R v Houzeife

Ivimy v R [2008] NSWCCA 25 R v Bavadra (2000) 115 ACR 152 R v Sok [2000] NSWCCA 121 Hamze v R (2006) NSWCCA 36 R v Youkhana [2005] NSWCCA 231 R v Bargashoun (NSWCCA, 22/11/85, unreported) R v Blackman (NSWCCA, 04/08/92, unreported) CASES CITED: Low v R (1984) 154 CLR 606 R v Rushby [1999] NSWCCA 104 R v Bus (NSWCCA, 03/11/95, unreported) R v Underhill (NSWCCA, 09/05/86, unreported) R v Rothapfel (NSW CCA, 26/03/92, unreported) R v Randall (NSWCCA, 19/04/94, unreported) R v Henry [1999] NSWCCA 111 Griffiths v R (1989) 167 CLR 372 R v De Simoni (1981) 147 CLR 383

PARTIES: Regina Mohammed Houzeife

COUNSEL: Crown - Mr Harrison Defence - Mr Parsons

1 HIS HONOUR: In the matter of Mohammed Houzeife, the offender stands for sentence on two matters.

2 Firstly, an aggravated carjacking offence that on 12 June 2008. The offender pleaded guilty to one count of aggravated carjacking pursuant to s 154C (2) of the Crimes Act 1900 NSW. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of five years imprisonment for this offence.

3 On 1 May 2008, the offender was found guilty by a jury following a trial at the Campbelltown District Court on the following count, namely that on 15 April 2007 at Merrylands in the State of New South Wales, being armed with an offensive weapon, namely a knife, did rob James Chen of a mobile phone and a wallet containing personal documents and $35 the property of James Chen.

4 Pursuant to s 97(1) of the Crimes Act 1900, the maximum penalty for that offence is 20 years imprisonment. There is no standard non-parole period for that offence.

5 A statement of agreed facts being exhibit S(1) was tendered and that contained matters which I think should be read out in substantial detail, particularly given that there are members of the offender's family here.

6 On the evening of Friday 16 March 2000, the victim Zenia Williams, aged 20, was working as the night time manager at the KFC Restaurant at 274 Woodville Road, Guildford. At about 11.30pm Miss Williams completed her shift and as the manager, closed the restaurant. She then remained on site until all the KFC staff completed their individual duties and left the store. After Miss Williams exited the store, she spoke with another employee in the restaurant car park, while she waited for other staff members to leave the car park. After all staff had departed, Miss Williams entered the driver's seat of her car, which was parked in the customer car park located on the eastern side of the restaurant, facing on to Woodville Road.

7 Miss Williams' vehicle was an imported 1990 Nissan Pulsar GTR ER registration number MSG715. She had purchased her vehicle in February 2005 for an amount of $14,000. It was a black car with a 14 inch Japanese racing rims. It had tinted windows with purple registration plates, with white letters and numbers. The vehicle had been modified by Miss Williams including the addition of the 3MG exhaust. Miss Williams drove her car from the car park on to Woodville Road heading in a northerly direction. She then turned left into nearby Lansdowne Street intending to do a U-turn so that she could turn back onto Woodville Road and then travel in a southerly direction.

8 As she turned her vehicle into Lansdowne Street, she saw four males standing in the middle of the road. Upon seeing this Miss Williams slowed her vehicle and attempted to turn her car around before reaching the location of the men. As she did so, one of the men walked up to the car and stood in front of the vehicle's bonnet. The man said, "What's the time?" Miss Williams recognised the man from a party she had been to in King's Cross some weeks previously. This was the male offender, Mohammed Houzeife.

9 In response to his question Miss Williams said, "What?" The offender then walked towards to the driver's side of Miss Williams' car, where the driver's side window was open. The offender said, "Get the fuck out of the car". Miss Williams tried to close her power window but was unable to do so as she accidentally pressed the wrong button.

10 As she attempted to close the window the offender again said, "Get the fuck out of the car". As this was said, one of the other males entered the passenger seat of Miss Williams' vehicle. This male then reached over and unclipped her seat belt and then sat down in the passenger seat. Miss Williams turned towards this man and clamped her hands down on his hand saying, "What are you doing?" At this time the offender reached through the open driver's window and grabbed Miss Williams' shirt from the front. He then grabbed under her arms, pulled her out of the open driver's window and threw her to the ground where she landed on her side. As this occurred, her handbag, which had been in her lap was pulled out with her. Miss Williams stood up and ran up to the offender and kicked him in the thigh just above the knee, causing him to fall back onto the right side panel of the car and then onto the ground.

11 The offender got up, grabbed both of Miss Williams' arms and pushed her back, causing her to fall to the ground. The offender got into the driver's seat. He then reversed the car to straighten it up and then drove off at speed west on Lansdowne Street. Two other males who had been present at the start of the incident had moved off to a parked Corolla. After the offender drove from the scene, the Corolla followed at high speed. The offender (as said) then contacted police and her boyfriend and reported the carjacking.

12 On the morning of Saturday 17 March 2007, the victim's vehicle was seen parked in the yard of a vacant house, at 13-15 Cardigan Street by a nearby resident. At about 1.30pm on that day, the police attended and recovered the victim's motor vehicle from the rear yard of 15 Cardigan Street, Guildford. The vehicle was towed to a holding yard where it was forensically examined.

13 On 26 June 2007 police were informed that the offender's fingerprints had been located on the exterior left hand side front door handle of the victim's vehicle, which was his left index finger. A print was also located on the left bottom edge of the rear vision mirror located within the vehicle, which was identified as the offender's left palm impression.

14 On 25 September 2007, the offender was arrested at Granville Police Station where he reported on bail for unrelated matters. He was taken to the Parramatta Police Station where he participated in an electronic interview. During that interview the offender answered a number of questions but denied involvement in the offence. When questioned about the location of his fingerprints on the vehicle, he did not offer any explanation as to why his fingerprints were located by the police. At the conclusion of the interview he was charged.

