I note that Mr Al-Turfi is for sentence on two offences today, those being firstly an offence of robbery in company which carries a maximum penalty of 20 years' imprisonment, and secondly an offence of dishonestly obtaining a financial advantage by deception which carries a maximum penalty of 10 years' imprisonment. Those maximum penalties are of course guideposts in this sentencing exercise to which I have had regard.
The offender pleaded guilty to the second count when he was arraigned before the jury on 8 September 2020 and he is entitled to a 5% discount on account of having done so in relation to that offence. A trial was conducted in relation to count 1, that being the robbery, and on 16 September 2020, a jury found him guilty of that count.
[2]
FACTS
Turning to the facts of the matter. Broadly speaking, the facts of count 1 involve events that took place on 15 December 2018 at Warwick Farm Railway Station in which Mr Kevin Short was robbed of his wallet, keys and money. Count 2, which involves dishonestly obtaining goods from a 7 Eleven store, was committed not long after the robbery when the offender used Mr Short's bankcard to buy some items from that store.
On the sentence hearing last Friday, it was indicated that there was a partial dispute about the facts concerning count 1. In essence it was submitted on behalf of the offender that I should find that the robbery offence occurred in circumstances where the victim had approached the offender and his two associates seeking to buy drugs.
This scenario was consistent with what was argued before the jury in that it was put to Mr Short that he had singled out the offender and his associates and was pressing them to sell him drugs or to put him in contact with someone who could do that. The foundation for this submission came firstly from the offender's evidence before the jury. In that evidence, the offender claimed that the victim had asked and continued to ask in a persistent way for help to "G on", as the offender put it, in other words, to obtain drugs.
The offender claimed that at the bottom of the stairs near the railway platform he had decided to leave and had put out his hand to shake the victim's hand as a form of farewell. He claimed however that the victim held onto the offender's hand and continued to press him for drugs and that once he broke free from the victim's grip, he departed. The offender claimed that he knew nothing about any robbery that might have happened thereafter.
In relation to the victim's bank card, the offender claimed that he found it on the railway platform. Clearly, the jury did not accept the offender's evidence about not being involved in the robbery. It is not surprising that they did not. In my view, the CCTV material provided no support for the offender's version, and clearly showed that he was in company with the other two persons for the duration of the event. In my opinion, the offender's evidence has little or no credibility at all.
The other basis for the submission by the offender on sentence that I should find that the victim was pressing the offender and his associates for drugs was the CCTV footage itself. In this regard, it was argued that the CCTV shows Mr Short approaching the offender's group, and acting in other ways consistent with looking to buy drugs in an area that was known for drugs.
However, I have no hesitation in rejecting this version of events, firstly, because the only direct evidence of any discussion about drugs is in the evidence of the offender, whose evidence, as I said, has little or no credibility. In coming to this view, I have taken into account not only his evidence, but also the CCTV footage itself.
In my view, that footage supports the version given by Mr Short; namely, that he was very drunk after being at a work function, fell asleep on the train, and found himself at Warwick Farm Railway Station, a place he had never been before. The CCTV material does not, in my opinion, support a conclusion that Mr Short was "looking for drugs;" rather, it supports a conclusion that he was drunk and confused, and was waiting around the railway station, trying to work out how to get home, when he was unlucky enough to encounter the offender and his mates.
In making this assessment, I have taken into account the evidence of Mr Dow, who said he saw the victim talking to "a junkie". However, Mr Dow explained that this was after the robbery had occurred, and also that the person he described as "a junkie" had in fact approached the victim, not the other way around, and that this person appeared simply to be intrigued as to what had happened.
I have also taken into account those parts of the CCTV material which show the victim running and looking around and down at the ground at various points, but in my view these provide no support whatsoever for the suggestion that Mr Short was looking for drugs, or for someone who might be able to supply him with drugs.
The facts about which I am satisfied for the purposes of the robbery in company offence are those set out in the Crown's submissions, which are as follows. On 14 December 2018 the victim, Mr Short, had attended a work Christmas function in the city. As a result of that, and his alcohol consumption, he became very intoxicated.
