R v Youkhana

[2020] NSWDC 100

District Court

New South Wales

Medium Neutral Citation:	R v Youkhana [2020] NSWDC 100
Hearing dates:	23 March 2020
Decision date:	23 March 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years 9 months with a non parole period of 1 year 8 months
Catchwords:	CRIMES - SENTENCE - assault occasioning actual bodily harm whilst in company
Legislation Cited:	Crimes Act 1900 (NSW) s59(2)
Category:	Sentence
Parties:	Regina (Crown) Youbert Youkhana (Offender)
Representation:	Mr Kotsis (Crown Prosecutor) Mr P. Johnson (Counsel for the offender)
File Number(s):	2017/171020
Publication restriction:	Nil

​judgment 

1. Youbert Youkhana, you appear for sentence today in relation to the offence of assault occasioning actual bodily harm whilst in the company of others.

2. This involves a contravention of s 59(2) of the Crimes Act. The maximum penalty for that offence is seven years' imprisonment. There is no standard non-parole period.

3. The facts surrounding your offending are contained in an agreed statement of facts. Slightly recast by me as to style, but not substance, the facts are as follows.

4. On 16 April 2017 you were: on parole for the offence of detain or take in company; on bail for armed robbery (a charge which was subsequently withdrawn); on bail for stealing a motor vehicle; and on bail for aid and abet assault occasioning actual bodily harm.

5. Whilst on that parole and that bail, on 16 April 2017, you and an unknown man were in a motor vehicle in the Sydney suburb of Bonnyrigg.

6. Whilst in that suburb, you and the unknown man picked up another man called Mr Bene.

7. The three of you drove around the area and, according to the agreed facts, you “socialised” - whatever that may mean.

8. But at some point this “socialising” turned to illicit drugs and Mr Bene asked the unknown man if that unknown man were able to source ice.

9. As it turned out, the unknown man was able to source ice. In fact, he knew a man called Mr Chandra. A text message was sent to Mr Chandra in which there was a request for him to supply ice and Mr Chandra agreed.

10. The three of you travelled to Mr Chandra’s house in Green Valley. Mr Chandra subsequently arrived at his home - he was not there at the time you arrived - and he saw the unknown male and walked across the road to meet him. The unknown male and Mr Chandra began to speak through the driver’s window.

11. It was at this point that Mr Bene, who had got out of the car earlier, returned. He said, curiously, “Do you remember me?”

12. Whilst Mr Chandra turned his attention to Mr Bene, you got out of the vehicle and, in an unprovoked attack, you punched him in the head from behind. Mr Chandra fell to the ground as a consequence of the blow that you delivered.

13. Somehow you got him into the car and you, Mr Bene, the unknown man and Mr Chandra “went for a drive” - as it is referred to in the facts.

14. The purpose of this drive is unclear. It does not seem to have been an agreeable one for Mr Chandra because, during the course of the drive, he was elbowed in the face and burnt with something on the chest.

15. The agreed statement of facts does not tell me who it was that elbowed Mr Chandra in the face; nor who it was who burnt him with something on the chest - but it is agreed that, whoever did it, the other two were involved in a joint criminal enterprise to do it; and therefore all three of you are criminally responsible for the actions of whoever it was who did these things in the car.

16. Eventually the car stopped and Mr Chandra made his way home. Whether the drugs were ever supplied is not revealed in the material before me.

17. Mr Chandra went to the police and, as a result, you were arrested on 23 April 2017. You have been in custody continuously since that time.

18. But your custody has not solely been referable to this particular offence. You have served the balance of parole; and you have been sentenced for other matters.

19. You have effectively only been in custody in connection with this matter since 29 September 2018, a period of one year and five months. I shall return to that figure later on in these remarks.

20. In terms of its objective seriousness for an offence of its kind, it is slightly above a midrange offence.

21. It is additionally aggravated by the fact that you were on parole and on bail. It is further additionally aggravated when one has regard to your criminal record.

22. There is no victim impact statement from Mr Chandra. The Court does not know whether there were any permanent injuries - physical or psychological  -sustained by him. Undoubtedly the experience was a frightening one for him, but I shall not speculate about the extent of the injuries adversely to your interests in the absence of anything particular being put before me.

