R v Haddad

District Court of NSW|2007-02-15

CATCHWORDS: Criminal Law - sentence - armed robbery with dangerous weapon - young offender - totality.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999

R v Henry (1999) 46 NSWLR 346 R v Thomson & Houlton(2000) 49 NSWLR 383 R v Pham (1991) 55 A Crim R 12 Pearce v The Queen (1998) 194 CLR 610 The Queen v Moffitt (1990) 20 NSWLR 114 R v Blackburn & Walters [2001] NSWCCA 121 CASES CITED: Yardley v Betts (1979) 22 SASR 108 The Queen v Lattouf (unrep, 1996 NSWCCA) R v Engert (1995) 84 A Crim R 67 R v Letteri (unrep, 18/03/92 NSWCCA) R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 Regina v Perrin [2001] NSWCCA 422 Regina v Tarek [2004] NSWCCA 401

PARTIES: Regina Mouhamed Haddad

FILE NUMBER(S): 06/11/0667; 06/11/0675; 06/11/0751; 06/11/0916

1 HIS HONOUR: The offender Mouhamed Haddad appears today for sentence in relation to, as I understand it, five counts of armed robbery with a dangerous weapon committed respectively on 8 March, twice on 13 March, once on 15 March and once on 17 March 2006, one count of robbery in company committed on 5 March 2006 and one count of detain for advantage in company occasioning actual bodily harm committed on the same date and at the same time in effect as the robbery in company committed on 5 March 2006.

2 The offences, with the exception of the robbery in company, which I will describe as the principal offences that he has pleaded guilty to and are the subject in due course of sentencing orders, each carry a maximum penalty of twenty-five years imprisonment. The offence of robbery in company carries a maximum penalty of twenty years imprisonment.

3 I am also required to take into account on two Forms 1, one count of armed robbery committed on 11 March 2006, two counts of armed robbery with a dangerous weapon, in fact the same dangerous weapon, committed on 13 March 2006 and 17 March 2006, and one count of assault with intent to rob committed on 7 March 2006. The maximum penalties of the offences on the two Forms 1 vary from twenty-five years imprisonment to fourteen years imprisonment.

4 The offender, who is now aged eighteen and will turn nineteen in mid-March of this year was aged seventeen and/or had just turned eighteen at the time of the commission of the various offences. The detail of his age at the relevant time I will expand upon later.

5 The charges with which I am concerned, both principal charges and matters on a relevant Form 1, arise out of his arrest on 17 March 2006. After the events of that date he was subsequently arrested again on 9 May 2006 and again on 23 May 2006 in relation to other charges unknown at the time of his initial arrest. I am informed that the prisoner was in custody from the date of his arrest on 17 March 2006 until 6 May 2006 when he was released to bail. Apparently his bail continued despite the fresh arrests on 9 May 2006, however he returned to custody on 23 May 2006.

6 In my calculation of the matter the sentences that I will impose, at least those that are to commence from the date he came into custody, will commence from 4 April 2006 to reflect the time spent in custody in relation to these charges. As I understand the matter from the material that has been presented to me, there is no standard non-parole period that applies to this accused in respect of any of the matters to which he has pleaded guilty.

7 As I understand the matter none of the offences that he is charged with, notwithstanding the varying dates upon which he was arrested, were offences committed whilst on bail or subject to any other conditional liberty. The criminal history supplied to me and the other information establishes that at the time of the commission of these offences the prisoner had no prior criminal convictions or findings of guilt.

8 This matter comes forward in a somewhat unusual manner because there are four indictments, and as I said two Forms 1. The facts in relation to the various charges on indictment and related matters on a Form 1 are set out in various facts sheets that have been prepared, it would appear, by police and which are not the subject of any objection. I propose to briefly summarise the facts in relation to the respective offences, however clearly I have taken into account all the facts that are disclosed. It would take far too long to read everything that is contained in the relevant fact sheets.

9 In relation to the first two offences in time, they are the offences committed on 5 March 2006 of robbery in company and detain for advantage in circumstances of aggravation. At 2.15am on Sunday 5 March 2006 the victim Mohamed Hussain, who was a twenty-two year old, was working as a console operator at a service station in Bass Hill. The prisoner drove his vehicle, a 1989 Corolla with false number plates, to one of the petrol pumps and obtained a quantity of petrol. There were two other unknown males occupying the vehicle. The young person and the other unknown males entered the service station, some items were taken from the shopping section of the area where the console operator was, and then eventually one of the unknown males approached the victim, grabbed him around the neck, told him to turn off the lights and the till was emptied of $991.20 and a number of items were stolen, including a large quantity of cigarettes valued at $5,368.

