Sader Faraj, on 5 September 2019, you first appeared in this Court for sentence in relation to one offence, namely, robbery in company.
Although the sentence hearing commenced on that date, it did not progress far for the reasons I set out in a judgment delivered that day. The sentence hearing was stood over for mention before me on 20 September 2019 to deal with the matters raised in that judgment.
On 20 September 2019, your sentence hearing received a further hearing date of 21 October 2019.
The matter did not proceed on that day because of outstanding s 23 issues. I again refer to my judgment delivered on that day.
Ultimately, the part-heard sentence hearing was listed for hearing on 8 April 2020, at the conclusion of which, I reserved my decision to today. This was because of implications surrounding the coronavirus pandemic which I referred to on 8 April 2020.
The offence for which you are to be sentenced, Mr Faraj, involves a contravention of s 97 (1) of the Crimes Act.
The maximum penalty for the offence is a term of imprisonment of 20 years. There is no standard non-parole period.
Although there is no standard non-parole period, there is a relevant guideline judgment of R v Henry [1999] 46 NSWLR 346.
The facts surrounding your offending conduct are, to a large extent, contained in a statement of agreed facts. However, two relevant additional facts were revealed by you in the course of your oral evidence on 8 April 2020.
As at 23 December 2018, you had just turned 18 years of age.
The victim of your offending conduct, Mr Grgich, was 28 years old and he had a cognitive impairment. The extent of his impairment has not been revealed to me.
At about 9:00pm on 23 December 2018, Mr Grgich's parents dropped him off at the Liverpool Westfield shopping centre. He stayed there for about half an hour and then he walked to a nearby park where he sat on a bench and was looking at his mobile phone.
R v Faraj [2020] NSWDC 171 | Case summary | Zoe
As Mr Grgich was looking at that phone, he was approached by a group of eight males, one of whom was you.
In the course of your cross-examination in the sentencing hearing, you admitted to being aware, or at least thinking, that Mr Grgich had some form of disability. You and the group, in different individual ways, then intimidated and threatened Mr Grgich, during which one of your group, but not you, took his iPod and another took $560.00 from his wallet.
Once this was done, another of the group, not you, hit Mr Grgich with open hands; another one of the group (the identity of whom is not known) punched him in the face twice; and yet another person (whose identity is also unknown) hit his legs.
Mr Grgich was, of course, scared when he had his property removed and he was also scared as he was being attacked.
One of the group told Mr Grgich not to tell the police that the group had attacked him; and another of the group - not you - told him that if he told the police, he would "chop his head off". This can only have considerably increased Mr Grgich's fear.
Mr Grgich then went to a toilet block and the group of which you were part waited for him.
After he came out of the toilet, Mr Grgich tried to run from the park towards the Whitlam Centre, but you and another member of the group ran after him and stopped him. The person who went with you grabbed Mr Grgich and he and you took him back to within the park where the group told him to sit down.
Once this was done, one member of the group - not you - exposed his penis to Mr Grgich.
In his terror, Mr Grgich offered your group more money to stay away from him.
At this point a member of the group - not you - grabbed Mr Grgich around the neck and pulled him towards a car. During the course of your cross-examination in the sentencing hearing you admitted that that was your car and that you had driven some of the group of eight to the park that night.
Mr Grgich was placed in the middle of the back seat of the car and a member of the group was on either side of him. You were driving the vehicle and another person was in the front passenger seat.
Two of the group then demanded to know where Mr Grgich lived so he could be driven there. Clearly, in the circumstances, this was not a benign or innocent request.
The males in the car asked Mr Grgich how much money he had in his pocket. He volunteered that he had $40,000.00 in the bank.
The members of the group then told him that if he didn't give them the money (the only rational inference being the sum of money being held by Mr Grgich in the bank) the group would rob his house and steal his credit card.
The passengers in the car then started hitting Mr Grgich again, and one of them was demanding to know where the sum of $40,000.00 was.
Somehow during this ordeal, Mr Grgich managed to make a 000 call. It was placed at about 11:30pm. This shows that the ordeal which he underwent had been underway for approximately 2 hours to that point.
At about midnight, your motor vehicle containing you, your co-offenders and Mr Grgich arrived at Mr Grgich's house where he lived with his parents. There is, however, no suggestion in the material before me that you, or any other member of the group, knew Mr Grgich lived with his parents - or, indeed, anyone else.
Mr Grgich's mother heard noises coming from the front of her house and she went to her front door and saw eight young men standing on the front grass shouting. Mr Grgich's father came to his wife's aid. How the other four young men travelled to those premises is not revealed by the evidence.
Mr Grgich ran down the side of his house and into the backyard where he again called 000.
It would seem that that second 000 call resulted in a police helicopter being deployed and you and your co-offenders were pulled over by police at about 12:15am and the four of you were arrested.
In your vehicle were found Mr Grgich's iPod, $560.00 in cash, and three pairs of scissors. The potentially sinister significance of those items was not explored in the sentence hearing.