15 On 1 November 2007, Miss Williams identified the offender from a photo array as the person who pulled her out of the window of the vehicle and took her vehicle without her permission.

16 A standard non-parole period of five years imprisonment is established for this offence. Here, there has been a plea of guilty but nevertheless the period remains as a benchmark to be considered in the imposition of the sentence.

17 Consistently with the jury's verdict, I find the following facts to have been established. At about 12.40am the victim, Mr James Chen was walking home from the Merrylands Railway Station. He was walking to his home a short distance away through a park. He was approached by two men who demanded his wallet and phone. One of them produced a flick knife which Mr Chen thought was about 20 centimetres in length and he held it a short distance from Mr Chen's stomach.

18 Mr Chen was pushed up against a fence. Initially he tried to give the robbers money from the wallet but they, or one of them, demanded his wallet and his phone. After he gave them those items, the robbers then took off down the pathway in the park. Mr Chen followed them shortly thereafter. When he turned the corner into another street, he saw a car turn its lights on and drive off. It was a dark coloured hatchback. It was the only car in the street.

19 In terms of the chronology, the robbery occurred at about 12.40am to 12.45am. Mr Chen went home and after a short discussion with his parents, then went immediately to the Merrylands Police Station, which was a short distance away and reported the robbery. He entered the station at 12.55am. There Mr Chen was given a telephone number for the credit card company to cancel its card. While he was in the process of doing that, he was informed by the relevant card company officials that his card was at that point in time being accessed at an ATM terminal of the St George Bank in Guildford. The card was being accessed at 12.58am.

20 Mr Chen immediately informed the police of that usage. A police radio broadcast was made and a patrol car dispatched to the area. The police message broadcasting the usage of the card on the ATM at Guildford Road was broadcast at 1.00am. The officers present in that car, Senior Constables Ballis and Maybury, drove past the relevant ATM machine within a few minutes but did not observe anybody there. Police then went to a car park at the rear of the bank and located a dark hatchback motor vehicle. They arrived there at about 1.06am. They then observed the accused coming down a laneway and getting into the front passenger seat of that car. The car was owned by the accused's father and was being driven by Mr Barri.

21 At the back seat of that car was Mr Jihad Chaouk. Mr Chaouk subsequently pleaded guilty to robbery, being the identical robbery and I will deal with that below.

22 While the police were in the vicinity and talking to the three individuals, namely the accused, Mr Chaouk and Mr Barri, the police at the Merrylands Police Station who were interviewing Mr Chen asked him whether he had any identifying features for the mobile phone which had been taken from him during the course of the robbery. Mr Chen recalled that there was an identification number for the phone on a box in which the phone had been located when he bought it. He went home very quickly and returned with those details. The identification number of the phone was broadcast to Sergeant Privett. He arrived at the car park where the accused, Mr Barri and Mr Chaouk were present, with the other two police officers at about 1.10am.

23 Sergeant Privett approached the vehicle and located the phone in the front passenger side pocket of the vehicle, adjacent to the seat from which the accused had alighted and to which he had returned.

24 Given that the offender has continued to deny his liability in relation to this latter matter, it is appropriate that I set out the circumstantial evidence on which the Crown relied and those included the following.

• The robbers left the scene of the robbery in a car, which in terms of it being a dark hatchback car matched the same aspects of the car being driven by the accused. That was the accused's father's car and had been used by the accused that night.

• In terms of the chronology, the robbery occurred at 12.40, the car was seen by police at 20 minutes after the robbery; the accused was in the car at that time.

• The description of the second robber matching that of the accused in relation to his height.

• The accused was seen coming down an alleyway from the direction of the ATM which had been accessed at 12.58am using a credit card stolen from the victim, no more than 18 minutes earlier.

• The police had been patrolling Guildford Road from 1.00am and they saw no one else.

• The car was located at a short distance from the St George ATM machine at Guildford Road where Mr Chen's card was used minutes earlier.

• The mobile phone stolen from the victim was in the car.

• The phone was in the door pocket of the front passenger seat from which the offender had alighted.

• The clothing found in the car, in particular the pair of tracksuit pants sitting at the offender's feet, matched some descriptions of the description of the clothing worn by the robbers.

25 The Crown submits that by virtue of the guilty verdict, the jury must have been satisfied of the following matters:

At about 12.45am on 15 April 2007, the offender and Jihad Chaouk robbed James Chen of a mobile phone and a wallet containing personal documents and $35 in cash.

At the time of the robbery, Mr Chaouk with the offender's knowledge, had a knife.

During the robbery Mr Chaouk held the knife to Mr Chen's stomach.

During the robbery, either the offender or Mr Chaouk demanded money from Mr Chen and threatened to stab him. The Crown submits that the offender made this demand and his threat. In his evidence Mr Chen said that it was the person without the knife who made this demand and threats (see transcript at p 3, lines 45 to 46).

During the robbery, the offender or Mr Chaouk pushed Mr Chen towards the fence. The Crown submits the offender did this. In his evidence Mr Chen said the male without the knife did this (see transcript at p 4, 30 to 37). 6. During the robbery, the offender or Mr Chaouk demanded Mr Chen's mobile phone. The Crown submits the offender made this demand. In his evidence Mr Chen said the male without the hood said this (transcript p 7, 14 to 16).

7. After the robbery, the offender and Mr Chaouk ran away and got into the offender's father's car.

8. After the robbery, either the offender or Mr Chaouk attempted to use Mr Chen's ATM card at the St George ATM on Guildford Road, Guildford.

9. After the robbery, either the offender or Mr Chaouk disposed of Mr Chen's wallet and contents and a SIM card from his mobile phone.

26 Although I do not consider it completely necessary in these circumstances to make finding specifically as to who was the person with the knife or made the demand and how far away they were, I am satisfied that the remainder of the matters outlined are not only consistent with the jury's verdict, but indeed the proper findings that should be made in this case and I do so find those matters.