23. You did not give evidence in the sentencing hearing. Rather your background has come to me through a psychologist’s report that was written six years ago - and, I assume, in connection with other matters for which you have already been sentenced.

24. Your background, Mr Youkhana, is a very sad one.

25. You were born in Iraq and your family was Christian. Your upbringing was therefore a perilous one.

26. When you were 12 years old, at that very vulnerable age for any boy, you were present when a car pulled up outside your house and your father was murdered. He was shot and he died trying to shield you from the bullets of his killers.

27. Undoubtedly Mr Youkhana that horrific experience has deeply damaged you.

28. Your family subsequently fled to Jordan and it was in Jordan that you stopped going to school. You effectively left school in year 5 when your family moved to that country.

29. When you were 15 years old, in 2006, you came to Australia with your mother and your siblings. You did not resume formal education, although you did attend the Fairfield Intensive English Centre and you have become prolific in English.

30. You have never really worked. This is because shortly after you came to this country and moved into the Fairfield area, you fell into company with some very unsavoury people. It was through them that you experienced illegal drugs and associated criminal activity.

31. You began offending when you were 17 years old and, as Mr Johnson has pointed out to me today, in the last (almost) 11 years all but 1 year and 7 months has been spent in gaol.

32. Your criminal activity is because you are addicted to drugs. Since you were 17 years old, you have been using ice. You are now almost 30 and your life has been ruined by your use of that drug.

33. The psychologist who prepared the report all those years ago in 2014 said that she thought your use of drugs (or at least when you started to use them) was your way of self-medicating for your emotional distress. Untreated emotional distress has been present since that horrible day when your father was killed and she is probably right.

34. It is my opinion Mr Youkhana that, unless and until the source of your drug taking is addressed, you will never be free from taking ice. Any counselling that you receive should address that as well as the symptom of it - that is, the drugs.

35. Way back in 2014, the author who prepared the report recommended that, in addition to any therapy you should receive, you should be treated by the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.

36. I do not know whether you have sought any treatment in the intervening six years for your drug abuse addictions or for the causes of it. But if you are to have any prospect, Mr Youkhana, any prospect for the rest of your life being spent other than locked up in gaol you are going to need to confront both the drugs and the reason you take them.

37. Notwithstanding your long criminal history (or indeed because of it) I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. It follows from what I have said that no sentence other than one of fulltime imprisonment is appropriate.

38. You entered a late plea of guilty - on the third hearing date. The first hearing date resulted in a hung jury. The second hearing date came and went because no judge was available to hear your case. You finally pleaded guilty on the third hearing date. I shall give you a 5% discount for that late plea.

39. You have expressed no remorse for your offending and given the absence of your expression of remorse, given the absence of any evidence about attempts at rehabilitation, and given the nature of your criminal offending in the past, your prospects of rehabilitation are not good.

40. Whatever those prospects are, they would be enhanced by a longer period on parole. In saying that, I am acutely conscious of the fact that you committed this offence while you were on parole.

41. The sentence to be imposed on you is one which must deter from your further offending. It must deter others from doing what you have done. It must protect the community from you. But it must also encourage whatever prospects of rehabilitation still smoulder.

42. I mentioned earlier that, at the time you were arrested for this offence, you were on parole and on bail for other matters. I have decided not to backdate your sentence beyond 29 September 2018. Those other matters were quite independent of this offending and therefore the start date will be 29 September 2018.

43. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of four years. Because of your plea and the discount of 5% the term of the sentence is three years and nine months. As I have said that sentence will date from 29 September 2018. However, I am going to vary the statutory ratio so that you will serve a non-parole period of one year and eight months. You will therefore be eligible for parole on 28 May 2020. I fix a balance of two years and one month to date from 29 May 2020 and which will expire on 28 June 2022. Whether you are admitted to parole Mr Youkhana on or after 28 May is a matter for the parole authority and the parole authority alone.

44. There were other matters that you were charged with, sequences two and three. They are withdrawn and dismissed. You will now go with the officers, thank you.

45. A copy of exhibit 1, being the psychologist’s report of 30 May 2014, is to accompany the offender back to his place of detention.

Decision last updated: 15 April 2020