R v Yousif

[2006] NSWDC 98

CITATION:	R v Yousif [2006] NSWDC 98
HEARING DATE(S):	18/08/2006
JUDGMENT DATE:	28 September 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See para 40-43
CATCHWORDS:	Sentence for multiple armed robbery offences
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 22
CASES CITED:	R v Henry (1999) 46 NSWLR 346 The Queen v De Simone (1981) 147 CLR 383 R v Sharma (2002) 54 NSWLR 300 R v Ponfield (1999) 48 NSWLR 327 R v R [2000] NSWCCA 163 R v Thomson and Houlton (2000) 49 NSWLR 383
PARTIES:	Regina Zia Yousif
FILE NUMBER(S):	06/21/3002
COUNSEL:	Mr P Nagle (offender)
SOLICITORS:	Mr Y Astar, Mr M Stollery (NSW DPP) Mr M Abboud (Michael Abboud & Co)

SENTENCE

1 HIS HONOUR: The offender Zia Yousif pleaded guilty in the Liverpool Local Court on 14 December 2005 to seven offences of armed robbery committed between 26 June and 19 July 2005. He was committed for sentence to the District Court.

2 On 17 February 2006 before his Honour Sides J at the Campbelltown District Court an indictment was presented that contained four of the abovementioned offences of armed robbery and the offender pleaded guilty.

3 On 18 August 2006 at the Campbelltown District Court the offender appeared before me for sentence. He confirmed his earlier pleas of guilty to those four counts of armed robbery committed between 26 June and 19 July 2005 and he asked the Court to take into account four matters on a Form 1 schedule being offences of armed robbery committed during that same period. The maximum penalty for each offence of armed robbery is twenty years imprisonment.

4 The full statement of facts is contained in the bundle of documents tendered by the Crown and marked Exhibit 1. Briefly stated they are as follows.

5 The first offence occurred at the BP Lansvale Service Station, Hume Highway, Lansvale on 26 June 2005 at 2.20am. Having already entered the service station to make a purchase the offender, the co-offender Ferhat Duzenli and a young person FD re-entered and approached the console operator. The offender then jumped the counter with the two other offenders kicking open the security door to the counter area. The offender produced a knife to the console operator and demanded cash and cigarettes. Approximately $517 in cash was removed from the cash register while his co-offenders removed approximately $1,820 in assorted brands of cigarettes before all three fled the scene.

6 Good quality CCTV footage was obtained together with the offender’s fingerprints, no property was recovered. When interviewed by the police on 22 July 2005 the offender identified himself and his co-offenders in the CCTV footage and he agreed he was in possession of the knife. He informed police the cigarettes were later sold to an unknown male who owned a shop.

7 The second offence, count 2 in the indictment, occurred later that same evening, that is 26 June 2005 at about 3.55am, at the Caltex Woolworths Service Station at Old Windsor Road, Parklea. The offender and the young person FD entered and ordered a meat pie. The co-offender Ferhat Duzenli then entered and also requested a pie. The offender then jumped onto the counter and after opening the cash register demanded the console operator lay on the floor. The offender removed cash from the register, approximately $399, whilst the co-offender removed cigarettes, approximately $3,436. When interviewed by the police he identified himself and co-offenders on the CCTV footage. He stated that the cash was split between each of them and the cigarettes sold to an unknown person.

8 The third offence, count 3 on the indictment, occurred at the BP Express Service Station, Epping Road, Lane Cove. The offender entered with young persons FD and NA-M. The offender approached the counter and asked directions from the console operator. Shortly thereafter he jumped over the counter, produced a knife and told the operator to get back. The console operator stepped away and the offender commenced to remove cigarettes from the display and place them into a bin provided by the young person NA-M. The other young person stood watch at the doorway. The offender then removed cash from the register, approximately $200, and all three fled with cigarettes, approximately $1,300. When interviewed by the police he was unable to recall committing this offence.

