R v Zia Yousif

[2009] NSWDC 290

CITATION:	R v Zia YOUSIF [2009] NSWDC 290
HEARING DATE(S):	17 September 2009
JUDGMENT DATE:	17 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. I set a non-parole period of eighteen months. I set a head sentence of three and a half years.
CATCHWORDS:	Criminal Law - Sentence - Robbery in company while armed - Breach of parole
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	The Crown Zia Yousif
FILE NUMBER(S):	DC 2009/11/0423
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Zia Yousif appears for sentence today having pleaded guilty at an early opportunity, in fact the earliest opportunity he had, to an offence of robbery in company. There seems to be no challenge to the circumstance that I can take into account the fact that at the time of this robbery he was armed. The Crown has tendered photographs to demonstrate that. Mr Kozanecki has raised no objection.

2 The offence occurred when the offender and others, whom he has refused to name, entered a service station whilst the two employees there were restocking the shelves. It was 4.30 in the morning. They were threatened by the offender and his co-offenders. As a result they cooperated. The offenders then took the cash register and its contents and the mobile phones of each of the employees. As well, almost as a parting gesture on their way out, one of the offenders took two cases of soft drink and some lollies.

3 This offence was one of a number committed by the offender around the same time. He was dealt with for those other matters by his Honour Judge Conlon who sentenced him in the Wollongong District Court in September 2006. The offender was released to parole following his Honour’s sentence on 5 June 2007 but returned to custody after he committed further offences and breached his parole on 17 July 2008.

4 It was at around that time that the offender’s fingerprints were identified from the robbery for which the offender must be sentenced today. On the way in he had, helpfully for police, put his hand up against a glass door. Police had detected the fingerprints when investigating the robbery but had not matched them with any particular person until August 2008. It was not until November 2008 that the offender was arrested and charged with the present matter. As I’ve said he immediately admitted it when given the opportunity to do so.

5 The offender is in many respects entitled to be proud of what he has achieved. His early life was summarised by Judge Conlon who quoted extensively from a psychologist’s report. The offender was born in Iraq but when he was quite young his family fled to Pakistan to avoid civil unrest. His father returned to Iraq at one stage never to return, having been murdered by security forces. He, his mother and his siblings then came to Australia and made a life for themselves here.

6 The offender returned home to Iraq where he appears to have been engaged by coalition forces to assist them, particularly in interpreting for them. Mr Kozanecki had hoped to tender today a letter from an American officer praising the offender for his work at that time. Unfortunately that letter could not be found but no harm is done because Judge Conlon also quoted extensively from that letter and there are many references to the offender’s work in Iraq in other documents before me. It is to be clearly stated that the offender was very highly regarded by those for whom he was working in very dangerous activities in Iraq.

7 When he came back to Australia he began work as a bricklayer but fell in with the wrong crowd and began using drugs to excess as well as alcohol, although he says he has never drunk that to excess.

8 His offending, both those offences for which Judge Conlon sentenced him and this matter for which I must sentence him, arose in the context of a desire to both fund his drug habit and also to provide for his family. After his father was murdered the offender took on the role of provider for the family, being the eldest male. It was for that reason that the offender felt it necessary for him to provide for his mother and to do that he committed a great number of armed robberies. Judge Conlon accepted that the offender was remorseful. He appears to have impressed Judge Conlon who imposed, at least as far as the non-parole period is concerned, a lenient period of imprisonment. Unfortunately the offender’s claims to be remorseful are somewhat inconsistent with the fact that he committed further offences upon his release to parole on 5 June 2007.

9 The offender still has some way to go before he can claim to be rehabilitated. He needs to understand the parole is a privilege to be granted to those who are willing to obey the law in every respect and it is not the offender’s choice as to which laws he will obey and which laws he will not obey even if he regards the offences which led to him being back in custody as relatively minor. The important thing is that he demonstrated an unwillingness to obey the law and be of good behaviour, which was of course a condition of his release to parole.

10 It is acknowledged that the offender fits closely into the ordinary armed robbery case postulated in the R v Henry (1999) 46 NSWLR 346 guideline, with one exception of course and that is that his plea of guilty was not a late one. In every other respect, however, the offender matches that ordinary case.

11 Sentencing the offender is not easy because this was one of a number of offences which could have been dealt with at the same time had he been charged with this matter at the time he was sentenced by Judge Conlon. Mr Kozanecki has made much of course about the delay that has been occasioned between the offence, the identification of the fingerprints, the charging of the offender and today. However, the Crown accurately responds that the delay cannot all be sheeted home to the authorities, after all it was within the offender’s power when he was arrested for the other armed robberies to tell police about this matter and have it dealt with at the same time as the other armed robberies.

12 Clearly the offender is entitled to a finding of special circumstances. Not only is there the need, demonstrated in both the pre-sentence report and the psychologist’s report, for the offender to take the steps recorded in those documents to rehabilitate himself, but also the sentence of imprisonment I will now shortly announce on the offender comes on top of other sentences of imprisonment, a matter which has always been regarded as justifying a finding of special circumstances in order to more closely approach the statutory ratio between non-parole period and head sentence.

13 I will have to be very careful not to simply impose a sentence which has the effect of ignoring the seriousness of the offender’s conduct. I also have to be careful not to impose a sentence which in effect puts at nought the offender’s breach of parole for the other matters. He is currently serving a sentence which is unrelated to the sentence I will now shortly impose upon him. I should not impose a sentence on the offender such that his balance of parole is effectively wiped out and credited to the sentence for this offence. On the other hand I have to recognise that were this matter dealt with at the same time before Judge Conlon it is likely that the extra period in custody because of this offence would have been reduced in accordance with the principle of totality. I am not saying of course the principle of totality does not apply to me, it clearly does, and has been a significant factor in me determining the commencement date for the sentence I will now announce.

14 The offender is sentenced to imprisonment. I set a non-parole period of eighteen months to date from 7 November 2008 and that non-parole period will expire on 6 May 2010 on which day the offender is eligible to be released to parole. I set a head sentence of three and a half years.

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