R v Abdou

Jurisdiction: Criminal

Before: Newlinds SC DCJ

Decision: (1) In relation to Count 1, after taking into account the 25% discount for the plea of guilty with some rounding in his favour and the Form 1 offence, the Offender is sentenced to a term of imprisonment of 2 years commencing on 21 July 2024 and expiring 20 July 2026
(2) There will be a minimum non-parole period of 17 months, expiring 20 December 2025, which is the first day the Offender will become eligible for parole.

Catchwords: CRIME — Sentencing — Aggravated robbery — Victim Offender’s father — Offending occurred in the Victim’s home and involved violence — Offender on ICO at the time — Early plea — Significant long term mental health issues of Offender — Poor history of non-compliance with ordered conditions and treatment plans — Low prospect of appropriate treatment upon release — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way — Intersection between mental health system and criminal justice system unsatisfactory

Legislation Cited: Crimes Act 1900 (NSW) s 95(1)

Cases Cited: R v Henry (1999) 46 NSWLR 346
R v Harbourne [2025] NSWDC 388
R v Broadstock-Maloney [2025] NSWDC 331

Category: Sentence

Parties: Rex (Crown)
Abdel Rahman Abdou (Offender)

Representation: Counsel:
A Sharp (Solicitor) (Crown)
M Edwards (Solicitor) (Offender)
Solicitors:
ODPP (Crown)
Michael Bowe Solicitors (Offender)

File Number(s): 2024/115632

Publication restriction: Nil

JUDGMENT; ex tempore (Revised)

Introduction

1. Abdel Abdou (“the Offender”), who is now aged 34 years’ old, is before me to be sentenced in relation to one count of aggravated robbery pursuant to s 95(1) Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years’ incarceration and there is no standard non-parole period. There is one count of intimidation to be taken into account on a Form 1.

The facts

2. As at March 2024, the Offender had a long history of serious mental health issues. He had been long diagnosed with schizophrenia and bipolar disorders. He also had a significant criminal record. To a large extent, it involves crimes of violence and robbery against his own family. At the time, he was serving a sentence of 15 months imprisonment in the community pursuant to an Intensive Corrections Order (‘”ICO”). He was also subject to a Community Treatment Order (“CTO”) imposed by the Mental Health Tribunal which was to expire on 23 October 2024. He was in breach of the reporting obligations imposed by the ICO and he was not taking his medication in accordance with the CTO.

3. He was with his father in his father's home. As his father was putting away some shopping in the kitchen, the Offender requested $50 to purchase a bin. The Offender’s father told him that he would purchase the bin.

4. The Offender, apparently angry at what he perceived to be his father’s lack of trust in him, then punched his father in the nose with a closed fist and dragged him so as to rip his shirt pocket off.

5. The Offender’s father fell to the ground and the Offender took his wallet out of his pants, removed $1100, whilst having his foot on his father's back, so he was unable to get up. The Offender then took his father into the bathroom to wash his face, as his nose was still bleeding.

6. The Offender said, “if you call the police I'm going to finish you off."

7. The Offender then left the unit with the money and the phone and went downstairs. His father immediately told the Offender’s case manager what had occurred, and she called the police.

8. Police arrived and the Offender’s father was assessed by paramedics and taken to hospital. He sustained a minimally displaced nasal bone fracture with some bleeding.

9. In short, the Offender assaulted his father in his father’s home and stole his father's money and phone. His father immediately reported all of this to the Offender’s case officer and the Offender was arrested, charged, and pleaded guilty.

Time in custody

10. The Offender has remained in custody, bail refused, since that date, being a total time in custody of 605 days.

11. The reason that he had a case officer at the time was that he was the subject to an Intensive Corrections Order, which was revoked. He has subsequently served 122 days in custody, being the remaining period of his sentence for those earlier offences.

12. The Offender has spent well over 12 months in custody (484 days), referable only to the subject charges.

Plea of guilty

13. The Offender pleaded guilty in the Local Court at the first opportunity and is entitled to a discount of 25% for the utilitarian value of his plea.