10 The victim was spoken to in Arabic by one of the men in company with the accused and the victim was then dragged from the petrol station and placed in the prisoner's car after someone had said "let's take him and dump him". The victim was man-handled and placed under physical pressure whilst sitting in the back of the car, the prisoner driving the vehicle. There was conversation in Arabic in the presence of the victim and the victim was very scared. He was threatened by one of the unknown males sitting at the back of the car. The victim was told that one of the men had a gun and he would shoot him. The prisoner drove the vehicle around for a period of time and ultimately the victim was pushed out of the car at George's Hall in circumstances that are set out in the facts.

11 The victim was able to observe the number plates on the motor vehicle and then walked until he was assisted by police. The fingerprints of the prisoner were found on the items that were dropped on the floor behind the sales counter and when he was arrested in relation to other matters inevitably he was linked to this particular crime. When he was arrested on 17 March in relation to other matters, he was found to be in possession of a replica pistol which ultimately linked him to other crimes as well.

12 The second indictment concerns three counts of armed robbery with a dangerous weapon, as I said, committed on 8 and 13 March 2006 at places in western, inner western and southern Sydney.

13 In respect of the first count on the indictment to which the prisoner has pleaded guilty there are three counts of robbery offences, or assault with intent to robbery offences, committed between 11 March and 17 March, again in various locations, in southern, inner western and western Sydney. The weapon used by the prisoner for the commission of the second offence on the Form 1 is, as I understand the matter, identical to the weapon that was used in the principal offence on this indictment and the other two offences. The weapon that was used in relation to the offences on this indictment was located when the prisoner was arrested on 17 March after a police pursuit. The prisoner was driving a vehicle which had stolen number plates on it.

14 `During the interview on 17 March the prisoner made admissions in relation to an armed robbery offence in the St George area and made admissions in relation to his possession of a replica pistol. He also admitted owning clothing which was linked to other robberies.

15 The first offence in time on the indictment in the principal offence for the purposes of the Form 1 matters occurred at Liverpool when the prisoner in company with another male entered a convenience store. He was wearing distinctive clothing at that particular time. This time, as opposed to the earlier occasion where he was more a follower than a leader, he demanded money from the victim. He pointed a silver coloured pistol later recovered from him at the victim and cash in excess of $500 was taken. In this matter closed circuit security television depicted the accused pointing the firearm at the victim as the co-accused stood nearby.

16 The second offence involved the prisoner driving to a service station on the Princes Highway Kogarah. He was on his own this occasion on 11 March. He had a knife with a four inch blade and demanded the victim empty the till. He threatened to stab the victim. He demanded a plastic bag from the victim and filled the bag with packets of cigarettes, sixteen in total. Total proceeds from the robbery amounted to in excess of $490. Again, he was wearing a distinctive jumper with the words "New York" on it which appeared to be the same jumper as that used earlier on 8 March.

17 On 13 March he robbed a service station at Enmore Road, Enmore, in company with another male. He produced the same firearm found on him on 17 March. He made demands for money. The co-accused had a screwdriver and demanded money. On this occasion the prisoner was observed on closed circuit television wearing the same distinctive jumper. Total proceeds of the robbery amounted to in excess of $800. This offence was committed in the early hours of the morning as with the other offences when the victim, as in the other occasions, was alone.

18 Another armed robbery was committed on 13 March 2006 when the prisoner entered a convenience store in Canterbury. Again he approached the victim, who was working at the counter area, armed with a silver firearm. He demanded cash from the cash register. The victim fearing for his life opened the cash register and the prisoner reached over and removed the cash tray taking $1000 in total. Closed circuit television depicts the prisoner wearing the same New York jumper that was referred to earlier and carrying the same silver-coloured firearm to which I have earlier made reference.

19 On 11 March 2006 the prisoner entered a convenience store situated at 338 Princes Highway Blakehurst. He, after obtaining a drink, produced the same silver-coloured firearm and told the victim to turn off the lights. Fearing for his safety the victim complied. He demanded cash from the cash register and he removed proceeds from this location including cigarettes and some other items of property of a value in excess of $1,400.

20 At 8.50pm on Friday 17 March he entered the service station at Sefton, particularised as I understand it on the Form 1. He made a demand of the victim for money, the victim being of course the console operator. He had earlier made some inquiry about a legitimate purpose. The victim pressed what is called a panic button. The prisoner became alert to the fact that perhaps some duress alarm has been pressed. The prisoner was wearing a 'New York' motif-ed jumper. The prisoner then ran out without taking any cash and this offence forms the third matter on the Form 1 that I have referred to.

21 Thus in relation to those facts, to correct any error that I may have previously made, the offences at Sefton, Canterbury and Kogarah appear on the Form 1, and the offences variously at Liverpool, Enmore and Blakehurst are offences on the indictment, with the offence committed at Liverpool being the principal offence for the matters on the Form 1.

