R v Youssaf Saraya

[2009] NSWDC 280

CITATION:	R v Youssaf SARAYA [2009] NSWDC 280
HEARING DATE(S):	7 August 2009
JUDGMENT DATE:	7 August 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a non parole period of three years and a head sentence of five and a half years.
CATCHWORDS:	Criminal Law - Sentence - Robbery with a dangerous weapon - Firearms - Form 1
PARTIES:	The Crown Youssaf Saraya
FILE NUMBER(S):	DC 2008/11/0846
COUNSEL:	P Lynch - The Crown W Brewer - Offender
SOLICITORS:	NSW DPP Allied Lawyers

SENTENCE

1 HIS HONOUR: Youssaf Saraya found himself owing an outlaw motorcycle gang $50,000. I will explain how that debt arose later in these remarks on sentence. In order to obtain that money he and others decided to commit a most serious offence involving firearms, threats of violence and the real possibility of death with the certainty of terror.

2 The offender and three others went to a service station on 22 January 2008. There was an ATM in that service station and a security van attended for the purpose of filling up the machine with cash. There were four security guards, one stayed in the vehicle, one remained near the vehicle and the other two went into the shop. They were all, of course, armed with firearms.

3 The offender was inside a motor vehicle with stolen registration plates. He and two others got out of that vehicle. They themselves all had handguns which they pointed at the security guards. Mr Chaouk dealt with the security guard near the van, whilst this accused and another unidentified co-offender went into the service station shop. They had their handguns drawn and they were pointing them in the direction of the Chubb security guards.

4 Once inside the security guards were ordered onto the ground. Not surprisingly the security guards complied with these orders. The offender disarmed one guard, whilst the unidentified offender disarmed the other. They then took the bags containing the cash which had been brought into the shop and also removed some of the cash from the ATM itself. They then returned to the car where it was driven away by a fourth offender.

5 Police went that evening to the home of Mr Chaouk, one of the offenders. Helpfully he had retained and ineffectively hidden a great deal of incriminating evidence including the two firearms taken by the offender and the unidentified offender inside the service station.

6 The offender was arrested himself a few days later and has remained in custody since then. A total of almost $160,000 was stolen during the robbery and of that only about $40,000 has been recovered. As I mentioned the two firearms taken from the officers who were held up in the shop have also been recovered.

7 The offender has pleaded guilty to an offence of robbery with a dangerous weapon, one of the most serious offences in the criminal calendar carrying a maximum penalty of twenty-five years imprisonment.

8 The offender was born in 1984. His parents are immigrants and although the offender was born in Australia he learnt English as a second language, his parents speaking Lebanese at home. He found himself bullied at school for various reasons, including his appearance, his racial background and his learning difficulties. He suffered a head injury whilst playing football and from then he has regularly had epileptic fits.

9 He commenced both drug use and criminal offending from a relatively early age. He was dealt with in the Children’s Court on many occasions and dealt within the adult courts as well, culminating in an offence involving a firearm for which he received a sentence of imprisonment.

10 Whilst in prison he was befriended by members of an outlaw motorcycle gang. They were apparently impressed that the offender had failed to assist the authorities in relation to a matter which arose during the commission of the offence which put him in gaol. They treated him well and the offender joined up.

11 Later on he had second thoughts and sought to leave. Resignation from an outlaw motorcycle gang is not simply a matter of ringing up or contacting the secretary and saying that you wished to have your membership cancelled. Leaving the group was considered quite seriously by his remaining members. One of the penalties was that he was required to pay a fine of $50,000. The offender says, as I mentioned at the beginning of these remarks on sentence, that that is why he became involved in this offence.

12 He has now expressed the desire to reform himself. He is the only member of his family to have ever been in trouble with the police. He wishes to marry his fiancée who has a three year old child and obtain employment upon his release from custody. He wishes to continue a life without drugs. I have got no doubt that his desire is genuine but I cannot find that he has good prospects of rehabilitation. The road ahead for the offender is not going to be easy.

13 The offender expresses remorse, most significantly in a letter addressed to me, which I have read. His remorse however is limited. When given the opportunity to name his two co-offenders who have not yet been identified he was prepared to tell us that one of them had died but that was the limit of the information he was prepared to provide. He expressed fears for his safety and that of his family if he said anything more.

14 One of course can understand that those fears might well be genuine, but true remorse involves a willingness to accept those risks to make things better. Complete remorse involves acknowledgement of wrong doing to the extent that a remorseful person wants to make up for his wrong doing. The offender, I am satisfied, is remorseful but as I said the extent of that remorse is limited in the manner I have just indicated.

15 I earlier sentenced the offender who had been identified, a Mr Chaouk. He was dealt with for this offence and on a Form 1 there appeared a number of other offences including two most serious robberies with dangerous weapons. The principles of parity are clear application but of course that does not mean that this offender gets the same sentence that I imposed on Mr Chaouk.

16 Appropriate allowance must be made for differences between the offenders. In particular, this offender is significantly older than Mr Chaouk. He has a much more extensive criminal history. He was also, and this is a significantly aggravating feature of the offender’s conduct, on parole for a firearms offence at the time he committed this offence. His plea was also entered on a later occasion.

17 On the other hand, as I had mentioned, Mr Chaouk had very serious offences on the Form 1. The offender’s offences on his Form 1 involve robbery of the two firearms. They occurred in the context of this offence and at the same time.

18 The offender must be put in a position where he does not have a justifiable sense of grievance when he compares the sentence I impose on him with the sentence I imposed on Mr Chaouk. As the list of comparative features I have outlined earlier makes clear there are matters suggesting a longer sentence for Mr Chaouk and one matter suggesting a shorter sentence for Mr Chaouk.

19 It is appropriate that I sentence the offender to imprisonment commencing on 31 January 2008. That was the date of his arrest. Although he did serve some time in custody representing the balance of parole for the firearms offence that parole was revoked solely because of his commission of this offence. In those circumstances I exercise my discretion to date this sentence from 31 January 2008.

20 I will make a finding of special circumstances in the offender’s favour. I am satisfied that an extended period of supervision on parole will assist his rehabilitation which will have benefit not only to the offender but also the community. The extended period of supervision on parole will help the offender deal with issues arising from his drug use.

21 So the offender is sentenced to imprisonment. I set a non parole period of three years to date from 31 January 2008 and a head sentence of five and a half years. The offender will be eligible to release on parole on 30 January 2011.

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