R v Youssef

[2015] NSWDC 388

District Court

New South Wales

Medium Neutral Citation:	R v Youssef [2015] NSWDC 388
Decision date:	03 December 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Sentenced to a term of imprisonment of 4 years 6 months with a non parole period of 2 years 6 months.
Catchwords:	CRIMINAL – Sentence, armed robbery, plea of guilty, special circumstances, objective seriousness, mental disability.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 199 Markarian v The Queen [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39 R v Callaghan [2006] NSWCCA 58 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Henry(1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Scognamiglio (1991) 56 A Crim R 81 R v Thomson and Houlton [2000] NSWCCA 309 R v Todd (1982) 2 NSWLR 517
Category:	Sentence
Parties:	Crown Hamzeh Youssef - Offender
Representation:	Counsel: Mr Hogan – Crown Ms Swift - Offender   Solicitors: Director of Public Prosecutions - Crown Blair Criminal Lawyers - Offender
File Number(s):	2013/288092

SENTENCE

1. CLOSED-CIRCUIT TELEVISION ACTIVATED

2. HIS HONOUR: Mr Youssef can you hear me?

3. OFFENDER: Yes I can your Honour.

4. HIS HONOUR: Did you hear me say I tell people in advance what sentence is to be imposed?

5. OFFENDER: Yes.

6. HIS HONOUR: In your case I propose to sentence you to 4 years 6 months imprisonment, I have given you a discount of 10% which I will explain in a moment for the plea of guilty. I am fixing a non-parole period of 2 years 6 months, I am dating the sentence from 24 January 2014 so that is to be part way through, almost half way through, the breach of parole period, the balance of sentence that you were required to serve. Your non-parole period will expire on 23 July 2016, that is July next year, on 23 July, the balance of sentence will be two years. That will expire on 23 July 2018 and the Parole Authority will have to make the relevant decision. I will give my reasons. I will repeat what I have just said. Your non-parole period, bearing in mind that I am back-dating your sentence for January 2014, expires on 23 July 2016, do you understand that.

7. OFFENDER: Yes. Yes I do.

8. HIS HONOUR: Thank you.

9. The accused, Hamzeh Youssef was arraigned before me on a charge alleging that he did, whilst armed with a dangerous weapon, rob Gregory Brown of a sum of cash at Banksia on 24 September 2013. He pleaded not guilty to that charge, the charge brought pursuant to s 97(2) Crimes Act 1900 but pleaded guilty to an alternative charge, particularising the same place and date that he, whilst armed with an offensive weapon, rob Gregory Brown of a sum of cash. That is an offence contrary to s 97(1) Crimes Act 1900, it carries a maximum penalty of 20 years imprisonment. The introductory remarks I made to Mr Youssef I would ask to be incorporated into these remarks on judgment.

10. I will come back to the issue of the calculation of the utilitarian value of the plea of guilty, but there is some background to the plea entered on 16 March that needs to be noted. The accused was arraigned with other accused on 10 March 2015. I just pause for a moment, Madam Crown, I just observe that the person who dated the final indictment dated it 16 March 2017, I hope we are not that far into the future. Anyway, the accused was originally arraigned on 10 March 2015 with other accused. I conducted a voir dire examination in relation to the admissibility of the accused’s electronically recorded interview conducted on 24 September 2013, the accused being arrested by police shortly after the offence to which he pleaded guilty, that is within an hour or so. The voir dire examination extended to 12 March and I reserved my decision to go on with voir dire examinations in relation to admissibility of other electronically recorded interviews. The accused, as I said, pleaded guilty to the charge for which he is to be sentenced on 16 March 2015 and the judgment which I had already arrived at, but not reduced to writing, I delivered on 17 March 2015, indicating that I would have admitted the accused’s electronic interview.

11. I set out this history because in the course of submissions before me by learned counsel for the accused and the Crown I suggested wrongly, to learned counsel for the accused, that Mr Youssef had pleaded guilty only after he became aware that I was proposing to admit his record of interview or electronically recorded record of interview. In fact I have gone back to pp 67 and 68 of 12 March 2015 and it is quite clear, even though I was reserved on the matter, Ms Swift indicated that she was seeking instructions in relation to a matter that she was discussing with the Crown and that Mr Youssef’s matter may become a short matter. I even suggested at the top of p 68, “would it assist you if I told you what ruling I am going to make in relation to the matter?”. But she declined my kind offer of assistance by indicating what my judgment would be. It is thus apparent that the decision to plead guilty was taken without knowledge of the decision I was to make in relation to the recorded interview. Ultimately it does not make a substantial difference to the issue of the measurement of the utilitarian value of the plea of guilty, a matter which I will discuss shortly.

12. I have an agreed statement of facts on sentence and that states, as the evidence on the voir dire revealed, that at about 3am on Tuesday 24 September 2013, the victim, Mr Brown, was performing his work as a delivery driver. He attended upon a shop in Railway Parade, Banksia, to deliver crates of fresh bread. After he delivered all the crates, he was loading returned bread, as it is described, into his delivery truck, he noticed the prisoner walk past him on the footpath. He provided a description of the prisoner including a description of him wearing a red hooded jumper. Mr Brown went about his work and he eventually noticed another man climbing out of the passenger side of his, that is Mr Brown’s, delivery truck and he provided a description of that person ultimately to police.

