R v Zreika

[2019] NSWDC 893

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Zreika [2019] NSWDC 893
Hearing dates:	26 November 2019
Date of orders:	26 November 2019
Decision date:	26 November 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Make a finding of special circumstances. The offender is sentenced to an aggregate sentence 6 years with non parole period of 4 years
Catchwords:	CRIMINAL LAW - Sentence – Robbery armed with offensive weapon – attempted robbery armed with offensive weapon –Threaten violence – Actual violence – DNA match - On conditional liberty a the time of offending – Risk of institutionalisation.
Legislation Cited:	Crimes Act, 1900 Criminal Procedure Act, 1986
Cases Cited:	Karacic v R [2019] NSWCCA 195 R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR Veen v R (No2) 1988 164 CLR 465
Category:	Sentence
Parties:	The Crown Mohammed Zreika
Representation:	Director of Public Prosecutions Legal Aid Commission - the offender
File Number(s):	2018/00300774

SENTENCE

1. HIS HONOUR: Mohammed Zreika is before the Court for sentence in relation to three offences where there are no other matters before the Court for sentence either to be taken into account either on a Form 1 or pursuant to s 166 of the Criminal Procedure Act. Sequences 1 and 2 are two counts of robbery with being armed with an offensive weapon in breach of s 97(1) of the Crimes Act; each of those matters carry a maximum penalty of 20 years and no standard non‑parole period has application. The third sequence is an attempted robbery armed with an offensive weapon in breach of the same section with the same maximum penalty.

2. It is common ground between the parties that Mr Zreika has been in custody since 4 October 2018 which is the first date on which any sentence could reasonably commence, but during the whole of that time and until 6 May 2020 he is subject to a fixed term for some other matters. It is also common ground that he pleaded guilty in the Local Court to each of these matters and so that there is a statutory application of a 25% utilitarian discount to be applied.

3. Agreed facts in the Crown bundle and from them I draw this material. Mr Zreika was residing in the Gold Coast area of Queensland. On 6 March 2018 he borrowed a car from the person he was in a relationship with and that car was seen on closed‑circuit television in Casino at 9.33pm on the same evening, being 6 March 2018. The vehicle was filmed to be driving around the vicinity of the Tattersall's Hotel in Casino up until about 10pm.

4. The Tattersall's Hotel has a public bar downstairs and a number of rooms upstairs which are tenanted. The licensee John Baker resides in a flat also on the first floor. The car in which the offender was parked in the car park at 10.07 pm and parked. Mr Zreika left the car, ultimately gained access to the rear fire exit stairs where he came upon a person called Luke Potter who was one of the tenant's rooms upstairs. He inquired of Mr Potter if John was there. Mr Potter said he would make some inquiries. He went back upstairs to his own room and was followed by the offender who asked if that room was John's room? Mr Potter asked the offender to wait upstairs. He then came back upstairs with Matthew Small who was a regular patron of the hotel who knew John Baker, the licensee. As they were coming upstairs the offender told them that John owed him for "30 big ones" or "30 large" and asked where the safe was.

5. At a time that he had something undisclosed under a towel, the offender said to Matthew Small and Luke Potter, "I have a gun" and asked them to hand over any device with which they would be able to contact the police. The offender relevantly said, "I'll shoot you in the head". As he said this, he pulled that item wrapped in the towel from his pants and held it as if it were a gun. The item was in fact in due course found to be a pruning saw with a 15 centimetre metallic serrated blade and it was wrapped in a white towel. Both of the victims believed that the offender actually had a gun. He was wearing a red hoodie at the time and black rubber gloves.

6. Matthew Small gave him his iPhone 6, which had a case in it that contained his bankcard and driver's licence. Those items were never recovered. I am told that Mr Small seeks $1,000 in compensation for his iPhone. Mr Potter didn't have a phone on him but he handed the offender his wallet, the wallet contained nothing of value and in due course was left at the scene by the offender. They are the facts in relation to sequences 1 and 2.

