R v Assaad

File Number(s): 2024/00119014

Publication restriction: Nil.

REMARKS ON SENTENCE

1. The offender who was born in March 2006 is to be sentenced in respect of the following two offences to which he has pleaded guilty:-

Sequence 1 – Aggravated robbery and inflict actual bodily harm, an offence pursuant to s95(1) of the Crimes Act 1900 (NSW) (“the CA”). The maximum penalty prescribed is 20 years imprisonment and there is no standard non-parole period.

Sequence 4 – Assault with offensive weapon with intent to rob and wounding, an offence pursuant to s98 of the CA. The maximum penalty prescribed is 25 years imprisonment and there is a standard non-parole period of 7 years imprisonment.

2. The offences occurred on 28 March and 29 March 2024 respectively. The offender was arrested on 31 March 2024 and as at the date of the sentence hearing had spent 1 year and 25 days in custody.

The sentence hearing

3. The sentence hearing took place on 28 August 2025. The Crown sentence summary became Exhibit A, and it included a summary of agreed facts which may be further summarised as follows.

4. At about 5:15 p.m. on 28 March 2024 the offender requested a taxi to an address in South Granville. When the taxi arrived the offender approached the vehicle from the driver’s side and entered the passenger seat behind the driver telling the driver to drive him to “Granville bank”. As the driver commenced to drive, he heard the offender say “500” multiple times. The agreed facts contained stills from CCTV footage inside the vehicle which demonstrated that the offender covered his face and brandished a silver switch blade knife approximately 15 to 20 cm in length. The offender said to the driver “Look to this side, look to this side”, and the offender held the knife to the driver’s body on his left side. The offender then demanded the driver give him $500. The driver kept driving but the offender pressed the knife into his left shoulder and yelled “Stop! Stop! Give me money”.

5. The driver then said “Ok, ok, ok”. The driver pressed the duress button in the vehicle and then entered the Speedway Service Station at Guildford. The driver parked the vehicle as close as possible to the front door of the service station and began to yell for help. The offender exited the vehicle as members of the public approached the driver to assist him. The offender then returned to the vehicle, opened the front passenger door, lent into the taxi and removed the dash camera situated next to the rear-view mirror. He then ran from the location. This was the conduct constituting Sequence 1.

6. The next day, at approximately 4:10 p.m. on 29 March 2024, the offender requested a taxi to an address in Guildford. When the taxi arrived the offender approached the vehicle and entered the passenger seat. He then had a conversation with the driver about the fare in which the offender said on two occasions “No meter, no meter”. An argument ensued over the fare during which the offender grabbed the iPhone 14 belonging to the driver situated in a phone holder in the front middle console of the vehicle. The driver grabbed the phone and placed it under his seat. He also pressed the duress button. At that point the offender brandished a silver switch blade knife pointing it at the driver.

7. The driver received a phone call from the cab company asking if he was ok. He said, “No please help me this guy has a knife”. The offender then said, “Are you talking to the company?” The offender then smashed the dash camera which was placed above the head of the driver inside the vehicle causing it to fall and land on the foot of the driver. The offender continued to point the blade at the driver and stated, “Give me $600, if you do not give it to me, I will bash you, do you see the knife? I will give you 10 seconds to give me the money”.

8. The offender continued to wave the knife aggressively at the driver who said to him, “Are you ok?? What happened? Relax I will give you the money if you give me time”.

9. The offender then reached to grab the driver’s black satchel bag from the centre console of the vehicle. The driver grabbed the bag to stop the offender stealing it. He said to the offender, “Please leave the bag. There is nothing inside the bag, just papers”. At that point the offender stabbed the driver’s hand with the knife and his hand began to bleed.

10. The offender then exited the taxi from the passenger’s side and walked around to the driver’s side rear door. He grabbed the driver’s iPhone 14 from under the driver’s seat and then opened the driver’s door and attempted to take the driver’s wallet from his pocket. The driver then attempted to exit the vehicle at which time the offender stabbed him two or three times in the right forearm. The driver managed to grab the grey jumper belonging to the offender.

11. The offender then ran away from the taxi and the driver followed him and eventually caught up with him. The driver said to the offender, “Please give me my phone”, and the offender threw the iPhone onto the ground. The driver then grabbed the offender and wrestled him during which the offender kneed the driver to his left kneecap, head and body. Blood was later identified by investigating police at the location. Members of the public approached the offender and driver and at some point the driver lost consciousness as he was heavily bleeding from the various stab wounds inflicted by the offender.