13. When Mr Brown’s attention was drawn to this matter the prisoner removed a small silver-coloured cigarette lighter from the front pocket of his red hooded jumper with his right hand. He walked towards Mr Brown and pointed the cigarette lighter towards Mr Brown’s leg, the other man ran off. Mr Youssef said to Mr Brown “I want your wallet”. Mr Brown was still holding crates of bread in his arms and his wallet was in his back pocket. Mr Brown, naturally enough, attempted to back away from Mr Youssef and Mr Youssef said “I’ll shoot you in the leg if you don’t give me your wallet”. At that time Mr Brown believed, not unreasonably, that the cigarette lighter was a gun, I have got a photograph of the cigarette lighter. It appears to all intents and purposes to be a hand gun although it is very small by comparison to a real hand gun. Mr Youssef grabbed Mr Brown on his left shoulder and attempted to remove the wallet from Mr Brown’s back pocket while still holding the lighter. Mr Brown dropped the crates he was holding and then removed his own wallet. Mr Brown took his bankcard from his wallet and said, “I’m keeping this”, the prisoner replied, “Give me your money”. Mr Brown took two $50 notes from his wallet and handed them to Mr Youssef, Mr Youssef walked around to the driver’s side of the delivery truck and said to Mr Brown, “I want all the money that’s in the truck”. Mr Brown, not unnaturally, replied “We don’t carry any cash”. One would hardly think that a man delivering bread around the back streets of the St George district would be, at 3 o‘clock in the morning, carrying cash so he could provide change to various merchants upon whom he was required to attend. Mr Youssef then left and Mr Brown heard a car drive away.

14. At about 3.30am police attended and eventually observed a motor vehicle parked in a nearby area, the prisoner and other young men with him had not gone very far. The prisoner was spoken to and the prisoner was wearing what I would describe generally as the distinctive red top about which Mr Brown no doubt gave some information. Mr Youssef had in his possession $130 including 2 $50 notes. The vehicle was searched and in the back of the police vehicle two black hooded jumpers were found which are of no moment in this case, and approximately 5 metres away from where the vehicle was parked, police located “a small silver pistol” and a glass pipe commonly known as an ‘ice pipe’. The pistol was in fact a silver cigarette lighter, as I said. It measured approximately 9 centimetres in overall length and displayed some scaled down features that are common to Beretta self-loading pistols. There is no suggestion of course that Mr Brown was an expert in hand guns. It was clearly a very good “replica” but it was, as I said, somewhat smaller than what one would ordinarily expect a pistol to be if one had some knowledge of the matter.

15. The record-of-interview conducted with the prisoner back at the Kogarah Police Station, which I admitted, involved the accused answering a number of questions where he denied any knowledge of the offence. He gave the police, if I be so bold to say so, a rather elaborate account of his movements, that he had no connection with the silver cigarette lighter, the circumstances in which he had seen a silver cigarette lighter at another place, the fact that he and his colleagues, the two brothers that were with him, were at the “wrong place at the wrong time” and other matters. The prisoner was charged in relation to this matter. He undertook a forensic procedure. He agreed to a photographic identification parade but Mr Brown, when he viewed the array of photographs, could not select any photographs during this procedure.

16. Unfortunately for Mr Youssef, in the sense that he is now before me, the cigarette lighter was later forensically examined and DNA recovered was found to have the same profile as the DNA profile of Mr Youssef. I have details about the likelihood of that occurring or not. An examination was made of other clothing relating to the other young men but it is not a matter about which I should be concerned because ultimately, the brothers were not concerned with this sentencing procedure.

17. The prisoner was born, according to his criminal history, on 18 February 1981. He has findings of guilt in the Children’s Court going back to 1995, some offences of dishonesty, drug supply and street offences and the like. He has a finding of guilt in the Children’s Court in 2000 for robbery in company. He has findings of guilt in the Local Court I would take it when he was an adult for receiving stolen property and escaping from police custody for which he received what were then recognisances to be of good behaviour. He also in 2002 was convicted of resisting police and possessing prohibited drug for which he received short terms of imprisonment, suspended pursuant to the then recently introduced s 12 Crimes (Sentencing Procedure) Act 1999 hereinafter to be referred to as ‘the Act’. He has findings of guilt in 2002 for larceny for which he received a community service order and in respect of which he was called up.

18. He has in 2005 some offences in relation to an unregistered motor vehicle of no moment whatsoever. However, after a finding of guilt in relation to breaking, entering and stealing in 2002, for which he received another period of imprisonment, that is, 12 months suspended pursuant to s 12 and, after further traffic matters not of great significance in 2008, the offender in 2012 was convicted in the Sydney District Court on 8 March 2013 on an offence of aggravated break and entering with intent in company for which he received a term of imprisonment of two years commencing on 25 May 2012 concluding on 24 May 2014, with a non-parole period of one year which would have concluded on 24 May 2013. He thus would have been automatically released to parole.

19. It can be seen in relation to that matter, of course, that with the timing of this offence in September 2013 the prisoner was in breach of his parole and, in fact, I have information relating to the fact that after being in custody in relation to the current matter from 24 September his parole was revoked on 26 October. The balance of parole expired in May 2014. I will deal with the implications of fixing a sentence in respect of an offence committed while subject to parole and where the parole has been revoked at a later time but what I will be doing, as I foreshadowed by the orders that I outlined to the prisoner, I will be backdating the sentence that I impose to a period of time during which the prisoner was serving that revocation of parole in accordance with some of the observations of Simpson J in the decision of Callaghan Court of Criminal Appeal 2006. Her Honour, I point out in passing, made it very clear that where an aggravating factor is found under the Act that a person is in breach of conditional liberty and the court is aware of the fact that the breach of conditional liberty led to a revocation of parole, the court has to be very careful that it does not ‘double dip’ in taking into account the aggravating factor but not give credit for a part of the period at least during which the prisoner, by reason of the breach of parole, was required to serve a period of imprisonment. It is a matter of discretion, I understand, but the discretion must be carefully exercised.

20. I have a report from the Community Correction Service. It is not a particularly glowing report. It reflects upon the sporadic supervision of the prisoner and his failure to respond over a period of time to various orders made by courts. It notes that the prisoner has given some history of suffering symptoms of depression and anxiety. He has had mental health intervention whilst in the community and was prescribed Xanax, although I understand from time to time he has abused prescribed drugs, and also contact with Justice Health confirmed that he was being prescribed medication to manage “self- reported depression and anxiety.” A formal diagnosis has not been made of the prisoner.