Later in the evening, he decided to go home, and caught a train, which he was intending to catch to the Wollongong area. He was meant, of course, to get off and change trains at Central, but, evidently, that did not happen, probably because he fell asleep or passed out as a result of the alcohol he had consumed.
He ended up at Warwick Farm Railway Station sometime just after midnight on 15 December. He got off the train, and although he could not recall physically getting off the train, he found himself in an unfamiliar place. The CCTV material shows that he was clearly intoxicated. He walked around the station for a while, before taking a lift from platform 1 up to the concourse level, and there he started talking to a group of three males, which included the offender.
The offender's group had boarded a train at Lidcombe, and had changed trains at Granville, before heading to Warwick Farm. CCTV from those trains and from railway stations showed that they were carrying two cartons of beer between them. The offender's group appeared to be friendly with one another, as if they were mates.
Once they arrived at Warwick Farm Railway Station, they encountered Mr Short. Mr Short spoke to a male in the offender's group who was wearing a white shirt. The offender was standing nearby, and appears, on the CCTV material, to participate in the conversation. Among other things, they spoke about Fiji.
Mr Short recalled the males asking him to buy a six pack of beer, which he declined. At one stage, as shown on the CCTV, he was given a bottle of beer by one of the males, and was encouraged to "skol" the entire bottle, which he attempted to do, but failed in doing so. He then tipped the remains onto the ground.
During the conversation between Mr Short and the offender's group, Mr Short asked about how he might get back to the city. The group then moved along the concourse area towards a set of stairs, where, as shown on the CCTV, the offender gestured towards platform 1, which was the platform, apparently, from which trains going to the city ordinarily departed.
Mr Short and the offender's group then walked down the stairs towards platform 1, while, at the bottom of the stairs, the offender's group continued to ask Mr Short to buy beer from them. Mr Short then reached into his pocket to pull out a small amount of money, which he was intending to give to the offender's group to placate them. Instead, he pulled out a note of a larger denomination. It was at that point that the offender approached Mr Short and grabbed onto his right arm, placing a hand over Mr Short's right hand.
Mr Short tried to put the money back in his pocket. However, the offender said words to the effect of "Give me the fucking money," and an altercation commenced. During that altercation, Mr Short was turned around so that his back was facing the outside of the railway station. The offender raised his right hand, and appeared to grab Mr Short around the neck.
The other males appear at one stage to try and separate the offender and Mr Short. Mr Short then was moved towards the outside of the northern side of the station, near a roadway. A short time later, one of the males hit Mr Short in the head from the left side, and Mr Short fell to the roadway. At that stage, he did not, he said, feel any pain, largely due to his level of intoxication. He said he could not recall whether the hit had caused him to fall, or whether he had been pushed.
While Mr Short was on the ground, the offender and the other males went through his pockets and took some property, including his wallet, phone, and keys. Mr Short heard one of the males repeat words to the effect of, "Take his shit." Mr Short put his hands over his head and said to them, "Just take it." He said he closed his eyes, waiting for the attack to be over.
The offender's group then quickly walked away from the railway station, and the CCTV shows the offender and the male in the white shirt give each other what the Crown described as a "Low five," slapping their hands together just after the robbery had occurred. Mr Short eventually got up off the ground and stopped some passers-by for help. He used somebody's phone to call his partner, who subsequently picked him up, and police were called.
Police attended the scene, and they spoke to Mr Short. He was seen at the time to have some blood on his face and on his shirt. Fortunately, he suffered only minor injuries, including some swelling to his face, a small cut to his chin, and some grazes and bruises to his elbow.
There was no challenge to the fact that at about eight minutes past 2am that morning - in other words, just about an hour or so after the robbery - the offender used one of Mr Short's bank cards to purchase some drinks and tobacco from a 7 Eleven service station in Liverpool, about 2 kilometres from the place where the robbery took place; and, of course, it was that use of the bank card which constitutes the offence in count 2.
I have no doubt that the offender used that card after either he or one of his co offenders removed the card from Mr Short's wallet, after it was stolen from him in the robbery. The offender's claim that he found the card on the platform was, in my view, simply false.