12. The offender fled the scene but was assisted by witnesses who were under the impression, wrongly, that the offender had been assaulted. One witness agreed to drop the offender back to his uncle’s home at Guildford. This was the conduct that constituted the offence in Sequence 4.

13. The victim suffered the following injuries:-

(a) A 7cm long laceration reaching muscle on the right forearm. (b) A 3cm long laceration on the right forearm. (c) A 4cm long laceration on the right forearm. (d) A “V-shaped” laceration on the left thumb, which is 2cm in length for each arm of the “v”. (e) Multiple bilateral upper left hand lacerations. (f) Superficial abrasions to the anterior and immediate distal to the left knee. (g) Tenderness in the middle of the back.

14. On 31 March 2024, the victim underwent an operation at Auburn Hospital for the washout, debridement and repair of the bilateral right forearm wounds and left hand lacerations. He was then referred to a private hospital for ongoing hand therapy.

15. The offender was arrested on 31 March 2024. Following advice, he refused to answer questions but did confirm to investigating police that he was a heavy user of prohibited drugs, including Fentanyl, and had most recently taken drugs approximately two days prior to the interview.

16. Exhibit A also included the NSW Police Force history of convictions that record one subsequent offence on 3 August 2024 of possess a prescribed restricted substance which was dismissed pursuant to s10, and his custodial history which showed one infraction on 26 July 2025 whilst in custody.

17. Exhibit A also included a victim impact statement (“VIS”) from the driver of the taxi in respect of Sequence 4 (hereinafter referred to as “the second victim”). In that report he outlined the physical, emotional, social and financial impact the offending has had on him. Physically he suffers ongoing pain in his back, neck and shoulder and struggles with sleep due to pain and discomfort. Emotionally and psychologically he has suffered severe anxiety, frequent low moods and overwhelming emotional distress whereby he often feels helpless, irritable and withdrawn. The second victim also feels isolated socially and his relationships with family and friends have suffered greatly. He described the most painful part has been the impact on his marriage which has been deeply painful for him. In addition he has suffered a great deal of stress financially having incurred medical costs and time off work. He described the experience as completely changing his life as he continues to struggle with physical pain, emotional distress and significant changes to his relationships and independence. The VIS is referred to below.

The offender’s evidence

18. The offender tendered a bundle of evidence comprising documents which became Exhibits 1.1 to 1.9. Exhibit 1.1 was a psychological report by Ms Hawil, psychologist who interviewed the offender via audio-visual link for 3 hours on 31 July 2025. The author took a family history. The offender is the eldest of 8 children and reported a relatively stable upbringing and close relationship with his family members.

19. The offender reported that he was sexually abused at school by a female physical education teacher in year 7 and thereafter began acting out. He transferred schools in year 9 but withdrew from school the same year commencing an apprenticeship as a plumber. He was unable to maintain employment for longer than a few months which he attributed to his substance use problems. He had first used cannabis in year 7 at school after the sexual abuse, however his use escalated from weekends to daily use by year 9. He commenced using cocaine at the age of 17 on weekends and was introduced to heroin at the age of 17 which also became daily use up until his incarceration. At the same age he was introduced to a vape liquid which he was told contained cannabis to which he quickly became dependent. He has since discovered the vape liquid was laced with a synthetic opioid, which he believes may have been Fentanyl, a highly addictive prohibited drug. He told the author that he thought about what happened to him at school a lot, meaning the sexual assault and, stated “If I didn’t have access to drugs, I’d lose it”.

20. Following his arrest on 31 March 2024, the offender was granted bail on 1 April 2024 and whilst on bail he consulted his family doctor and was prescribed buprenorphine strips which he used for a month. Since his return to custody, he has received Buvidal injections which he has found beneficial. Following psychological assessment, Ms Hawil opined that the offender meets the criteria for a diagnosis of Post-Traumatic Stress Disorder (PTSD) and an opioid use disorder which she described as “severe” but in “sustained remission”, in a controlled environment.

21. Ms Hawil took a history that the offender indicated his time in custody had been challenging due to his age, small stature and separation from his family. He had however completed behaviour change programs and a driving course.

22. Under the heading “Offending behaviour”, the offender told the author that Sequence 1 on 28 March 2024 occurred after the taxi driver had informed him of the fare which was twice the amount he expected to pay. This made the offender angry, and he told the psychologist, “I just turned that day. I don’t know what happened. He wasn’t listening to me”.

23. The offender told the psychologist that the offence on 29 March 2024, Sequence 4, also concerned an argument with the taxi driver concerning the fare as he did not have money to cover the fare and purchase vape liquid. He told the psychologist, “I just turned even more. I clicked again”. He told the psychologist that he initially tried to scare the victim with the knife but acknowledged that he had stabbed him.

