R v Abuquta, Haytham

District Court of NSW|2011-01-21|Before: Judge J

Judgment 1Three young men were each sentenced by me for their part in the robbery of a young female employee of Bing Lee, Bankstown, as she made her way to the bank with that store's takings over the Labour Day long weekend in 2006. 2They received sentences which had their starting point commencing at four years and three years. In their case each was before the court on charges of robbery, carrying a maximum of fourteen years imprisonment. Today the fourth man in the group of criminals responsible for that robbery is before the court for sentence for his part in the robbery. He has pleaded guilty to a charge that he did rob Jenny W of about $75,000, and at the time of the robbery he inflicted actual bodily harm upon Jenny W. That is a more serious charge than his co-offenders face. It carries a maximum penalty of twenty years imprisonment. 3In holding him accountable for his part in this robbery, I must determine a sentence appropriate for his conduct in the robbery of Jenny W and to the occasioning of injury to her in the course of that robbery. That task requires an assessment of the objective criminality of his unlawful conduct, as well as an assessment of his personal circumstances as they stood at the time of the robbery and as they stand now. 44.The first step is to determine, as best I can from the evidence, the facts and circumstances of the robbery. For instance, the offender claims he did not know until the morning of the robbery that the criminal act he was being asked to do was to rob someone, let alone a woman. The offender claims he was threatened by one of his co-offenders, to whom he owed $5,000. Those circumstances, if they exist, would lessen the criminality of his conduct. 5Once the facts and circumstances of the robbery are established, I can then assess the objective criminality. In this case I will need to have regard to issues of parity and the appropriate discount for the utilitarian benefit of his guilty plea.

