R v Syed
[2018] ACTSC 167
•27 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Syed |
Citation: | [2018] ACTSC 167 |
Hearing Date: | 27 February 2018 |
DecisionDate: | 27 February 2018 |
Before: | Burns J |
Decision: | See [11] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –aggravated robbery in company – seriousness of the offence – plea of guilty – prospects for rehabilitation – no drug or alcohol issues to be addressed – co-offenders – age – general deterrence – sentence of imprisonment imposed – suspended – Good Behaviour Order imposed – community service condition |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35(4) |
Parties: | The Queen (Crown) Ali Syed (Offender) |
Representation: | Counsel Ms M Kent (Crown) Mr K Saeedi (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number: | SCC 40 of 2017 |
BURNS J
Mr Syed, you have pleaded guilty to one count of aggravated robbery in company on 1 October 2016. The maximum penalty for that offence is 25 years’ imprisonment, a fine of $375,000 or both. The maximum penalty is an indication of the seriousness with which the legislature considers offences of this nature. A full Statement of Facts has been tendered as part of the Crown bundle and I will not now recite the facts. It is sufficient to note that at about 10 pm on Saturday 1 October 2016, you robbed the victim of approximately $2,500 in cash and at that time you were in company with a number of other people, such that, in fact, there were six of you who were involved in this offence.
Very briefly, the circumstances were that the victim had arranged for a party at a local hall to which people paid for entry. He collected money as people entered the hall. He had approximately $2,500 in a backpack. Your co‑offenders observed that he was collecting money from people who entered the hall and was putting the money from time to time in the backpack. They lit upon a plan to assault him and to rob him of the money which he was collecting. I accept that at that point, you were not involved in this offence. You became involved when the offenders moved outside the hall in order to put into action their plan. You spoke with a friend of yours, NT, one of the co-offenders. I am quite satisfied that at that point you became part of the plan to assault and rob the victim in relation to the proceeds of the party.
In determining the seriousness of this particular offence, I take into account the fact that there was limited planning or premeditation on your part with respect to the offence but it must be accepted that you enthusiastically participated in the offence and, in fact, you were the first person to throw a punch. The victim was only sixteen years old and was confronted by six people attacking him. As the prosecutor has pointed out, you were the only person out of the six who actually committed each element of the offence. I take into account also, the significant effect this offence had upon the victim. The physical effects of the assault upon the victim were not insignificant but possibly the greatest effect has been psychological, in the sense that, unsurprisingly, the victim now feels insecure and has attempted to avoid having contact with those who were involved in this offence. That has caused great inconvenience to the victim and also to his family. I would put the present offence towards the bottom of the middle range of such offences.
You entered a plea of guilty to this charge on 20 November 2017. That plea was entered on what was originally scheduled to be the first day of your trial. I am told that you had previously indicated the plea of guilty the evening before. Nevertheless, it is clear that it was a late plea of guilty. It had limited utilitarian value because the Crown had already prepared for the hearing and the witnesses had already been subpoenaed. I do accept that it had a degree of utilitarian value. It has been submitted on your behalf that it also demonstrated remorse. It is difficult to determine the precise extent to which your plea demonstrates remorse. For one thing, you have been dealt with twice for breaches of bail during the period of time that you have been on bail with respect to this charge. That is not particularly indicative of remorse.
Secondly, I am satisfied you lied to police when you were interviewed by them. That also is not indicative of remorse. The Crown has submitted that this was an overwhelming prosecution case, such that the provisions of the Crimes (Sentencing) Act 2005 (ACT) and in particular s 35(4) prohibits any significant reduction in sentence based upon your plea of guilty. I accept that it was a very strong prosecution case but I would not go so far as to say that it was an overwhelming one. I take into account the contents of the Pre‑Sentence Report and, in particular, the relevant background information which speaks of the difficulties you suffered in your childhood. I accept that it is likely that the disadvantages that you suffered in your childhood continue to have some impact upon you today.
It is important, however, to note that you do have continuing family support. You are also, apparently, employed and your time is generally utilised in pro-social activity. I think you have very good prospects for rehabilitation. I note that there are no alcohol or drug issues that need to be addressed. Whilst dealing with the issue of alcohol, I was informed by Mr Saeedi on your behalf that you were intoxicated at the time that you committed this offence. I was informed that this was the first occasion upon which you had consumed alcohol. Subsequently, you have been tested by Corrective Services in order to determine whether you had been consuming alcohol and each of those tests has been negative.
I therefore accept that you have ceased the use of alcohol and that, as such, you are unlikely to become intoxicated to the extent that you were on this occasion and, as such, that is unlikely to be a factor that will contribute to any further offending. I note with respect to the Pre-Sentence Report that you have been assessed as suitable for community service work conditions.
A number of your co-offenders have already been sentenced with respect to this offence. Each of them has been sentenced in the Childrens Court. As such, they were sentenced under a different sentencing regime than that which I must apply in this court. Having said that, I accept that you were still a very young man at the time that you committed this offence. You turned eighteen years old in January 2016 and this offence occurred in October 2016, so you were approximately three months off turning nineteen years old.
You are now 20 years of age and still a young man. Whilst those provisions dealing with the sentencing of juveniles do not apply with respect to these proceedings, nevertheless, your age is a very significant sentencing consideration. It has been accepted by Mr Saeedi and, I think, rightly so, that this is an offence which calls for a term of imprisonment but the question is how is that to be served. A full-time term of imprisonment is a sentence of last resort in the sense that such a sentence is not to be imposed except where no other sentence will be appropriate in order to satisfy the requirements of sentencing.
As the Crown pointed out, general deterrence is a very important sentencing consideration with respect to offences of this nature. That can be addressed, in my opinion, by the imposition of a term of imprisonment. On the other hand, as I said, other sentencing considerations which are particularly important or the other sentencing consideration which is particularly important, is the need for rehabilitation in this case and in particular because of your age. Balancing those considerations, and I should say at this point that I see no real need for a sentence involving individual deterrence, but balancing those considerations, I will impose a suspended sentence of imprisonment with a period of community service.
Sentence
You will be convicted of the offence and you are sentenced to thirteen months’ imprisonment which I have reduced from fifteen months in order to reflect your plea of guilty. That sentence will be suspended forthwith and there will be a Good Behaviour Order for a period of two years with a condition that you are to accept the supervision of ACT Corrective Services for that period of two years or such lesser period as deemed appropriate by your supervising officer and obey all reasonable directions of ACT Corrective Services. There will also be a community service condition requiring you to complete 200 hours of community service within a period of twelve months as directed by ACT Corrective Services.
[speaking directly to offender]
Now, I want to make something clear to you. You have been sentenced to thirteen months’ imprisonment. That sentence hangs over your head now for the next two years. There is a Good Behaviour Order for that period of two years. If you commit some offence within that period of two years, then you can be brought before this Court to be dealt with on a breach of these orders, at which time that sentence of imprisonment may be imposed.
In addition to which, you have to complete 200 hours of community service within twelve months. I want to make it very clear to you that it is not a case where you can simply turn up to community service when you feel like it in the belief that you will be able to complete it within twelve months. You have an obligation to attend community service as and when you are directed and I make this point specifically because of your breaches of bail during the period of time when you were awaiting trial that tend to suggest a lax attitude towards compliance with orders of the court. Let me assure you, that if you do not attend for community service as and when directed, ACT Corrections will bring the matter back before the Court to cancel this order and to have you put in prison.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 12 June 2018 |
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