Remarks on sentence
9 The sentencing Judge described in summary form the matters she dealt with on the indictment of 1 February 2002.
10 The offence charged under count 1 occurred at the Super Saver Store in Guildford just after 7 pm on 16 July 1999. The applicant produced a knife and demanded that the console operator open the till whilst pointing the knife at that person. The operator could not open the till and the applicant became aggressive and insistent, yelling at her. He climbed over the counter and tried to open the till, whilst continuing to threaten her with a knife. The applicant left the store without obtaining any property when the till would not open. The incident was filmed on surveillance camera.
11 The events giving rise to count 2 occurred about thirty minutes after the events of count 1 on 16 July 1999 when the applicant went into the Shell Service Station in Guildford. A Mr McGarry was working there behind the console. The applicant produced a knife and held it at Mr McGarry demanding money. Mr McGarry did not resist. The applicant pulled a jumper down over his hands, grabbed money from the cash register and walked from the store. A sum of just under $250 in cash was taken in this robbery which was also recorded on surveillance video.
12 As a result of his identification from the videos the applicant was arrested by police when seen on 6 August 1999. He declined to answer questions and when shown photographs from the surveillance videos he denied that he was the person involved. As already indicated he was granted bail when he came before the court and ultimately pleaded guilty pursuant to s51A of the Justices Act.
13 In the meantime, on 15 December 1999 he committed the first of the three offences in the Form 1, which was a receiving offence. At about 10 am on 15 December 1999 the applicant was found to be in possession of twenty-six assorted phone cards which had earlier been stolen from the Ampol Service Station at Granville in circumstances where a male person had robbed the console operator whilst armed with a knife. When the applicant was arrested and found to be in possession of those cards he indicated he knew they were stolen but that he had bought them earlier in the day from Auburn Railway Station. The sentencing Judge observed:
"It is unclear, to me at least, how in the circumstances, being on bail for two armed robbery charges, [the applicant] came to be granted bail in relation to that matter, and the evidence before me does not enable me to trace what occurred to this particular charge as it found its way through the Local Courts, but it is a matter which I take into account on sentencing him for count 4 in that February indictment.
In the intervening period, whilst he was on bail, pre-sentence reports were being prepared but there were indications that he was not complying with his bail conditions in relation to attending a rehabilitation programme and keeping appointments with Probation and Parole. There was, apparently, no action taken to deal with these breaches of bail conditions and ultimately he failed to appear for sentence on 20 March 2000. He had, in fact, committed the third of the three offences on 19 March 2000 in circumstances where at about 1 am that morning he approached the Mobil Service Station in Rydalmere where Mr Ali Baig was working alone. He gained entry to the shop area and after approaching the counter there pulled the hood of his jacked over his head to conceal the upper portion of his face. He removed a black metal bar from behind his back. He threatened Mr Baig that he would kill him and demanded money. [The applicant] moved behind the rear of the counter and again threatened the console operator with a metal bar. Fearing for his safety Mr Baig opened the cash register. [The applicant] removed a quantity of cash from it and also opened the cash dispensing safe under the counter, removing a tube which contained more money. He then took packets of cigarettes from the display case and left the store. This incident was captured by surveillance video and [the applicant] was positively identified from stills taken from this source."
14 The sentencing Judge observed that it would appear from the terms of the third count, although nowhere in the facts tendered, that the sum of $350 in cash as well as two packets of cigarettes were stolen as a result of the robbery.
15 I must express my astonishment that the applicant on bail for two charges, one of attempted and the other of actual armed robbery, to which he had pleaded guilty, was granted bail when found to be in possession of phone cards stolen from a service station as the result of another armed robbery. My astonishment becomes even greater if it be right that the applicant was not complying with his bail conditions by attending a rehabilitation programme and keeping appointments with probation and parole officers.
16 Four days later on 23 March 2000 the applicant committed the fourth of the four offences in the indictment namely the aggravated armed robbery offence. This occurred at 1 am when the applicant entered the Seven Eleven Store at North Rocks. The console operator, Mr Kandiah, was standing outside the entrance doors and was approached by the applicant and an unidentified co-offender. The applicant entered the shop and selected some items while the co-offender was talking to Mr Kandiah, who then entered the shop to serve the applicant. When he walked past the applicant he was grabbed from behind and forced to the cash register. The applicant held a flick knife to his throat and the co-offender forced a metallic bar into his back. They forced him to open the cash register and demanded money. The attendant was understandably fearful for his well-being and complied and opened the till. The co-offender removed money from the cash drawer and the applicant removed a large quantity of cigarettes from the display shelves. He placed these into a large orange garbage bag. The co-offender also demanded the attendant's wallet from which he then removed a sum of money. The two offenders then left the store. Examination of the display shelves uncovered a fingerprint which was later found to be that of the applicant.