27 The essence of the defence case was that the description of the taller man, fairly fitted Mr Chaouk who had pleaded guilty to the robbery.

28 The second man, being 175 centimetres, short, stocky and chubby, could not, it was submitted, possibly relate to the offender. He was 190 centimetres and with a long, thin face.

29 Those submissions were clearly not accepted by the jury.

30 In any event, as I have said earlier, I do not regard a precise determination on who did what amongst the two offenders as necessary in imposing the sentence that is called for in this particular instance.

31 Mr Chen also thought that both robbers were wearing dark coloured jeans. When the police saw the offender coming back from the laneway direction of where the ATM machine was being operated with the stolen card, he, the offender, was wearing shorts. This was clear to the jury from the police in-car video. However, also located on the front passenger seat from which the offender had alighted was a set of dark tracksuit pants. There were other items of clothing in the vehicle including a number of hoodie tracksuit tops and jumpers or cardigans.

32 The identification of the two robbers came primarily from the victim Mr Chen. He said that there were two men. One was a tall person, one of whom a description was given. In terms of the transcript, p 7, line 42 as follows:

"He was about, a little shorter than me, so about 175 centimetres. He was short, stocky, fairly round faced, fairly big build and he was about mid twenties I would say. He had a Middle Eastern origin but again it was very dark. He had on a light coloured hoodie. He was wearing jeans and that's all I really noticed. The other person was a little bit taller than me. I'd say about 183 centimetres, about the six foot area. He was very tall, skinny, a much darker complexion with acne scarring as well. Also of Middle Eastern origin and wearing a plain jumper with no hood, just a round neck jumper".

33 Mr Chen said in his evidence in response to a question from me that:

" He was about 179 centimetres. The shorter man would have been about 170 or 175 centimetres. The taller man about 185 centimetres."

34 There are some descriptions on which counsel for the offender made a number of submissions to the jury. What is clear to me however was that Mr Chen was clearly shaken and disturbed when he was the subject of the robbery at that time of night and in those circumstances. His attention not unnaturally, was concentrated on the knife which was being held against his stomach. When he ran to the police station, he was still startled, shocked and flustered. Constable Joyce said that:

"(He was) shaken. He was out of breath. He ran into the police station, to the front counter and he said he had been robbed."

35 Detective Senior Constable Baulderstone described it as:

"It was as if he'd run into the police station and he was quite flustered, out of breath and I guess a little shocked".

36 Some 10 days later Mr Chen participated in the photographic array selection procedure. He did not identify the accused or Mr Chaouk from the respective photographic arrays which were put before him.

37 As I have said, evidence was given on the trial by Mr Chauok, Mr Barri and an alibi provided by Mr Chami.

38 It is appropriate that I make some comments about these gentlemen I think in the circumstances of the offender and the recommendations I will be making in terms of his parole conditions. I also make these comments in relation to these three individuals because it is important in my view that his family hear the nature of the people with whom he was associating and who either led him into the trouble that he was in or who were part and parcel of the trouble that he got himself into. The offender would do very well, in my view, to keep away from precisely these individuals.

39 Mr Jihad Chaouk pleaded guilty to this robbery in the Local Court. At that time he was legally represented. A particular of the count of robbery, to which he pleaded guilty, was that the person whose company he was in was the accused Mohammed Houzeife.

40 During the voir dire examination, Mr Chaouk said he recalled Mr Houzeife's name being stated when he pleaded guilty but he did not concentrate on that aspect of the count. What he was particularly concerned about was that the count reflected the fact that he was not being charged with robbery where a flick knife was used, in other words an offensive weapon.

41 There was considerable discussion after the voir dire evidence from Mr Chaouk given the likely prejudicial nature of such evidence. Ultimately, the Crown did not attempt to introduce that evidence about the identification of Mr Houzeife in a particular of the count.

42 Mr Chaouk also said in his evidence that the person with whom he had committed the robbery was somebody not known to him. He had never met him before since he did not know his name and could not remember any of the details about him. That account was clearly not accepted by the jury.

43 I found Mr Chaouk's evidence unbelievable and his presentation unimpressive. So much so that I would not be prepared to rely on it to any extent, even to making any findings contrary to the offender.

44 When Mr Chaouk was sentenced by the senior magistrate, Magistrate Mitchell, from this court, His Honour made a number of comments which I read out to the offender in relation to Mr Chaouk's account and version of the events as well as his excuses.

45 I have previously indicated to the offender and I reiterate to him and to his family that he would be well advised to avoid Mr Chaouk in the future. Mr Chaouk in addition to being a liar has manifested all the indicia of a continuing career within the criminal justice system.

46 Mr Barri gave evidence as the driver of the vehicle. He gave evidence that on the night of the offence, the offender and Mr Chaouk picked him up from his house to go for a drive. They were driving the offender's father's car. He does not remember who was driving when they picked him up but said that he then got into the driver's seat and drove the car himself. He drove down Guildford Road into a car park and then they got pulled over by the police. The offender then got out of the vehicle to see if his mates were on Guildford Road. He ran up the laneway and back down (transcript p 257, line 27). That took him between 30 seconds and one minute. Mr Chaouk was still in the car at the time.

47 Mr Barri said that he did not see anything in the car at the time (transcript p260). He could not remember what was said in the car at the time. When the offender came back from the alley, the police started asking the boys questions and searching them and the vehicle. Mr Barri said he did not know what they were looking for.

48 The police were talking to each of the boys separately. Mr Barri said that he found out that the police had found a phone in the car (see transcript p 294, line 41). He did not see where they found the phone. He said that the offender was not in the car at the time the police turned up.

49 Mr Barri's evidence was that the reason the offender went up the alley was that he was going to see someone on Guildford Road to see if they were there. He denies that he went up there to use the ATM with the stolen credit card from the robbery.