7. The continued facts in relation to the attempted robbery on John Baker are that the offender made an inquiry of Mr Small as to how many people there were downstairs. The offender pointed to a room marked private which leads to John Baker's flat. He asked Potter and Small to knock on the door saying "I've got a gun I'll shoot you in the head if you don't knock". Matthew Small refused to knock. The offender knocked on the door and saw that nothing happened for a few moments, the offender said that he was going to come back tomorrow. Mr Baker then answered the door. The offender was again holding the saw wrapped in a towel as if it was a gun. From Mr Baker's perspective he could see some exposed metal and thought that the weapon was a gun.

8. The offender asked John Baker who he was and he replied that he was John. The offender waved or pointed his weapon at Luke Potter and Matthew Small and told them to get into the flat. At that point Mr Small launched himself at the offender and grabbed the weapon with one arm and punched the offender numerous times. Mr Small yelled out to Mr Baker to call the police because he was going to be robbed. The weapon fell down, Mr Small continued to punch the offender and the offender struck back at Mr Small and managed to wriggle out of his jumper and run away.

9. Closed‑circuit television captured the car driving out of the car park at 10.20 pm, which means that the time frame was across all three offences was limited to 13 minutes. Police attended in due course and seized various items. In due course there was a DNA match between the clothing and this offender.

10. On 3 October 2018 the offender was placed under arrest and charged with these matters and participated in an interview in which he denied the alleged offences. In terms of assessing the objective seriousness of the matters, in relation to sequences 1 and 2, the actual armed robbery, it is clear that those matters were unplanned and spontaneous. Items of little or no value were stolen.

11. In assessing the objective seriousness of both these matters and the more serious offence, I do take into account what is said in the R vHenry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline. There are features of this case that are in common with Henry and there are some points of distinction. As an example the offender was not a young person, the plea was worth more by way of discount in these circumstances than was in Henry's case. There was a limited level of threatened violence in each of the occasions, although there some violence occasioned to Mr Small in response to his attempts to detain the offender and I take into account that there was some actual violence visited on him in terms of that restraint.

12. The offender was on conditional liberty in relation to a suspended sentence and probation imposed in Queensland, I am entitled to take that into account in aggravation. I take into account that there were threats of shooting although those threats could not have been carried out, the people who were threatened in that way took those threats seriously because of the way that the saw was covered. In characterising the objective seriousness of the first two matters, I characterise them as below midrange but not reaching the low range of objective seriousness.

13. In relation to the attempted robbery, which is sequence 3, there was a greater level of planning in relation to that matter. It is clear that the offender travelled to the area for the purpose of committing that particular offence and was in the environs of the town and the hotel for about half an hour before the offence was committed. It is clear that there was an intention of achieving financial again, that is, the recovery of an alleged debt of $30,000.

14. I draw an inference in the absence of any material to the contrary that the offender must have committed the offence for some sort of financial reward for collecting that money for somebody else. There is no evidence of what that reward was to be. Although it was in the vicinity of Mr Baker's apartment only the third offence was committed in his premises. I take into account the degree of planning in relation to that matter, that matter is at the mid to slightly above the mid-range of objective seriousness for the reasons that I have identified.

15. Mr Zreika is now 40 years old and was 38 years old at the time of the offending. He has a record that denies him leniency, although it is not a record that falls at the point where he serves to aggravate the offending in terms of Veen v R (No2) 1988 164 CLR 465 for instance. The offender had a stable upbringing and has the support of his family. He hopes to be able to if admitted to parole in New South Wales return to live with them in the Sydney metropolitan area. He is somebody who has never undertaken any extensive drug and alcohol treatment. In the context of his first marriage breaking down, he commenced to use cocaine and quickly spiralled into a cocaine addiction that was replaced in due course by a heroin addiction. Happily, he was able to dry out during a relatively extended period of imprisonment in Queensland, but, relapsed on his release so that he commenced to take methylamphetamine. He gave a report to the assessing psychologist Patrick Sheehan which I am prepared to accept on the basis of the other material known to me that he was under the effect of methylamphetamine at the time that he committed this offence.