You were interviewed by police, during which you gave a false version of events.
Later in that interview, you gave yet another version of events to the police. During the sentencing hearing your counsel conceded that that second version was inconsistent with the agreed facts and accepted that you were to be sentenced, not in accordance with those assertions, but in accordance with the agreed facts.
You were not overborne or forced in anyway to do what you did in relation to Mr Grgich.
Although you did not take the victim's property, or punch or hit him, you were, however, present, ready, willing and able to assist - which you did when you chased after him; and when you drove your motor vehicle into which he had been forced. And contrary to the gloss you have tried to place on your involvement, I am satisfied beyond reasonable doubt that you were, in fact, a willing participant.
Both the Crown and your counsel submitted that in terms of its objective seriousness for an offence of its kind, your offending falls below the midrange of objective seriousness. In my opinion, it falls just below the mid-range.
The offence is additionally aggravated because Mr Grgich was vulnerable because he had a disability; and because of the use of actual violence.
There is no victim impact statement for Mr Grgich. The experience would undoubtedly have been a terrifying one for him.
As I have already said, you had only just turned 18 at the time of your offending conduct.
You have no other criminal offences and you are entitled to the leniency which, in appropriate circumstances, is extended to a first offender and also to a person of your then age.
You were born in Iraq where you witnessed numerous traumatic events, but these have had no long-term significant consequences for you.
At the age of 6, your family fled to Syria and, ultimately, you came to Australia as a refugee in 2008 when you were 8, and you have adjusted well into your adopted country's way of life.
Your life in this country has been unremarkable.
You left school in Year 11 to commence an apprenticeship but, because of sporting injuries, you were unable to continue in that apprenticeship.
Since then you have worked in your brother's café.
Recently you have started a Diploma in business at Western Sydney College which you hope will be a pathway to tertiary study in Sports Management.
You are of average cognitive capacity and, although you have some post-traumatic stress and mild depressive symptoms, they are not of diagnostic proportions.
You purported to express remorse to the author of the psychologist's reports tendered in evidence and you repeated that in the witness box.
However, you did not tell the author of those reports of a significant aspect of your involvement on the night - namely, that you were one of the two who chased down your victim as he sought to escape.
Neither did you mention that uncomfortable fact to the author of the sentencing assessment report - who also noted you sought to minimise your role in this offence.
I do not accept your explanation in the witness box that you failed to mention this important fact to those two persons (on 3 separate occasions) because it had, in effect, slipped your mind.
In fact, I regard your evidence on that topic as deliberately dishonest.
Accordingly, I look with considerable scepticism on your expressions of remorse.
Notwithstanding that unfortunate conclusion, by having regard to your background, your strong family support and your age, I regard your prospects of rehabilitation as being reasonable.
Nevertheless, although because of your age rehabilitation is a very significant consideration, general and specific deterrence are significantly engaged.
No sentence other than a sentence of imprisonment is appropriate, notwithstanding your young age.
You entered an early plea and you will receive a 25 per cent discount for that fact.
As I mentioned earlier, you have also given s 23 assistance. You will receive a discount of 10 per cent for past assistance and a further 15 per cent for future assistance.
Except for your plea of guilty and the s 23 additional discounts, I would have sentenced you to a term of imprisonment of 3 years 6 months.
Because of the combined operation of those discounts, the term of imprisonment is 1 year 9 months.
With some considerable hesitation - and not least because of the Crown's concession - I am satisfied that community safety, being the paramount consideration, will be served more fully by you serving your sentence by means of an ICO.
I order that the sentence of 1 year 9 months imprisonment be served by means of an Intensive Correction Order which commences today.
There are two standard and mandatory conditions to any and every Intensive Correction Order. They are: first, that you must not commit any offence; and secondly, that you must submit to supervision by a Community Corrections officer. The court expresses in this regard its strong opinion that you be supervised and that the proposed suspension of supervision be reconsidered. Regrettably the court does not have power to order that supervision to occur.
In addition to those two mandatory conditions, there must be at least one additional condition unless there are exceptional circumstances (which is not this case).
I impose the following three additional conditions. First, you are to perform 300 hours of community service. Secondly, you are to continue to attend upon your General Practitioner - and the psychologist recommended by that General Practitioner - and to follow and accept all treatment and advice, by each of them, for as long as the relevant practitioner deems necessary. Thirdly, you are to abstain entirely from all illicit drugs and all lawful drugs not prescribed to you by a medical practitioner.
Mr Faraj, if you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services, or the State Parole Authority. Those sanctions may include a formal warning; the imposition of more stringent conditions; or it may involve the revocation of this order. If the order is revoked, you may be required to serve all or some of the period of your sentence in full time custody.
You are now directed to attend the court registry where a copy of this order will be given to you.
Finally, I order that you report to Mt Druitt Community Corrections before 4pm Monday 11 May 2020 - in the first instance by telephone.
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: 08 May 2020