50 Mr Barri said that he was interviewed by the police in the early hours of the next morning.

51 In cross-examination Mr Barri said he did not see the offender change his clothes (transcript p 296, line 48). Further he said he did not hear any discussion between the offender and Mr Chaouk about a robbery (transcript p 297, line 3) or a stolen phone (transcript 297, line 5).

52 I have great reservations about accepting any part of Mr Barri's evidence at all, which is not independently verified and, again, he is somebody who in my view, the offender would be well advised to keep away from.

53 An alibi notice was produced on 23 April 2008, in other words shortly before the commencement of the trial. The Crown took no objection to the late notice of the alibi.

54 Mr Chami said that the accused had been present at his home between 7pm and about 1am to 1.10am on the morning of the robbery. This was against the clear chronology of the fact that the robbery had been committed at 12.40am and that the accused had been located in the car park at 1.04am or thereabouts.

55 There was considerable cross-examination in relation to Mr Chami about his recall and why he had recalled the time being 1.10am and what appeared to be a possible revision of that time to an earlier time range of 1am to 1.10am.

56 Similarly I have substantial reservations about accepting Mr Chami's evidence.

57 Consistently with the jury's verdict it must also be that the evidence of Mr Chaouk, Mr Barri and Mr Chami was not accepted. In my view, from my observations of all those three individuals while they gave their evidence, that finding was more than open to the jury and it is on that basis that I have viewed the evidence and I regard the jury's finding - certainly in relation to a rejection of the account of those three young men - as being entirely appropriate.

58 The offender did not give evidence at the trial nor the sentencing proceedings and the jury did not accept the criticisms of the police case or alternatively that those matters were significant.

59 I should say this in relation to those three young men, I will be directing that these comments be published as a judgement and that they should be made publicly available. It does seem to me a matter where it is in the public interest that the attitude of Mr Chaouk, Mr Barri and Mr Chami, in the course of the trial and their association with this offender, should be available as a matter of public record and my findings in relation to their credit.

60 In terms of the factual issues, I need to resolve, I make the following findings of fact:

61 Firstly, there was a joint criminal enterprise between the offender and Mr Chaouk whereby one of them threatened to stab Mr Chen and demanded that Mr Chen hand over his money. I am unable to make any finding about the substantial premeditation or preplanning in that regard. It may well have been an opportunistic matter and, if so, that should be taken into account to the benefit of the offender.

62 I note, however, that it was Mr Chen's evidence that it was the person without the knife who made this demand and threats (see transcript p 3, line 45 over to transcript p 4, line 12). I do not find it necessary to make a clear and absolute finding beyond reasonable doubt in the circumstances. However, it is clear that whoever of the two of them made the threat and the demands, that that took place in the presence of the other.

63 Similarly I find that one of the two individuals pushed Mr Chen towards the fence and I accept Mr Chen's evidence in this regard. Again I note that he said it was the male without the knife who did this.

64 Further, that one of the two offenders made the demand that Mr Chen hand over his phone. Again Mr Chen indicated it was likely to be the offender who did this as a matter of inference. However, in relation to all three matters there is some doubt about it, given the short period of time in which Mr Chen made his observations, the lighting of the time and the effect of the evidence of Mr Chaouk.

65 I am unable to find whether it was the offender who attempted to use Mr Chen's ATM card. Certainly I find that it was one of the persons with whom he was associated and that the use of the card immediately followed the robbery by one of those involved.

66 The matter was first mentioned on 25 July 2008 following the trial which took place in May of 2008. The day before, the defence had served a report from a Dr John Jacmon, psychologist, in which he attempted to diagnose that the offender's bi-polar disorder was advanced. Mr Jacmon also said the diagnosis could only be confirmed following a further interview over a three month period. Defence counsel, who was a counsel of considerable experience, Mr Neville Parson, sought an adjournment so that he could make proper submissions on behalf of the offender. That was not opposed by the Crown, in my view, sensibly and appropriately so. The Crown also indicated that he wished to cross-examine Mr Jacmon in the event that the report and diagnosis was relied on.

67 The further report dated 29 September 2008 was received and tendered and accepted and it confirmed the diagnosis of bi-polar disorder. There was some considerable cross-examination by the Crown of Dr Jacmon on the contents of that report and the effect of that condition.

68 A pre-sentence report prepared by Nicholas Vrzic from the Blacktown District Office of the Probation and Parole Service dated 24 July 2008 was tendered. It became exhibit S7. It set out the following details in relation to the offender:

69 Mr Houzeife is aged 20. He was born in Australia, the fifth and the eldest male in a family of seven children, to parents of Lebanese origin who migrated to Australia with the offender's elder siblings. Prior to his current imprisonment, Mr Houzeife resided with his family in their Department of Housing residence at Granville.

70 The offender was raised in a close, supportive and law abiding family environment. His sisters are university graduates. This is a young man who has had the benefit of an intelligent family, a supportive family and a law-abiding family, unlike many of the people who come before me and this court for sentence. Nevertheless he has chosen, for his reasons, to go down a different pathway and that is why he is being sentenced here today.

71 The offender has expressed disappointment at not living up to his parent's expectations that he enter university. It would appear that relationships within the family continue to be close and various family members maintain regular visits to the offender in custody. That is a good thing and to be encouraged. However, I do have concerns about the prospects of rehabilitation of this offender, regardless of those close supportive contacts, given that he was living with them at the relevant times when these offences occurred.

72 The offender stated he had attended a local high school between the years 8 to 10 and then completed his final two years of high school at an Islamic school in Strathfield. He left at the age of 18 having obtained his HSC.

73 Mr Houzeife stated he was disappointed when he did not obtain adequate marks to gain entry into university. He felt that he had let down his parents. He was unemployed for six months after leaving school and started a four-year electrical trades apprenticeship at TAFE. He left after a brief period as he said he was not learning and developing skills.

