Ibrahem Aboukhalil was found guilty by a jury of the offence of robbery in company with wounding under s 98 of the Crimes Act 1900. This offence has a maximum penalty of 25 years' imprisonment with a standard non-parole period of imprisonment of 7 years.
The Court must take into account all relevant matters. Factual matters include those found by the jury verdict, those matters relevant to the offence and adverse to Mr Aboukhalil that are proved beyond reasonable doubt, and those matters relevant to the offence and in favour of Mr Aboukhalil that are proved on the balance of probabilities.
The following facts are established by the jury verdict or are established beyond reasonable doubt. None of these facts were contested by Mr Aboukhalil in the sentence hearing:
1. Mr Aboukhalil was in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis as part of a joint criminal enterprise to rob Zachary Kennedy of his car.
2. At about 7pm on 7 June 2017, the four offenders met at Mr Aboukhalil's premises before travelling to Long Street, Strathfield, about 10 minutes away, arriving at about 7.30pm. It was dark and raining.
3. Mr Kennedy was driving his Subaru Impreza motor vehicle along Long Street when he was waved down by one of the offenders. Mr Kennedy stopped. The offender asked for his help to fix his car, and as it was raining, Mr Kennedy let him into his car.
4. The offender got into the front passenger seat and another of the offenders got into the rear seat.
5. The offender in the front seat immediately, as he got into the car, pulled out a hand-sized gun from his jumper, and pointed it towards Mr Kennedy, at his face. The offender in the rear seat, as he got into the car, pulled out a long hunting knife; one side was a flat blade, the other with grooves, and pointed it at Mr Kennedy's stomach.
6. Mr Kennedy tried to push them away, and in the struggle his car commenced to roll down the street. In the struggle, Mr Kennedy suffered a large wound to his left forearm from the knife.
7. The two other offenders outside the car ran alongside it as it rolled down the street.
8. Mr Kennedy managed to open his car door and fall out of his car. He got to his feet at the side of the road, and was faced by one of the offenders outside the car. In a struggle with that offender, he was hit and punched.
9. One of the offenders in the vehicle yelled, "We've got the keys" and the offenders outside the car ran back to the car. Mr Kennedy's car was driven away by the offenders.
10. Mr Kennedy took his jumper off and wrapped it around his wounded left forearm to staunch the bleeding. He ran to his home about two blocks away where he spoke to his father who called an ambulance. He was taken to hospital and had surgery on his left arm. His injuries were consistent with a knife wound and involved a deep, long, and wide wound to his forearm with tendon and nerve damage.
11. The four offenders returned with Mr Kennedy's car to Mr Aboukhalil's residence, where Mr Kennedy's car was parked in the basement car park.
12. The car was located in Mr Aboukhalil's apartment block car park on 20 June 2017. Mr Kennedy's blood was found on the driver's seat and the front centre armrest.
13. Mr Kennedy identified Matthew Guirguis as having the knife but did not identify any of the other offenders. On the balance of probabilities, I am persuaded that Mr Aboukhalil was not the offender who carried the knife or personally inflicted the wound. Otherwise, the evidence is neutral about which role Mr Aboukhalil played.
14. Mr Aboukhalil pleaded guilty to the offence that whilst in the company of Mr Alzanati, Mr Kahla, and Mr Guirguis he assaulted Mr Kennedy with intent to take his motor vehicle and taking and driving that vehicle.
15. By the jury verdict, Mr Aboukhalil must be taken to have foreseen the possibility of Mr Kennedy being wounded with the knife during the robbery.
16. The evidence that Mr Aboukhalil knew of the knife and foresaw the possibility of a wounding included: the meeting and planning of the offence beforehand; the frequent telephone contact between Mr Aboukhalil and Mr Guirguis in the hour before the offence; the separate roles played by the offenders in the offence; the circumstance that both offenders who got into Mr Kennedy's car immediately pulled out the gun and the knife as they entered the car before any struggle occurred, indicating the planned use of the weapons; the other two offenders outside the car running alongside the car when it rolled during the struggle; the continued assault by an offender outside the car upon Mr Kennedy after he fell from his car; the departure of the four offenders with Mr Kennedy's car; the parking of the car at Mr Aboukhalil's unit complex; and the meeting of the offenders thereafter at Mr Aboukhalil's residence. Each of these matters is equally probative of Mr Aboukhalil knowing of the existence of a gun to be used in the robbery as much as his knowledge of a knife. By these matters, I am satisfied beyond reasonable doubt that Mr Aboukhalil knew of the existence of the gun to be used in the robbery. The circumstance that Mr Kennedy did not identify one of the offenders as the person who held the gun, and the circumstance that the knife inflicted the wound, does not cause me any reasonable doubt that the gun was also used in the robbery in accordance with the plans of the offenders. Accordingly, I find beyond reasonable doubt that Mr Aboukhalil was aware that one of the offenders carried a gun, as he was aware that one carried a knife, and foresaw that both would be used to threaten Mr Kennedy.