21. The prisoner told the Community Correction Service that at the time of the offence, “he was under the influence of ice and that he had initially pleaded not guilty as he could not recall committing the offence.” This was a matter of some discussions in terms of the timing of the plea. Seeing video evidence, particularly as I would understand it conducted or admitted during the voir dire examination, persuaded him that he should plead guilty. My examination of the transcript reveals that he had indicated a willingness to plead guilty before I gave my judgment. He is at medium to high risk of re-offending. He has a large number of issues that need to be addressed self-evidently from alcohol and drug issues, emotional issues and attitude issues.

22. He has been at Parklea Correctional Centre and has given evidence before me about matters that arise from this report, particularly institutional conduct offences over a period of time between January 2014 and April 2015. He is also reported by Community Corrections to have “behaviour towards staff members (that has not been) satisfactory” and “displaying aggression towards medical staff at Parklea Correctional Centre.” He has given evidence about these matters and I am very mindful in a gaol setting that procedural fairness and the like do not have the same level of attention as they do in courts. But it seems to me, with respect, that here where there is smoke there is fire and the way the prisoner sought to explain himself seemed to underline the fact that whilst it may be that he had drugs in his ‘possession’ that he had not actually possessed, but had been left behind by another inmate.

23. He has not displayed the best of attitudes to Correctional staff and this is a matter he has to address because, as I point out in relation to his evidence later, the prisoner seems to have a single-minded view of his own conduct which does not necessarily accord with the objective facts. He has a child who is in the care of his grandmother. The child was abandoned by the mother, apparently shortly after the child’s birth, and as I understand it that child is now aged about nine years.

24. Thus, it can be seen, as I point out later, that the presence of the son in the offender’s life, whilst it is important to him and has been a feature of his subjective circumstances, yet he has still continued to offend, particularly in 2012 in respect of the matter for which he was on parole when he committed this offence. In respect of this offence, and his devotion to his son, as he would express it, has not stopped him using prohibited drugs which has contributed to his offending.

25. He is resident with his family, his mother particularly. He has had a very strained relationship with his father I accept and it is part of the history given by him to Community Corrections, but particularly to psychologists, that his father became addicted to prohibited drugs himself when the offender was a teenager and was a man prone to violence. The offender’s relationship with his father is not particularly good. In fact, part of the evidence given by the offender as one of the reasons he returned to the use of methylamphetamine type substances was the then, in September, recent death of an uncle who had been like a father to him in the absence of his own father. The death of the uncle occurring in circumstances where the offender said for one reason or another he did not go to the hospital to see him before he passed away. The family continue to support him, as I understand, but again I point out his family have been supporting him no doubt through recent years and he has continued to offend.

26. The offender has some employment history, particularly working in the family business as a “car detailer” but has been also on welfare benefits for part of the time that he has been at large in recent years. He described what is said to be an “entrenched history” of substance abuse issues. He commenced using heroin at the age of 17. He was on the methadone program for a period of time. For part of the time, whilst he was subject to supervision by Community Corrections back in the early part of the century, he left Australia without permission, not completing the orders to travel overseas. He claimed that he in fact at one point went to Lebanon to undertake some drug rehabilitation program. He disclosed to Community Corrections excessive amounts of Xanax abuse. He had a motorcycle accident in 2008 which has caused him a deal of distress, anxiety and caused some depressive symptoms. Apparently he was also hit by a car in 2012.

27. He claimed he was under the influence of the drug “ice” at the time of the commission of the offence. He is said by Community Corrections to be an individual affected by unresolved drug related issues, which I accept, and this has continued into his current period of incarceration. He was forthcoming about his drug use and he displayed some insight into his offending behaviour, according to Community Corrections. However, his list of offences in custody mainly pertain to continued drug use and is of concern.

28. His willingness to address his drug dependence issues may require admission to a residential rehabilitation centre and a comprehensive mental health assessment which has not really been undertaken by anybody. A psychologist’s report is not a “comprehensive mental health assessment”. He would benefit from the supervision of Community Corrections but a large number of matters would need to be addressed and that is why in determining the non-parole period, apart from making a finding of special circumstances for reasons I will outline later, it seems to me the Parole Authority should determine what the appropriate conditions of release are.

1. A report was apparently prepared in May 2015 by a psychologist at the request of the solicitors for the offender. It seems to have been largely neglected in the course of submissions and seems to be overtaken by a more extensive report that was prepared by Dr Susan Pulman and another associate in the character of what was described as a “neuropsychological assessment”. I do not propose to dwell on the main report. Duffy Robilliard are respected psychologists but the truth of the matter is the report by Ms Allen only involved one psychometric test. That was the Millon Multiaxial Inventory III, which is a personality inventory that is self-reporting. Ultimately, the conclusion reached was that Mr Youssef’s profile was invalid as a result of a high score on the debasement scale. He also had a significant score on the scale measuring over disclosure. This result can indicate either a cry for help due to acute psychological distress or a fake bad profile, and the psychologist could not conclude one way or the other. With regard to the neuropsychological report he took into account Ms Allen’s report which set out his personal history, the detail of his upbringing, the problems that arose when his father became drug addicted when the offender was about 12.

2. The offender is of parents of Lebanese origin but he himself was born in Sydney, although he has travelled back to Lebanon. He was in various relationships. He had an arranged marriage with a woman in Lebanon but that relationship did not last. He apparently has a fiancé who lives in Dubai. In fact he lived in Dubai himself for a period of time, which, in part, explains some gaps in his criminal history. The gap in his criminal history at one point over three or four years being a matter of some significance in the submissions of counsel for the offender.

3. The offender denied any significant memory difficulties. He admitted though that he could be impatient and not pay attention at times. He gave details of his drug and alcohol use, which I have taken into account.