[3]
OBJECTIVE SERIOUSNESS
The objective seriousness of these offences is marked firstly by the significant maximum penalties. That is particularly so with the robbery in company offence, which carries a maximum of 20 years' imprisonment. However, I, of course, must make an assessment of the circumstances of these particular offences, and reach a conclusion as to where on a theoretical scale of objective seriousness they lie.
The count 2 offence involved a single incident and a relatively small amount of money. I am satisfied that it is in the lower range of objective seriousness. In relation to count 1, I agree, as the Crown submitted, that robbery offences, especially those committed in company, are ordinarily regarded as very serious, and will usually require the imposition of a prison sentence. That is in part because robbery is not just an offence against property, but an offence against persons.
I take guidance in assessing the objective seriousness by reference to the guideline judgment of the Court of Criminal Appeal in R v Henry and Ors [1999] 46 NSWLR 346. That case considered the offence of armed robbery, and, while the offender and his associates in the matter before me were not armed, nonetheless, the Henry factors remain relevant. In the decision in Henry, the Court of Criminal Appeal said that in a typical case, a full time custodial head sentence of four to five years will generally be appropriate.
As to the Henry hallmarks, I make the following observations. First, the offender was young; he was 20 at the time of the offence, and he is 22 now, and he has a relatively limited criminal history. Secondly, while he was not armed, he was in company with two others, such that the victim was faced with the combined force or threat of three assailants. Thirdly, I am satisfied that there was no planning.
While the suspicion arises that the three offenders may have selected Mr Short as an easy target when they first encountered him in a drunken state, I cannot be satisfied of this beyond reasonable doubt. I approach the robbery, therefore, on the basis that it was a spontaneous and opportunistic act which was committed when Mr Short pulled a bank note from his pocket.
Fourthly, in regards to the Henry factors, the offence did involve some actual violence, in which the victim was grabbed and hit and knocked to the ground. Fifthly, the victim, although not in the position of being a shopkeeper or taxi driver, was somewhat vulnerable, being alone and drunk in a relatively deserted and unfamiliar area. The Court of Criminal Appeal has emphasised the need for substantial punishment in cases of attacks on victims using the public transport network (see Owens v The Queen [2017] NSWCCA 16 at para 78).
Sixthly, in relation to the Henry factors, there was only a small amount of property taken, although the loss of everyday items such as keys and bank cards would no doubt have involved some considerable inconvenience to the victim. As the to the seventh Henry factor, which relates to a late plea of guilty in the face of a strong Crown case, the offender in this case is, of course, not entitled to any discount, given that his conviction occurred after a trial.
I have had regard to such of these factors as are relevant to objective seriousness, as well as the fact that the robbery was of very short duration, involved limited violence, and did not result in any significant injuries to the victim. I regard the objective seriousness as being below the mid range, and towards the low range, although not in the lowest range.
In sentencing the offender, however, I must take into account the aggravating factor that he was, at the time of the offence, subject to conditional liberty, by reason of a s 9 good behaviour bond that was imposed on 10 August 2018, only four months before this offence, for an offence of affray. This does not increase the objective seriousness of either offence, but it remains a matter I must take into account in determining the sentences.
Although it was submitted on the offender's behalf, initially, that there was some provocation by the victim in persistently pressing the offender's group for drugs, this submission was appropriately abandoned in oral submissions. However, it was still argued that the victim "Put himself in harm's way," by his supposed requests to be supplied with drugs. As follows from the findings of fact I have made, I do not accept this submission.
[4]
SUBJECTIVE MATTERS
The subjective case for the offender was placed before the Court by means of a psychological report, and evidence on oath from the offender. The offender and his family came to Australia in 2015, after his older brother had successfully moved here. He completed his year 10 school certificate, but left school in year 12 to commence an apprenticeship in building. He discontinued, however, that apprenticeship, subsequent to being charged with the offences that are before the Court today.
He apparently has available to him a possible job opportunity with his brother, who has a building business in the Canberra area. The offender lives currently with his parents, who remain supportive of him, and who were present in Court during the hearing last Friday, and who have also attended Court with him today.
As noted in the psychological report, which was affirmed by the offender in his evidence, he was born in Iraq in 1998, where he lived with his parents in Basra. The history given by him to the psychologist, which was not challenged by the Crown, involved significant trauma as a child as a result of the war in Iraq, which continued from about 2003 to about 2011. As part of that history, the offender witnessed many incidents of violence and death, and lost people close to him.