24. He stated that one month prior to the offending he had a gun aimed at his head as a threat and thereafter he had carried the knife for “protection”.

25. Ms Hawil then reported as follows:-

“(9.6) It appears that the offending occurred in the context of Mr Assaad’s substance use problems. Mr Assaad indicated that he was experiencing withdrawal symptoms from vape liquid (containing a synthetic opioid), he was sleep deprived and needed to purchase the drug to relieve the effects of withdrawal. He further noted that he was under the influence of one gram of heroin per day at the time of the index offences. This may have impaired his judgement and decision-making.

(9.7) It appears that his substance use problems developed as a maladaptive coping mechanism in response to unresolved trauma. He has struggled to extricate himself from the substance-using milieu in the past, and the causes of the problems which have been detailed in this report have not been effectively addressed in the past. As such, a treatment plan has been included at the end of this report.

(9.8) With respect to his feelings regarding his offending behaviour, Mr Assaad stated, “I’m embarrassed, and I fucked up. I was very very bad. I wasn’t in my right mind. I was angry. I needed drugs. I needed money. I was very bad, in a very bad mind. I had a knife on me too, and not in my right mind. To scare people with. I never intended on using it.” He further stated, “It was never the plan. No way. They know me man.””

26. Following mental status examination, Ms Hawil opined that the offender’s responses indicated significantly marked potential problems with psychotic features and follow up evaluation was strongly recommended. She stated that the indication of paranoid features raises concerns about the validity and accuracy of self-reported symptoms.

27. Ms Hawil opined the offender fell in the moderate risk/needs for reoffending and would require a high level of supervision. She stated, “If Mr Assaad were to reoffend, the most likely risk scenario would be that he were to return to the community and relapse using substances, be without employment, be without support and associate with anti-social peer groups”. She further opined that protective factors against the offender re-offending were his close and supportive family relationships, together with a willingness to engage in treatment, continuing his opioid substitution program, his willingness to study and work and his ongoing supervision and support by Community Corrections. She concluded by stating that in consultation with her, the offender had expressed his remorse and accepted responsibility for his actions.

28. Exhibit 1.2 was a letter of apology from the offender in which he stated he understood how serious his actions were. He stated, “Not one day goes by where I don’t feel guilty or overwhelmed for what I’ve done”. He also stated, “I take full responsibility for what I’ve done and I know how reckless I was. I am rejectful, remorseful, embarrassed and shameful for what I done. I apologise to everyone I’ve hurt and I will learn from this big mistake I’ve made” (sic).

29. Exhibit 1.3 was a letter from the offender’s mother dated 14 August 2025 in which she set out his family history and the stressors which led to a spiral in his life’s activities. Prior to the offending she had taken it upon herself to drug test him and grew suspicious. He was unable to hold down a job and she encouraged him to seek help. The true extent of his addiction and its effects had not become apparent to her. Whilst the offender was on bail in April 2024, she sought further treatment for him, and he was referred to the family doctor who prescribed a Suboxone/Buprenorphine program which he has continued in custody.

30. Mrs Assaad has kept in constant contact with the offender whilst he has been in custody. He has expressed his deep regret for the offending to her, is very ashamed and is determined to get a grip on his drug and mental health issues and to make amends for what has happened. She expressed her belief that when he is released, he will be able to make valuable contributions to the community and that he deserved a second chance.

31. Exhibit 1.4 was a letter from Mr A Wehbe dated 14 August 2025. Mr Wehbe is the offender’s cousin and has known him since birth. He acknowledged the charges the offender is being sentenced for but described him as a person who has never been a violent or angry person. He maintains regular contact with the offender who he described as being “truly very remorseful about this whole situation and deeply regrets the choices he made which put him where he is now”. Mr Wehbe expressed a belief that the offender has a lot of potential in life and will continue to support him when he is released from custody. He expressed his belief that the offender is “an honourable individual and an overall good human being”.

32. Exhibit 1.5 was a letter from Mr M Chekchok dated 14 August 2025. Mr Chekchok had known the offender for 15 years having been involved in the local sports club. He described the offender as “an integral part of our soccer community” and as “a kind and responsible person with a strong family support network”. He expressed his belief that the offender was very remorseful for his actions.

33. Exhibit 1.6 was a letter from Mr H Amoun dated 14 August 2025, who described the offender as being quite impressionable in his teen years and swayed by peers who had a bad influence on him. He has undertaken to employ the offender as an apprentice plumber upon his release from custody. He described the offending as entirely out of character for the offender and something he will never do again.