16. Of course that is not a mitigating feature, it just helps explain how the offender could conduct himself in the way that he did on this occasion. As I have said, there is a utilitarian discount identified. I accept that the plea of guilty is some manifest of remorse but across Mr Sheehan's report and the sentence assessment report it would seem that Mr Zreika's level of insight is relatively limited and it is hard to see that he is highly remorseful in relation to these matters.

17. I do take into account his statements of to submit himself to some more detailed drug and alcohol treatment. It is pretty obvious from the pattern of his criminal record against his drug use that there is a strong link between the drug use and him committing offences and in particular this offence. It is conceded on Mr Zreika's behalf that the s 5 threshold has been crossed and that it is inevitable that he will be sentenced to a period of fulltime imprisonment.

18. I am guarded about his prospects of rehabilitation having taken into account what Mr Sheehan and the Community Corrections officer have assessed about him. The Sentencing Assessment report assesses that he is a medium to high risk of reoffending. That said, if he applies himself to some intensive drug treatment either in custody or when he has got his liberty, his prospect of rehabilitation will definitely improve.

19. The Crown did not want to be heard against a finding of special circumstances and in the context of this man's record I take into account that he is at risk of institutionalisation. That is because he has had relatively short periods in the community between relative increasing stretches of time in custody. I also taken into account that he needs a longer period on parole to apply himself to drug treatment if that is what he chooses to do. The Crown, fairly in my view, concedes that although there should be some level of either partial accumulation or notional accumulation, given the separate criminality of the three events, that because they are all part of the one factual matrix, it is proper that there be a fairly high degree of concurrency.

20. Both parties accept that the Court needs to exercise its discretion in terms of when to commence the aggregate sentence that I have determined to impose having regard to the fact that he is already serving a sentence for discrete matters. I have done my best to weigh the competing priorities.

21. I have had the benefit of considering a case of Karacic v R [2019] NSWCCA 195. Both parties point to me to indicate that that in the sentence disclosed in that matter provides some potential analogue in circumstances where that matter related to a sentence that had been imposed by Judge Girdham, of this Court in relation to two armed robberies. There are some distinguishing features, that is, there were two robberies. They were after trial rather than after a plea of guilty and they were breaches of s 79(2) and therefore had a maximum penalty of 25 years as opposed to the 20 year maximum at hand here. Against that, Mr Karacic seems to have had a greater degree of insight and remorse that was available to be found in relation to Mr Zreika. That said, it was a helpful analogue for me in arriving at an appropriate range. I have had regard to all of the material that I have read whether I averr to it or not.

22. In relation to sequences 1 and 2, the indicative sentences have the 25% utilitarian discount applied to them. Those matters but for the discount for sentence would have been something, a starting point in sentence would have been something a little short of five and a half years and with the discount the indicative sentence for sequence 1 and sequence 2 is four years.

23. In relation to sequence 3 taking into account the different objective seriousness of that matter, the starting point would have been seven years but for the application of the discount, the indicative sentence becomes five years and three months. I have determined to impose an aggregate sentence. The head sentence is six years, it commences on 8 May 2019 and expires on 7 May 2025. Having found special circumstances the non-parole period is four years, which means Mr Zreika's earliest date of release is 7 May 2023.

24. Mr Zreika, I could have backdated until 4 October 2018, I intentionally accumulated so that the sentence I have imposed starts a year into your sentence for the firearms matters. It has the effect that the sentence I have imposed today is six years with four years, which means that the total sentence is if you like, seven years with five years.

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Amendments

20 May 2020 - Case title changed to offender's surname only

Decision last updated: 20 May 2020