In his evidence, he described an event in which he had attended with his cousins at a particular location to obtain some water, and, after leaving his cousins for a brief moment, a suicide bomber detonated a device which killed them. The offender described in his evidence the scene that he witnessed upon his return to the location, which he says still haunts him with images of dismembered bodies.
He also explained to the psychologist and in his evidence that his family were Sunni Muslims living in a street occupied principally by Shia Muslims, and that this, combined with other events associated with the war, left him in a state of constant fear as a child. He also described an incident where he observed a person shot dead in the street in front of his eyes, and an occasion playing soccer, when he and other children had been fired upon. Ultimately, he said, his family were told that they had to leave the area, or be killed.
Despite this background, the psychologist expressed the conclusion that, although the offender described continuing to think about the people he lost in Iraq, there were no indications that he suffered from Post-Traumatic Stress Disorder symptoms significant enough to warrant a diagnosis of that condition. The psychologist noted, however, that the offender described a deterioration in his mental health subsequent to being charged with these offences, and that it had worsened particularly while on remand for about three months.
The psychologist concluded that at the time of assessment, in November 2020, the offender was affected by an adjustment disorder with mixed anxiety and depressed mood, which has been triggered by these legal matters. The psychologist also concluded that, based on testing, the offender's scores placed him in the severe range for depression, stress, and anxiety. At the time of testing, he concluded that the offender poses a low/moderate risk of reoffending, which is reasonably consistent with the risk assessment contained in the Sentencing Assessment Report.
The childhood history of the offender relies, of course, on his own self report. This is somewhat problematic because, as I have already noted, the offender's credibility is very poor. I have formed that view based on his continued denial of the robbery offence and his patently false evidence about finding the bank card on the platform. There is also the fact that, in his evidence on sentence, he claimed that when he used Mr Short's card he thought it was his own card, which is contradicted by the evidence he gave before the jury, at transcript p 241, line 28, when he said that he knew it was not his card.
However, on balance, and as the Crown did not challenge the history of childhood trauma described by the offender, I intend to give it full weight. Although the offender is therefore entitled to have this history taken into account, as I have noted, the psychologist concluded that there was insufficient basis to make a diagnosis of Post Traumatic Stress Disorder. It nonetheless seems to me that a background of such extreme violence and upheaval at such a young age is a highly material matter in the instinctive synthesis process which I must perform, and in my view that background does reduced the offender's moral culpability to some degree.
In that regard, I note the comments of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said, at para 69:
"I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions."
I inform myself also with the comments of the High Court of Australia in Bugmy v R [2013] HCA 37, where, at para 44, it was said:
"Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision."
The offender's background is also relevant to whether he is an appropriate vehicle for general deterrence, but, of course, I need to balance this with the question of his risk to the community. These things, to a large degree, point in different directions.
The offender expressed some shame to the psychologist and to the author of the Sentencing Assessment Report, and that report notes that he showed some insight into his offending by acknowledging the financial impact on the victim. However, as I have said, he still maintains his innocence of the robbery offence, and so there is little in the form of remorse.
As to future risk and prospects of rehabilitation, he is still a very young man. His criminal history and the fact that he was on a s 9 bond at the time of these offences means that his prospects might ordinarily be regarded as guarded. However, he has managed to stay out of trouble since his arrest for these offences on 30 January 2019. He also has significant family support and some prospects of employment.
On balance, I consider his prospects of rehabilitation to be reasonable. His young age, both at the time of the offending and now, is a significant matter in the sentencing exercise, as was observed by Hodgson J in BP v R [2010] NSWCCA 159: "Emotional maturity and impulse control develops progressively during adolescence and early adulthood, and may not be fully developed until the early to mid 20s."
It is an important principle that, in sentencing a young person, greater weight should be given to rehabilitation, and less to retribution and deterrence. I have given significant weight to the offender's young age in determining the term and the nature of the appropriate sentence.