17 According to his statement, Mr Kandiah was in such fear that he was in tears. The offenders told him as they left "Don't call anyone, we will kill you." Mr Kandiah's arm was sore from being twisted and held behind his back by one of them.
18 All the victims of the four robberies were placed in fear as a result of the offences. Mr Kandiah needed to spend a few days away from work to recover. The sentencing Judge accepted from the wording of the fourth count in the indictment that the sum of $240 in cash was stolen during the course of this robbery as well as a quantity of cigarettes.
19 The sentencing Judge next dealt chronologically with the facts in relation to the jointly charged offences. The first of these, the first offence in the Form 1, occurred on 21 May 2000 when the co-offenders together went into the Caltex Service Station at Carlingford just after 6 am. I interpolate that her Honour wrongly referred to this as the BP Service Station at Blacktown but nothing turns on this. There was a twenty-year-old female attendant working there. She was alone. The two offenders pulled up in a brown Laser and entered the shop area. They pulled their jumpers up over their faces. One of them was holding a knife at waist height which had a blade of about 15 to 20 cm. A demand was made for the till to be opened and the attendant was asked the location of cigarettes. One or other of the two offenders emptied the till while the other put a quantity of cigarettes from the office into their vehicle. The console operator was forced to lie face down on the floor with a knife pointed at her abdomen from a short distance away. The offenders left shortly afterwards. During the course of that robbery the offenders took the wallet owned by the attendant, including $20 in cash and her credit cards, and the mobile phone belonging to her. $600 in cash and cigarettes with a total value of about $13,770 were removed.
20 The next offence was that charged in count 1 of the indictment. On 1 June 2000 the offenders went into the BP Service Station at Blacktown just after 6 am. The twenty-year-old male attendant was in the process of setting up the store for service. Each of the offenders was wearing head gear when they entered the shop, one a baseball cap and the other a beanie. One or other went behind the counter, produced a 20-cm-long bladed knife and told the attendant to get onto the ground. Each of the offenders was armed with a knife. Demands were made of the attendant to open the safe but he was unable to do so. He was also asked the location of mobile phone charge cards. The offenders took a quantity of cigarettes and placed them into a garbage bag and left the premises. As a result of this robbery about 1,000 packets of cigarettes were taken with an estimated total value of $10,000. In addition, about sixty pre-paid telephone cards were taken with differing values ranging in total from $6,000 to $30,000. The sum of about $340 was also taken in cash. Neither of the offenders was identified during this robbery because they were disguised. The fingerprint of the applicant was, however, found following the robbery and subsequently identified.
21 The registration number of the car used by the offenders to take them to this robbery was recorded when the attendant followed them outside. It had been stolen from the carpark of a unit complex in Auburn in the early hours of 1 June. When it was ultimately recovered, the quarter window had been smashed and the ignition had been damaged. The larceny motor vehicle, the second offence in the Form 1, was the charge flowing from this occurrence.
22 The next offence was count 2 in the indictment and occurred on 5 June 2000 at the BP Service Station at Auburn. The offenders went there just after 3 am. The attendant opened the doors and each entered. Each had on head gear, one a cream cap and the other a cap and balaclava. One produced a knife which was pointed at the attendant's chest from about 10 cms away. He was told to lie down. He did so because of fear of being injured. The offenders placed packets of cigarettes into a garbage bag. The attendant was forced to open the till and the offenders left driving away in the stolen vehicle already referred to. A quantity of money and cigarettes was stolen but from the material tendered the sentencing Judge was unable to determine either the quantity of property or the amount of money removed.
23 The next offence was the subject of count 3 in the indictment and occurred on 8 June 2000 at the Mobil Service Station at Granville at about 5.30 am. A thirty-year-old male casual attendant was working there alone. His wife and infant daughter were inside the service station with him because of the wife's fear of remaining at home alone. The offenders entered the store and moved to the console and to the male attendant. Each of them had a black bandanna covering the lower part of his face. One or other was holding a knife. He yelled that it was a robbery and the attendant's family moved to the office area. The offenders then removed two garbage bags from underneath their jackets and filled them with almost all of the available cartons of cigarettes. About 120 cartons of cigarettes with a value of approximately $6,000 was stolen.
