R v Faour

Criminal history

1. The offender has a criminal history dating back to 1983, with the most recent convictions being in May 2022 for goods in custody, attempt to possess restricted substance, and custody of a knife in a public place. There were further offences of custody of a knife in a public place in 2016 and 2019. In 2014 there were offences for possessing unauthorised firearm, goods in custody, attempt to possess steroids and possess ammunition. There were drug related offences of possession in 2010 and stalk/intimidate in 2007. There was a further drug related offence in 1988, malicious injury in 1984 and a stealing as a child in 1983.

Report of Andrew Wong, Clinical Psychologist

1. Andrew Wong assessed the offender via Audio Visual Link on 13 July 2023 for the purpose of preparing the report. Mr Wong had available the statement of agreed facts and the offender's criminal record. During the assessment the offender provided some eye contact and looked down at times, especially when discussing traumatic experiences including the sexual abuse, death of his mother, death of his older brother, and witnessing a tragic death of a man in 2017. He had a restricted affect and was noticeably stressed throughout the interview. He cried when discussing the death of his mother and brother. He described an anxious mood about his future. The psychologist observed that the offender had some insight into his mental health as he understood the abnormalities of his emotional responses and drug abuse and was apparently motivated to seek professional help.
2. The offender provided a history that he was born in Lebanon and moved with his family to Sydney when he was 9 years old. He had three older brothers and two older sisters. He described being raised in an impoverished family environment, where his family relied on Centrelink and lived in social housing. However, the offender had described a positive family environment and upbringing free from abuse or neglect. He idolised both his parents. He had maintained a good relationship with his father until his passing in 2005. His mother passed away approximately 4 years prior to the assessment, and he was emotional when describing this. His older siblings were seen as parental figures due to the large age gap. His eldest brother passed away approximately one year prior to his mother's death and both deaths have had a significant impact upon him.
3. The offender told Mr Wong that he had been sexually abused by a female teacher in year 4 where he was forced to touch his teacher sexually. In year 7 he had a physical education teacher who often touched his legs and backside when they were alone. He was reluctant to elaborate on the experiences and was clearly uncomfortable which the psychologist observed suggested some unresolved trauma.
4. The offender described a difficult schooling, struggling with concentration and emotional difficulties following the sexual abuse. He only achieved poor grades and left school midway through year 10. He struggled to obtain employment thereafter and sustained a workplace injury which resulted in a further lengthy period of unemployment. However, for the previous nine years he reported working in car detailing and was in that role at the time of his arrest.
5. The offender provided a history of being bullied through his primary and high school. He felt socially isolated and lonely for most of his life and by the age of 30 was spending time with drug users, leading to a dramatic increase in his drug abuse. At the time of the assessment the offender described leading a socially isolated lifestyle for several years. He had married at the age of 18 and divorced 18 years later with two adult sons and one adult daughter a product of that marriage. His eldest son was disabled following a traumatic brain injury leaving him with a speech impediment, partial deafness, and ongoing mental issues. He otherwise describes good relationships with his children.
6. In respect to drug use, the offender told the psychologist that he started smoking cannabis at the age of 24, which had developed to a daily habit by the age of 27. In his 30s the offender started using amphetamine (speed) and by the age of 31 had transitioned to methamphetamine (ice). He had previously attempted to cease ice use without success. He said he also dealt in drugs for money. The offender claimed to have previously completed the MERIT program and attended outpatient drug rehabilitation services. Whilst in gaol in 2010 he completed a drug and alcohol group program. He had never been in a residential rehabilitation facility. The offender conceded that he was likely to return to drug use upon release although he was motivated to seek help in this respect.
7. The offender claimed to have "complex medical health needs". He had stomach disease which required an operation soon after the commencement of the trial and his mouth was missing most of his teeth due to decay. He became epileptic at the age of 8 and in 2012 / 2013 had undergone two surgeries for a hernia. Approximately one and a half years ago he was seriously injured in a motorbike accident, breaking a number of bones including parts of his skull, and his left ear had been deaf since. He claimed that his physical health had been deteriorating since his incarceration due to insufficient medical health services to meet his needs.
8. The offender described that at the age of 8 he remembered witnessing a serious bombing near his home, leaving him feeling frightened as a child. In 2017 he witnessed a man being thrown off a six storey building and landing close to him. The offender appeared to be suffering some dissociative symptoms such as flashbacks and intrusive memories arising from this incident.
9. At the time of the assessment the offender claimed to have been experiencing frequent nightmares especially arising from the 2017 episode as well as frequent flashbacks and intrusive memories of his sexual traumas, the bombing in Lebanon and the 2017 incident. He had been self-medicating with various drugs since the age of 24 until his arrest for the subject offence. He identified a chronically depressed and anxious mood and endorsed having some suicidal ideations although he denied any intent or plans due to religious beliefs. The offender had never seen a psychologist in the past and never received any formal psychiatric diagnosis. However, he claimed to be motivated to see a psychologist to manage his mental health in the community.
10. In respect to the circumstances of the offence, the offender stated that he had been awake for around three days and was intoxicated with ice. He apparently felt offended by "the group of men" at the Hotel and he wished to frighten them which led to committing the offence. The offender wanted to apologise to all involved by reason of the offence, acknowledging that the victim and his friend were "frightened". However, whilst being under the influence of drugs at the time he still held himself responsible for what happened.
11. Following testing, the psychologist observed that "at face value" the offender presented with symptoms consistent with post-traumatic stress disorder (PTSD), stimulant use disorder (amphetamines type), and cannabis use disorder. In respect to the risk of reoffending, the psychologist identified risk/need factors as including antisocial personality patterns, pro-criminal attitudes, been socially isolated leading to associating with drug using individuals, long history of drug use, no family or marital relationships, no pro social recreational activities, and a drug-related criminal history. More minor risk/need factors were low self-esteem, vague feelings of personal distress and multiple health issues requiring ongoing care.
12. It was the psychologist's opinion that the offender had a low risk of general reoffending. This appeared to be premised upon the offender's age and deteriorating health, which reduced his capacity to offend further. Drug use and untreated mental health concerns were major risk factors for reoffending which resulted in the need for low levels of supervision and specialised mental health treatment to achieve ongoing behavioural change. Further, the offender required ongoing supervision to enable him to complete any ongoing psychological intervention such as outpatient drug and alcohol programs and individual therapy.
13. The psychologist observed that whilst the offender's substance use disorders were deemed to be in remission due to his "controlled environment" in custody, there was risk of relapse given he had not acquired the relevant skills to manage his trauma. Despite this the psychologist suggested that the offender's prognosis was good in circumstances where he had never previously received proper psychological intervention.
14. Mr Wong concluded that the offences appeared to have occurred in the context of the offender's chronic, complex, and untreated trauma which he had effectively self-medicated with ice and cannabis. His PSTD "would have maintained a threat bias and lowered his emotion regulation abilities, where he often responded to fear with anger and aggression". The offender's drug dependence, engagement with antisocial peers for access to drugs, and poor emotion regulation would have "mutually perpetuated each other". His heavy ice use and intoxication would have likely reduced his executive functioning abilities which would have contributed to his decision to assault the victims. Further the offender's sleep deprivation due to prolonged ice intoxication would have reduced his perceptual and social abilities which would have already been impaired by his threat bias from his chronic PTSD.