Facts 6The Crown has tendered a document entitled "Statement of facts". In the circumstances of this case the statement is no more than a series of allegations made by the prosecution in support for its version of the events, Lovelock v The Queen (1988) 19 ALR 327. Abuquta's plea of guilty acknowledges no more than the Crown can prove the essential elements of the offence. Facts adverse to the offender's criminality must be proved beyond reasonable doubt. Facts mitigating the offender's criminality must be established on the balance of probabilities. 7The defence position, as I have understood it, is that most of the assertions made by the Crown are correct, however which assertions are correct and which are challenged has not been identified with any specificity by the defence. Defence council could not be required to identify them, but her decision not to do so leaves the court in a situation of having to assess evidence in the light of evidence from the offender as to what is in contest. 8It is the Crown who bears the responsibility of proving matters adverse to the offender. The Crown would have been better advised in the circumstances to treat all matters it relied upon as contested and led sworn evidence on those matters. The allegations of fact relied upon by the Crown, so far as is relevant, are set out as follows, in a document headed "Statement of facts" and found at tab 1 in the Crown bundle. "Background": "1. The victim, Jenny W, is employed as an administrator at Bing Lee, Bankstown, situated in the Christie Homemaker Centre on Canterbury Road, Bankstown. At the time of the offence the responsibilities of the victim's position included banking the weekly takings. 2. The usual banking procedure was that the victim would complete the necessary banking records at the store on a Monday morning, before depositing the money at the St George Bank in Revesby, accompanied by the assistant manager of Bing Lee, Bankstown, John Huyhn. The victim and Huyhn would usually travel in Huyhn's car to the bank. THE ROBBERY 3. On or about 2 October 2008 John Huyhn and Ali Attar, an acquaintance of Huyhn's and customer of Bing Lee, Bankstown, commenced planning a robbery which was to take place at the Bing Lee, Bankstown store. The robbery was to take the form of a 'bag snatch', whereby a third man would rob the victim of Bing Lee's weekly takings when the victim left the store on a Monday morning to do the banking. It was agreed between Huyhn and Attar that the robbery was to take place on Monday, 6 October 2008, and that Attar would source the third man and a fourth man to drive a getaway car." Whether this is in dispute or not is unclear, but I will read it: "4. Attar approached Haytham Abuquta, the offender, who operated a car detailing business at the Walsh Mastercar Wash, situated at 416-418 Hume Highway, Yagoona, where Attar worked. Abuquta agreed to participate and play the role of the bag snatcher in the robbery, in exchange for a quarter of the proceeds of the robbery." That may well be in dispute: "Attar also recruited Hasan Hawat to drive the getaway car. 5. On the evening of 5 October, Abuquta drove home from Walsh Mastercar Wash in a white Mazda Astina, which he was responsible for detailing for a local second-hand car dealer." Whether that is in dispute or not is unclear: "Later that evening Abuquta, Attar and Hawat drove to Bing Lee, Bankstown to observe the area and discuss the final plans for the robbery, which was planned for the next morning, Monday 6 October 2008." I have assumed that is in dispute: "6. Monday, 6 October 2008 was a public holiday and upon arriving at work Huyhn discovered no banking was scheduled for that day. Huyhn and Attar decided that the robbery would be postponed to Tuesday, 7 October 2008." I have assumed that is not in dispute: "7. On the morning of Tuesday, 7 October 2008, Abuquta, Hawat and Attar met at Attar's house in Bankstown. Abuquta was driving the white Mazda sedan he had driven home from Walsh Mastercar Wash on Sunday evening. Abuquta and Hawat then left to drive to Bing Lee, Bankstown, with Hawat driving and Abuquta in the front passenger seat." How much of para 8 [as said] is in dispute, if any, is unclear: "8. From approximately 8 am to 10.20am Abuquta loitered in the vicinity of Bing Lee, Bankstown store, waiting for the victim and Huyhn to emerge with the banking. During this time the offender was sighted by two witnesses working at neighbourhood stores in the Homemaker Centre acting suspiciously." What, if any, of that is in dispute is unclear: "At about 10.20am on Tuesday, 7 October 2008, the victim and Huyhn walked out the front entrance of Bing Lee, Bankstown with the previous week's takings, amounting to approximately $75,000. The victim was carrying the cash in a black and yellow-coloured Nikon bag. The victim and Huyhn approached Huyhn's car, which was parked outside the Bing Lee store. Huyhn entered the driver's side door and the victim was about to open the front passenger side door." So far as I am aware none of para 9 is in dispute: "10. At that time the victim felt a foreign object getting pushed against her back and a person present behind her. She heard a male voice say, 'Give me the money'. On hearing this the victim held on to the bag tightly. The person behind the victim was the offender, Abuquta." I have assumed much of that is not in dispute, but the foreign object maybe, I do not know: "11. Abuquta commenced pulling the bag from the victim's shoulder. The victim resisted by holding on to the bag, while yelling and screaming for help. There was a struggle between the victim and Abuquta, until the victim felt a sharp pain in her left hand and let go of the bag." What, if anything, there is in dispute is unclear, but particularly in respect of the sharp pain in her left hand and the cause of that: "12. Abuquta grabbed the bag and ran east towards Canterbury Road, Bankstown, while being chased by Huyhn. The witness who was stationary in the traffic on Canterbury Road watched as Abuquta ran with the bag along Canterbury Road, towards a white-coloured Mazda sedan. This vehicle was parked on the left-hand turn entry lane into the Christie Homemaker Centre. The witnessed noticed the registration number of the vehicle and the clothing details of Abuquta. The witness saw Abuquta get into the front passenger side of the vehicle and the vehicle drive away at a high speed. He then called triple-0, and relayed the description of Abuquta and the details of the registration of the vehicle to the triple-0 operator." Again there is a potential for some dispute of fact there, which has not been identified: "13. Another witness travelling east along Canterbury Road, Bankstown also sighted the offender running from the Homemaker Centre, followed by Huyhn. The witness saw Abuquta get into the front passenger side of a white car, which was parked in the entry lane to the Homemaker Centre. The witness saw the white car speed off and turn into Canterbury Road. The witness then followed the white car in his own car, as the white car turned left into Clements Avenue, veered left into Marshall and stopped beside a maroon car being driven by Attar." I have assumed none of that is in dispute: "14. Whilst stopped in Marshall Street, Bankstown, Abuquta handed the bag containing the cash to Attar, before proceeding to Attar's house, where Abuquta, Hawat and Attar proceeded to count and divide the proceeds of the robbery. Abuquta received a quarter share of the proceeds." I have assumed that the allegation of Abuquta handling the bag over is disputed, particularly if he is in the passenger seat and it is done through the driver's side window: "15. As a result of the robbery the victim sustained bruises to her left arm and a deep laceration to her left little finger that required two stiches. The victim was severely traumatised as a result of the incident and required treatment. The victim organisation, namely Bing Lee, Bankstown lost approximately $75,000 as a result of the robbery." I assume none of that paragraph is in dispute: "16. Numerous lines of inquiry were carried out on the registration details of the white Mazda. It was ascertained by the police that the vehicle was registered under the name of a car yard called Beaut Cars, situated on Hume Highway, Yagoona. Beaut Cars is a small yard which sells cheap second-hand vehicles. Inquiries with the registered owner confirmed that the vehicle had been sent to Abuquta at Walsh Mastercar Wash on 2 October 2008 for detailing prior to sale." I think I mentioned 2006 earlier, I have misread the last figure, it should be 2008: "The registered owner further confirmed that he had a telephone conversation with Abuquta for a few hours prior to the police arrival, where Abuquta had informed him that the vehicle would be ready for collection later that day." I have assumed that is not in dispute, although it involves Abuquta: "18. At about 4pm on 7 October 2008, investigators attended Walsh Mastercar Wash and located the white Mazda sedan, being detailed at that location by Abuquta. Investigators witnessed the offender hand washing the vehicle within a garage of the car wash premises. 