74 In May 2008, he began work for an electrical firm based in Guildford, where he was employed before entering custody. His employer commented favourably about Mr Houzeife's work performance, his reliability, his trustworthiness and his ability to learn. He stated that he would have no hesitation in re-employing him. This was a matter on which considerable stress was placed by counsel for the offender, Mr Parsons, on the basis that since that time, the offender has had the benefit of some degree of stability; not only in terms of his work but his personal inter-relationships. That may well be the case, but it must be noted that that post dates both of these offences and it is indeed a relatively short period of time to find any real prospects of rehabilitation.

75 In terms of his prospects of rehabilitation, the offender has had at least three institutional misconducts including entering other cells, behaving in a threatening manner towards officers, which I regard as a serious matter particularly, and damaging and destroying property. Those incidents occurred during the period 13 to 19 June 2008 while he was at Parklea Gaol. It resulted in him spending time in segregation as well as being off amenities, buy ups and television. My concern in that regard is: what are the implications in terms of the offender's preparedness to engage in any kind of rehabilitation?

76 During his interview with the probation and parole service in mid June 2008, the offender denied that he had involvement in the use of alcohol or illicit drugs. However during a subsequent interview in mid July 2008, the offender stated he did in fact have issues in relation to illicit drug use. He said he did not indicate this previously because of what he described as embarrassment and he added that his disclosure of his drug use to the service was prompted by his solicitor's request that he be honest when being interviewed for the purpose of this report.

77 Again I have some concerns about this matter. It is clear that his illicit drug use has been ongoing for some period of time. He says that when he finished high school he commenced drinking alcohol and smoking cannabis. When he initially spoke to both the probation officer and Dr Jacmon he denied this usage or the extent of it. He engaged in using the substances on weekends and he was spending about $50 a day on cannabis. He also commenced using Ice, which cost him about $200 per week. He stated that he used ecstasy when attending parties on the weekends and spent about $120 per week on this drug. He indicated that he engaged in using these drugs with peers who were older than him, from a similar cultural group, and who were unemployed.

78 Mr Houzeife stated that he was using drugs right up to the time of the offence. There is no indication of where the offender found the money for this drug habit and it seems that this was not known to his family.

79 During his interview with the service, the offender stated that his family were unaware of his drug use. He indicated that he was willing to address his drug issues in custody and commented that he has made an application to access alcohol and other drug services in the gaol.

80 In discussion with the offender and despite his conviction at trial, the offender continues to main his innocence of the offence. In those circumstances, there seems to be little evidence of any evidentiary basis of remorse or contrition on which a finding of rehabilitation can be the subject of any foundation. Mr Jacmon described his drug use for example as having the effect of making him feel in a high mode and he said that his illicit drug use was a feature of the bi-polar disorder from which he suffered.

81 These matters give me considerable concern in terms of his prospects of rehabilitation. The offender has been brought up in an appropriately proud Islamic tradition where the abuse of alcohol is the subject of condemnation. Nevertheless he seems to have had the money to be involved in this drug usage for some considerable period of time. I am concerned that he will not take any notice of the family or other friends and associates that he has. I will be coming to this in relation to the program, which was been submitted through counsel, on the specific instructions of the family, concerning Islamic teachers who may be of some assistance to this offender.

82 A psychologist's report from Dr Jacmon was tendered dated 22 July 2008. Dr Jacmon also gave oral evidence and was extensively cross-examined on 17 October 2008.

83 He again sets out that Mr Houzeife has had a long history of drug taking, which commenced when he started experimenting with drugs at the age of 16. The drugs, mainly cocaine and ice, led to a deterioration of his schooling and essentially he has little or no qualifications. Moreover his drug usage involved his exposure to a group of associates who funded their drug habit from petty crime. His cocaine and ice usage cost him, it would seem, about $100 daily and he apparently followed his friends well and truly into the criminal behaviour, which now brings him before the court.

84 The offender pleaded guilty to the aggravated carjacking on arraignment.

85 To some extent there is some indication of remorse in the plea. However, although the offender wrote a letter to the victim over the intervening period, it does seem to be the case that there was no real co-operation with the police in terms of the nomination of the other co-offenders. His admissions that what he was involved in was cowardly conduct - and whether that can be used as the basis of any long term indication of real remorse on his part - must be viewed against the fact that despite the opportunities, he has not made any indication to anybody of who his co-offenders were.

86 He also maintains his innocence in relation to the robbery, which, given the circumstances as I have set them out in some detail, is a matter which gives me some concern in terms of assessing whether this young man has realistically any hope of rehabilitation unless he is prepared to confront himself and his own degree of honesty or, in my view, dishonesty, about his acknowledgment of what has occurred in the past.

87 The offender's remorse has been set out in general terms but he denies the facts in relation to the robbery offence. It is nothing other than generalised comments that have been made in the presence of these sentencing proceedings. I do not think that his expressions of remorse, so lately expressed, while they may be genuine at the moment, indicate a framework for a basis of lasting rehabilitation.

88 The report also notes that Mr Houzeife tends to be distrustful of close and personal relationships and has few close friends. Those that he had, in relation to these offences, are people who clearly did him no favours and presumably he did them no favours either. That aspect though must be considered in the light of what support is likely to be offered to him, let alone accepted by him on his release from custody. The danger is that if he is released from custody and goes straight back to the family who have indicated their preparedness to support him, unless he changes the kind of people that he has been mixing with, he will be ending up back before the courts on increasingly longer and longer sentences.

89 The report of Dr Jacmon refers to indications of his mania and the hypothesis of bi-polar disorder. It notes that an assessment of the disorder needs to take place on a number of occasions, over a lengthy period of time to see the range of mood changes. It is also said in the report, and that seems to be consistent with other literature, that there is no lasting cure from the recurrent disorder of a bi-polar disorder. It requires a life time of medication where the individual, first of all, needs to accept there is a problem and then to take steps to stabilise his mood and to adopt any measures of appropriate neurotic psycho therapy when they realise they are moving towards these mood changes. This is one of the matters that gives me concern about this particular offender and which is why I have gone into detail in the front of his family. Unless he realises there is a problem, unless he realises that he has been diagnosed with bi-polar disorder and that he must take medication, he is likely to end up in increasingly violent crimes and back in front of the courts.