Letter from the offender

1. In an undated handwritten letter, the offender expressed remorse and regret in relation to the offences. He "sincerely" apologised to the victims, the community, the courts, and family in relation to his indiscretions.
2. The offender claims to have pleaded guilty in the interests of:

• Not depleting community resources
• Being honest and forthcoming
• Holding myself accountable for my actions.

1. The offender notes that he is aged 56 and "as I get older and my health deteriorates, being in prison is only amplifying my conditions and deteriorating my mental health".
2. The offender claimed to have learned from his mistakes and again "profusely" apologises.

Inmate request form

1. By an inmate request form dated 13 July 2023, the offender proposed a new program which may provide inmates with skills to assist in their return to the community. The offender suggested that inmates of good behaviour and character be involved in the detailing of correctional centre vehicles which may provide inmates with the skills to assist in employment upon their release as well as providing a sense of dignity while maintaining centre property. The offender further suggested that should the program be adopted and was successful, the scope of the initiative could be widened to include other community organisations such as the bushfire brigade.

Letter from Kassem Bazzi

1. Mr Bazzi employed the offender at the time of his arrest through his business "Driven By Freedom" as a car detailer. He attested to the offender being "kind, reliable and honest" in his dealings with the company. He was responsible for the detailing and maintenance of vehicles. Mr Bazzi noted that the offender had expressed sorrow and remorse for his actions which was "not a true reflection of his overall character". Mr Bazzi confirmed that he was prepared to reemploy the offender upon his release from prison and was otherwise prepared to support him.