9 The last count on the indictment, count 4, involved the robbery of the 7-Eleven convenience store, Pendle Hill on 19 July 2005 at 2.45am. The offender entered the store with young persons ST, NA-M and AR-H. The offender asked the console operator for garbage bags and all four walked around various shelves looking for items. They then placed some of the items on the counter and whilst they were being scanned the offender jumped up onto the counter with a knife in his hand. He demanded the operator open the security door to allow access behind the counter, open the cash register and then sit on the floor. The offender and the young persons then removed cash from the register and cigarettes from the shelves and fled the store - about $857 in cash, $9,574 in cigarettes. In the police interview the accused identified himself in the CCTV footage but declined to nominate those assisting him. He claimed the knife used in this offence was fake.

10 Police enquiries led them to the offender’s premises in Greystanes where they spoke with his mother and conducted a search. When the offender learned the police were looking for him he made telephone contact with them and that led to his arrest. In a lengthy interview just short of three hours he generally co-operated with the police and submitted to forensic procedures (buccal swabs and fingerprints). As already indicated, he identified himself in various CCTV footage and admitted his part in an additional three robberies, which are three of the matters on the Form 1, where there was no CCTV footage available.

11 The offender has been in custody since 22 July 2005. He has no prior convictions of a similar type. Indeed the only matters on his record are motor traffic offences.

12 The Court has considered the Henry guideline. That case repeated what had fallen from appellate courts many times previously, that is, absent exceptional circumstances a full time custodial sentence must be imposed for offences of this type. The fact that he was at the time of each offence in company of others is an aggravating feature that can be taken into account without breaching the principle in De Simoni. Clearly these offences call for penalties reflecting considerations of general and specific deterrence.

13 I now turn to the offender’s subjective material. The offender was born on 10 November 1986, was eighteen years of age at the time of the offences. His mother, Samira Ali Yousif gave evidence in support of her affidavit, which was dated 18 August 2006. The offender, his younger brothers who are now seventeen and eleven years of age, and sister fourteen were born in Iraq. Their father was politically active against the regime of Saddam Hussain and that resulted in the family leaving Iraq to live in Iran and later to Pakistan. In 1992 the offender’s father returned to Iraq to visit relatives who were in great trouble. He was ultimately arrested and charged with being a traitor and apparently executed by Saddam Hussain’s soldiers.

14 In 1996, being a refugee from Iraq, the offender’s mother made application to emigrate to Australia, arriving here in late 1996. The offender had very little schooling in Pakistan and commenced primary school in Year 4 with virtually no English in this country. According to his mother he had great difficulty in coping with other students who continually teased and picked on him. He eventually went to Mt Druitt High School where he appeared to get on well with teachers and other students however he was there exposed to drugs and violence within the school. His mother stated that he got in with a bad crowd and was eventually expelled with other students for bad behaviour. That was apparently the end of his education and he commenced working with a soft drink company (delivering) at the age of fourteen years. He, according to his mother, gave eighty per cent of his earnings to help the family. He next got a job working on motor vehicles and this lasted for about six months.

15 His mother indicated that she remarried in Australia and had two other children. That marriage did not work and she has since divorced.

16 Towards the end of 2003 Mrs Yousif returned to visit relatives in Iraq for six months along with the offender and the rest of her children. During that time she noticed a complete change in attitude by the offender, particularly when he secured employment “with the United Nations in Local Government with a United States Army person”. The offender indicated to his mother that he wanted to remain in Iraq to help with the important task of rebuilding the country. Mrs Yousif then returned to Australia with the other children leaving the offender behind in Iraq.

17 Tendered on behalf of the offender was a letter dated 29 April 2004 of commendation under the hand of Colonel Denny Lane-Magalachvili, Team Leader, LGC Maysan. That letter, marked as exhibit B, reads as follows:

“I was the Local Government Programme (LGP) Team Leader in Maysan Governorate, Iraq, during the period January through April 2004. On 8 April I was ordered to evacuate the international staff members of the Local Government Team to Kuwait. This was in response to escalating political turmoil within Iraq.