90 It is often an attribute of young men in these circumstances that as soon as the medication takes effect and they get back to a situation of normalcy, that they think in their own arrogance that they do not need such medication any further. The reality is that is precisely when they need their medication. That is precisely when they need to have people supervising with their medication, otherwise they will be straight back in the courts.

91 The report also sets out the short and long term effects of Ice in the pure form of methylamphetamine. The offender has been using this and related drugs while he has been in the circumstances he has, including family care to which he proposes that he will return. The report notes what is a matter of common knowledge in any event that the long term use of cocaine can produce behavioural problems and psychosis, as well as the addictive qualities of that drug. This is what seems to have occurred with this offender. As I have said before, there is nothing in his history or in the report which in my view indicates any real basis for optimism that there will be any change.

92 The ultimate diagnosis contained in the report at page 26 is one of bi-polar disorder and anxiety with clearly apparent substance abuse issues at the time of the incident. It refers to his remorse for offending and the harm caused to his victims. I have dealt with this previously in my scepticism about that, although I am prepared to accept at the moment, that he is genuine in that regard.

93 The treatment plan suggested is annexed to that report and the various proposals that would be available to Mr Houzeife. The need for Mr Houzeife to observe that can be gleaned from even one small aspect of the report which notes the rapid cycling behaviour of bi-polar disorder. In other words there is high energy levels in the morning, consisting of people who think that they can do everything, going to depression in the afternoon. Not very many actions are governed by logic, as it was clearly by this young man when he took part in these offences. Here the offender said that he was taking drugs on the day of the carjacking and had been taking drugs every day at the relevant time.

94 Evidence was given by Mr Wasim Zoabi, the brother-in-law of the accused. Mr Zoabi was a teacher at the Islamic High School in Strathfield. He is married to one of the offender's sisters. He has an extensive familiarity with the family and the offender. He gave evidence of the offender being under considerable pressure from his father to become involved in academic matters rather than through the trade course. That had led to tensions within the family and exceptional pressures on the offender. It led him in turn to him completing the HSC with a UAI of about 30 per cent, which meant that he had difficulties coping with not only his own expectations but those of his family. The offender's father is incapacitated by osteoporosis.

95 Mr Zoabi confirmed the offender initially pursued an apprenticeship after leaving school. He left that and obtained another apprenticeship with a Mr Bazumi and that was in June of 2007 shortly after the offences for which the offender is to be sentenced. At that time he enjoyed the apprenticeship and attended the Granville TAFE.

96 Mr Zoabi said the offender's intention was to complete his apprenticeship on release from custody and start up his own electrical business. He said that he was anxious to have the offender back and had a number of strategies in place to ensure he does not offend again and to deal with his drug usage. The difficulty with Mr Zoabi's otherwise impressive evidence - and I do regard him as a man of having some considerable insights - is that the offender was with that family when he started his drug taking activities and pursued them for a period of, it would seem, at least three years. Either he was very clever in hiding it from the family or the family took no real interest in what was happening.

97 Further the offender became aware with criminal associates and the family was either unknowing, unable or unwilling, to deal with those associations. He did not deal with any of the manifestations of his anger or rationality on his part, nor did he do anything which was unduly concerning about his behaviour, at least to the extent of taking any further action. In those circumstances I think there can be very limited weight indeed placed on the prospects of rehabilitation of this young man, within a rehabilitative context provided solely by his family.

98 A reference was tendered by Mr Bazumi to say the job will be open for him but that must be viewed in the light of the fact that the offender has only worked with Mr Bazumi for a short period of some three to four months against the background of his otherwise very chequered past.

Section 21A Crimes (Sentencing Procedure) Act: Aggravating factors

99 In terms of the relevant factors under s 21A of the Crimes (Sentencing) Procedure Act and in terms of the aggravating factors, here there were a number of aggravating factors, only one of which were relied on as an element of the offence, within the principles outlines in the decision of Ivimy v R [2008] NSW CCA 25 at 27-28. That is the matter which I am entitled to take into account, ensuring that the Di Simoni issues are not breached and the offender is not effectively double-sentenced or there a double counting of aggravating factors.

100 The Crown here submits that the fact that the robbery occurred in company was a significant aggravating aspect, given that there was great fear and distress on the victim, Mr Chen, as one would have expected when he was confronted late at night in the park by these two individuals. That was referred in the decision of R v Bavadra (2000) 115 ACR 152 at 28.

101 There is also a similar reference in the decision of R v Sok [2000] NSW CCA 121 at 17 - a comment of Hulme J about the presence of either company or an offensive weapon, distinguished these offences from the lesser offence of simple robbery under s 94.

102 Defence counsel does not agree and submits to the contrary from the Crown the fact that the offence was committed in company is an aggravating factor.

103 It seems to me, having taken into account the matters set out in Hamze v R (2006) NSW CCA 36 at 34-37 that in these particular circumstances, I need to be very careful. There, the commission in company was not strictly required for the relevant offence. There was no error taken into account as an aggravating factor. There are two limbs clearly with s 97(1) which can be cumulative and the applicant can be and indeed was charged with an offence with two elements.

104 Here the Crown conducted a case on the basis that both offenders were engaged in a joint criminal enterprise and that at all times both were present at the robbery. It was unnecessary for the Crown to allege that they were in company.

105 The indictment was filed under the same offence-creating section. The fact that the offence was a joint criminal enterprise was an essential part of the Crown case. It seems to me that I have dealt with these matters and I will take them into account not as aggravating factors, but as part of the overall consideration of the matter.

106 I am particularly concerned about the aspect of the robbery. The victim impact statement was tendered from Mr Chen in which he stated that since the incident he had a fear of night time travel as well as night time activities which has impacted on his social life.