34. Exhibit 1.7 was a letter from Dr Bains dated 8 August 2025 confirming that whilst he was on bail the offender was seen in the clinic between 30 April 2024 and 29 July 2024 for opioid dependence.

35. Exhibit 1.8 was clinical notes from Ms Z Allaw, psychologist which record that on three occasions before committing these offences, the offender had counselling for his drug addiction and that he returned for further counselling once he was granted bail.

36. Exhibit 1.9 was a mental health care plan preprepared by Dr Sadia Rehman dated 27 November 2023. The health plan was provided for a diagnosis of depression and anxiety with a personal history of “issues with mood due to drugs, family”.

The Crown submissions

37. The Crown relied on a detailed written outline of submissions in which it submitted the guideline judgment in R v Henry (1999) 46 NSWLR 346 applies. With an adjustment for the early plea of guilty discount here, the range of custodial sentence would fall between 40 months (3 years and 4 months) and 50 months (4 years and 5 months), relying on R v Harris [2011] NSWCCA 105 at [94].

38. The Crown submitted the following Henry factors would apply:-

(i) Young offender with little or no criminal history. The offender was just 18 years of age at the time of the offending. (ii) Weapon like a knife, capable of killing or inflicting serious injury. The offender was on both occasions armed with a silver blade knife. (iii) Limited degree of planning. The Crown accepted there was a limited degree of planning involved. (iv) Limited, if any, actual violence but a real threat thereof. There was at first a real threat of violence however, this progressed to actual violence in both incidents, causing actual bodily injury in one incident and a wounding in respect of the second. (v) Victim in a vulnerable position such as shopkeeper or taxi driver. The victim in respect of each offence was a taxi driver and therefore in a vulnerable position. (vi) Small amount taken. In respect of Sequence 1, the offender took the dash camera from the taxi and in respect of Sequence 4, he initially took the iPhone 14 belonging to the second victim until he threw it away before leaving the scene. On each occasion the offender had sought small amounts of cash from each victim, i.e. $500 and $600 respectively. (vii) Plea of guilty, the significance of which is limited by a strong Crown case. It is common ground that the offender is entitled to a 25% discount on sentence. (viii) Drug addiction. The Crown submitted Henry is authority for drug addiction not being an excuse to commit armed robbery and of itself is not a matter of mitigation. It is however relevant to objective criminality as it sheds light on impulsiveness, the extent of any planning, the existence or absence of any other motive and the offender’s state of mind or capacity to exercise judgment.

39. The Crown submitted that whilst both offences were of relatively brief duration given the behaviour of the offender both would have been frightening for the victims. The Crown submitted that each of the offences fell at the mid-range of objective seriousness for offences of this kind.

40. The Crown submitted an aggravating feature pursuant to s21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”) concerned the offences involving multiple victims or a series of criminal acts over two consecutive days.

41. The Crown acknowledged mitigating factors pursuant to s21A(3)(e) and (f) of the CSPA as the offender had no record of previous convictions and was of prior good character. Pursuant to ss3(k) he was entitled to a 25% discount by virtue of his plea of guilty.

42. The Crown noted that the offender has been assessed by Ms Hawil as a moderate risk of reoffending as well as having a need for a high level of supervision. The Crown further submitted that despite the offender’s mental health issues and drug issues he would not be an inappropriate vehicle for general deterrence. The offender had however demonstrated insight into his offending by accepting responsibility for his conduct and the ongoing trauma inflicted on both victims.

43. The Crown referred to the consequences of mental illness in sentencing in accordance with the principles in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 to submit that there may be a lessening of moral culpability for the offending here. Whilst drug addiction was not a matter of mitigation, it may shed light as to the motivation for the offending. The Crown submitted that the offender’s “mental health issues, substance abuse and his historical lack of engagement with relevant supports lessen his prospects of rehabilitation and additional weight ought to be given to the need to protect the community”, relying on R v Van Ryn [2016] NSWCCA 1 at [194]. Further, the Crown submitted the need for any sentence to be imposed to reflect a component of specific deterrence is greater in these circumstances. The Crown noted that the underlying reasons for the offender’s substance abuse relating to “childhood trauma” has gone unaddressed. Given Ms Hawil’s assessment of the offender having a moderate risk of reoffending and notwithstanding that he has taken some steps towards rehabilitation, the Crown submitted that the offender had previously struggled to maintain engagement with psychological assistance and the Court would be guarded in its assessment of his prospects of rehabilitation.

