R v Abuquta, Haytham

The Time of Recruitment 22In his evidence the offender nominated two dates upon which he was recruited. Firstly, the night before the robbery which would have been a Monday night and secondly, Sunday night. Given that the robbery was originally intended for Monday morning his claims of being recruited "the night before" may be understood as referring to the night before the robbery was initially scheduled to occur. I am satisfied he was recruited by the Sunday night and that he was in attendance with Attar and Hawat at the Christie Homemakers Centre discussing the layout, the area where the car was to be parked waiting, the features of the Mazda Astina getaway car that Hawat was to drive. 23A careful and fair reading of these remarks will make plain that I am in no position to reject the offender's claim that he borrowed $5,000 from Attar. I have limited my focus upon the question of whether Attar sought to pressure him about repayment. I do not find he was so pressured.

Objective Criminality 24On 11 June 2010 when reviewing the objective criminality of this offence I made the following observations which apply equally in this case. 25Paragraph 27. The essential elements of robbery as they appear to apply in this case are: (1) the unlawful taking and carrying away of [$75,000] belonging to Bing Lee from Jenny W who at that time had custody property against her will by force and putting her in fear. 26What is to be noted about the robbery is firstly that it is an offence against the person because of the force used and fear aroused in the victim. It is also an offence against property. Ownership of property and respect for the integrity of the person are two fundamental causes (sic) to the functioning of our society. The offence of robbery constitutes an attack against both. (1) that must be added a final aspect of the objective criminality in this case that was not present in that, namely the infliction of actual bodily harm to Jenny W during the robbery. 27I then continued on 11 June 2010, Justice Gleeson at paragraph 29, Justice Gleeson - Chief Justice of New South Wales encapsulated the essence of legal wrong done by robbers and the reasons why substantial punishment is required in R v Rouse unreported NSWCCA 8 August 1992. His Honour said: "One of the primary purposes of a system of justice is to keep the peace". In this connection the idea of peace embraces the freedom of ordinary citizens (such as Jenny W) to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others [such as Bing Lee]" "Offences of the kind committed by the present respondent are not trivial instances of disrespect to private property, they are serious breaches of the peace. They are direct attacks upon the security of the person and his or her property which the law exists to protect." His Honour continued with this observation: "It is quite likely these young men do not understand and may never understand the seriousness of this anti-social behaviour but the court's understand it. Crimes of this kind, especially when committed by an offender with a long criminal history deserve severe punishment." I should note immediately I said and it applies equally here, that none of the offenders have long criminal histories. 28Paragraph 30. The Crown relies upon the doctrine of common purpose thus all players in this robbery share equal responsibility for the acts done in furtherance of the robbery provided it was within the scope of the robbery once the player whose criminality is being assessed has joined the common purpose. In this case the Crown case is that the actual bodily harm inflicted went beyond the purpose of the robbery.