4. The neuropsychologist had access to a number of reports - Ms Allen’s report, a psychosocial report from Ms Carolyn(?) Turner dated February 2013, which I assume was in some way connected with the earlier court proceedings. The neuropsychologist had access to Justice Health medical reports, medical records from St George Hospital confirming the offender’s admission for a period of time between 24 December 2008 to 2 January 2009 following a motorcycle accident and other injuries the offender has suffered at various times as a result of various trauma including being stabbed.

5. The offender has been prescribed many medications including, one would have thought given his background, medications that would not be of great assistance to him, such as Oxycontin, sometimes referred to as “hillybilly heroin”.

6. His criminal antecedents are discussed. The offender stated to the neuropsychologist that he was “determined to show the court and his family and partner that he could be a good person and that he would never touch drugs again and break the law.” The neuropsychologist undertook a number of tests, undertook a testing of what is called Premorbid Intellectual Functioning, Current Intellectual Functioning, Attention and Concentration/Information Processing, New Learning and Memory, Frontal and Executive/Adaptive Functioning, Motivation and Effort and Effective A Status. The conclusion reached by the neuropsychologist was that:

“As a result of the testing the offender’s full scale IQ is within the extremely low range. His verbal and non-verbal skills, working memory and processing speed are commensurate with his full scale IQ and within the borderline to extremely low ranges. His new learning and memory is significantly and unusually below expectation falling within the extremely low range. In addition, he demonstrates impairment in his visuospatial and visuoconstructional abilities. His executive functioning is variable with borderline to impaired reasoning, mental flexibility, planning and organisational skills. In contrast his verbal fluency is relatively intact. The results are considered a valid interpretation of his true level of current cognitive and intellectual function. He endorses symptoms suggestive of mild depression, moderate stress and extremely severe anxiety.”

35. I note in the absence of any history or reliable history of mental illness, those symptons are probably more reactive to his situation and, of course, he has been on protection for some period of time, which I take into account.  

36. The report goes on:

“In summary, his current intellectual functioning falls within the Borderline to Extremely Low range. His full scale IQ is within the mild intellectual disability range. However, a diagnosis of mild intellectual disability requires information and assessment of his level of adaptive functioning as well as support from corroborative sources such as school records, and these are not available, thus that diagnosis cannot be confirmed. In addition, Mr Youssef shows impairment in most cognitive domains with his new learning and memory deficits over and above that expected based on his intellectual functioning and hence cannot be solely due to his limited intelligence.”

37. I query whether that is a subtle way of saying that he may not have performed up to expectations. His history, however, is suggestive of a head injury and he has a chronic history of substance abuse from a relatively young age, which is likely to have contributed to his current neuropsychological profile.

38. With regard to his protestations of reform and the like and his empathy and sympathy for the victim, it is noted, as I have noted, his clinical presentations and comments are very similar to those reported in 2013 in relation to the earlier charges for which he was sentenced to a term of imprisonment.

39. The professional opinion of the reporter, Dr Pulman, is that although he appears genuinely regretful and remorseful for his actions, this is most likely a reaction to his situation and current stressors. His ability for consequential thinking is limited, consistent with the view of Ms Allen. It is the professional opinion of the neuropsychologist that without adequate intervention and addressing of drug issues and “maladaptive coping mechanisms”, the offender will be at continued risk of relapse and further offending. This is an assessment in its entirety with which I agree. He presents limited insight with regard to his offending behaviour and drug use and he does not possess the cognitive and intellectual skills to plan, organise, initiate and engage in seeking adequate help on his own. His plans for the future at times are tentative and unrealistic, for example - although he told me in his evidence that he wanted to get a driver’s licence, - he wants to work as a courier driver despite the fact that he has no driver’s licence. Whether he can even get a licence on his release is a matter of some debate.

40. It is recommended that he have a ‘case manager’. He needs drug rehabilitation and he obviously needs to obtain gainful employment and seek other professional assistance. These matters I have taken into account in conjunction with the Community Corrections report to persuade me, as I have indicated, that I should make a finding of special circumstances pursuant to s 44 of the Act.

41. It seems to me the offender needs an extended period of supervision to receive the relevant professional assistance, to receive the professional assessments that need to be undertaken and the enquiries that need to be undertaken.

42. I also bear in mind, as a matter relevant to the finding ‘of special circumstances’, I am required to take into account that the sentence I impose is in fact partially accumulative upon the balance of parole that he was required to serve by the revocation of parole. That, of course, has to be factored into the calculation of the non-parole period.

43. I have referred to the evidence of the offender in passing. The offender expressed remorse for the victim but he did, as the reporters in the psychological reports point out, tend to overstate the point. Then again, there are cultural issues at play, I understand that, although English is a language with which he is familiar but his primary language would be Arabic, some judgment of him needs to be reserved in his favour in the context of his particular cultural upbringing. I have already pointed out what he said to be the reason for his return to drugs.

44. The learned Crown Prosecutor cross-examined him on a number of matters, suggested to him that he had forcefully tried to overstate his desire for reform and his desire to turn over a new leaf, and pressed the offender as to what had really changed for my judgment of the matter. It was put to him that he was not sorry for the victim, that he more sorry for himself. The offender denied that. I think it would be a perfectly natural thing for someone to say that they were sorry for a victim, but also inwardly feel sorry for themself in the sense that they know that they are facing a term of imprisonment.

45. In relation to one aspect of the Crown’s cross-examination, I think the Crown unfortunately, and I do not criticise him, of course, he is a very very able and learned man, he suggested in cross-examination that the offender had in fact pleaded guilty on the basis of his knowledge that I would exclude his record of interview. The Crown, however, was acting upon misinformation that I had provided. I have already dealt with that matter. I am quite satisfied that I was quite wrong, and if I owe an apology to both counsel I certainly do so. I had other evidence in the matter but it was not of great significance. It did not take the offender’s evidence much further.