Mr Kennedy gave a victim impact statement which must be considered. It stated:
"I have suffered physically, mentally and emotionally. My life has been altered and the visions I had for my future have changed. I have undergone operations, physical therapy, countless doctor appointments and experienced financial hardship. Before this happened, I was a bricklayer by trade, but I had to give that up because of the injury.
Flash backs and worrying are a normal occurrence for me. I am working on clearing my head space to ensure I can have a successful future which entails me returning back to work, having a social life and enjoying my life. In order for me to return to a job that has a future in it, I need to re-educate myself and gain experience.
I do not judge anyone or their actions, that remains in the hands of God. My family is the reason I continue to push on and without them I would not be here. I'm looking forward to putting this unfortunate event behind me and live my life to the best of my capability." [1]
In assessing the objective seriousness of the offence, the Court must consider the maximum penalty of 25 years' imprisonment and the standard non-parole period of seven years as statutory guideposts.
Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 lists aggravating matters that the Court is to take into account. Some of these matters listed are elements of the offence and cannot separately be considered aggravating factors, such as paragraph (b) the actual use of violence, and (e) the offence was committed in company. But other matters listed are aggravating circumstances, namely:
(c) that the offence involved the use of two weapons, a large knife and a pistol: the knife was used to threaten and to inflict the wound, the gun used as part of the threat;
(g) the wounding produced injury and emotional harm which was substantial as indicated by the gravity of the wound, deep, long, and wide, causing tendon and nerve damage, and the victim impact statement; and
(n) the offence was a planned criminal activity as established by the matters I referred to earlier in relation to Mr Aboukhalil's knowledge of the knife and the gun.
Other matters which are not listed in s 21A, but which impact on the objective seriousness of the offence should also be considered. There were four offenders, of which three were perceived by Mr Kennedy. The greater number of offenders acting in company, like the multiple weapons involved in the robbery, increased the intensity of the threat to and fear in the victim. The robbery involved a car of significant value; Mr Kennedy was hit and punched by an offender after he had been wounded and robbed, and had fallen from the vehicle; the offence carried a danger to the public in that any driver could have been targeted; and the offence was unprovoked with no apparent motive.
I take into account that Mr Aboukhalil did not personally inflict the wound or carry the knife. It was not suggested that he was any less or any more involved in the planning of the offence than the other three co-offenders.
Thus, the offence was properly to be regarded as a very serious one, terrifying and seriously injuring Mr Kennedy after he was ambushed when he stopped to assist someone claiming to need help on a wet night. The matter was accepted to be in the middle of the range of objective seriousness for this type of offence, and I so find.
The Court must take into account matters subjective to Mr Aboukhalil. Mr Aboukhalil is 32 years old. He is a qualified electrician and has been self‑employed as such for some years.
Four references were tendered on his behalf. His mother, Hasna Hamam, who has worked as a pharmacy assistant in Blacktown for 13 years explained that Mr Aboukhalil commenced his electrical apprenticeship in 2005 and worked as an employed electrician from about 2009 until 2016, when he became self-employed, presently working on small projects because of his impending custodial sentence.
Mrs Hamam records that Mr Aboukhalil has resided with her and her husband for all of his life but for about six months, which ended shortly after the offence was committed, during which period Mr Aboukhalil lived in the Burwood apartment. She said he has been highly stressed about the proceedings and deeply ashamed to have joined in the dreadful behaviour. She asserted that Mr Aboukhalil denied knowing about the knife, but the jury verdict and the matters to which I have referred compel the Court to take a different view.
Mrs Hamam stated that since Mr Aboukhalil has returned home, he has not socialised with anyone and has returned to the young man she raised, polite and well-mannered, dedicated to his work, and helping his family, including his sister and her children, his nieces and nephews. He has been a hard worker, helping many with free electrical work and has never been violent. Mrs Hamam reported that Mr Aboukhalil will live with her again when he completes his sentence, and gives her belief that he will never commit an offence like this again.
Mr Aboukhalil's sister, Hania Aboukhalil, who has worked for Westpac for 13 years, also gave a reference. She was absolutely stunned by the offence. She referred to the respect and excitement her children have toward their uncle, Mr Aboukhalil, and how he is always trusted with her children. She referred to him as being ambitious, dedicated, and hard working since a teenager, of his adherence to his bail conditions, of his high moral values, kindness, loyalty and work ethic, and her belief that Mr Aboukhalil made a bad decision to associate himself with the other offenders.