Role of the Co-Offenders 29It is best that I take the roles from the co-offenders as I set them out in that remark on sentence on 10 June last year. 30Paragraph 32. I am satisfied beyond reasonable doubt that Ali Attar conceived the robbery and persuaded without much difficulty John Huyhn to be a party to it. Huyhn's role in the robbery was to facilitate the execution in accordance with a plan Attar devised and Huyhn felt free to make suggestions about. Huyhn was also the source of vital intelligence as to time of transfer of cash, his employer's habit as to banking, the location of the vehicle that would be used to transport the money from the car lot, I imagine, to the bank and ensured that the protection and support that his employers anticipated his presence would lead to Jenny W's safety was absent when it was most needed. 31At the point of crisis for her he had separated himself by the car body and was ensconced within the car as she was being attacked. His acts are best summed up as a facilitator. 32Paragraph 33. In addition to conceiving the robbery and designing the steps by which the robbery could be effected, Ali Attar was the recruiter and ultimate destination for the stolen loot. I am satisfied about seventy six thousand was transferred to him in his Mercedes in accordance with the plan. Its transfer to him as witnessed by an independent witness is a crucial link in my determination that he was the architect of the plan. 33Another important factor in my coming to the conclusion was his selection of the co-offenders and their continuous and continual contact with him, particularly at the moments leading up to the robbery. 34Paragraph 34. All are consistent with his being the leader, conceiver and architect. His advise to the parties to stay calm during the early stage of the robbery is also consistent with his being in charge. He explains the night before the robbery how it was to be carried out, where the getaway vehicle was to be parked, its rendezvous with the Mercedes and the handover of the booty. There was a site meeting so that locations could be understood or settled upon. Hawat was recruited well after the decision was made to conduct the robbery. In fact I think he is the last recruit. His criminality involvement starts after HA, [they were the initials of this offender], agreed to be the robber. His criminality is limited being involved in the planning sessions subsequent to his joining and driving the getaway vehicle. Of course it was also the vehicle that conveyed the actual robber to the scene. The vehicle he drove was not his. He also, I may be repeating myself, drove the vehicle loaded with $76,000 from the scene to the Mercedes and was a party to its transfer. 35My understanding of the transfer was that the loot was passed through the driver's window to Attar. I have no reason to think that the facts as I found them to be in June 2010 are not still relevant now. That means I have a doubt as to that aspect of Abuquta's role as alleged in the statement of facts that he was the party to the transfer. It may be that he gave the money to Hawat when the vehicle stopped for the purpose of the transfer, but the actual transfer to Attar in my view was done by Hawat.

Role of the Accused 36He was recruited to be the robber. He was involved in the planning of the robbery to the extent that his target was identified for him. He agreed to provide a car that he thought could not be traced to Hawat. He attended a site meeting in which final details of the confrontation, robbery and escape could be planned and visualised. He agreed to be involved for a quarter of the takings and at very least was $5,000 better off for his involvement. He was the principal in the first degree in as much as he was the robber. When his snatch at the bag was resisted he was willing to engage in a forceful struggle for a short period of time. When the victim failed to release the bag he determined to escalate his aggression to a point of applying pain and/or injury to the victim until her will was overcome and she released the weekend's taking. 37These activities I have just described were motivated by what he believed to be his closeness to the immediacy of a large financial gain to him. There is no evidence in this case of the sway and influence Attar had over him. Nonetheless from my insight gained into dealing with co-offenders I am satisfied Attar was the leader and meeting recruitment and site visits were arranged by him. The transfer of the stolen money from the getaway car to his car was also arranged by him. 38Notwithstanding the Crown allegations it is likely the actual handover from the getaway car to Attar was done by Hawat from the driver's window to driver's window. Whether any funds were taken from the bag by either this offender or Hawat prior to the handover is a matter of pure speculation. I make no finding of fact in respect of that. 39It is clear from his evidence the offender contests paragraph 14 of the Crown allegations. The offender's claim is he returned to the carwash, started detailing the car and that he did not receive financial reward. My understanding is the path leading to source this allegation is one of the co-offender's record of interview. In any event it is not sworn evidence before me. In the circumstances my assessment of this offender's objective criminality remains that he benefited at least to the extent of $5,000 debt relief. 40The objective criminality as I have assessed it makes this offence a serious example of robbery occasioning actual bodily harm. The criminality is at a level where condign punishment is called for. The most serious form of punishment known to the law in New South Wales is full time incarceration. Certainly full time incarceration must be a component of this offender's sentencing disposition.

Subjective Features 41This is a case where the defence has proceeded with little information about the offender placed before the court. No PSR has been requested or ordered. No personal profile or psychological report has been tendered. The offender and his father gave evidence. From their evidence I have gathered the following picture.

Background Family & Relationships 42Haytham Abuquta is a single man, aged twenty-three at the time of the offence and twenty-five approaching twenty-six at the time of sentence. He came to Australia aged seventeen with an older brother Sharoof then aged nineteen. Since this offence his father, mother, another brother and sister-in-law have arrived from Egypt. The family have purchased a four-bedroom home in a comfortable middle class south western suburb of Sydney. His father owned a mango farm in Egypt. In total there are five sons and a daughter. The youngest son remains behind in Egypt studying. It would appear that Haytham Abuquta is the only one to be in trouble with the law. 43Once released from custody the post release plan sees the son returning to the family home. The father's evidence was that if the son did any wrong while living in the family home "I catch him and take him to the police [myself]". Sharoof is a pilot, the other son Sam is in security.