44. The Crown referred to the maximum penalty for the two offences of 20 and 25 years imprisonment, and the non-parole period of 7 years in respect of Sequence 4 as legislative guideposts.

45. The Crown submitted that a finding of special circumstances was available but that the Court should ensure that the non-parole period is adequate to reflect the objective gravity of the offending and reflect the purposes of sentencing.

46. The Crown submitted that pursuant to s30E of the CSPA the Court is required to consider the VIS in respect of Sequence 4 prior to sentencing. Further, the absence of a VIS in respect of Sequence 1 does not give rise to an inference that the offence had little or no impact on the victim concerned (s30E(5)).

47. With respect to the principle of totality, the Crown submitted that as the offences occurred one day apart there ought to be a degree of partial accumulation to reflect the overall criminality of the offending and to acknowledge the harm done to the individual victims. The Crown submitted that the s5 threshold had been crossed and a sentence of full-time imprisonment was the only appropriate sentence.

48. In her oral submissions, the Crown accepted that there was a temporal connection between the offender’s childhood sexual abuse and his ongoing abuse of prohibited drugs. In accordance with the guideline judgment in Henry, the offender’s drug use may shed light on his impulsivity for the offending, however the Crown submitted that the Court would not accept his ongoing drug use was not a personal choice given his previous treatment in 2023.

49. In assessing the objective seriousness of the offending, the Court would have regard to his use of the knife and mask in respect of Sequence 1. Further the second offence in two days detracted from that offence being spontaneous.

50. The Crown submitted that whilst the offender’s drug use colours the offending giving a motivation to fund his drug use, this would have a slight mitigating effect on sentence.

51. The Crown rehearsed her submissions regarding the mental health of the offender accepting the diagnoses of PTSD and opioid use disorder in remission. Whilst Ms Hawil found no definite causal nexus, the offender was sleep deprived and suffering withdrawal at the time of the first offence. The Crown rehearsed her submissions regarding the offender’s mental health and the principles in De La Rosa so as to diminish moral culpability which gave rise to a greater need for weight to be given to community protection in sentencing. The Crown referred to the explanation given by the offender to the psychologist for his offending conduct, and the psychologist’s qualification on accepting the accuracy of his self-reporting.

52. The Crown rehearsed her submissions regarding the offender’s prospects of rehabilitation being guarded. Whilst he had failed to adhere to treatment in the past, he also had the benefit of strong family support and protective features identified by Ms Hawil which were all available at the time of the offending.

53. Finally the Crown submitted that any penalty to be imposed needs to reflect the objective seriousness of the offending.

The offender’s submissions

54. Counsel for the offender also relied on a thorough and detailed written outline of submissions setting out the relevant Henry factors, aggravating and mitigating factors which are not in dispute.

55. Counsel identified that drug addiction may be relevant as a subjective circumstance where the origin of the addiction might suggest that it was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, as identified in R v Henry per Woods CJ at CL at [273]. Counsel relied on the report of Ms Hawil concerning his substance abuse at the time of the offending to submit that this may have impaired his judgment and decision making. He referred to her opinion that his substance use problems developed as a maladaptive coping mechanism in response to unresolved trauma, the genesis being the sexual abuse he suffered which gave rise to drug addiction commencing at a very young age. Counsel submitted this was not a matter of personal choice for this offender and that it indicated the offending was relatively spontaneous and informed the Court as to the offender’s state of mind and his capacity to exercise judgment at the time.

56. Counsel rehearsed the principles in DPP (Cth) v De La Rosa as to the impact of mental illness on sentencing by:-

(i) Reduction of moral culpability. (ii) Making the offender an inappropriate vehicle for general deterrence resulting in a reduction of the sentence which would otherwise have been imposed. (iii) It might mean that a custodial sentence may weigh more heavily on a person. (iv) It may reduce or eliminate the significance of specific deterrence.

57. Counsel submitted that all four matters were relevant in sentencing this offender. Counsel also referred to well-known passages in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and TC v R [2009] NSWCCA 296 to submit that even if there is no causal nexus between the mental state of the offender and the offending behaviour, the sentencing Court is still required to have regard to the offender’s mental health problems in evaluating the subjective circumstances of the offender at the time of the offences.