14. It is also important to recognise that the Offender immediately admitted what he had done to his case officer.

Objective seriousness of the offending

15. The Crown has submitted, by reference to the guideline judgement of R v Henry (1999) 46 NSWLR 346 (“Henry”) that the offending falls above the mid-range of objective seriousness because, at the time of the offending, the Offender had a substantial criminal history, the offending involved the use of actual violence which was not unintended, the victim was vulnerable, being 68 years of age, and that the plea of guilty has reduced significance because of the strength of the Crown case.

16. On the other hand, it is conceded by the Crown that there was a limited, if any, degree of planning involved, and a relatively small amount of money taken.

17. On behalf of the Offender, it is emphasised that the offending occurred over a very short time frame and that I should be satisfied that there was no planning involved, it having occurred impromptu, escalating from an argument that started with the request for $50.

18. On behalf of the Offender, it is submitted that the offending is no higher than around the mid-range.

19. In my opinion, both sets of submissions overstate the objective seriousness of the offending. In my view, taking into account all of the facts in what I think is a reasonably unusual case, the offending falls below the mid-range of seriousness for this type of offending. The Offender was clearly mentally unwell at the time, which in my view reduces his moral culpability, which is relevant to my assessment of the objective seriousness of the offending.

Criminal history

20. The Offender does have a substantial criminal record, which I will not set out, but suffice to say, it includes crimes of violence and robbery over a significant period of time and disentitles him to leniency. Much of his conduct has been directed towards various members of his family.

The Offender’s subjective case

21. The sentencing hearing in this matter has been before me on a number of occasions on a stop-start basis. On each occasion it has struck me as relatively obvious that the Offender was mentally unwell, unstable, and incapable of providing coherent and sensible instructions to his lawyer for the purpose of the sentencing hearing being conducted in a sensible way, with the Court having an appropriate understanding of all relevant facts and circumstances.

22. On the first occasion, the Offender, after seeking to withdraw his solicitor’s retainer, addressed me directly and demanded that I proceed with the sentencing hearing and that I give him the maximum penalty. This was apparently because he was sick of the process and just wanted to get on with it. I declined his invitation and adjourned the matter and gave leave to issue subpoenas to try and understand the state of the Offender’s mental health at the time of the offending and now, and how that might impact on my assessment of his moral culpability and other relevant sentencing matters.

23. I now have some material, albeit it is probably not complete. The solicitor for the Offender has successfully subpoenaed a vast amount of material from the Mental Health Tribunal, which demonstrates that the Offender has been under the jurisdiction of that Tribunal since 2012.

24. The Offender’s file comprises some 900 odd pages.

25. A selection of those pages have been tendered before me and a Chronology of some salient points that can be discerned from those records has been helpfully prepared by the Offender’s solicitor, which I have marked for identification, and which will remain with the papers.

26. It is clear that the Offender has long been diagnosed with significant mental health issues which result in psychosis, mania, aggressive behaviour, and delusions.

27. As at 2021, he had no insight into his disorder, nor the need for any medications. As at May 2023, the Mental Health Tribunal considered he was a serious risk to himself and others because of delusions, hallucinations, and aggression. He was detained until October 2023 but, as I have said, from then he was in the community pursuant to a Community Treatment Order but was non-compliant. He has of course been in custody since March 2024. I do not know if he has received any treatment whilst in custody.

28. The information on the file ceases with the entry as at 23 October 2023, which as I have said, placed the Offender on a Community Treatment Order that was to be reviewed in October 2024. A Breach Report prepared by Corrective Services concerning his history of failing to comply with the conditions of his ICO also records that, as at March 2024, he was subject to a Treatment Plan put together by Concord Mental Health but appears to have been non-compliant.

29. It is also clear that the Offender has a long history of non-compliance with supervision and conditions for conditional liberty.