22 The third indictment is concerned with an armed robbery committed by the offender at Liverpool on 15 March 2006 whilst armed with a dangerous weapon. The facts regrettably are distressingly similar to the facts of a number of the other matters. The prisoner in the early hours of the morning went to a service station in Liverpool. He seemed to be involved in legitimate business within the store and then removed from his clothing and produced the silver-barrelled firearm demanding money from the victim. He pointed the gun repeating the words. There was a bit of a stand-off, the victim claiming that he could not open the till. The prisoner demanded that the lights and the cameras be turned off. He then told the victim that if he didn't open the till he would kill him. The till was eventually opened. The prisoner was in company with a co-offender who sought to remove coins from the tray. There was a time where the victim made his way to a staff room under the pretence that he could do something in relation to the lights, but there he locked the door denying access to the prisoner and his co-accused. The victim then telephoned for assistance. The prisoner and his co-accused sought to gain entry. When the victim left the staff room he saw coins on the floor and a total of $1,200 in cash was missing. The arrest of the prisoner on 17 March 2006, of course, linked him to this robbery, amongst other reasons, because of the firearm that he used.

23 Finally on 17 March 2006 at Granville the prisoner with the use of the same silver replica pistol robbed another victim at a service station. The victim again was a console operator. It was late at night on this occasion but still at a time when the victim would have been relatively vulnerable. The prisoner was observed on closed circuit television entering the store. He purported to be undertaking a legitimate transaction. He removed the silver pistol from his jumper, pointed it at the victim and again made demands for items from the till. The victim removed the black cash tray from the register and handed it to the prisoner. The prisoner took that and walked from the store. It would appear that the prisoner on this occasion was again wearing a 'New York' emblazoned top and he was arrested it would seem on the material available to me within an hour.

24 At the time of his arrest, not only was he in possession of the same top and the firearm, the police in their search found a number of other items which as I understand it had some relationship to the circumstances of the previous offences committed that night.

25 The other offence committed on 17 March which appears on the relevant Form 1 was a robbery committed at 11.15pm of that day, that is, shortly before he was arrested and after the earlier offence committed at Granville. Again it was a robbery of a console operator at a service station. Again the prisoner was wearing the clothes that he was found wearing later on. The prisoner again pointed the firearm at the victim, made demands upon the victim, asked for the tray, picked up the cash tray and ran from the service station.

26 When the prisoner was arrested he had $575 in his possession. It is alleged that from this particular service station at Revesby he took $580 from the cash tray and the cash tray itself cost $150 to replace. On the facts that have been provided to me by the prosecution I could not find details of precisely how much was taken during the course of the Granville robbery, although the facts do say that he took the cash tray from that location.

27 This sustained period of criminality over a relatively short period of time is a very distressing state of affairs, distressing in a number of ways. Firstly and primarily distressing because of the large number of victims who were involved, many of them were threatened, one particularly who was beaten, and all who were I can fairly say vulnerable and powerless in the face of the prisoner and at relevant times, co-accused. I have made the point in relation to the first two matters in time that it would appear on the facts available to me the prisoner drove the car but took a lesser role. But it is clear that the prisoner took a leading role in those matters where he committed offences by himself, for example on 17 March, and other times. Even when in company with others, took a primary role in relation to those matters.

28 It is distressing as well, to note that the community is at peril from people such as the prisoner who are so young. As I earlier pointed out most of these offences were committed when he was seventeen about to turn eighteen years of age. And of course the almost inconceivable aspect of it in some respects is that he had no prior criminal convictions before he went on this particular spree. Any explanation he has given for his conduct barely does justice to explain why he should involve himself in such criminal activity.

29 In relation to the prisoner's background I note from the material available to me that he was born in Australia, his parents are from the Lebanon and he is the second eldest of five children. He has an older brother who is twenty years and a number of younger siblings including two younger sisters. From what I gather his other siblings are law-abiding as are his parents. His family situation deteriorated when he was about twelve or thirteen when his parents broke up and there is some suggestion of some domestic violence towards his mother and considerable disharmony at that time. This does not seem to have had an adverse effect upon his siblings, but apparently has had an adverse effect upon the prisoner.

30 He has grown up in straitened financial circumstances. The family has survived largely on social security benefits. The family is poor and socially disadvantaged, I accept. They lived in a Housing Commission area and they did not have much in the way of material goods. The mother is a devoted mother and I will turn to her evidence shortly. The prisoner has, he claims, close relationships with his siblings and he described his upbringing to be normal.

31 At school apparently he was, in his later years, said to associate with what are described as delinquent peers and his behaviour deteriorated over a period of time and he had difficulty concentrating on his schoolwork. He has little in the way of academic qualifications having completed year 10 and not continuing his senior studies. Apparently he has had very little, if any, proper employment. He has done some work for an uncle in a tiling business but nothing of a permanent or sustained nature.