58. Counsel referred to research that links child sexual abuse and a spectrum of adverse mental health and behavioural consequences. There was no issue as to the opinions of Ms Hawil, that the offender met the criteria for diagnosis of PTSD and opioid use disorder which engaged the principles in De La Rosa. Counsel referred to the offender’s apology letter as a basis for assessment of his prospects of rehabilitation and also submitted the offender’s youth was an important factor in supporting a more lenient sentence for three reasons:-

(i) Reduced seriousness of the offence where immaturity is a significant factor. (ii) Reduced need for specific deterrence and enhance prospects of rehabilitation. Here the offender had already made some important steps towards rehabilitation. (iii) Retribution and general deterrence should be given less weight than rehabilitation. Here it was submitted that the offender as a young person is not the most appropriate vehicle to send a message to the community denouncing his conduct.

59. Counsel submitted that in applying the principle of totality there ought to be a degree of partial accumulation in sentences to reflect the overall criminality of the offences and acknowledge the harm done to both of the victims.

60. Counsel also submitted this was an appropriate case for a finding of special circumstances, which was not in issue.

61. In his oral submissions counsel for the offender rehearsed his submissions regarding the seriousness of the offending, the concession that the s5 threshold had been crossed and that the Henry guideline applies. The offender was, at the time of the offending 18 years and 8 days of age with no prior convictions.

62. Counsel conceded a degree of planning was involved given the fact that the offender was in possession of a knife he obtained following an incident one month prior to the offending, where a gun had been aimed at his head and he obtained the knife “for protection”. Counsel acknowledged that this occurred as the offender was engaged in the drug milieu. Notwithstanding that, there was a degree of spontaneity involved in the offending and the Court could find that he had no intention to commit the offences using the knife.

63. Counsel conceded that the offender used a mask to conceal part of his face during the first offence, Sequence 1 and referred to the photographs in Exhibit A which revealed that it did not cover more than the offender’s mouth and nose, and he was easily able to be identified from the CCTV footage.

64. Counsel submitted there was a degree of violence involved however it was an element of both offences given that Sequence 1 concerned actual bodily harm and Sequence 4 concerned a wounding, and therefore the Court was not to double count the violence involved in assessing the objective seriousness of the offending. Similarly, the amounts of money demanded were not large.

65. Counsel rehearsed his submissions regarding the aggravating and mitigating factors to be taken into account. He submitted the Court would accept the offender’s heartfelt apology and expressions of remorse which he had also expressed to Ms Hawil and his mother. He had also accepted responsibility for his actions.

66. Counsel submitted that the offender’s drug addiction impacted upon the objective criminality in three ways:-

(i) That it added support for the offending being partly impulsive in that the offences were committed to fund and support his drug habit. (ii) The offences were not committed to fund other criminal activity, and (iii) Because of his drug addiction the offender’s state of mind or capacity to exercise judgment was significantly impacted at the time of the offending.

67. Counsel submitted that the genesis of this offender’s drug addiction was relevant to establish that it was not a matter of personal choice but primarily because of sexual abuse perpetrated on the offender at school at a young age. This was not a case where the offender freely and voluntarily commenced to use drugs. The offender’s history of drug taking was clearly set out in the report of Mr Hawil and in the agreed facts during his ERISP the offender told investigating police that he had recently used Fentanyl prior to the offending. Counsel submitted that his decision making was clearly impaired at the time of the offending which would moderate any sentence imposed.

68. Counsel rehearsed his submissions regarding the principles in De La Rosa and the impact of mental health by reference to the report of Ms Hawil in Exhibit 1.1 to submit that following his childhood sexual abuse, his life had spiralled out of control relatively quickly and into a number of serious drug addictions. Counsel submitted the offender’s moral culpability was diminished, he was less of an appropriate vehicle for general deterrence and there should be a reduction of sentence. There was also a need for specific deterrence to be of diminished importance although it remained applicable.

69. Whilst there was no direct evidence concerning the impact a custodial sentence would have on his mental health, it was clear that he did not get the same regime of care for his PTSD and drug addiction as was available in the community.

70. Counsel rehearsed his submissions regarding the progress the offender had made in his rehabilitation and submitted that upon his release into the community he will receive the same level of support from his family as evidenced by his previous treatment. This demonstrated he had enhanced prospects of rehabilitation and has done what he could to demonstrate that progress. Counsel rehearsed his submissions regarding the youth of the offender, the application of the principle of totality so as to apply as much concurrency between sentences as possible in the circumstances and that a finding of special circumstances, which was conceded by the Crown, should lead to a variation of the ratio between head sentence and non-parole period to maximise the extent of the benefit of rehabilitation available to the offender.