24 The next offence was the subject of the third offence in the Form 1 and occurred on 25 June 2000 at the Ampol Service Station at Rydalmere. The offenders drove a car up to the service station just after 6 am. A forty-one-year-old male attendant was working alone in the service station. One of the two offenders entered the store first with his face disguised by a balaclava and a baseball cap on his head. He produced a knife and pointed it at the attendant. The attendant tried to reach the alarm but the offender told him to move away. The offender jumped the counter and at that stage the other offender entered the store, also with his face disguised. He yelled for the attendant to get down onto the floor and pushed him down. One or other of the two offenders then carried a number of garbage bags. They led the attendant to the maintenance room, closed the door and placed cigarettes in the bag from the display shelves. They then asked the attendant how to open the two registers. One was open but empty. The two offenders then left the store taking some money from one of the registers. Cigarettes with a value of between $3,000 and $4,000 were stolen together with about $400 or $500 in cash.
25 The fourth offence in the Form 1 occurred on 11 July 2000 at the Shell Service Station at Ryde at 6 am just as it was opening. Again the attendant, a twenty-six-year-old male, was alone opening up the service station for business that day. The offenders arrived in a red Laser and as the attendant entered the shop area one of the offenders followed him, produced a knife and demanded that he get onto the floor. They demanded money from the till. The till was opened and the attendant was asked the location of the cigarettes and the mobile phone cards. Both offenders were in the shop and placed tobacco and other cigarette packets into a garbage bag. The attendant's wallet with $70 in cash, his driver's licence and other personal effects were stolen. Also stolen was about $400 in cash, cigarettes and tobacco products with a total value of about $4,350 with mobile phone cards with a total value of about $250.
26 The next offence was that in count 4 of the indictment and occurred on 14 July 2000 at the Caltex Service Station at Carlingford. This was the same location as that covered by the first offence on Form 1. The offenders confronted the twenty-two male attendant who was arriving at work just before 6 am to open up. Each was at the back door of the premises and had a hat or some other item covering the lower parts of his face. One of them held a knife with a 10-cm blade towards the attendant and ordered him to the ground. They asked the whereabouts of the money and cigarettes. One of the offenders went to the back room and placed the cigarettes into a garbage bag. They turned off the lights and took the contents of the cash register. They also demanded the change bag and the attendant's wallet and searched for cash in them. They drove away in the red Laser. As a result of this robbery about $2,250 was stolen from the service station, an unknown quantity of cigarettes and about $100 from the wallet belonging to the attendant. It was on this count that the sentencing Judge was asked to take into account all of the Form 1 offences.
27 The next offence, count 5 in the indictment, occurred on 17 July 2000 at the Quix Store Gladesville at about 6 am. The twenty-three-year-old male attendant was working there alone. The offenders went to the premises in a red Laser with registration plates UIT 187. They went into the shop, looked around and then returned to the car. After the attendant finished serving a customer in the store they drove into the customer parking area and one approached the attendant from behind and stuck a knife into his back. The knife had a 20-cm blade. The attendant was told to go into the store and turn off the inside lights. He was forced to kneel and the two offenders took cigarettes and lighters from the shop and forced him to open the till. The offenders stole about twenty CDs from the shop. The attendant was directed to open the safe, which he could not do. He was taken by the offenders into the store room and told to lie on the floor. As a result of the robbery about $150 was taken from the register and CDs worth about $600 and an unknown quantity of cigarettes, lighters and confectionary were stolen. The fifth offence in the Form 1 related to the car used in this robbery, which had been stolen some time on 8 July 2000 from Flemington Markets. It was not recovered until early October. Its tyres were flat and rubbish and rotten fruit were found inside. It was uninsured and rendered virtually useless to its owner.
28 Judge Tupman observed:
"In relation to the robbery occurring at the Quix Service Station I note that it was the second time that that particular twenty-three year old attendant had been the victim of such an armed robbery within a month. He had been a similar victim about three weeks previously in circumstances where I accept from his statement that these two [offenders] were the same two who had committed the earlier robbery. I also know that one of the original charges in the indictment, dated 15 November 2001, included an armed robbery at this Quix store in Gladesville on 21 June 2000. It appears to be one in relation to which the Crown elected to take no further proceedings as part of a negotiated result which gave rise to the pleas of guilty to five counts, with a further four counts on Form 1. I accept that, no doubt, this particular victim was further victimised as a result of the earlier offence having occurred and whether it be these two [offenders] who committed it or not, the prevalence of these offences in service stations and convenience stores in the late evening or early morning is such that offenders committing such offences could safely assume that these workers, just like bank tellers in the past, have been victims already of such offences and put in fear, such that a repetition only increases and exacerbates that apprehension. It would not be surprising if this was the case with this young man."