46. I had extensive written submissions from counsel for the offender and very concise but to the point submissions from the learned Crown Prosecutor which I have taken into account. The offender’s counsel’s very excellent written submissions dealt with the background of the sentencing process and the history of the matter, reasons for the delay and the plea relating to the history of the representation and the difficulties in having a conference with the offender, which I have taken into account. Correctly counsel for the offender points to the purposes of sentencing pursuant to s 3A of the Act, and all, to varying extents, have a role to play here.

47. There is a need for some level of general and personal deterrence. There is a need to adequately punish the offender and make him accountable and denounce his conduct but also promote his rehabilitation.

48. There are a number of submissions made about the objective seriousness of the offending and those submissions deal with the matter in the context of the maximum penalty and the offender’s personal circumstances, the facts of the case and also relate the facts of the case to the guideline judgment of R v Henry and others, (1999) 46 NSWLR 346, to which I will refer later. The learned counsel for the offender went through the various matters that are said to be seen or occur in a “typical” armed robbery, such a creature maybe, and there are submissions about the character of the weapon and vulnerability of the victim, the intensity of the threat, the amount taken and the like.

49. ‘Aggravating factors’ are admitted to be the breach of conditional liberty, which is quite clearly so. Mitigating factors include the plea of guilty, for which the offender receives the discrete discount which I have calculated. It is also submitted as a mitigating factor that the offender is remorseful and I should find that in his favour. With regard to the issue of special circumstances, I have taken into account those submissions. I have already indicated my finding.

50. The results of the neuropsychological report are the subject of particular submission in the context of the observations of the judgment of McClelland CJ at CL in 2010, in the decision DPP (Cth) v De La Rosa [2010] NSWCCA 199. Particularly the principles that are summarised at [177]-[178]. I am familiar with these principles. It seems that every second judgment on sentence requires some reference to the matters that were summarised by the learned Chief Judge from various authorities dating back over 20 years, going back to cases like Scognamiglio, a decision of Grove J, through to Engert, the decision of Gleeson CJ in 1995, to cases like Israil, the judgment of Spigelman CJ, and, of course, the judgment which McClelland J’s judgment closely follows in this respect of Sperling J, in the decision of Hemsley (2004), a person who I had to sentence after that judgment and apply Hemsley principles. She was an inveterate armed robber with mental illness problems. Counsel has set out in summary the principles that were summarised themselves by the learned Chief Judge of the Common Law Division in De La Rosa, where the state of a person’s mental health contributes to the commission of an offence in a material way, a person’s moral culpability may be reduced. That may result in a reduction of sentence.

51. It might mean that the person is not an appropriate vehicle for the full weight of general deterrence resulting in a reduction in a sense. It may reduce or eliminate the significance of specific deterrence. It may also however, and it is not summarised in the written submissions of counsel, mean greater weight being given to personal deterrence as was explained by Gleeson CJ in Engert.

52. There is not an automatic consequence that follows from a finding of a relevant mental disability or a mental illness. It all depends on the facts of the case. It also may be relevant to the circumstances of custody of a prisoner. Although here there is very little before me apart from the prisoner being on protection for reasons that have nothing at all to do with his intellectual functioning as I understand it. There is nothing in the evidence to suggest that his circumstances of custody are made more difficult for that reason.

53. I have taken into account the evidence in relation to the matter. I note counsel cited Gleeson CJ’s judgment in Engert (1995) 84 A Crim R 67, particularly, at 71. But the citing of the relevant passage does not include the point that I made a little earlier.

54. What is cited from Engert is of course the observation of the learned Chief Justice that even if there is no causal connection between a mental disorder and the commission of the offence, the mental disorder may still be a very important matter in consideration of rehabilitation of the need for treatment outside the prison system. It seems to me based upon the neuropsychological reporting that there is no cure for the prisoner’s intellectual disability, such as it may be. It is a matter that he has to live with. But it is the case where he will need some assistance and it is submitted that the prisoner needs assistance in relation to substance abuse and rehabilitation.

55. The criminal history of the prisoner is referred to in the submissions. Delay is referred to, particular by reference to the 1982 decision of Todd (1982) 2 NSWLR 517 and of course the decision of the High Court in Mill v The Queen (1988) 166 CLR 59, particularly at 66. I have also been favoured with submissions about the commencement of the sentence and general matters relating to facts of the case.

56. The Crown’s written submissions are dealt in summary with the s 21A issues. So far as aggravating factors are concerned the Crown submits the criminal record is an aggravating factor and the breach of conditional liberty is an aggravating factor and that is an offence for financial gain, not necessarily an inherent characteristic of the offence.

57. Firstly, I cannot conclude the prisoner’s criminal record is an “aggravating factor”. I have already summarised that he has no prior convictions for armed robbery, he has only previously before been gaoled once by the District Court - I am not saying that that means he has a good record, but having the experience of seeing many criminal histories from time-to-time in context I would regard his criminal history as one that does not entitle him to any particularly leniency, but certainly is not an aggravating factor.

58. As understood arising under s 21A(2) I have dealt with the issue of conditional liberty. The financial gain issue I am not persuaded on. I appreciate it is not an inherent characteristic of the offence, but the truth of the matter is his financial gain was $100 which was recovered through the good work of the police.

59. It seems to me, with the respect to the decision cited in the written submissions, that the whole purpose of conducting an armed robbery one would have though is to obtain property or money for one’s personal benefit; that is the general situation. In this particular matter I do not propose to find that as an aggravating factor.

60. I did raise the issue of the vulnerability of the victim with both parties. The Crown did not submit that the victim was a vulnerable victim. The defence submitted that he was not. There is an element of vulnerability about the victim’s circumstances. He was a man driving a truck at 3am in the morning in Banksia. Ultimately I could not conclude that he was vulnerable. In fact I could not conclude he was picked on by any full appreciation of his characteristics.