107 Mr Chen was a student. He lived in that area most of his life. It was a frightening robbery at knifepoint in a dark park, or in a dark or dimly lit park where he was on his own.

108 I observed Mr Chen while he gave his evidence. The fear that he had felt during the course of the robbery was still apparent when he gave his evidence some 12 months afterwards. He had to relive that aspect of the robbery during the course of this trial.

109 Those are important matters, although I do not think that within the principles outlined in the decision of the R v Youkhana [2005] NSWCCA 231 that these are matters in relation to Mr Chen which go beyond what might normally be anticipated as being the incidence of a robbery of that sort and accordingly I do not take into account as an aggravating factor.

110 These are matters which I will refer to at a later stage in more detail. Suffice it to say that there are a number of young men of the offender's age and young women, for that matter, who are trying to do the best they can to improve themselves, trying to go to either employment or educational facilities or institutions and they need to travel late at night. For them to be the subject of robberies and the kind of thuggery that occurred in this particular instance is a matter which in my view must be relevant and looked at under the principles of general deterrence.

111 In terms of the aggravating carjacking charge, there was a victim impact statement tendered from Miss Williams dated 24 July.

112 She refers to the ongoing fear she experiences while driving and indeed while getting into the car.

113 Those fears are entirely understandable and reasonable given the fact that she was on her own in a vehicle, she was pulled out through the window in circumstances where late at night she was confronted by four men. She was subject to threatening and foul language by the offender. It would have been a terrifying experience for her. Her reactions and the matters set out are entirely appropriate in my view.

114 There has been no restitution of Mr Chen of either the money or the items taken from him during the robbery, including his credit and other cards, in particular the SIM card, which had been in the phone, was not recovered.

115 In relation to other aspects of restitution concerning the aggravated carjacking offence, the vehicle was returned to the victim the day after the offence was committed.

116 I am then required to look at the aggravating factors. In terms of the aggravated carjacking:

(b) the offence involved the actual or threatened use of violence (g) the injury and loss and damage caused by the offence seems to have been quite substantial.

117 In terms of mitigating factors under the armed robbery, the offender importantly at the time of the offence had no relevant prior convictions, one minor traffic matter, and this is something which has given me considerable concern given that he got to this age of over 18 without any real prior convictions, and now he has descended into the level of serious crime, he has a serious criminal conviction against him, and he will be spending time in gaol. All this seems to have been a complete waste of time as far as he is concerned and his own family is concerned. To put away and to put behind him the aspects of his life which, to his credit, he was able to pursue in somewhat difficult circumstances is not anything of which he can be proud. Importantly, it is contrary to my judgment of him as being an intelligent individual who would be involved in these kind of stupid and violent acts.

118 It seems to me here there was limited planning and pre-meditation in relation to this robbery. The offender, along with Mr Chaouk and possibly other persons, were on their way to the city and the robbery took place shortly after. There are no indicia of extensive planning or preparation for the robbery.

119 In terms of the likelihood of rehabilitation, defence counsel submits the offender is unlikely to re-offend and there are good prospects of rehabilitation. Unfortunately, I do not see any evidence to warrant such a finding. It is the case where the offender has come from a good home, a good background, has had an education, has had expectations and family support available to him. What decisions he has made he has made on his own, including his decision to become involved in drugs - including his decision to be mixed up with the kind of people who either led him astray or he participated in leading them astray. Until he acknowledges his responsibility in that regard and is prepared to face up to what he has done, it seems to me there are very limited prospects of rehabilitation indeed.

120 In terms of the mitigating factors under the aggravated carjacking charge, defence submits that the injury, emotional loss or damage caused to the complainant was not substantial, and she did not have any injury or other damaging effects by virtue of being removed from the vehicle. As I say, the vehicle was recovered the next day and returned to the victim.

121 I disagree that there was not a substantial impact on the particular victim in this situation. To be dragged out of a car by young men of the build of the offender and there were others around and when she was on her own at the time of the day in question must have been a terrifying experience.

122 It is submitted also the offence was not part of a planned or organised criminal activity. Defence submits that there was no evidence that it was planned, that the victim was simply making, in terms of the carjacking offence, a u-turn down Lansdowne Road when there were four males standing on the middle of the road. There was no evidence that these males knew that she would be in Lansdowne Street. Nevertheless, there certainly was evidence that she was on her own - that must have been obvious to the offenders - and they then took the actions they did. In my view there was a degree of planning in relation to this criminal activity, not a substantial one, and indeed one limited to a short period of time on that day in question.

123 The offender did not have any record or any significant record of prior convictions. He was a person of apparently good character, the defence counsel submits, and in my view properly so, that the offender was a person of good character, whose employers described him as being an honest, reliable and trustworthy man. Again, the problem with that, and I have gone through that material again, is that the referees only know what the offender was prepared to show them, and as was the case with his family.

124 I am unable to make the finding that the offender is unlikely to re-offend, I certainly hope that is the case, but that will depend very much on his behaviour on his release from custody, and what he is prepared to do to embrace the offers for help that he has had from his family, his extended family and the programme which has been put before him.

125 I do not minimise the difficulties of a young man with his background trying to change his behaviour, but there are two things to be said about this. Unless he does change his behaviour, the statistics are that with that degree of drug consumption, he will be dead by the time he is 40. Secondly that he is likely to be a person who will go down a pathway of crime unless he takes a lot of notice of the plans that have been prepared for him and accepts the directions of his extended family and those who do care for him.

126 I cannot make any finding that he is unlikely to re-offend, or that there are good prospects for rehabilitation. However, I am prepared to consider the plea that he has entered and the remorse inherent in it in relation to the first offence as warranting a discount to the head sentence which would otherwise be imposed, and I will come to that shortly.

127 In terms of role and parity, in relation to the robbery, it is conceded that Mr Chaouk had the knife but even though that concession seems to have been made, clearly the offender knew of it at some stage during the robbery of Mr Chen.