Dr Bernard Zayour, Mr Aboukhalil's cousin and a dentist, gave evidence in a reference that Mr Aboukhalil had always displayed an exemplary character, respectful and courteous. He stated that since the offence, Mr Aboukhalil has a positively changed outlook on life, having displayed humility and positive self‑reflection.
Finally, Katarina Zivadinovic, a Westpac employee and Mr Aboukhalil's friend, gave a reference attesting to Mr Aboukhalil's helpfulness, kind nature, and selflessness, including both with gratuitous electrical work and providing transport to her late at night.
There are some mitigating factors that must be taken into account. Mr Aboukhalil has a criminal record (two counts of possessing a prohibited drug, making a U-turn at a traffic light intersection, and behaving in an offensive manner near a public place), but for present purposes, those offences are of no significance.
A Sentencing Assessment Report ("SAR") indicated that Mr Aboukhalil was assessed as having a low risk of re‑offending. It reports that Mr Aboukhalil's past work history, his strong family support, and the other matters raised in the references indicate that he has reasonable to good prospects of rehabilitation. The SAR indicates that Mr Aboukhalil accepts responsibility for the robbery and possession of Mr Kennedy's motor vehicle, and was saddened that Mr Kennedy had sustained injury. I accept these matters.
Mr Aboukhalil pleaded guilty to an alternative offence as indicated earlier. This occurred in the Local Court. The effect of his plea meant that the trial was largely concerned with one issue, whether Mr Aboukhalil foresaw the possibility of wounding with a knife.
The Crown accepted the utilitarian value of this plea and the narrowing of the issues, and accepted the defence's proposition that a discount of 10% to 15%, say 12.5%, may properly be available to him under s 22A of the Crimes (Sentencing Procedure) Act 1999, this being the degree to which the administration of justice has been facilitated by this plea and concession.
I accept this conduct of Mr Aboukhalil as indicating contrition on his part and that it has facilitated the administration of justice, and I allow a discount of 10% for the contribution of the early plea on the lesser charge to the administration of justice.
In determining the appropriate sentence, it is necessary to take into account the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999, namely: to ensure the offender is adequately punished for the offence; to prevent crime by deterring the offender and others from committing similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his actions; to denounce the conduct of the offender; and to recognise the harm done to the victim of the crime and to the community.
In this case of a violent offence of considerable seriousness, matters of adequate punishment, deterrence, accountability, and denunciation are important considerations. The Court must recognise the harm done to Mr Kennedy and to the community. Mr Aboukhalil has shown by his conduct prior to the offence that he can live an upright, helpful, honourable life. This offence is seriously inconsistent with that prior behaviour, but that prior history should assist in his rehabilitation.
Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides that the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I have considered the alternatives and no penalty other than imprisonment is appropriate. Counsel for Mr Aboukhalil submitted as much, that the gravity of the offence warranted a lengthy term of full‑time custody.
Questions of parity arise in relation to Mr Aboukhalil's sentence. Mr Guirguis was sentenced as a co-offender in the criminal conduct to a term of 5 years and 10 months with a non-parole period of 3 years. [2] But there are some differences in relation to that sentence that must be mentioned.
First, Mr Guirguis was given a 25% discount for a plea of guilty. If the discount is added back in to remove the effect of the plea, assuming the sentence and non-parole period were both discounted by 25%, the head sentence would be about seven years and nine months with a non-parole period of four years. With a 10% discount, the imprisonment term and non‑parole period would be seven years, and three years and seven months respectively.
Secondly, Mr Guirguis was a much younger man of 19 years of age. However, in circumstances where Mr Aboukhalil's prospects of rehabilitation are equivalent and he has a relatively clear criminal record despite more years of adulthood, I do not think his greater maturity should count against him.
Thirdly, Mr Aboukhalil's conviction was to a different charge to which Mr Guirguis pleaded guilty. Mr Guirguis was sentenced for two offences: take and drive a motor vehicle while armed with an offensive weapon under s 154C(2) of the Crimes Act 1900, which has a maximum penalty of 14 years' imprisonment and a standard non-parole period of 5 years, and reckless wounding in company, which has a maximum penalty of 10 years' imprisonment and a standard non‑parole period of 4 years.
The conviction of Mr Aboukhalil for an offence of robbery in company with wounding under s 98 of the Crimes Act 1900 carries, as I indicated, a maximum penalty of imprisonment of 25 years and a standard non-parole period of 7 years. Thus, the guilty verdict is for a more serious offence than those upon which Mr Guirguis was sentenced.
I have considered the decision in Dayment v R [2018] NSWCCA 132, to which I was referred in respect of parity where the offence is not identical.
Fourthly, although there was evidence before me that Mr Guirguis personally held the knife and inflicted the wound, he was sentenced as being one of the offenders involved in the reckless wounding. Mr Aboukhalil's position is also as a co-offender, but I accept on the balance of probabilities that he did not personally inflict the wound or carry the knife.