Mr Dyah Yousif, known more popularly as ‘Mo’” – (and I take this to be, there is no question about this being the offender) - “was from the time of my arrival as the LGP Team Leader an integral member of the LGP Team in Al-Amarah.

Mr Yousif is the holder of an Australian passport. This young man was among the most trusted individuals assigned to the LGP Maysan. He demonstrated professionalism and his dedication was consistently of the highest order. Despite his relative youth he demonstrated an exceptional level of understanding of the complexities involved in the establishment of the Local Government Teams in Iraq and gave his all in order to assist international team members in their duties, at times under difficult and dangerous situations.

At the time of the evacuation of the LGP Maysan to Kuwait Mr Yousif was an assistant to the LGP Operations Officer. In this capacity, in addition to his duties as a language assistant, he was further entrusted with procurement and at times with the transporting of significant sums of money between LGP Maysan and our regional headquarters in Basrah 150 kilometres to the south.

Following the departure of the international staff Mr Yousif became my primary point of contact in Al-Amarah with the local staff. He relayed messages to the Acting Team Leader, co-ordinated requirements as levied on the remaining local staff and the Operations Officer. His daily reports from Al-Amarah were at all times timely and accurate.

This is an exceptional young man who demonstrated extraordinary potential under dangerous and difficult conditions. I do not recall in thirty-eight years as a field officer ever having had as dedicated an individual. Mr Yousif’s manner of performance throughout his assignment to LGP Maysan reflected the greatest credit upon the Local Government Programme and himself. I commend Mr Yousif to you.”

18 As indicated, that was a document which was compiled on 29 April 2004.

19 A report dated 9 June 2006 of Katie Seidler, psychologist, was tendered on behalf of the accused. That report has been marked as exhibit A. On paragraph 3 of Ms Seidler’s report at page 11 she reported as follows:

“Mr Yousif has never had a consistent male caregiver and from his early adolescent years after his stepfather left he has felt a strong sense of responsibility to help provide for his family given that he is the eldest son. This caused him quite considerable stress and pressure as a young teenager. Further to this Mr Yousif claimed that his seventeen year old brother is mentally impaired describing him as ‘not all there’ and someone who ‘doesn’t know what he’s doing’. This created an additional burden on an already fragile disadvantaged and impoverished family.”

20 Ms Seidler continued at paragraph 12:

“According to Mr Yousif in and around 2003 or 2004 he returned home to Iraq with his family. After six months his family came back to Australia but he remained there independently for the further six months due to quite important work commitments as will be outlined in more detail below.

War continued to wage in Iraq at the time and Mr Yousif described being shot at, exposed to bomb blasts and other wartime experiences. He added further that two of his friends were killed and he himself was threatened because he was working closely with Americans. Therefore in mid-2004 Mr Yousif stated that he decided to return home to Australia where it was safer.”

21 Paragraph 13:

“On returning to this country Mr Yousif went again to live with his mother and siblings where he has remained ever since. As such he has not achieved independent living in this country, which is not unusual given his youth.”

22 Paragraph 14:

“According to Mr Yousif he found it difficult to adjust back to life in Australia. He drifted into substance abusing and delinquent peer group. This caused him to develop an anti-social lifestyle such that he withdrew from his mother and siblings. This has only added to the sense of guilt he feels at letting his family down, particularly as they are ostensibly isolated in this country without any extended family or other social supports.”

23 Paragraph 15:

“Overall Mr Yousif described his childhood years as being sad and confusing. It appears from his account that he had a difficult early life and was exposed to considerable hardship including war.”