61. One of the aspects of vulnerability when it is considered in a factual context is that people will go to places and pick upon vulnerable victims because they know in advance that they vulnerable. That is why taxi drivers and service station consul operators are seen as vulnerable victims, despite the fact they are also mentioned in the legislation, because people commit crimes knowing that these people are working these types of jobs and are in some respects “easy prey”.

62. There is no element of planning in this particular offence and as I have concluded that it was very opportunistic. I could not conclude that prior to the commission of the offence that this particular victim was followed or particularly approached other than in an opportunistic fashion without regard to whether he was vulnerable or not.

63. I am taken to the guideline judgement of Henry, to which I will refer in a moment. I accept the Crown’s submissions that drug addiction is no excuse for armed robbery, nor is it a matter of mitigation. But the Crown did agree with my assessment of the matter that the offence appeared to have been opportunistic or impulsive.

64. It is submitted by the Crown that the prisoner is not genuinely trying to desist from drug taking. I appreciate the prisoner, despite his statements to this effect, will have a great deal of difficulty given what happened in 2013. It is a matter that he has address otherwise he will just keep coming back to gaol over and over again.

65. The Crown makes submissions about the low intelligence and the like and says that the prisoner is not at crossroads.

66. One of the problems with the sentencing exercise arises from the delay; the prisoner was arrested over two years ago. When he did come before me in March 2015 the matter was delayed eight months before it came back to me. Not through any fault of mine, but simply because not enough funds could be obtained for him to get relevant scanning by MRI or CAT scan that might have assisted in identifying any brain injury from previous trauma to the head.

67. I appreciate the prisoner is not responsible for that latter delay, nor are his legal representatives, nor the Crown. At the end of the day, if one was contemplating the issue of a person “being at the crossroads”, one would be looking at an offending for sentence sometime closer to the relevant commission of the offence than the position I am in now, where I am compelled ultimately to fix a non-parole period which will expire in the not too distant future.

68. The Crown reflected upon the objective seriousness and put the submission to the Court that the offences were in a middle range of seriousness. I have taken all those submissions into account.

37. I have also taken into account I hasten to say the schedule of cases taken from the Public Defenders’ data system dating back to the decision of Diamond in 1993 which I remember being a leading judgment from Justice Hunt on issues of parity of sentencing.

38. There were many, many cases in this list, but primarily it was concerned with the post-Henry cases of which there are at least 40 or 50 listed. There are a range of sentences, some of the features are summarised, but it is not appropriate or possible for me to read all those relevant judgments from the Court of the Criminal Appeal. I have taken into account the range of sentences. I believe the sentence I am imposing fits within the general rubric or range reflected in the list.

39. With regard to the Crown’s submission that the offence was in the middle range of objective seriousness, I note the defence would say that the offence was at the lower end of the scale. Of course it is conceded in the submissions of the prisoner that the offence is a serious offence; that goes without saying. The maximum sentence represents the seriousness of the offence and it is of course the case that the offence of armed robbery as it is shortly called has inherent characteristics which strike horror in the hearts of those who were victims and those who read about such offences.

40. Of course, it is an offence that involves the use of a weapon to cause a person who has been assaulted by the use of an offence weapon to part with their property in order to have their property from them whilst it is either on their person or under their control.

41. It is the essence of it and there are a range of offences of this type that can be committed, from the conduct of professional robberies at banks to muggings in the street. The guideline judgment in Henry to which I referred makes it very clear that, in its wider terms and by reference to the guidelines set out at [165] of the Chief Justice’s judgment, for a typical offence which in its profile might be categorised as an offence at the lower end of the scale of seriousness, the guideline is appropriate to be considered for an offender with favourable subjective circumstances, that is; relatively young, with little or no criminal record.

42. This does not include any consideration of issues of moral culpability, mental illness, disability or parity in the oft cited ‘exceptional circumstances’ that might take the case outside the range of the guideline or take it to the lower side of the guideline. I bear in mind that the guideline, now 16 years old, is not a ‘tramline’. Of the guideline itself it was always said there was a residual discretion that existed, and the comments made by the Chief Justice at [10] citing Mahoney ACJ’s observations in the decision of Lattouf have to be borne in mind. The need for ‘individual justice’ is paramount in our system. It is to be noted that it was recognised in that judgment of the Chief Justice setting the guideline that an armed robbery may have circumstances of aggravation or ‘greater intensity’ as it was described. I refer particularly to [170], and also to [164] which must be read with the criteria for a ‘typical case’ in [162] of the judgment.

43. There are aspects of sentencing in a general way, both arising from the decision of Markarian of the High Court in 2005 and in the judgment of Muldrock in 2011, although that is concerned primarily with standard non parole periods, that make it clear that there are many relevant matters to be taken into account in sentencing. All the matters that need to be taken into account are matters that are to be synthesised either instinctively or intuitively, except for perhaps permissible discrete discounts that may be given for pleas of guilty, recognising either the utilitarian benefit of a plea of guilty or the way in which prisoners facilitate the course of justice in Commonwealth matters, and also discounts for cooperation with investigating authorities.

44. The judgment in Markarian reflects very much the disapproval of the type of mathematical precision that was attended to by the Court of Criminal Appeal in that judgment. The weight of various matters is usually incapable of precise mathematical calculation in any event. They should be identified but no mathematical analysis is required of the sentencing judge. In any event one does not have a computer that could, with complete precision, weigh up the various factors set out for example in the judgment of Spigelman CJ in Henry at [162]-[170].

45. Having said that, those matters and many others relevant in particular sentencing exercises will also vary in significance and/or intensity. An example is the criminal history of an offender. A person may have a bad criminal history but no prior convictions for the offence for which they are to be sentenced. Here, this offender has no prior convictions for armed robbery although he has a finding of guilt for robbery in company as a juvenile.