Mr Aboukhalil has also referred to his onerous bail conditions of daily reporting and a curfew from 7pm until 5am for the best part of the last two years. The Crown accepted that these conditions were somewhat onerous, operating in restricting his freedom, and I take them into account.
Mr Aboukhalil was in custody from 9 August 2017 to 14 August 2017, a period of six days.
Mr Aboukhalil submitted that the Court should find special circumstances and reduce the non-parole period below two-thirds of the head sentence. The Crown did not demur from this submission. It was based upon this being Mr Aboukhalil's first time in custody, his relatively clear criminal record, and his reasonable to good prospects of rehabilitation. I accept this submission and find special circumstances on this basis.
The Crown provided details of s 98 offences involving sentences given by the Court of Appeal in broadly comparable matters. Mr Aboukhalil, through his counsel, submitted that those comparisons and how they were described by the Crown were very fair.
In Regina v Pham [1999] NSWCCA 362, a group of offenders set up a meeting with a victim who was ambushed in his car, taken to a park and robbed, and subsequently taken to his mother-in-law's house where the occupant was tied up and robbed. The wound does not appear to be significant in the sentence, and the crime may be less objectively serious for this reason. The offender received a head sentence of six years and a non-parole period of three years and nine months after a plea of guilty.
In R v Wate [2001] NSWCCA 474, the offender with two co-offenders robbed a taxi driver, threatened to kill him, and stabbed him several times. The offender had his arm around the victim's neck. The offender received a head sentence of eight years and a non-parole period of four years after a plea of guilty.
Regina v Fidow [2004] NSWCCA 172 involved a carefully planned robbery of a service station owner where the victim's car was deliberately rammed whilst transporting takings to the bank. The victim was violently assaulted, resulting in permanent and severe brain damage. After a plea of guilty, the offender received an 11-year head sentence and an 8-year non-parole period. This offence significantly exceeds the gravity of the present offence.
In PMW v R [2009] NSWCCA 34, a 16-year-old offender robbed a pizza deliveryman with a co-offender. The victim was struck with a metal pole, stabbed in the leg by the co-offender and a mobile phone was taken. The offender ultimately received a head sentence of five years and six months and a non-parole period of two years and nine months. The objective seriousness of this offence may be somewhat below the instant case. There were significant objective factors in the offender's favour in PMW, such as Aboriginality, mental health problems, a plea of guilty, and full admissions.
In Ith v R [2013] NSWCCA 280, the offender breached parole for armed robbery offences involving following a victim from a hotel, robbing the victim of poker machine winnings while in company, and using a knife where the victim was assaulted by the offender and received an eye injury. After a guilty verdict, the offender received a head sentence of nine years and a non-parole period of six years.
In Regina v Ngo [2001] NSWCCA 15, an 18-year-old offender pleaded guilty to using a metal pole after waving down the victim driving at night. The offender pushed a metal bar into the stomach of the victim and the co-offender struck the victim from behind, stole the victim's wallet, and again assaulted the victim while on the ground. There was a plea of guilty with a 3-year head sentence and an 18-month non-parole period. In this instance before me, the weapons, the injury, the lack of a guilty plea, and perhaps the age of the offender make the present case more serious.
In R v Sio [2013] NSWSC 1872, the offender masterminded and planned a robbery of a brothel, armed a co-offender with a knife, and waited in the car. The offence involved considerable planning. The seriousness of the offence was above the mid-range and after a guilty verdict, the offender received a head sentence of 10 years and a non-parole period of 7 years and 6 months.
None of these particular matters are the same as the present case, and all have been considered in the course of seeking to determine what would be the appropriate sentence in the circumstances of Mr Aboukhalil's offence. I have taken all these matters into account.
Mr Aboukhalil, will you please stand.
1. Ibrahem Aboukhalil is convicted of having on 7 June 2017, at Strathfield in the State of New South Wales, in the company of Haydar Alzanati, Jason Kahla and Matthew Guirguis, robbed Zachary Kennedy of a black Subaru Impreza motor vehicle, the property of Zachary Kennedy and at the time of the robbery wounding Zachary Kennedy.
2. Mr Aboukhalil is sentenced to a term of imprisonment of seven years with a non-parole period of four years. The term of imprisonment will commence on 22 June 2019 and expire on 21 June 2026. The non-parole period will commence on 22 June 2019 and expire on 21 June 2023, when Mr Aboukhalil will be first eligible for parole.
3. I note that a Victim Impact Statement was received and considered.
[2]
Endnotes
Exhibit A, tab 5.
R v Matthew Guirguis (District Court (NSW), Woodburne J, 22 March 2019, unrep).
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Decision last updated: 12 August 2019