24 Under the heading of “Educational/Vocational History” at paragraph 23 Ms Seidler reports this way:

“Mr Yousif then returned to Iraq where he stayed for a year. By chance he fell into employment allegedly with the United Nations as a translator for the American and Australian troops stationed there. During his period of employment Mr Yousif claimed that he was given a great deal of responsibility by high level personnel including money handling and the provision of supplies. Not only was he paid for his work but his accommodation and other living expenses were also catered for. Mr Yousif left this employment to return to Australia out of fear that he would be targeted by Iraqi forces due to his allegiance with US troops. Given his account of his work it seems that Mr Yousif was able to achieve greater stability and behaviour consummate with his responsibilities, suggesting that he is someone who can match his behaviour to the appropriate social environment which bodes well for his prognosis.”

25 Paragraph 23:

“After returning to Australia Mr Yousif secured employment as a bricklayer. He maintained his work for over twelve months before being incarcerated in July last year. Mr Yousif expressed interest in returning to the field of bricklaying on his release as he reportedly enjoyed the work.”

26 Paragraph 24:

“Mr Yousif claimed that he has never been terminated from employment. He described himself as a hard worker who was able to meet whatever the expectations are of his employer.”

27 Under the heading of “Drug and Alcohol Assessment” at paragraph 32 Ms Seidler reports this:

“Mr Yousif described a problematic pattern of crystal amphetamine use dating back to the age of eighteen years. He stated that he would use approximately two to three times a week maintaining this pattern of use for about seven months. Mr Yousif again acknowledged auditory hallucinations associated with the use of this drug in addition to confused and paranoid thinking. Further to this he claimed that at times when under the influence of crystal methylamphetamines he would engage in aggressive and antisocial behaviours often with no memory for his activities. Mr Yousif last used crystal methylamphetamines prior to his arrest. Mr Yousif further reported experimental use of buprenorphine on several occasions.”

28 Paragraph 34:

“Mr Yousif described his drug use as starting within the context of social pressure in addition to the desire to self medicate and avoid the responsibility he felt for his family after returning from Iraq. Then however he developed a drug dependence and therefore he embarked on a pattern of chasing drugs in order to maintain his addiction.”

29 Paragraph 35:

“Mr Yousif expressed a motivation to maintain the abstinence he has been able to achieve in custody. He claimed that illicit drug use has been negative for him and has directly contributed to his offending behaviour and incarceration. He reported that he has participated in some drug and alcohol group based counselling in gaol and this was apparently helpful. Mr Yousif added that he would be interested in continuing with this intervention as well as accessing such services in the community as support where he will be at most risk for a return to drug use.”

30 Under the heading of “The Offence” Ms Seidler reports in paragraph 37:

“Mr Yousif acknowledged his involvement in the offences before the Court, his account of which was consistent with that obtained in official documentation. He stated that he became involved in the armed robberies along with his co-offenders out of a desire to obtain money with which to purchase drugs and to give his mother to assist in the care of the family. Mr Yousif added that he was also under the influence of crystal methylamphetamines when he was committing the offences.”

31 Paragraph 38:

“Mr Yousif claims that he feels bad as a result of his offending which he sees as out of character and also letting his family down. He expressed regret for the consequences of his behaviour, particularly on his family who are now without his assistance and who are also now in the position of having to provide for him financially which they allegedly cannot afford.”

32 Under the heading “Psychological Assessment”, paragraph 42 she reports this way:

“In summary Mr Yousif is considered in many ways to be a vulnerable young man psychologically. He has been through a lot despite his youth and has been exposed to significant traumas and loss. These experiences will no doubt have had a marked impact on him and likely contributed to his developing a drug addiction. Mr Yousif himself acknowledged the need for ongoing counselling and support particularly in relation to his family obligations and exposure to war.”

33 Finally under the heading of “Recommendations”, at paragraph 50 Ms Seidler says this:

“Mr Yousif is only young and this is his first time in gaol. Whilst he appears to be coping admirably it is noted that continued incarceration will expose him to entrenched anti-sociality which will no doubt have a negative impact on him socially and psychologically. Should Mr Yousif receive an additional gaol sentence it is recommended that he would benefit from participating in the Department of Corrective Services Young Adult Offender Program which is designed to assist young offenders with the skills necessary to make a smooth transition back to community living such as in the areas of education and employment training.”