Crown submissions

1. The Crown noted that the offence carries a maximum of 25 years imprisonment with no standard non-parole period. The applicable maximum penalty is the highest available other than life imprisonment, indicating the seriousness with which the community regards this conduct. The Crown contended that the fact the offence was of short duration was of little assistance to the offender where for the time the incident did occur it would have been frightening to the victim: Chung v R [2017] NSWCCA 48 [77].
2. It was noted that the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, was authority for the proposition that absent exceptional circumstances the sentence of full-time imprisonment was to be imposed for the offence of armed robbery. It was noted that this proposition had been applied to sentencing for other forms of aggravated robbery. Indeed, the present offence carries a maximum penalty of 25 years imprisonment as opposed to 20 years as was the case in Henry. Whilst Henry did not mandate the outcome, it was a check or guide. The Crown cited the judgment of Spielman CJ in Henry to the following effect: "Armed robbery is not simply crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment."
3. The Crown contended that the offence was very serious given the circumstances in which it occurred including in the early hours of the morning, the offender taking steps to conceal his appearance, the stalking of the victim as well as the pointing a firearm at him and demanding money. The Crown further noted the threats issued by the victim, including the fact that he had been seen before in the area where the offender also lived.
4. In respect of the various Henry factors the Crown noted the following: i. Young offender with no or little criminal history This was not applicable as the offender was 56 years old at the time he committed the offence and his criminal record disentitled him to leniency. Past convictions included violence and theft (albeit dated). The offender previously served a term of imprisonment for drug supply offences and there were previous convictions for possessing firearm and ammunition without a licence. ii. Weapon like a knife, capable of killing or inflicting serious injury Whilst in the present circumstances the firearm was imitation and therefore not capable of causing serious injury, the victim could not have known if the gun was real or fake. The replica pistol therefore did not pose a physical risk to victims or members of the public and was therefore a less serious factor than a weapon such as a loaded gun or knife. However, citing the R v Majstrovic [2000] NSWCCA 420 at [9] - [10], the court should still recognise the use of the weapon was designed to strike fear into the victims. Further, the fact that the gun was pointed at the victim was a more frightening and serious event than the less direct use of a gun. iii. Limited degree of planning The Crown contended the offence was planned, given the offender left the Hotel earlier, returned to his home to wear a disguise and returned to the Hotel waiting for the victim and his companion to leave. The degree of planning was relevant to objective seriousness, although the Crown quite properly conceded that it was not of such a moment to amount to an aggravating factor pursuant to s 21A(2)(m) of the CSPA. iv. Limited, if any, actual violence but a real threat thereof The Crown contended that this is applicable in that the offender placed his arm around the victim's shoulders and grasped his left shoulder. He pointed the gun at the victim. There were no injuries, and the degree of violence was clearly limited. v. Victim in a vulnerable position such as a shop keeper or a taxi driver Not applicable. vi. Small amount taken Not applicable. vii. Plea of guilty The significance of this is limited by a strong Crown case. The Crown contends this is applicable although in the guideline Henry judgment, a 10% discount was applied whereas in the present case a 5% discount is available.
5. In respect to aggravating and mitigating factors the Crown contended that the offender's age and criminal record was such that he was not a person of good character, or it could not be said that he was unlikely to reoffend or had good prospects of rehabilitation.
6. Reference has already been made to the previous convictions. It was noted that the offender was entitled to a 5% reduction on an otherwise appropriate sentence by reference to the late plea pursuant to s 25D(2)(c) of the CSPA. The Crown noted that any sentence is to be backdated to 6 June 2023, when the offender was remanded in custody following his plea of guilty. However, the offender spent one night in custody following being charged and accordingly the sentence is to be backdated to 5 June 2023.
7. In respect of to the offender's submission as to special circumstances the Crown did not argue against such a finding although noted that when a court decides to reduce the non-parole period because of the finding of special circumstances, double counting should not occur to the extent that any such circumstances were taken into account in calculating the head sentence.
8. Ultimately the Crown contended that general deterrence, denunciation, and the protection of the community was very relevant. The s 5 threshold had been crossed and it was contended that an Intensive Corrections Order was not an appropriate sentence option for the offence.