Education, Employment & Skills 44Abuquta completed his high school in Egypt, that must have been done by the time he was seventeen. Whether that was to the year 12 equivalent is not established. It would seem no further schooling or training has been undertaken. He worked at car washing for one and a half years and started detailing six years prior to his arrest. He was gainfully employed it would seem from shortly after his arrival in Australia. Car washing and detailing, while semi-skilled work is a lucrative field of employment. His evidence is that he was in his own detailing business and Ali Attar was at the carwash, whether that meant in an employment capacity or not is unclear. 45He was also into physical fitness and attended the gym with Attar. Although I have no details of the gym programme he followed it is likely to have included weight training work.

General Health 46He presents as a fit, well built twenty five year old male. I note in November 2010 he was at Long Bay Hospital from 26 June 2010 until 11 November 2010. There is no evidence of any present infirmity, nor the nature of an illness that required that prolonged stay in the prison hospital. I have assumed that there is no health issue that would impede his rehabilitation prospects.

Mental Health Issues 47There is nothing in his evidence that suggests any mental health issues played any part in his offending, nor that would be likely to impede his rehabilitation progress. But a five month stay at Long Bay Hospital may be relevant to this issue, I do not know.

Drugs, Alcohol & Addiction Issues 48No question was asked by either counsel that I have recorded on any of these issues. The only evidence capable of touching any of these issues is a note on the custodial record of a refusal to supply a urine sample late in 2008. That evidence is clearly insufficient to make any adverse finding on this topic. From the probabilities it is likely he does not have any major issue with drugs and alcohol that would impede his rehabilitation progress, but in the absence of an unexplained extended stay in the Long Bay Hospital I cannot be overly confident of that either.

Character & Antecedents 49Abuquta is still a young man with good work ethic and presumably possessing some work skill and knowledge arising from nearly eight years experience working with cars. He has maintained good health and has an interest in gym work. His criminal antecedents relate primarily to driving offences. The larceny as a bailee related to his unauthorised use of a Lexus that he should have been working on. Whether the offence charged was the appropriate offence to plead to is arguable but the s 9 bond given by the learned Magistrate reflects the low level of criminality associated with his driving of this car. 50For the purposes of sentencing for this offence his total past criminality is to be measured as three s 9 bonds arising from the same incident and a fine of $300. An earlier driving matter there is a s 10 discharge for common assault which does not add unfavourably to his record. He is to be regarded as a person of prior good character in so far as past criminal conduct is concerned. He has not previously been incarcerated prior to this offence.

Attitude to the Offence 51He told his father he was sorry for his offending conduct. His father had just arrived from Egypt and was visiting the son in custody. Frankly I do not place a great deal of weight on that expression of regret. It was inconsistent with a decision he maintained until 22 September to maintain his plea of not guilty. His evidence in court was that he knew he had done something wrong and felt sorry for the people he robbed and he hoped they would forgive him. I doubt that this feeling of sorry is profound or based on any understanding of the personal trauma a robbery of this kind may have upon its victim. He certainly understands the consequences for him and no doubt that is a strong source of regret for his wrong doing. 52I will give him some benefit for his expressions of sorry but it would be more muted than I would have given had the contrition also been accompanied by insight.