46. Another offender may have a lengthy criminal history of convictions for armed robbery when being sentenced for armed robbery. In those circumstances a criminal history more likely would be an aggravating factor under s 21A(2). As I said, here the criminal history does not entitle the offender to special leniency but it is not an aggravating factor. Another matter to take into account by reference to the guideline judgment and the relevant matters that arise from there, particularly in assessing the objective seriousness and the relevance of subjective matters, is that the guideline judgment pre-dates the Crimes (Sentencing Procedure) Act which did not become ‘law’ until the middle of 2001.

47. Section 21A in its current form came into existence in 2002. Many of the matters now in s 21A(2) and (3) come not from Henry but from the judgment of Grove J and the guideline judgment in relation to break, enter and stealing delivered in 1999, reflecting the wisdom and skill of that judge.

48. Accepting that this offence is a serious one, I conclude that it is at the lower end of objective seriousness but not at the lowest level. There are a number of reasons for this. First, there is the opportunistic character of it, there is almost no discernible planning, the character of the weapon used - it was a replica, it was a cigarette lighter. It was incapable of inflicting any harm unless used as a blunt instrument. The armed robbery in the case spoken of by the Chief Justice referred to an armed robbery with a weapon like a knife. A knife can cause great harm.

49. A small amount of money was taken. The offender and the victim who, no doubt, was very scared, had a debate about what the offender could take. “You’re not taking my key card” said the victim, “you are not taking my wallet.” The offender took $100. There was no violence. There was a threat of violence by the presentation of the firearm, but the offender was happy to make do, it seems, with the $100 he took. While I do not accept that the offender was affected by drugs, he did know what he was doing, the offender seemed to be motivated to acquire some quick cash without causing too much damage to the victim.

50. I also take into account that the money was recovered by the police. The offender’s involvement was relatively short, it took only a minute or so for the offence to be committed. The offender’s record I have taken into account. It reflects a degree of anti-social conduct but not of the same seriousness as one sees in other criminal histories. With regard to the aggravating factors under s 21A I have dealt with those. So far as the breach of conditional liberty is concerned, that is a serious matter in sentencing. It may come one day that people who breach their parole may never get paroled when they are next sentenced. At the moment I can still grant the offender parole and I do, and I can find special circumstances. There is no sunset clause on that.

51. Having said that, listening to the offender’s evidence, there was no excuse for him to breach parole and the fact that his uncle died, even if it pressed him back into the use of methylamphetamine, is no excuse for committing armed robbery, or being in breach of parole. With regard to the relevance of his drug dependency, Henry is relevant, particularly the observations of Wood CJ at CL at [273]. There, his Honour dealt with the relevance of drug dependency, in an objective sense and in a subjective one. His Honour pointed out that a person with a drug habit or who obtains funds from an armed robbery to feed a ‘severe habit’ -which is not the case here - does not have an excuse to commit armed robbery and it is not a matter of mitigation.

52. However, the fact that an offence is motivated by a need to obtain money to obtain drugs may be taken into account as a factor relevant to the objective criminality in assessing the impulsivity of the offence and the extent of any planning, which is the case here. In some cases the state of mind or capacity of the prisoner to exercise judgment, which I do not think arises here, having regard to the use of a weapon and the determination with which the prisoner obtained the cash, albeit a relatively small amount of money.

53. I accept the prisoner had been using drugs at the relevant time. But I cannot conclude that he was so drug-affected as to not be able to exercise judgment or he did not know what he was doing. The video of his interview with the police demonstrated on his part an acuity or a nimbleness of thought to be able to deny his involvement in the offence and offer all sorts of alternative explanations for any connection that might have been had with the replica firearm, which by that time had been recovered. He told a number of untruths to the police, and it is clear from watching the video he had his eye on the crime, so to speak. He was endeavouring to persuade the police that he should not be charged with the armed robbery. I gave judgment as to the admissibility of that document, as I said, and I made a number of comments about his presentation during the interview.

54. He had a very clear memory in the interview of his dealings with the police who arrested him which was entirely inconsistent with him being heavily affected by the drug at the relevant time. Of course, his lack of memory was a matter raised with me as explaining his late plea. As I have already indicated, I accept now that he did plead before my judgment on the admissibility of the record of interview, but in my view, even if he does have a lack of memory, which I doubt, I cannot see why the lack of memory of itself would have prevented him pleading guilty to the charge. In calculating the utilitarian value of the plea of guilty, the fact is whatever the excuses are that are put before me - and I do not criticise the excuses I hasten to say - the prisoner pleaded after he was arraigned in this Court on the date the matter was fixed for trial. He pleaded ‘not guilty’ at that time. He pleaded guilty to the relevant charge three or four days later. I note of course that he pleaded guilty to an alternative charge.

55. These are matters for negotiation, I appreciate that, but when one has regard to the guideline judgment of Thomson and Houlton one can see that by reference to the range of discount that is available, the only discount I could grant him in proper exercise of the discretion that is available to me to recognise the utilitarian benefit of the plea of guilty is a discount of 10%.

56. The psychological assessments in my view show that the prisoner does not have any psychiatric illness, although he may be of low intellect. He does not have an intellectual disability that is proven to be of significance. I accept the fact that there is no evidence of psychosis at the time of the commission of the offence. His construction of events in the ERISP, or his reconstruction of events, clearly shows that that is the case. He has a low intellectual function, and I do not mean any disrespect to him but his performance during the interview with police shows him having a degree of cunning. As I have said, he has an awareness of relevant matters that enable him to speak up for himself when he wishes. Of course, his conduct when he was arrested, and his conduct in the preparation of the psychologist’s reports, and his conduct in custody reflects a degree of manipulation on his part which I thought was also evident in the giving of evidence.

57. As far as I am concerned he sought to show himself in the most favourable light as to how he came to use drugs again, how he proposed to rehabilitate himself, to some extent the character of his remorse and how he was perceived by Correctional and Justice Health officers.