32 The psychologist reports he has an unremarkable medical history and he presented as a relatively uncomplicated person.

33 With regard to his mother's evidence, which I have taken into account, much of what she has said is in support of the history the prisoner has given both to the psychologist and the Department of Juvenile Justice officer. The mother confirmed the family's situation and the hardships for the family, particularly since the separation of her from her husband. She gave evidence that in the months or so before his arrest there were changes in his personality suggesting, in not so many words because English was very much a second language for her, isolation of the prisoner from his family, his secretiveness (to use my words), evidence of some confusion and frustration and some anxiety or fear which was apparent at the time of the commission of the offences.

34 It is suggested by the offender that he was under some threats in relation to gambling debts and other debts, and whilst there is some evidence of some anxiety or fear there is nothing really concrete to connect what was seen by his mother to what the prisoner claims to be threats made to him. She said he appeared to be anxious or fearful in circumstances which might suggest confirmation of his claim that these robberies were committed to settle debts arising from drug usage and gambling. But there is no reliable evidence of this fact. The prisoner has given no direct evidence of it, and the evidence of it or the evidence of his motivation for committing these robberies for those reasons comes from out of court representation. I do not conclude that these crimes were committed out of fear rather than for the need for money. It is clear that the prisoner committed these crimes for money and it seems to me his aggressive and persistent conduct is inconsistent with a person conducting crimes because of fear for his own safety or for unrelated reasons.

35 To his mother and the psychologist he claimed pressing financial difficulties from gambling and drug debts. As I have said, none of that material as he presented it to the psychologist or the Juvenile Justice officer being untested and hearsay in character raises any defence or ultimately provides any real mitigation of this criminal conduct. But in the context of the fact that he had no prior criminal convictions, these types of pressures, if they existed, may explain how he became involved in this uncharacteristic behaviour. I must say it is disquieting to see the enthusiasm with which he embraced this type of conduct to obtain money for whatever purpose.

36 The facts of the first crimes in time, on 5 March 2006, suggest an association with others more experienced in criminal conduct. As I said earlier he did not take a leading role in the assaults upon the victim and the victims detained for advantage, that he is liable for his involvement in both crimes as being a participant quite clearly in a joint criminal enterprise with others. His participation was significant when one considers that he drove the vehicle at relevant times.

37 That having been said, and noting his claims of negative peer pressure or influence from older antisocial elements, it is to be further noted that a number of offences to which he has admitted his guilt were committed whilst he was by himself and not in company, and whilst in possession of weapons that he himself had acquired and were in his exclusive possession.

38 The replica weapon for example was a real pistol converted to a cigarette lighter on his version. Admittedly he said in an interview with police that he had had the relevant pistol in his possession since he was "a little kid". There is no confirmation of that. The knife used in the course of at least one of the robberies he claimed to have found in the street, but also he claimed that he subsequently threw it away. As I said, the pistol was in his possession on the date of his arrest and ultimately linked him to other robberies with which he was later charged and which may have been unknown to the investigators at the time. I note that the weapon is a replica and although clearly it would have terrified anyone at whom it was pointed, it was a weapon, as I understand it, incapable of discharge. It was, in its character, a weapon incapable of inflicting grievous bodily harm unless it was used as a bludgeon. But still it would have been, given the fact that it was once a real weapon, very frightening for the victims. It is still regarded at law as a dangerous weapon and thus attracts in its use a greater maximum penalty for the relevant armed robberies in which it was used. However, it is an objective feature to be noted that the weapon clearly was not loaded or capable of discharge because of its conversion.

39 On the evidence available to this court and in all that has been put there are no offences in which the offender claims to be affected by prohibited drugs at the relevant time the offences were committed. When arrested on 17 March 2006 the offender denied the use of drugs in relation to the matters then under investigation, and from what I can gather from the material, it would appear shortly after these offences were committed on 17 March that he did not appear affected by drugs, at least to any significant degree.

40 In any event, ultimately, allowing for the histories given of drug abuse, use of cannabis, some use of methamphetamine and some effects upon him of methamphetamine, the matters that arise for consideration in the armed robbery matters concerning the relevance of drug addiction to the sentencing exercise, are of such a character as to not invoke much of what has been said of this topic by Wood J at para 273 of the judgment of Henry, the guideline judgment in relation to armed robbery matters, to which I was taken in submission and to which I will refer shortly.

41 I have had regard to the submissions of all the parties. Most of the submissions of course came from counsel for the accused, although in fairness the Crown noted some of the observations I made to the prisoner's counsel in the course of the submissions made by Mr Shaw. The learned Crown's brevity is not a subject of criticism of course. He has succinctly and skilfully conducted the case for the learned Director of Public Prosecutions. The various submissions that have been raised, I have and will deal with either expressly or implicitly.