Determination

71. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

72. In assessing the objective seriousness of the offending I have had regard to the guideline judgment in R v Henry and find the following common factors apply to both offences:-

(i) The offender was young, being just 18 years of age at the time of the offending and had no relevant criminal history. (ii) That the offender was on both occasions armed with a silver blade knife approximately 15 to 20cm in length. (iii) There was a limited degree of planning involved. The offender had armed himself with the knife following an incident one month beforehand where he had been threatened with a gun. Whilst he claimed to have the knife “for protection”, given the circumstances in which he entered the taxi on each occasion, I cannot find on the balance of probabilities that he had no intention of using the knife as submitted by his counsel. Nor can I find beyond reasonable doubt that he did have such an intention, but on both occasions, he did use the knife. (iv) I find that there was a real threat of violence involved in both offences which progressed to actual violence causing actual bodily injury in Sequence 1 and a wounding in Sequence 4. (v) Both victims were vulnerable as taxi drivers. (vi) On each occasion the offender sought cash from each victim, namely $500 and $600 respectively. No cash was taken but in Sequence 1 the offender took the dash camera from the taxi and in Sequence 4 he initially took the driver’s iPhone 14. (vii) The offender entered an early plea of guilty entitling him to a 25% discount on sentence. It was entered however in the face of a strong Crown case. (viii) At the time of the offending the offender was in the grip of a drug addiction, the genesis of which may be traced back to him being the victim of sexual abuse at the age of 12 which led to his abuse of prohibited drugs and his spiralling addiction to highly addictive drugs including heroin and possibly Fentanyl. It is clear that he was motivated to obtain money to purchase drugs for his own use which explains the impulsiveness of the first offending in Sequence 1, and to an extent his desperation involved in the offending in Sequence 4 the very next day. (ix) Both offences were of relatively short duration.

73. Having regard to the circumstances of the offending in Sequence 1 and the actual bodily harm caused by the offender, the assessment of the objective seriousness of the offending must be measured against a very wide range of criminal offending contemplated by s95(1) CA. Having regard to all of the relevant circumstances here, I find that the offending fell in the middle of the low range for an offence pursuant to s95(1) CA.

74. The offending in Sequence 4 constituted serious offending which involved not only the confrontation in the taxi during which the offender demanded money from the driver and threatened him with the knife, but also the attempt to steal the driver’s satchel and wallet, stealing the driver’s iPhone 14 and then stabbing the driver two to three times as the driver attempted to exit the vehicle, the ensuing chase and assault. Also relevant to the assessment are the injuries suffered by the victim which included three lacerations to his right forearm, a laceration to his left thumb and multiple lacerations on his left hand together with knee and back injuries. Section 98 CA contemplates a wide spectrum of offences involving assault with offensive weapon with intent to rob and wounding and having regard to the whole of the circumstances of the offending here, I find that the objective seriousness of the offending fell below the mid-range for an offence pursuant to that section, but in the upper part of the low-range for such an offence.

75. An aggravating feature of the offending pursuant to s21A(2)(m) was that the offence involved multiple victims and a series of criminal acts carried out over two consecutive days.

76. Mitigating factors to be taken into are that the offender had no record of previous convictions (s21A(3)(e)) and was a person of prior good character (s21A(3)(f)). There is no issue that he is entitled to a 25% utilitarian discount on sentence by virtue of his plea of guilty. I also find that the offender has expressed genuine remorse for his offending.

77. I further find that the moral culpability of the offender in respect of both offences was high, in that on both occasions he entered the taxi armed with a knife capable of causing serious injury and proceeded to demand money from both victims and then used a knife when his demands were resisted. This finding is, however, tempered by his PTSD and childhood trauma as set out below.

78. General deterrence is important in sentencing for offences pursuant to s95(1) and s98 of the CA. In accordance with the guideline judgment in Henry. Parliament has prescribed a maximum penalty of 20 years imprisonment for offences pursuant to s95(1) CA and a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment for offences pursuant to s98 CA. The maximum penalties and standard non-parole period in respect of s98 offences indicates the seriousness of the offending and also provide guideposts in the sentencing process. The guideline of 4 to 5 years imprisonment for a case meeting the criteria set out in Henry sends a clear message to like-minded members of the community that the Courts will impose condign punishment for such offending, particularly where multiple offences have occurred.

79. Specific deterrence is also important given the serious nature of the offending and the serious consequences for offenders if they were to reoffend.

80. There are significant subjective factors to be taken into account in sentencing this offender. He was very young, having just passed his 18th birthday prior to this offending. Notwithstanding that it is the first of the Henry factors to be taken into account, the offender’s youth remains relevant to sentencing. In BP v R [2010] 201 A Crim R 379; [2010] NSWCCA 159, Hodgson JA at [5] stated that “emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-twenties”.