58. The facts of the matter are the prisoner is no fool and it might be said that there is some reflection of that nominally in the testing conducted by the neuropsychologist. Be that as it may, and notwithstanding some equivocation in the report, it is the case that the testing does reveal a low intellect. I am prepared to accept that this has relevance in the assessment of the matter, as I have indicated. It is a matter that I should take into account in giving slightly less weight to the effect of general deterrence. But, in my view, I should give more weight to personal deterrence in the manner discussed by Chief Justice Gleeson in Engert. I believe his intellectual functioning does contribute, whether he is affected by drugs or not, to him acting impulsively without thinking out or organising what he is doing.

59. It is a matter, in my view, also relevant to the assessment of his moral culpability, and I am prepared to give him some benefit in that regard, that is, reducing his moral culpability to some extent. But the reductions are ultimately to be slight in the context of understanding that, albeit that it was opportunistic, the conduct was calculated. His criminal history and his conduct in the past demonstrates his capacity for antisocial conduct notwithstanding the intellectual limitations that he has.

60. I have taken into account his plans for the future, his relationship with his family, his love of his son. I am giving him some opportunity to look forward to release in a relatively short period of time. I am mindful of the difficulties of his upbringing. But all of these features have existed in the past. They existed before he was involved in this offence, they existed when he committed the offence, as I said earlier, that required him to serve a minimum period of 12 months, thus leading to him being on parole when he committed this offence.

61. As to the matters personal to him that he says would lead him to the path of reform and his desire to give up drugs, those are matters to be taken into account. They cannot be ignored. But how genuine he is will be a matter to be proven in the future. Question marks about his genuineness, another reason ultimately to conclude that I should not make a finding of special circumstances.

62. I am prepared to accept that he has expressed remorse and I am prepared to identify it as a mitigating factor in this case. It and the plea of guilty are the only mitigating factors identified by his counsel pursuant to s 21A(3), and that clearly is so, but the weight to be given to it is slight. The timeliness of it is a relevant matter in assessing what weight to be given to it. Whilst the prisoner claims no memory, a claim I have considerable doubt about as I have said, it seems to me with respect that remorse, if it is to be a significant matter in sentencing, usually will be identified very early in the piece, sometimes immediately after an offence is committed. That is not the case here.

63. In relation to the issue of delay, I have taken the delay in sentencing into account. I have made some comments about that. But this is not a case contemplated in Mill and Todd to which I earlier referred. Todd was a case of a man who committed crimes in New South Wales and Queensland, as my memory serves me. He crossed into Queensland committing crimes. He was arrested in Queensland. He spent a number of years in gaol in Queensland and he was released to be extradited back to New South Wales to be sentenced for offences he had committed many years before at the same time as the Queensland offences. He demonstrated whilst in custody a path to reform. That has not happened here. But in any event the circumstances of this matter and the period of time is nowhere near like the situation in Todd. I appreciate the delay has left the prisoner in some degree of uncertainty, but he has contributed in part to that delay. Then again of course, the unacceptable delay in coming forward for sentence is a matter over which he has had no control and it is something I regret, but it is certainly something for which I am not responsible.

64. Ultimately I have concluded, doing my very best to instinctively synthesise all the relevant matters to be taken into account, that the starting point for any sentence for the prisoner should be five years imprisonment. He gets a discount of 10%, as I said. The total sentence will be four years and six months. It will date, as I said, from 24 January 2014 on the basis of the principles discussed in Callaghan from 2006, in the decision of Simpson J (now JA), trying to avoid the double-dipping that arises from taking into account a breach of parole as an aggravating factor. I have made a finding of special circumstances. Thus the sentence by way of non-parole period will be two years and six months. The prisoner will have a balance of sentence of two years. In my view, he needs an extended period of time to receive the professional assistance he needs. It will be a matter for the parole authority whether he is released or not.

65. Mr Youssef, I am sorry to take so long. It is very boring to have to listen to all of this, but I must confess there is a lot of material here that I need to address. The matter was skilfully conducted by your counsel and the Crown. It would be an injustice to them not to deal with the particular matters that they raise.

66. In respect of the armed robbery matter to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment by way of a non parole period of two years and six months. That sentence will start on 24 January 2014, it will expire on 23 July 2016. The balance of sentence of two years will expire on 23 July 2018. You will be eligible for release to parole on 23 July 2016. It will be a matter for the Parole Authority as to what your conditions of parole are and will fix them. It will be a matter for the Parole Authority as to whether you are released. So it will be a matter for you to impress the Parole Authority that you should be released on that date.

67. I have taken into account, as I have said, all your evidence. I am mindful of your re-engagement with your religion and I hope that when you return to the community you will find within your community people that will be able to assist you to avoid using drugs and to avoid offending in the future.

68. Madam Crown, anything else from you?

69. WOOD: No thank you, your Honour.

70. HIS HONOUR: Anything else from you, sir?

71. ROBINSON: Thank you, your Honour.

72. HIS HONOUR: Do you understand the sentence, Mr Youssef? The non parole period ends in July 2016, 23 July 2016, and it will be a matter for the parole authority whether you are released on that date. If you are released on that date you will be on parole for two years. The sentence has been backdated to January 2014. Thank you very much, Mr Youssef, thank you very much for being with us through the closed-circuit television. I’m sorry about the delay in connecting to you. Your solicitor will be in touch with you I hope to explain the sentence to you.

73. ROBINSON: I’ll endeavour to do that straight away but I fear that the timing may - but I’ll make a call as soon as I can.

74. HIS HONOUR: You may not be able to do it by close of business, but I think he understands of course the non-parole period finishes in July.

37. ROBINSON: Thank you, your Honour, I appreciate you explaining that.

38. CLOSED-CIRCUIT TELEVISION DEACTIVATED

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Decision last updated: 21 April 2016