34 Paragraph 51:

“Mr Yousif seems like a reasonable young man who has had a difficult life. He enjoys the strong support of his family and is also very committed to them. The offences currently before the Court are an aberration in his history given his previous lack of offending behaviour, and are best understood in the context of drug dependence secondary to extraordinary circumstances. With support and assistance Mr Yousif has a good chance of making a successful transition back to community living.”

35 A Pre-Sentence Report dated 19 April 2006, marked as exhibit 2, was prepared by Peter Brooks, Probation and Parole, Blacktown District Office. He said the offender was assessed as unsuitable for community service order or periodic detention owing to his substantial drug abuse problems leading up to the commission of the offences. The offender expressed regret owing to the obvious impact on his family and the victims of the offences.

36 In a letter under the hand of the offender tendered to the Court on 18 April 2006, exhibit C, he stated as follows:

“I’m ashamed of myself and what I have done that is why I am expressing myself to you in this letter and am deeply sorry. I have no excuse for what I did. What I did was wrong, my heart was in the wrong place. What I did I did to support my habit which was drugs. I was hooked on cannabis and crystal methylamphetamine and was hanging around the wrong crowd. If I could turn back time I would. I am in gaol today because I have taken the wrong path which has taken me away from my beautiful family which is so supportive with love. Since I have been in custody I have learned a valuable lesson and learned to appreciate what life has to offer and to not take it for granted. I was born in Iraq and at the age of eighteen a war continued to wage. I’ve been shot at and exposed to bomb blasts, also two of my friends were killed and I was threatened. I was raised in Merrylands, I come from a close family and am loved by the community. I was currently employed as a second year bricklayer, my boss appreciated my hard work and is a tough man but I respect him for giving me a chance and having my job position waiting for me when I get out. My friends and family are still in shock because this is not me nor my character or personality. I would like to close my letter by saying I am deeply and truly sorry for what I have done.”

37 The Court has taken into account the purposes of sentencing set out in s 3A. The Court also considers that no penalty other than imprisonment is appropriate, s 5(1). The offender is entitled to have his plea of guilty reflected in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit of the criminal justice system and to reflect contrition, s 22 Crimes (Sentencing Procedure) Act, also R v Sharma (2002) 54 NSWLR 300. The extent to which penalty is mitigated is dependent upon the circumstances of each case but it must be discernible (see R v Ponfield (1999) 48 NSWLR 327, R v R [2000] NSWCCA 163 and R v Thomson and Houlton (2000) 49 NSWLR 383).

38 In the circumstances of this case the Court is of the view the offender’s plea should attract a discount of twenty-five per cent. Quite apart from the plea itself the Court is also satisfied the offender, through his letter exhibit C and also through the evidence that he gave before me on sentence, has demonstrated genuine contrition and remorse. Taken together this would amount to a total discount of somewhere in the vicinity of about one-third.

39 I find special circumstances, being his age, my assessment of his good prospects for rehabilitation, and the need for ongoing psychological counselling and support as recommended by Ms Seidler following his significant trauma from exposure to war in Iraq.

40 In respect of counts 1 and 2 you are convicted and sentenced to fixed terms of imprisonment for eighteen months to date from 22 July 2005, which was your first day in custody.

41 In respect of counts 3 and 4 I fix a non parole period of eighteen months to date from 22 October 2005 and to expire on 21 April 2007. In respect of those two counts, being 3 and 4, I fix an additional term of two years and six months to end on 21 October 2009.

42 The Form 1 matters have been taken into account in respect of count 4 and I have also had regard to the principles of totality.

43 This is an effective sentence of four years and three months with a non parole period of twenty-one months. In consequence of what was contained in Ms Seidler’s report I recommend that he be admitted to the Young Offenders’ Program.

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