29 The last offence, the sixth in the Form 1, occurred on 24 July 2000 when the offenders robbed the Shell Service Station at Blacktown. The nineteen year old female attendant opened up the premises at 5.30 am ready for a 6 am start. The offenders drove the stolen red Laser to the premises. She told the offenders that the shop did not open until six but as she used her key to enter, one or other of the offenders put his hand on her back and told her that it was a hold-up and demanded that she get onto the floor. He was holding a knife. The offenders dragged her up to her feet and forced her to open the cash register. They took money, cigarettes and phone cards as a result of this armed robbery. The sum of about $180 in cash, $2,000 worth of cigarettes and phone cards and other mobile phone kits worth about $100 were stolen as a result of the robbery.
30 At the time of his arrest on 27 July 2000 the applicant was living in a hotel at Lidcombe. The police attended there, making inquiries in relation to a string of service station robberies at the time. They approached the applicant on a landing near a room in that hotel. He struggled with them. He is said to have struggled violently by thrashing his arms and legs and attempting to strike police during the struggle. His actions in resisting that arrest gave rise to the last two offences on the Form 1 in relation to the indictment against the applicant alone. The applicant declined to participate in a record of interview and was remanded in custody with bail refused.
31 The sentencing Judge observed that the jointly committed offences by the two offenders were aggravated by the fact that they were committed in company. That made them more serious examples of armed robberies. Further, so far as the applicant was concerned, all of the jointly committed offences and counts 3 and 4 in the February 2002 indictment were committed either while he was on bail or after a warrant had been issued after he failed to attend the District Court for sentence.
32 The sentencing Judge said that it was clear that all the offences were serious offences committed on vulnerable workers, usually in the early morning when the service stations or convenience stores were about to open. While it was submitted that relatively small amounts of property were stolen her Honour did not accept that. Where the Crown had provided the Court with information about the quantity or value of stolen goods it appeared that considerable quantities of cigarettes and on many occasions mobile phone cards had been stolen. In relation to one of the offences, cigarettes worth about $10,000 and mobile phone cards worth anything between $6,000 and $30,000 were stolen. There were also quantities of cash stolen. In some offences these were relatively small quantities but overall it seemed to the sentencing Judge that considerable amounts of property were stolen.
33 On all occasions the victims were put in fear, having knives or bars forced into their backs, being forced to the ground, being threatened and being led into store rooms and the like. The sentencing Judge said:
"These people, working as console operators and attendants, were usually young. They were all working alone and they were all of them doing no more than trying to earn a living honestly doing a job which, no doubt, most of us would find unpalatable and which, presumably, is not particularly well paid. The community expects to be able to attend these services stations and convenience stores at all hours of the day and night but expects to be able to do so safely, without risk that they will interrupt such an armed robbery. Further, it seems to me that people who work in these jobs so that the community can have this convenience, ought to be entitled to expect that they will do so without the risk of being threatened, intimidated and even physically harmed or even killed by people such as these [offenders]. The sentences imposed for such offences should send a strong message that armed robbery offences such as these will be punished severely by the courts."
34 Clearly these remarks made by her Honour were appropriate. Severe punishment was called for for the offences in question. Her Honour turned to the factors to be taken into account by way of subjective circumstances and otherwise. She started with the jointly charged matters where late pleas of guilty were entered on the day of trial, though possibly indicated during the preceding week. She acknowledged that they had a utilitarian value nonetheless because the trial was to last three weeks. Moreover, the Crown conceded that it did not have a particularly strong case against either offender particularly Chahrouk. Her Honour considered that the combination of the utilitarian value of the plea, albeit late, and the recognition of the relative weakness of the Crown case gave rise to a discount but no more than a range of between 10 and 15 per cent. Her Honour then said:
"As to the other matters for which I am sentencing Mr Trad, as I have said, they were before the court originally by way of 51A pleas and are thus entered earlier. They are for that alone entitled to a discount. They are both, however, stronger cases against Mr Trad with identification evidence available from surveillance videos and some other evidence.
Further, as to all four offences, they only come to be sentenced now after the prisoner has been brought back into custody in July 2000 on warrants after having failed to appear for sentence at the District Court. There has been a considerable delay in sentencing the prisoner in relation to these earlier offences, in part occasioned by the prisoner's desire to have matters sentenced together following his arrest for the subsequent nine armed robberies and pleas of guilty on the day of his trial. For these reason, it seems to me, that the pleas of guilty in those cases, although early and originally pursuant to s51A of the Justices Act and therefore whilst attracting a discount for their utilitarian value and timing, also only attract a discount in the range of ten to fifteen per cent."