42 On the basis of what I have been advised I accept that the plea of guilty has high utilitarian value for the reason advanced by his counsel and that the prisoner should receive a discount of twenty-five per cent upon the otherwise appropriate penalty in respect of each matter in accordance with the guideline judgment of the Court of Criminal Appeal of Thomson and Houlton. The pleas of guilty were entered on indictment but as I understand it the prisoner was committed for sentence and the matters proceeded because of some defect in the committal papers. In any event the Crown agrees that the pleas were entered at the first reasonable opportunity and that appears to be the case. I also accept that his pleas of guilty are an expression of contrition on his part, bearing in mind also that some of the offences were admitted to police when interviewed, although some were either denied or were not disclosed. There may have been some difficulties in relation to separate trials concerning some of the offences. I note also some cooperation the prisoner provided to police which assisted the prosecution of him through admissions that he made.

43 They were the offences, as I said, that were committed when he was a young person. He turned eighteen years of age on 14 March 2006 towards the end of this spree. Those offences, which comprise most of the offences that are serious indictable offences, are to be dealt with according to law in accordance with the relevant provisions of the Children (Criminal Proceedings) Act.

44 Naturally and inevitably he must be dealt with according to law for all offences with which I am concerned, including those committed as a juvenile, and including those that are not serious indictable offences. Amongst other reasons, offences committed after he turned eighteen are matters that must be dealt with according to law whether serious indictable offences or not under the relevant legislation to which I referred.

45 To some extent the facts of this matter emphasise the artificiality of the age of eighteen as a division between culpability as an adult and culpability as a young person in some cases. In this particular case, even though the prisoner became more and more experienced as a criminal, I doubt that he was any more mature on 17 March as he was on 5 March.

46 Of course in relation to the offences committed as a juvenile, s 6 Children (Criminal Proceedings) Act is still relevant. It should be noted of course that the relevant offences were committed very close to his eighteenth birthday and this course of conduct continued after he turned eighteen. In a sense, the benefit of s 6 of the Act in the sentencing process is a "diminishing return" for him as one travels through the course of conduct. I also bear in mind many authorities dealing with the sentencing of young offenders, particularly those authorities dealing with serious offences committed by young persons with no prior criminal convictions. I need not cite authority for the proposition that special attention for a range of reasons needs to be given to the circumstances of young offenders such as this offender, even allowing for the sustained and detailed criminality. Ultimately, even in this case with a series of criminal acts over a period of time, some leniency should be extended to him by reason of his youth and lack of maturity, and also to promote his rehabilitation.

47 I acknowledge that it has been said on a number of occasions that young persons who commit serious crimes and act as adults can expect to be treated as adults. One of the leading judgments on this issue is that of the late Lee J in the decision of Pham going back to 1991. But his Honour's comments must be seen in the context of the facts of the particular case. It seems that whilst there is an adult character to much of this criminal behaviour, one cannot get away from the fact, as I have pointed out, that the prisoner initially was led into this spree by what would appear to be more experienced criminals, albeit that he showed an independence of mind after the event.

48 I also bear in mind in sentencing the prisoner that there might be a lack of sophistication said about these offences as serious as they are. He did little or nothing to disguise himself when committing the offences save for on some occasions having some cover over his head. He failed to wear any type of protection apparently for his hands to prevent the transmission of fingerprints. He was linked to the offences on 5 March 2006 by latent fingerprints found on cigarette packets. On a number of occasions he wore distinctive clothing which was readily identifiable from closed circuit television and was in fact either in his possession or linked to him at a later time. One might have thought that the identification as the perpetrator of many of these offences, once he was apprehended, was inevitable given some of the distinctive features observable from closed circuit television including his clothing and the type of weapon that he used.

49 The offences could not be described therefore as I said as sophisticated and they may be said to have involved minimal planning. Although it should be noted that it is admitted by the prisoner that the dangerous weapon was in his possession over a lengthy period of time, albeit for most of that time for innocent purposes. Whilst the individual planning of each offence may have only taken a short period of time it is to be fairly said too that the prisoner was travelling around Sydney to commit these offence and attending upon suburbs that one might have thought were well outside his bailiwick, such as at Kogarah and Blakehurst. There is an inference there to be drawn that he was looking for locations in the early hours of the morning to rob. Clearly, given the course of events, he was thinking about the commission of these types of offences over a number of days.

50 In sentencing him in relation to each offence I am required to apply the principles laid in Pearce v The Queen (1998) 194 CLR 610, particularly the majority's, observations at para 45. In this particular matter, assessing the totality of the criminality and trying to structure the sentences appropriately to give proper weight to Pearce in light of a number of other competing considerations including his youth is a particularly significant but difficult task.