Plea Status 53It is hard to resist the conclusion that the plea was entered in the face of the evidence available to the Crown. The matter was listed for trial on 15 June, presumably with a jury panel to try the matter and then the defence applied for and was granted an adjournment. It was re-listed for 20 September when again a jury panel was available to try the matter. A second adjournment was sought on 21 September and the matter was put over to 23 September. On the 22nd the offender adhered to his not guilty plea. At 2pm it was allocated a trial judge. Prior to the empanelment scheduled for 2pm the offender changed his plea to acknowledge his guilt to the charge of aggravated robbery. 54The offender is entitled to a discount in the ultimate sentence because of the utilitarian value of the plea. In the circumstance of this case with witnesses summoned on two occasions and kept waiting for three days and on the second occasion the discount must be significantly less than otherwise he could attract. Some additional benefit will be added on account of his expression, modest as it is, of contrition. Nonetheless one should acknowledge that in the light of the plea two important aspects of the administration of criminal justice are served, Firstly it satisfies the expectation that the community have that those guilty of crime would be held accountable for it and secondly it minimises if not obliterates any contest in an appeal court on the issue of conviction. 55So for those reasons I have decided to give a discount of fifteen percent.

Rehabilitation Prospects 56There are a number of positive rehabilitation indicators. The family has arrived from Egypt and is willing to support the offender's return to society. Expectations from the father that his son will remain law-abiding. Availability of post release accommodation Strong prior work ethic in a field the offender appears knowledgeable and skilful in Good physical health (I have assumed) Little or no alcohol, drugs or gambling addiction issues Absence of extensive criminal activity in the past 57Overall I would regard his rehabilitation prospects as solid.

Setting the Sentence 58I repeat the observations I made in paragraph 87 of my remarks on sentence on 10 June last year. 59As the law presently stands in New South Wales one of the matters that must be taken into account, even though the sensibility of so doing is well under attack by researchers is general deterrence. Given that I am obliged to ignore my commonsense but to comply with principles of law binding upon me, I do take general deterrence into account. The important component of this sentence is punishment which I note also contains a strong notion of general deterrence. I noted that this offence required a component of full time incarceration. On my calculations as at 31 December last, he had spent eight months, twenty three days in remand custody, that is maximum security custody and hospital custody, also usually at maximum security level, thus any sentence must take into account the period of custody served. On my calculations the commencement date for this sentence should be 7 April 2010, given that he has spent more time in custody since then. 60But for the plea of guilty I would have set a sentence of four years, that is a sentence of parity with the two leaders of the offence. I have reduced that figure by nine months on account of the utilitarian value of the plea of guilty, giving an overall sentence of three years and three months. I find special circumstances. Factors include the youth of the offender and the importance of focussing on rehabilitation where offenders are relatively young. This is his first time in custody and I have noted that he has good rehabilitation prospects and they would be better achieved in the community rather than in the artificial environment of a single sex paramilitary regime. 61Just stand up please Mr Abuquta. Haytham Abuquta you are convicted that you on 7 October 2008 at Bankstown in the State of New South Wales did rob Jenny W of a sum of money, the property of Bing Lee and at the time of the robbery you inflicted actual bodily harm upon her. For that I sentence you to nineteen months imprisonment backdated to and commenced from 7 April 2010 and to expire on 6 November this year. 62Your balance of term expires on 6 July 2013 assuming my figures to be correct. Would you sit down please for a moment. I want you to listen carefully to what I have to say. Because the sentence that I have given is one of more than three years I cannot order your release on parole. Where a sentence is three years or less I can. Frankly the sentence that I have given you is in my view the minimum I could give, but what it means to you is this, that the Parole Board will set your release date. They will not release you before 6 November next, that is this year, but if they do not release you on that day you will have to wait another year before you can apply again. It is up to you to convince the Parole Board that you are rehabilitated and eligible and appropriate for release. They will be concerned about two things. Are you likely to be a risk to yourself? I do not think that is true, but if there are drug issues they will take that into consideration and secondly are you likely to be a risk to anybody else, that is will you commit another offence? So you have to convince them. You do that by doing programmes, by whatever, all right. I cannot guarantee your release on 6 November. I anticipate and I would like to see you released on that date as matters presently stand but it is not my decision. All right the offender may be returned to custody thank you. 63Before you go, on the application of the Crown pursuant to 166 the summary offence of fail to give details of driver is withdrawn.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2011