35 Her Honour acknowledged that the applicant at the time of sentencing was twenty-two and had been nineteen or twenty at the time he committed the offences. She regarded his criminal history as of little significance or relevance when sentencing him for the offences. She remarked only that they were not his first offence and it was not the first time he had been before a court. She accepted that all offences were committed by him to fund his addiction to illegal drugs and that more probably than not he was actually drug-affected when committing most of them. There had been several pre-sentence reports prepared. One prepared in October 1999 following his arrest for the first two matters indicated a degree of hope for him. Efforts were made to place him in a drug rehabilitation unit but unfortunately he discharged himself from that course. He did not take advantage of assistance and supervision being offered by the probation and parole service and his family and ultimately failed to appear.
36 The applicant had had a good upbringing although marred by the death of his mother when he was only a few months old. He was well raised by his father, paternal grandmother and older brother. Unfortunately he began to associate with a poor peer group after he left home at about eighteen. He started to use illicit drugs. His family tried to help him to overcome this drug addiction but were unable to do so because he was not prepared to take advantage of their assistance.
37 After leaving school in Year 10 the applicant worked as an apprentice mechanic for about two years and then started a lawn mowing business, which lasted for only a few weeks. He did various other jobs for several weeks at a time, which more often than not came to an end because of his drug use. This started with smoking cannabis at about sixteen years of age. He then started to smoke heroin. His family arranged for him to attend rehabilitation programmes at both the William Booth Centre and Odyssey House, both of which he left after staying only a day. When a little older he started to inject heroin. Up to the time he was arrested for the offences he had taken no real steps to overcome his addiction to drugs even though assistance was being provided by his family. Even during the initial period of his imprisonment the trial Judge accepted that the applicant had not committed himself to overcoming his addiction to drugs and did not indicate any genuine remorse and contrition in relation to the commission of the offences.
38 However Judge Tupman accepted that over time that had changed. She found that in more recent times he had taken positive steps towards his rehabilitation. She said:
"He is attending Narcotics Anonymous in gaol. I accept that he has withdrawn from using heroin after going into custody and is taking advantage of those courses that have been available to him as a remand prisoner following his arrest in July 2000. His family has remained supportive. He also now has the benefit of a supportive relationship with a young woman who was a friend as a child but who distanced herself from [him] when he started to use drugs. She has re-established contact and been to visit him in gaol. She has apparently agreed to marry him on his release. She was an impressive witness who was not herself involved in any illegal activities nor drug activities. I accept that she too will operate as a positive rehabilitative factor."
39 The sentencing Judge regarded the applicant's prospects of rehabilitation as relatively good and accepted that he was currently well motivated towards rehabilitation. However, this was entirely dependant on his remaining free of illegal drugs. The Judge sounded a note of caution surrounding his prospects of rehabilitation given the opportunities that he had taken and failed to use properly in the past. She observed that this was his first gaol term. He was young and it would be a gaol term for a relatively lengthy period. She accepted that as a result the applicant would need assistance both whilst in gaol to overcome his drug addiction and would also need a relatively lengthy period of supervision in the community on this release with particular attention to his drug addiction. Her Honour took into account the psychiatric opinion that he suffered from depression and drug dependency which were said both to be in remission. These matters would also need to be addressed by way of supervision and counselling on his release from custody.
40 Taking into account what had been said in R v Henry (1999) 46 NSWLR 346 at 380 and following and the circumstances surrounding the applicant and the offences her Honour concluded that the appropriate overall penalty of imprisonment would be about three years for the first two offences committed in 1999, within increasingly lengthier sentences for each of the following seven offences, particularly so for the aggravated armed robbery offence committed on 23 March 2000 and the offence count 4 for which the additional four armed robberies were to be taken into account.
41 The sentencing Judge said that there must also be taken into account the circumstances of aggravation relating to the applicant, even with his lesser previous criminal record, lack of previous imprisonment and relative youth. She observed that the applicant could face accumulated sentences of over forty years with a non-parole period of over thirty years. Such a sentence would of course be excessive in the circumstances. Her Honour said:
"For Mr Trad, however, it seems to me that the total criminality, taking into account his own circumstances, should reflect in an overall term of imprisonment of twelve years with a non-parole period of eight. … It seems to me at the end of the day in relation to the prisoner Mr Trad that anything less than a non-parole period of eight years in totality would not reflect the objective seriousness of committing thirteen armed robbery offences over a period to two years."
42 Her Honour went on to find that there were special circumstances for adjusting the non-parole period, namely the fact that this was his first gaol term, his youth, the need for a lengthy period of supervision in the community and the fact of accumulation to other terms. On this basis her Honour imposed the sentences that I have already set out.