81. The Crown did not challenge, and I accept, the genesis of the offender’s abuse of prohibited drugs was the sexual assault he suffered at the hands of a teacher at age 12 which led to his use of cannabis and spiralled into his addiction to cocaine, heroin and possibly Fentanyl as a component of the vape liquid he was using on a daily basis. I accept the opinion of Ms Hawil that his substance use problems developed as a maladaptive coping mechanism in response to unresolved trauma from his sexual abuse as a child. I further accept his counsel’s submission that his addiction was not a matter of personal choice and that it impaired his judgment and decision making. This supports the finding made above that the offending in Sequence 1 was relatively spontaneous.

82. I also accept the opinion of Ms Hawil that the offender suffers PTSD as a result of his unresolved childhood trauma and an opioid use disorder in remission. In accordance with the principles in DPP (Cth) v De La Rosa, this reduced his moral culpability for the offending, makes him an inappropriate vehicle for general deterrence, reduces the significance of specific deterrence and I find that it will mean that a custodial sentence will weigh more heavily on him than for those in the general prison population.

83. This young offender does have some prospects of rehabilitation given that he has a supportive family who endeavoured to provide a treatment regime for him prior to the index offending and he has been abstinent from illicit drug use since his incarceration having progressed his rehabilitation through the Buvidal program. It is no small feat to overcome an addiction to such highly addictive illicit drugs as cocaine, heroin and Fentanyl and whilst he is to be commended for the progress he has made with his rehabilitation to date, and his express desire to remain drug free and become a valuable member of the community, experience demonstrates that abstinence is far more difficult to achieve in a non-custodial setting and for that reason, his prospects of rehabilitation must remain somewhat guarded. His risk of recidivism is entirely dependent on whether he is able to remain drug free in the community, however I accept that he is at a low risk given his strong family support and the other protective factors identified by Ms Hawil.

84. I have taken into account the VIS of the victim to the offending in Sequence 4. The physical and emotional sequalae to this man have affected almost every aspect of his life, his relationships including his marriage and his ability to earn a living. It is a poignant reminder of the serious impact of violent crimes upon victims in our community. I do not however take the VIS into account in increasing the offender’s moral culpability for the offending. Nor does the absence of a VIS in respect of the victim of the offending in Sequence 1 give rise to an inference that the offence had little or no impact on a victim.

85. There was no issue that the s5 threshold has been crossed here and no penalty other than imprisonment is appropriate in the circumstances. I intend to proceed to impose an aggregate sentence pursuant to s53A of the CSPA. In order to provide transparency in the sentencing process I am to provide indicative sentences for each offence. Having regarding to the application of the Henry guideline, the objective seriousness of the offending, the significant subjective matters set out above including the 25% utilitarian discount on sentence and the genuine expressions of remorse by the offender, the indicative sentences are:-

86. Sequence 1 – Offence pursuant to s95(1) CA a term of 3 years imprisonment.

87. Sequence 4 – Offence pursuant to s98 CA a term of 3 years and 4 months imprisonment with a non-parole period of 1 year and 8 months imprisonment.

88. The principle of totality was described by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] as follows:-

"There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

87. The two offences here occurred on consecutive days and as outlined above involved some commonality of features. Some accumulation in sentence is required given that there were two victims. The totality of criminality here warrants partial concurrency, and I intend to impose a head sentence of 4 years imprisonment. I find special circumstances pursuant to s44(2) of the CSPA on the basis of the offender’s young age, the fact that this is his first time in custody and that he will require an extended period under supervision to undertake rehabilitation for his drug addiction and to address its underlying causes. For those reasons I intend to impose a non-parole period of 2 years imprisonment. The sentence will be backdated 405 days to reflect his time in custody to date.

Orders

88. I hereby order as follows:-

89. You are convicted of the offence in Sequence 1, aggravated robbery and inflict actual bodily harm, an offence pursuant to s95(1) CA.

90. You are convicted of the offence in Sequence 4, assault with offensive weapon with intent to rob and wounding, an offence pursuant to s98 CA.

91. I sentence you to an aggregate sentence pursuant to s53A of the CSPA.

92. I make a finding of special circumstances pursuant to s44(2) of the CSPA.

93. I sentence you to a non-parole period of 2 years to commence on 3 August 2024 and to expire on 2 August 2026. The balance of term will be a period of 2 years to commence on 3 August 2026 and to terminate on 2 August 2028.

94. Your parole eligibility date will be 2 August 2026. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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