Offender's submissions

1. The offender's submissions referred to his subjective circumstances as described in the report of Andrew Wong traversed earlier in these remarks. The submissions also addressed the offender's employment and education history and medical history as discussed in that report. It was noted that the offender had expressed remorse for his offending and identified his drug dependence as the reason for committing the offence.
2. The submissions noted that Mr Wong had concluded that the offender had a low risk of reoffending, based in part on the offender needing low levels of supervision and ongoing treatment for both mental health and medical concerns. The submissions note that Mr Wong had identified a number of mental health conditions and attributed a link between the offender's mental illness and his offending. It was submitted that the presence of these mental health conditions reduced the offender's moral culpability, thereby reducing the need for general deterrence, retribution and denunciation; R v Israil [2002] NSWCCA 255; R v Henry. Further, the mental conditions contributed to his offending in a material way; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 94.
3. The offender contended that the offender's disadvantaged upbringing, as well as his exposure to traumatic incidents, sexual abuse and financial hardship reduced his moral culpability for the offending, citing Bugmy v R (2013) 249 CLR 571; Ingrey v R [2016] NSWCCA 31. The offender contended that there should be a finding of special circumstances which is generally being interpreted by the court very widely, the effect of which would be to impose a shorter non-parole period with a longer parole period.
4. The offender conceded that the s 5 threshold had been crossed and that no sentence other than full time imprisonment was appropriate. The offender referred to the guideline judgment in Henry as having some relevance to the sentencing exercise. However, even if many, if not all, of the characteristics in Henry were present, the court could not merely adopt a head sentence of 4 to 5 years. In respect to the applicable characteristics, whilst the weapon used was an imitation firearm, and therefore less serious than a loaded firearm or knife, it was conceded that it still would have caused fear to the victim. It was acknowledged that whilst there was some degree of planning, such planning was not significant. There was a limited amount of violence used during the commission of the offence although it was conceded that the pointing of the imitation firearm at the head of the victim increased the seriousness of the offending.
5. The offender contended that the court may consider imposing a sentence that allowed him to remain in the community which would require a sentence that did not exceed two years. In the context of community safety, it was submitted that the offender's risk of reoffending was low. Community safety was best achieved by allowing him to serve his sentence by way of an intensive corrections order given the need for him to continue mental health treatment and treatment for his drug addictions.
6. It was submitted that whilst there were no aggravating factors in accordance with s 21A(2) of the CSPA, mitigating factors included prospects of rehabilitation, the low risk of reoffending, and the offender's clear expressions of remorse and his plea of guilty. In the circumstances it was ultimately contended that the offence would fall below the middle range of objective level of seriousness.

