature of that pistol and the penalty imposed on the brother, a sentence similar to the brother's should be imposed on Steven Hirmiz for that offence given the parity principles.

106. As I have said twice already today, 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.

107. The maximum penalties and the standard non-parole periods have been taken into account as legislative guideposts.

108. It was accepted by both parties that in relation to the possess replica pistol offence a sentence of imprisonment was not the only appropriate sentence.

109. In relation to the shooting offence, it will be seen I have departed from the standard non-parole period due to the length of sentence I consider is appropriate and my finding of special circumstances.

110. Mr Hirmiz, would you stand up, please? Mr Hirmiz, if I have not already done so, you are formally convicted of the shooting offence and you are also convicted of the possess replica pistol offence. On what I have termed the shooting offence, I impose a sentence consisting of a non-parole period of five years and balance of term of two and a half years. That is a total sentence of seven-and-a-half years imprisonment that commences on 4 August 2022 and expires on 3 February 2030. The non parole period expires on 3 August 2027.

111. On the possess replica pistol offence, I impose a community correction order for a period of two years. It commences today and expires on 19 September 2026. The earliest date you are eligible for parole is 3 August 2027. Whether you obtain parole that day is a matter for the State Parole Authority. They will no doubt have regard to how you have behaved in prison in deciding whether to release you then or on a later date. Have a seat. It is seven‑and‑a‑half years with a five‑year non‑parole period dating from 4 August 2022.

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Amendments

08 November 2024 - format correction

Decision last updated: 08 November 2024