51 I accept as part of the background of this, as I have said, that he came from a disadvantaged background, both culturally and financially, that he will however continue to have the support of his mother and siblings on his release from imprisonment. Certainly a disadvantaged background, both culturally and financially, is no excuse for committing serious crime. But it seems to me, as a matter of experience and general knowledge, that persons in his position are more susceptible to the temptations that this type of crime offers, albeit that that is inexcusable.

52 I have referred to the fact that the prisoner had little employment. In fact he was generally unemployed before the commission of these offences. He had had no training of any formal type and he appeared not to have undertaken any extensive education courses.

53 Close attention on his release from custody obviously will need to be paid to his education and employment situation to avoid the situation that arose him of idle time, indolence and financial problems leading to serious criminal conduct.

54 Whilst of the material available to me, particularly the accused's version of the commission of the first two crimes in March, some of the matters that were discussed by Wood J in para 273 arise for consideration, such as drug usage affecting judgment, obtaining money for drug usage et cetera, these matters arise as a relatively minor matter in the scheme of things and provide little mitigation for the reasons discussed by his Honour and approved by the rest of the Court. This is particularly so when one looks at the latter course of conduct where the prisoner does not appear at least to be affected by drugs even if he may have been trying to get money to settle drug debts. It is to be fairly said that there is nothing in Henry that says that having drug debts is some sort of passport or excuse for committing serious crime.

55 I agree with the submission put by his counsel that by reason of the need in this matter to partially accumulate sentences by reason of his youth, by reason of the fact that this is his first term in custody, and the fact having regard to the psychologist's report and the Juvenile Justice report that he does need supervision on release to assist him in relation to drug and alcohol counselling, gambling counselling and direction in relation to employment and education programs, that there are special circumstances that warrant an adjustment of the relationship of any relevant non-parole period to the total sentence. Accumulation itself is a special circumstance, but special attention must always be drawn to sentencing young offenders who are to go to gaol for the first time. This was a matter of particular comment, if my memory serves my correctly without researching it, of Wood J in the key decision in relation to s 9 of the Sentencing Act, of The Queen v Moffitt (1990) 20 NSWLR 114.

56 I also refer to judgments such as Blackburn and Walters, a decision of again Wood J speaking for the Court of Criminal Appeal in 2001 where his Honour, a very experienced and wise judge, specifically approved South Australian authorities such as Yardley v Betts and other judgments stressing the need in sentencing young offenders, notwithstanding clearly the need for punishment, to also consider rehabilitation and the ultimate goal that serves all sentencing exercises. That is in the appropriate case, providing a prisoner with an opportunity for rehabilitation which will make that person a better member of the community. Ultimately this not only serves the purposes of the prisoner, but it serves the purposes of the community.

57 I am mindful also of what has been said about these matters in the guideline judgment of Henry where the learned Chief Justice approved with some explanation what Mahoney ACJ had said in The Queen v Lattouf an unreported judgment. There, Mahoney ACJ, talking of sentencing principles and the need for appropriate punishment and the like said: "General principles must of their nature be adjusted to the individual case if justice is to be achieved. For this reason it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge. There is public interest in the adoption and articulation of sentencing principles that will deter the commission of serious crime and punish those who commit it. But there are other interests to which the sentencing process must have regard. These are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case."

58 Of course from the viewpoint of the victims and perhaps the wider community, justice in this individual case means condign punishment. But condign punishment in a case such as this must be restrained when one has regard to all the known factors.

59 In relation to known factors I have taken into account the psychologist's conclusions in relation to the matter. I note his finding that the accused appears on the testing conducted by the psychologist to be at the lower level of intellectual capacity or achievement. Of course the validity of this testing, given the cultural circumstances of the prisoner, is not overwhelmingly made out. But I do accept ultimately that the psychologist is his testing has identified that the prisoner, because of either innate or inherent characteristics, or because of educational background, has limited intellectual capacity. The psychologist seemed to suggest that it may be in the lowest two or three percentile. I am not here to second guess the psychological assessment. I do note the psychologist herself pointed out that the prisoner seemed to be foxing in relation to an assessment to the degree of his depression. That having been said, there is nothing in the background of the prisoner to suggest that he is a person of great intellectual accomplishment. Whilst nothing has been put to me about the matter of the relationship of intellectual incapacity, if it may be described as that, and the causal relationship of that to the offending, ultimately, on the basis of the material, I could not conclude that there is a direct causal relationship other than to make the general observation that a less intelligent person might be more prone to rash or stupid or unacceptable behaviour.

60 There is no issue that arises, to put it simply in this matter, of issues that were discussed in decisions such as Engert, or before that, Letteri, and more recently in cases such as Israil and Hemsley. But his lack of intellectual achievement and accomplishment is still relevant to the sentencing process. As I have said, it might make him more susceptible to stupid behaviour or behaviour of this type, or particularly it emphasises the need for professional assistance on his release to parole.