30. As the Breach Report says:

“Mr Abdou’s response to supervision has remained unsatisfactory

…

On the occasions that Mr Abdou did report to Community Corrections, his response to the supervision process is considered unsatisfactory. Mr Abdou presented as resistant to engage in discussions regarding his offending behaviour and is yet to engage in intervention to address his offending behaviour

…

Although Mr Abdou had remained overall compliant with his medication which he had received through Concord Mental Health, he has failed to engage in any further intervention to address his mental health and alleged ongoing illicit substance use

…

Mr Abdou’s re-offences on 26 March 2024 are a direct link to his current offending behaviour and it demonstrates a complete disregard for his obligations under his Intensive Corrections Order

…

Mr Abdou has shown limited to no insight into his offending behaviour, minimises current offences and has taken no responsibility for his actions. Furthermore, Mr Abdou has failed to meaningfully engage in intervention to address his mental health and AOD [Alcohol and Other Drugs] misuse issues which also present as an increased risk around possible reoffending and present as an increased risk to community safety"

31. It almost needs not to be said that this is an entirely unsatisfactory state of affairs.

32. I recently observed in R v Harbourne [2025] NSWDC 388 as follows:

“60. This is a very difficult case because the Offender finds himself lost between the boundaries of the justice system and the mental health system of this state.

61. On the evidence, between those boundaries or front lines, there is a “no-man’s land” where people who are in the justice system, but really belong in the mental health system, find themselves. That “no-man’s land” is ungoverned, scary, unpredictable, and ultimately extremely dangerous.

…

65. I will say this. The Offender needs help. Society ought provide that help, if for no other reason than to protect the Offender and others from the Offender’s violent conduct. That help is not being provided by simply putting him in gaol for longer and longer periods, only for him to be released, not treated, reoffend, and return to custody.”

33. Again, here, I have an Offender who has committed, over many years, many criminal offences and has again offended by assaulting and robbing his father.

34. I am satisfied that it is almost inevitable that most, if not all, of the explanation for his present and past offending is his mental health condition.

35. I do not know whether he is being treated in custody, and I do not know if, when he is released from whatever term of imprisonment I impose, he will be treated at all. Even if he is, there is every chance that he will remain treatment resistant and non-compliant.

36. If I had power to order Justice Health to do anything as to his treatment in custody or if I could make orders as to what should happen with the Offender after he was released, I would try my best to craft a regime that helped him get through life without continuing to commit crimes. I do not have the power to do any of that. In my opinion, it would be better if, upon sentencing in this sort of circumstance, a sentencing judge could have direct dialogue with the Mental Health Tribunal, but that is not the system.

37. This then raises an acute issue for this sentencing exercise. The central question here is what are the prospects of the Offender being rehabilitated and the coextensive risk of him reoffending? On the material currently before me, I simply have no way of assessing what those prospects are. I consider it obvious that sentencing the Offender to a lengthy period of imprisonment will do nothing to promote his rehabilitation and reduce his risk of reoffending, nor do I think that whatever I do will make any difference to the Offender’s behaviour in the future. Nor do I consider that he is an appropriate vehicle for general deterrence. That all being said, it will be most unsatisfactory for him to be released into the community unsupervised, as he presents an ongoing danger to the public.

38. As I have said, I consider this state of affairs to be unsatisfactory. I am again in the “no man’s land” between the criminal justice system and the mental health system where I feel powerless to do anything useful.

Consideration

39. The Crown has submitted that general and specific deterrence must be at the forefront of the sentencing exercise, and protection of the community is a particularly relevant consideration, as the Offender has displayed entrenched and serious violent recidivism.

40. It is true that the Offender has that sorry history of conduct but balanced against that is his serious mental health issues, which I think, firstly, significantly reduce his moral culpability for his conduct and, secondly, make him an extremely poor candidate to be used as an example to others for the purpose of general deterrence. It is not his fault that he is mentally unwell and there is a direct connection between his medical condition and his ongoing offending.

41. The question is, what, if anything, can be done to help the Offender and protect the community? In particular, what are his prospects of being rehabilitated so as to reduce his prospects of reoffending? The simple fact is that he is resistant to treatment and non-compliant. This is not necessarily his fault as no doubt it is a direct consequence of the very same medical issues that he is resistant to treatment for.