19. The vehicle was seized for forensic examination. Investigators noted that Abuquta matched the descriptions provided by witnesses to the robbery, in particular the small prescription glasses that Abuquta was sighted wearing during the commission of the robbery. Abuquta was arrested and conveyed to Bankstown Police Station." I do not know whether that is disputed or not, any of that paragraph: "20. Abuquta obtained legal advice and consented to take part in the forensic procedure, being a DNA sample and photographs being taken. 21. A form of demand was placed on Abuquta under s 14 Law Enforcement (Powers and Responsibilities) Act , 2002. Abuquta refused to supply the details of the driver of the white Mazda at the time of the offence. Abuquta was released, pending further inquiries." That concludes for the moment material from the prosecution allegations. 9The charge sheet in relation to s 14, form/demand allegations alleges that the offender had been the owner of the vehicle. He was not the owner of the vehicle. Upon that basis there is a real issue as to whether the charges alleged could be proved, that is the summary charge. 10There is a further issue to consider. The offender, particularly once cautioned by police, is not obliged to say anything that might incriminate him in a criminal offence. Section 14 of the Law Enforcement (Powers and Responsibilities) Act is about facilitating the investigation of traffic matters. It is not a back door to forcing those being investigated for serious criminal offences to incriminate themselves. On that basis I would have held the offender had a reasonable excuse for refusing to comply with the demand. In any event that is all moot because the summary offence alleged is to be withdrawn. The point I simply make is there was never any basis for laying the charge in my view. 11By the time the police investigation was completed, the prosecution case against the accused included eyewitness evidence and incriminating evidence from co-offenders. In the absence of a plea, the defence's only hope would be a lack of confidence in the identification of the offender and an unwillingness to accept accomplice evidence by a jury. The Crown case was strong, but by no means overwhelming. 12It was agreed the offender was arrested at 2.15pm on 23 October 2008. He was the third of the four offenders to be arrested. The driver of the getaway car was the last arrested. This offender remained in custody until released on bail on 27 January 2009. He was returned to custody on 12 June 2010. He entered his plea three days later at the Penrith District Court. He has been in remand custody since that time. 13The offender's evidence is that he knew Attar at the car wash business; the two used to attend the gym together. The offender needed $5,000 to set his business up properly. He borrowed the money from Attar. If the business went all right he would repay Attar the Attar loan. From my notes I cannot recall whether the offender fell behind in payments, or Attar made a premature demand for full repayment. The offender's evidence was on either version, in any event, that he was being threatened to pay the money back. On the night before the robbery Attar came to his house, he said, and again demanded the money. The offender gave him $500. Attar said, "If you come with me tomorrow, we'll do a job." The offender said, "I didn't know it was to be a robbery." 14The offender says he was told a guy would be holding the money, "My role was to push him, take the money, run and jump into the car." He knew what he would be doing was a criminal act, but presumably thought it was a "mock robbery" of Huyhn. He said he was threatened by Attar many times. Significantly he did not address the Crown allegations contained in paras 4, 5 and 14, nor was he taken to these allegations by his counsel or the prosecution in cross-examination. Apparently he made no effort to contact the police to tell them he was being pressured into committing a criminal act. 15It is to be remembered the evidence before the court on 11 June 2010 is not before me in this hearing. That was the date on which the other offenders were sentenced. I am left in a situation where his evidence is uncontested by other sworn evidence. The question is whether it standing alone persuades me he was acting under pressure or threats from Attar. Frankly it does not. 16There is no detail to the threats. Their specific nature has not been identified in the words Attar used. In the absence of any specific clear understanding of the nature of the threats, I am unable to assess their affect upon him, or upon a person of reasonable firmness standing in his position. His determination through the course of the robbery is inconsistent with a reluctant robber. 17There appears to be no contest with the contents of para 11 of the Crown allegations. There was a struggle until the victim felt a sharp pain in her left hand and let go of the bag. She retained bruises to her arm and a laceration requiring two stitches. 18The sentence of the others proceeded upon the basis that the harming of the victim went beyond the terms of the crime proposed, that is the common purpose. I am satisfied the pain in her left hand was inflicted by the offender for the purpose of making the struggling victim surrender the money to the unlawful custody of the offender against her will. That burden of proving the offender's will was compromised at the time of the robbery is one that rests with the defence on the balance of probabilities. It has failed to establish any mitigation of the offender's criminality on that basis. 19Whether the offender knew the victim was to be a woman is a more difficult issue to resolve. I am satisfied Attar well knew before the robbery that the victim was to be a woman and that she was the one who would have the money. I am satisfied it was in his interests to make sure that whoever was conducting the robbery knew which of the two persons approaching Huyhn's car would be the one with the weekend's takings. I am satisfied he also knew that the takings would be contained in a satchel bag or some container that a woman would be carrying. I am satisfied that Attar sought to and did in fact convey that information to this offender. 20Significantly I am satisfied there was no hesitation by this offender at the moment he came to rob the victim as to the choice of which of the two people, approaching either side of the motor vehicle, was the one he should address. Time was of the essence. He was not about to waste it on the male, who one otherwise might have thought would be the one to carry the store's takings to the car. It follows that I am satisfied beyond reasonable doubt that he well knew his victim was to be a woman, and was prepared to and did in fact inflict pain to overpower her determination to retain the bag. 21This offender also gave evidence that he received no financial gain from his commission in the offence. He has not disputed in clear terms but it seems implied by his evidence that he did not agree to accepting twenty five percent of the stolen loot. Even on his own account he appears to have been relieved of the $5,000 debt he owed to Attar. He could hardly argue that Attar kept all the loot and did not forgive the debt. At very least on his own scenario I find he has a financial gain of at least $5,000.

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

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (1)

Cited By (1)