Consideration

1. The offence was committed in the early hours of the morning involving the offender concealing his appearance, arming himself with an imitation firearm, stalking the victim and his friend before physically taking hold of the victim and pointing an imitation firearm at him. The offender demanded money and made threats towards the victim and his friend.
2. Whilst it is acknowledged that the use of an imitation firearm meant there was no serious physical risk to the victim, or other members of the public, this does not detract from the fact that clearly the victim would have been placed in considerable fear given the use of the firearm at the same time as the issuing of threats. The offence clearly involved some planning in that the offender made a deliberate decision to return to his unit in order to disguise himself prior to returning to the precincts of the Hotel and following the victim and his friend for some time. In all the circumstances I find that the circumstances of the offence fall just below the mid-range of objective seriousness.
3. I note the detailed history provided by the offender to the psychologist, Andrew Wong. Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at [57], her Honour summarised the statements that are derived from the authorities to which she referred and once more reminded sentencing courts of the caution one must bring to bear when dealing with factual matters drawing upon representations that are not affirmed or unsworn and remain untested.
4. However, in Lloyd v R [2022] NSWCCA 18 McCallum JA (with whom Hamill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed at [47] that there is no principle of law that requires a sentencing judge to exercise "very considerable caution" before relying on the contents of an expert report absent evidence from the offender. In this respect her Honour acknowledged that the court is not the only forum in which a reliable medical history can be obtained.
5. I am satisfied that the offender suffered sexual abuse at the hands of several teachers during his schooling. I also accept that the offender was subjected to ongoing and severe bullying during his schooling years. I further accept that the offender was traumatised when he witnessed a significant bombing in Lebanon as a young child and underwent further trauma in 2017 when witnessing the death of an unknown individual.
6. I accept the psychologist's opinion that the offender suffers from several mental disorders including PTSD, stimulant use disorder and cannabis use disorder. I further accept the psychologist's opinion that the relevant offence occurred in the context of the offender's chronic, complex and untreated trauma, which he had effectively self-medicated with the use of illicit drugs.
7. I am satisfied that the experiences suffered by the offender are consistent with the type of disadvantage elucidated by the High Court in Bugmy. I am satisfied that there is a causal connection between the offender's childhood and early adult adversities, the mental health issues suffered by the offender at the time of his offending and the decision-making which led to the offending as elucidated in the psychologist report. Considering those subjective features, I find that the moral culpability of the offender is reduced. Whilst deterrence is an important factor given the offender's conduct in committing a serious violent offence on a person in a public place, I accept that the offender's mental health issues, and substance abuse, make him an inappropriate vehicle for general deterrence and the need for general denunciation is reduced: DPP v De La Rosa.
8. I have taken into account the guideline judgment in Henry to the extent the characteristics identified in that judgment are relevant. This includes the use of a weapon, the limited degree of planning and the degree of violence involved. Unlike Henry, the offender has a criminal history which disentitles him to leniency, although it is not sufficient to amount to an aggravating factor.
9. I do not accept the offender's letter of apology. Reference has already been made to the comments of Wilson J in Imbornone in which her Honour noted the caution one must bring to bear when dealing with factual matters drawing upon representations not affirmed or unsworn and remained untested.
10. The offender did not give evidence, but rather presented a letter which I am satisfied beyond reasonable doubt was disingenuous. It reflects poorly on him. The offender states that he has pleaded guilty in the interests of not depleting community resources, being honest and forthcoming, and holding himself accountable for his actions.
11. When arrested the offender lied to police, denying he was involved in the commission of the offence. The offender was charged with two offences, including the offence for which he is to be sentenced on 18 May 2022. The offender entered pleas of not guilty on 16 December 2022 and was committed for trial on that same day.
12. The offender maintained a plea of not guilty and the trial commenced on 1 June 2023 at which time a jury was empanelled. The victim was in the course of giving evidence when the offender pleaded guilty to the offence for which he is to be sentenced, and the Crown accepted the guilty plea in full satisfaction of the offences on the indictment.
13. The offender's conduct prior to the plea of guilty is inconsistent with his alleged claim that the guilty plea was entered for the reasons stated in his letter. It is more consistent with an acceptance of the strength of the Crown case. Equally, the offender's expressions of remorse contained in the letter of apology and the psychologist report must be considered with some scepticism given the late guilty plea.
14. There are some difficulties in accepting the opinion of the psychologist that the offender has a low risk of reoffending due to his age and deteriorating health. In respect to the offender's health, the only evidence before the court is the limited history provided by the offender to the psychologist. The offender is now aged 57. There is no evidence before the court that either the offender's age or present health would in any way prevent the offender from committing a similar offence for which he is to be sentenced.
15. In respect of the offender's prospects of rehabilitation, in 2015 the offender was given a suspended sentence on a condition that he enter into a bond requiring supervision by probation and parole which also contemplated the offender undergoing counselling, educational development or drug and alcohol rehabilitation. It is apparent that the offender has not previously accepted the opportunity for rehabilitation or other treatment to address his drug issues. Further, his expressions of remorse in respect to his offending must be viewed with considerable scepticism given my earlier findings. In the circumstances, I find that whilst there are some prospects of rehabilitation, given the contents the report of Dr Wong, those prospects are limited.
16. In all the circumstances I am satisfied that the s 5 threshold has been crossed and that no alternative sentence other than one of full-time imprisonment is appropriate. The maximum penalty for the offence is 25 years, which is an indication of its seriousness and acts as a sentencing guidepost or reference point. The appropriate sentence is 3 years and 9 months from which is to be deducted 5% for the utilitarian value of the plea of guilty in accordance with s 25D(2)(c) of the CSPA. After discount, the sentence is one of 3 years, 6 months and 23 days, which will be rounded down to 3 years and 6 months.
17. I find special circumstances given the mental health issues traversed in this sentence and the prospect, albeit limited, for drug and general rehabilitation which will be more readily accessed upon release into the community. In the circumstances, the standard non-parole period will be reduced.
18. The offender was arrested for the offence on 18 May 2022 and released on bail on 19 May 2022 following one night in custody. Following his plea of guilty on 5 June 2023, the offender was refused bail on 6 June 2023. The sentence is to be backdated to commence on 5 June 2023.

Orders: 1. In respect of the offence to which the offender has pleaded guilty, the offender is convicted. 2. I impose a sentence of imprisonment of 3 years, 6 months to commence on 5 June 2023 and expire on 4 December 2026. 3. I impose a non-parole period of 2 years to expire on 4 June 2025. 4. The earliest date the offender is eligible for release to parole is 4 June 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2023