61 The Juvenile Justice report adds very little to any of the other material before me beyond confirming some of the matters that are the subject of evidence. It raises some influence upon the prisoner perhaps of violence or anger within the family, bearing in mind these offences are crimes of violence of a most serious nature. It discusses a history of substance abuse and gambling difficulties. The assessment in relation to any community based supervision is that such supervision in due course should focus on areas of readiness to change, increased motivational level, drug and alcohol use, gambling addiction, aggression and anger management. He will need to show commitment to attend regular supervision sessions and he will obviously need stimulus to comply with any supervision that is required of him.

62 All of these matters in conjunction with those earlier features I identified give rise to a conclusion that there should be in this particular case some significant adjustment of the appropriate non-parole period to give him an extended period of supervision and assist him in his transition to a lawful existence.

63 In sentencing the prisoner of course, as I have said in passing, I have had regard to the guideline judgment of Henry, particularly what is set out at paras 162 through to 180. This is a case where many of the characteristics are in accordance with the indicia that were summarised by the Chief Justice at para 162. On the other hand there are, to use his Honour's words, a number of circumstances which appear in a more aggravated form, including the use of a replica firearm, the amounts taken, the use of force on the first occasion, albeit by others, the particular vulnerability of the victims in the early hours of the morning where that occurred, committing offences in company other than those pleaded in relation to the events of 5 March which are themselves taken into account in the maximum penalties that I disclosed.

64 The guideline provides some guidance one would think in the context of a guideline suggesting, giving the characteristics of an offender set as out by his Honour of the type particularised at para 161. But the total sentence I am imposing falls short of what is appropriate to give full effect to general deterrence. There is however in this matter the requirement which has arisen since Henry to give a discrete discount for the utilitarian benefit of a plea. This very aspect of the matter was discussed in Houlton and Thomson as having some effect upon the guideline previously pronounced in Henry, and of course there are special features of the case which the judges in Henry recognise will always arise.

65 I have had regard to s 3A Crimes (Sentencing Procedure) Act and for the purposes of sentencing many of them are dealt with expressly in the course of this judgment. In relation to the aggravating factors that arise under s 21A I have already concluding that there was some planning in relation to these offences. Some offences were committed in company of course when that element was not pleaded. I do not take it into account as an aggravating factor, where it is pleaded, for the reasons set out in subs (2) that an aggravating factor is not to be taken into account as such if it is an element of the offence. In this particular matter I take into account that practically all the victims were vulnerable. I appreciate one must deal with this on an individual charge by charge basis, but it would be abundantly apparent where offences were committed in the early hours of the morning as many of these offences were, or in the late night, each of the victims alone was a vulnerable person.

66 In relation to s 21A(2)(m) I note its terms are, "the offence involved multiple victims or a series of criminal acts". In this particular matter none of the individual offences involve multiple victims or a series of criminal acts and each offence has to be the subject of an individual sentence. However, of course putting aside the particular statutory provisions of s 21A(2), it could be fairly said that the offences for example committed on 17 March, might be viewed more seriously given the previous conduct of the prisoner leading to the commission of those offences.

67 With regard to mitigating matters I have concluded that these offences were not part of organised criminal activity. At the time the prisoner did not have any record of previous convictions. I am prepared to accept that relevantly before the commission of these offences the prisoner was a person of good character. I cannot conclude, given the character of the offences, that he is unlikely re-offend, he seems to have developed a taste for this type of conduct. However with appropriate guidance and with some structure in his life outside of gaol he may have good prospects of rehabilitation. I take hope from the support of his family. I accept that he had shown some remorse for the offences by his limited cooperation with the police and his expressions of regret to others and the plea. The plea itself is a mitigating factor to be taken into account as provided for by s 22 Crimes (Sentencing Procedure) Act, but it should be borne in mind it is also a matter attracting a discrete discount for the utilitarian benefit of the plea of guilty.

68 In any event it is noted in the section itself that the fact that any particular aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence.

69 I have had regard to some judgments that might assist me. The wisdom of superior courts for comparative sentencing purposes is not to be ignored. I have had regard to Regina v Perrin [2001] NSWCCA 422 and Regina v Mohamadin Tarek [2004] NSWCCA 401. No cases are immediately on all fours with this particular matter. Each case must be dealt with on its merits. But it is clear that there must be, for this offender, a term of imprisonment imposed, notwithstanding the terms of s 5 Crimes (Sentencing Procedure) Act.

70 I also note that I am required in sentencing the prisoner in relation to particular principal offences to take into account the matters on the Forms 1 in relation to the first count. In the second indictment there are three matters to be taken into account. I have noted what the guideline judgment says about taking matters into account on a Form 1. Such offences taken into account can actually alter the appropriate sentence for the principal offence. It can make the sentence longer or it can change its character. There is no question of course that the matters on the Form 1 here change the character of the sentence and they certainly, in their terms and detail, put into context the criminality for which the prisoner is to be sentenced. That is, the principal offences and related offences set out in the indictments.