The guideline judgment of R v Henry

42. The guideline judgment of Henry is a powerful factor to be considered. However, there are innumerable examples of cases turning on their own facts where, notwithstanding an Offender falling within the parameters of the Henry decision, sentences other than full-time custody have been imposed. I set out a selection of those cases at in R v Broadstock-Maloney [2025] NSWDC 331 at [65].

Resolution

43. The Offender has been in custody as a direct consequence of the conduct before me since 27 March 2024, that is a period of nearly 19 months.

44. Of that period, approximately 13 months is entirely referable to this offending.

45. I am satisfied that the only appropriate sentence is one of full-time imprisonment.

46. As to when that sentence should commence, it must be backdated for at least 13 months, but I also have a discretion to take into account some of the period he spent serving the balance of the sentence previously determined to be served in the community under an Intensive Corrections Order.

47. I propose to allow 3 months for that period.

48. With some rounding, I therefore propose to backdate the term of imprisonment by 16 months, so as to commence on 21 July 2024.

49. As I have said, I do not think anything I will do will have any impact on the Offender in the sense of specific deterrence. I consider him to be an entirely inappropriate vehicle for general deterrence. The fact is there is a direct link between his mental health issues and his offending. Therefore, to a very large degree, his moral culpability is reduced. The acute difficulty here is that I am also satisfied that, if and when he is released, he will continue to present a danger to the community. This is because he has proved to date to be treatment resistant and simply does not comply with conditions of granting him conditional liberty. Nonetheless, it would be entirely unreasonable and inappropriate for me to lock him up for the maximum term simply because I think he is dangerous. At some stage or another, he is going to be released back into the community and will need to be managed in some way for his own benefit, but also for the protection of the public.

50. Community Corrections has suggested a regime if he is to be released into the community and I will recommend that regime be implemented, but I am very concerned that the Offender will prove non-compliant and will probably reoffend and end up back in the criminal justice system and so the cycle will recommence. As I have said, I consider this to be entirely unsatisfactory but do not have any power to prevent it.

51. In all the circumstances, I consider an appropriate term of imprisonment to be 2 years (after taking into account a 25% discount for the guilty plea and the intimidation offending on the Form 1).

52. I find special circumstances. The Offender will first be eligible for parole after serving 17 months of that term. I have adjusted the proportion slightly in his favour so as to give him every chance of rehabilitation.

53. What that means is that the Offender will be first eligible to be released on parole on 20 December 2025. He needs to clearly understand that any breach of his conditions of parole will probably result in him returning to custody.

54. I propose to make a recommendation to the Parole Board as to the necessity, in my view, that any condition of his parole be a proper referral with all relevant medical records, including these reasons, to Community Mental Health Services and the Mental Health Tribunal for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities, if possible, for him to be appropriately treated for those mental health conditions.

Orders

55. My orders are as follows:

56. In relation to Count 1, after taking into account the 25% discount for the plea of guilty with some rounding in his favour and the Form 1 offence, the Offender is sentenced to a term of imprisonment of 2 years commencing on 21 July 2024 and expiring 20 July 2026.

57. There will be a minimum non-parole period of 17 months, expiring 20 December 2025, which is the first day the Offender will become eligible for parole.

Recommendations and directions

56. I make the following recommendations and directions:

57. Direct the Crown to send the Parole Board a letter providing a copy of these reasons, emphasising that the Court recommends that a condition of the Offender’s parole be a proper referral, with all relevant medical records, including these reasons, to Community Mental Health Services at Concord Mental Health and the Mental Health Tribunal for the purpose of diagnosis and treatment of the Offender’s mental health conditions, together with every assistance, including residential facilities if possible, for him to be appropriately treated for those mental health conditions.

58. I also recommend the conditions set out in the Correctives Services Breach Report of 4 April 2024 be included as conditions of his parole:

(a) Ongoing contact with Concord Mental Health to ensure the Offender is adhering to his medication; (b) Referral to a drug and alcohol counselling service, possibly inpatient, to address his AOD concerns; and (c) Ongoing police and DVLO contact to ensure compliance with conditions, including the conditions of any extant apprehended violence orders.

**********