It was argued on the offender's behalf that the s 5 threshold is crossed in relation to the two offences, and that an aggregate term of imprisonment of three years could appropriately be imposed, and that I might then give consideration to whether that term should be served by an Intensive Correction Order. In support of this submission, the offender relies principally on his youth, his difficult background, attracting Bugmy v The Queen considerations, and the fact that he has already spent 104 days in custody, when he was bail refused.
The correct approach to sentencing requires that I adopt the three stage process set out in R v Zamagias [2002] NSWCCA 17: firstly, whether I am satisfied that no penalty other than imprisonment is appropriate; secondly, that I determine the length of the sentence; and, thirdly, in the event that I am satisfied that a total sentence not exceeding three years is appropriate, whether that sentence ought be served in the community.
I have given careful consideration to the offender's and the Crown's submissions. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am conscious of the fact that the Henry decision is a guideline only, and that I have a discretion to depart from it, if the circumstances are sufficiently different that this case can be distinguished from it.
I am satisfied, based on all of the circumstances, but primarily the offender's childhood background, his youth, the fact that the robbery offence is towards the lower range of objective seriousness, and the time already spent in custody, that it is appropriate to depart, to a degree, from the sentencing range set out in the Henry decision.
I am satisfied that no penalty other than imprisonment is appropriate for each offence. I intend to impose an aggregate sentence. In determining that sentence, I have had regard to principles of totality. I have also had regard to the period that the offender has spent in custody.
[5]
DETERMINATION
Mr Al Turfi, stand up while I explain to you the sentence. As I am going to impose an aggregate sentence, I need to first indicate to you what are called the indicative sentences. These are not the sentences you will serve. I will announce that clearly in a little while.
The indicative sentences are these. For the count 2 offence of dishonestly obtaining an advantage by deception, a term of imprisonment of four months; for the count 1 offence involving robbery, a term of imprisonment of two years, 11 months. Instead of those, I impose an aggregate sentence of three years.
I have considered, under s 66 of the Crimes (Sentencing Procedure) Act 1999, the paramount issue of community safety, and whether that term should be served by actual custody or in the community. In making that assessment, I have also taken into account the purposes of sentencing set out in s 3A, but without any preconception in favour of incarceration as being the only path to rehabilitation (see Waney v DPP [2020] NSWCA 318 at para 64).
I have formed the view, after considerable reflection, that it is appropriate in this matter to order that that sentence be served by Intensive Correction Order in the community. That will be subject to the standard conditions: firstly, that you not commit any offence; secondly, that you submit to supervision by a Community Correction officer.
I impose four additional conditions. Firstly, that you perform 400 hours' community service; secondly, that you not consume alcohol or illegal drugs, and that you submit to random urinalysis if required by Community Corrections; thirdly, that you participate in any drug, alcohol, or other counselling, as directed by Community Corrections.
Fourthly, I impose a curfew condition that you not be absent from your place of residence between the hours of 11pm and 5am, unless accompanied by a parent or your older brother. In relation to the s 9 bond, I note that there was agreement that that be called up and revoked, and I do that, but I take no further action in relation to that bond.
Mr Al Turfi, I have actually imposed a term of imprisonment of three years, but if you comply with the conditions that I have just announced, you will not have to serve that term of imprisonment; but it is an actual term of imprisonment. If you were to breach any of those conditions, then you will be arrested, and likely you will serve the entirety of that three year sentence. That means - and I have imposed a curfew, for example. It starts at 11 o'clock each night. If you're outside at five past 11, that is a breach; you will be arrested, and likely serve that term of imprisonment. Similarly, if you do not cooperate with the various hours of community service, if you are detected to have used alcohol or illegal drugs, or breach any of the other conditions, you'll be arrested, and likely serve that period of custody. I direct that you report to the community corrections office at Fairfield by telephone, initially, within the next 48 hours. Mr Crown, do you have anything to raise?
BUCKINGHAM: No, your Honour.
HIS HONOUR: Can I just get a confirmation of his address, please?
HOWELL: Yes, your Honour. It's 16 Maree Avenue, Cabramatta West.
HIS HONOUR: Thank you. Mr Al Turfi, you need to go with your solicitor to the registry where that order will be prepared for you to sign..
[6]
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Decision last updated: 01 June 2021