71 The full facts in relation to the matters before me, both on indictment and the Forms 1 have been taken into account and although the matters on the Forms 1 themselves do not require any calculation of an appropriate sentence, they certainly provide as I said a proper context for the sentencing exercise that I must undertake.

72 Thus in relation to the matters that I am to sentence the prisoner for I will make the following orders. In relation to all offences on indictment the offender is convicted and dealt with according to law.

73 In relation to the offence of robbery in company committed on 5 March 2006, the prisoner is sentenced to a term of imprisonment of three years to date from 4 April 2006. That term of imprisonment will expire on 3 April 2009.

74 In respect of the detain for advantage in company occasioning actual bodily harm the prisoner is sentenced to four years imprisonment. That is to be entirely concurrent with the first sentence to date from 4 April 2006 and to 3 April 2010.

75 In relation to the first count on the second indictment, that is, the indictment alleging the offences on 8 March 2006 and 13 March 2006, in respect of the first count, that is the offence of 8 March 2006, the prisoner is sentenced to a term of imprisonment comprising a non-parole period of two years with the balance of sentence of four years. The non-parole period will commence on 4 April 2008 and expire on 3 April 2010. The balance of the sentence will expire on 3 April 2014. In respect of that sentence I have taken into account the three matters on the Form 1. I also find special circumstances for the reasons I have identified.

76 In relation to the second and third counts on the indictment the prisoner is sentenced to a term of imprisonment by way of a non-parole period of two years to date from 4 April 2008 and to expire on 3 April 2010, and in respect of each of those offences I fix a balance of sentence of three years. That is, each sentence to expire on 3 April 2014.

77 In relation to the third indictment, the offence on 15 March 2006 of armed robbery with a dangerous weapon at Liverpool the prisoner is convicted. He is sentenced in relation to that matter to a non-parole period of two years imprisonment to date from 4 April 2008 to expire 3 April 2010. I fix in relation to that sentence a balance of sentence of three years to expire on 3 April 2013.

78 In respect of the matter of the armed robbery at Granville with a dangerous weapon committed on 17 March 2006, which is the offence on the fourth indictment, taking into account the matter on the Form 1 relevant to that charge, the offender is convicted. He is sentenced to a term of imprisonment of two years by way of non-parole period to commence from 4 April 2008, expiring on 3 April 2010. The balance of sentence for that matter will be four years. That means that the balance of sentence for that matter will expire on 3 April 2014. I trust I have indicated that that sentence will be imposed taking into account the matter on the Form 1.

79 HIS HONOUR: Before I go any further Mr Crown are there any matters of a factual nature that I erred.

80 FINLAY: I'm only nitpicking your Honour but you did say that the record of interview with the accused was on 17 March. It was 18 March 2006.

81 HIS HONOUR: I'll correct that in the revised judgment. Am I right in saying however that the first armed robbery in time on 17 March there are no particulars as to how much cash taken?

83 HIS HONOUR: The cashbox was taken but there's no detail as to the loss.

85 HIS HONOUR: I couldn't find it, I should have asked you about that but as you know I took this matter and a lot of things were going on. But that's correct, I thought I must have missed something in the facts. Mr Shaw are there any technical matters?

87 HIS HONOUR: Mr Haddad, the total sentence I have imposed is eight years with a non-parole period of four years. That will date effectively from 4 April 2006 and your non-parole period should expire on 3 April 2010. You will not automatically be released to parole because I cannot direct that you should be released to parole. I don't propose to impose any conditions of parole. I hope that the Parole Board will have my reasons for judgment and assess you at the appropriate time. And what is needed to be done for you at the appropriate time may be different than the situation now. To my mind, others may disagree, I believe for an eighteen year old person who was a juvenile during the course of this conduct with no prior criminal convictions, this is a significant sentence. But I can assure you of one thing, if you'd been in your early twenties with some history of criminal conduct, particularly a history of violence of these kind, you could have expected a non-parole period of eight years or longer, such is the seriousness of them individually and seen in conjunction with one another. Do you understand that? So if you feel aggrieved about the term of imprisonment you've received you can be rest assured that if you get out and commit crimes like this again we'll be talking about double figures. And it's highly likely come 2010 and beyond that when we talk about sentencing offenders for these types of offenders we might even be dealing with mandatory penalties where judges have no discretion or very limited discretion. You can take a seat thanks very much.

88 Do you want to speak to your client Mr Shaw now?

90 HIS HONOUR: I don't want to keep the court staff too long, we've had very long day. The court recorder's been here since 9.30 and going flat out, so I'll give you an opportunity to speak to your client now. Thank you Mr Crown, thank you Mr Shaw, I'm sorry to keep you, and thank you for the court staff for all their work during the day.

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