128 In terms of parity again, Mr Chaouk pleaded guilty to one count of robbery in company at the Parramatta Children's Court on 2 October 2007, he was sentenced to a bond for a period of two years that he be of good behaviour, called up when called to do so, and accept the supervision of the Department of Justice.

129 Importantly, Mr Chaouk was 17 at the time of the offence, he was sentenced as a juvenile, and the Crown submits that the issue of parity does not arise in this particular case. There is no requirement for parity between the accused where one is dealt with in the Children's Court, and the other in an adult jurisdiction because the sentencing policy is different in the two jurisdictions: R v Bargashoun (NSWCCA 22 November 1985, unreported, BC8500396), R v Blackman (NSWCCA, 4 August 1992, unreported).

130 Here, the Crown submits there are several other reasons why there is no requirement for parity including the fact that Mr Chaouk pleaded guilty, Mr Chaouk pleaded guilty to an offence of robbery in company while the offender was convicted of armed robbery, and the facts tendered on Mr Chaouk's sentence did not contain any reference to the knife. I think that is an appropriate submission in these particular circumstances.

131 The principles of parity were set out by the High Court, and particularly Justice Dawson in Low v R (1984) 154 CLR 606:

132 "There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." (at 623)

"The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are no always equal, such matters as the age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account." (at 609).

134 To ensure that the offender is aware of what the governing law is, the Chief Justice made a comment that it is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal. Such matters such as age, background, criminal history, general character and the part in which he or she played have to be taken into account.

135 Here, the difference between the offender and the co-offender is one of some one year and three quarters. Mr Chaouk said he was aged 16 years and three months, in keeping with my general attitude to Mr Chaouk's evidence, I would probably require to see a birth certificate before I accepted that, but accepting it for those purposes, there is a difference between him and the co-offender who was aged 18 years.

136 That difference, the substantial disparity in their chronological ages and their maturity is something that I need to give some weight to, but that relates more to the rehabilitation of the younger offender rather than the older offender, as was referred to in the R v Rushby [1999] NSWCCA 104 at 24-26 and R v Bus (NSWCCA, 3 November 1995, unreported).

137 As I said, I am not required to determine who was the person who held the knife, it would seem to have been Mr Chaouk contrary to his evidence, but nevertheless there was a knife used in the robbery which means that the elements of the offence are substantially different to that on which Mr Chaouk was sentenced.

138 The defence submits to the contrary and says that parity would be not an overriding concern but a strong concern in this particular instance. While there is clear law that a sentence that is imposed on a person in the Children's Court may be relevant, in terms of the issues to arise on parity, a person who is sentenced, as this offender is being sentenced as an adult, should be aware that there are very different sentencing considerations in a case such as this.

139 Importantly in relation to the robbery, there was a knife used. The Court of Criminal Appeal in this State has long made it clear that the use of knives is a factor which must receive specific attention and the abhorrence with which the community views knives and offences involving them has been stated with real clarity by the New South Wales Court of Criminal Appeal on many occasions, including R v Underhill (9 May 1986, unreported), R v Rothapfel (26 March 1992, unreported), and R v Randall (19 April 1994, unreported).

140 Given the circumstances and the approach of the courts as I have outlined them, the different circumstances of the offender and Mr Chaouk, as well as the fact that Mr Chaouk pleaded guilty, does not seem to me to mean that the principles of parity require that there should be equality of treatment between these two offenders.

141 In terms of the Henry guidelines, the Court of Criminal Appeal in R v Henry [1999] NSWCCA 111 outlined the factors, all of which seemed to be relevant to the offender, namely:

142 A young offender with no or little criminal history. That is present here. He just turned 19 at the time of the offence.

143 A weapon was used capable of killing or inflicting serious injury. It was fortunate that that did not occur here, again, that element was present.

144 There was a limited degree of planning. The Crown cannot prove beyond reasonable doubt that there was any sophisticated planning, but that element is established.

145 The limited, actual violence but a real threat of it, and here Mr Chen was pushed towards a fence, he was threatened that he would be stabbed, it does seem to me that there was limited actual violence, but a real threat of it. Certainly one that was perceived by Mr Chen, as it would have been perceived by anybody.

146 The vulnerability of the victim. While Mr Chen was not in a vulnerable position like a shopkeeper or a taxi driver, he was vulnerable in the sense that he was alone walking home late at night.

147 A small amount taken. That is relevant here because only $35 plus the wallet and mobile phone were taken. Nevertheless, it does not seem that there has been any kind of restitution.

148 The plea of guilty, the significance of which is limited by a strong Crown case. This element of course is absent as the offender was convicted after a trial and he was entitled to elect to go to trial.

149 The guideline judgment refers to offences of this character falling within a narrow sentencing range of some four to five years.

150 The factors as I have outlined them may justify a sentence above or below the range, which is itself being used as a starting point, but again those aggravating and mitigating factors that I referred to earlier are already factored into the guideline judgment, and I need to take care to ensure there is no double counting of those factors against the offender. That is one of the reasons I will take these remarks up with counsel before formally pronouncing sentence.

151 He was born on 13 April 1988, he was just 19, his 19th birthday occurred two days prior to the offence.

152 His parents arrived in Australia from Lebanon in 1985. He was born here in Australia. He has one brother and five sisters. He attended Granville High School and during year 11 his parents were not happy with his marks and his peer group so they enrolled him in Australian International Academy - a private school with an Islamic environment.

153 He repeated year 11, he went on, got his Higher School Certificate, he left school at the end of 2006 and then obtained the apprenticeship to which I have made reference already, and also continued to be enrolled in the Granville TAFE to pursue his study as an electrician.

154 There has been, as I said, a reference provided by the offender on the bail application. That person found the offender to be an honest, reliable and trustworthy employee.

155 I accept that he was suffering from bi-polar disorder at the time of both offences. I accept that the disorder was one of a number of factors that led to his reactions.

156 Other inter-related factors were his drug usage and consumption, the situation of friends and associates with whom he was either consuming those drugs or involved in the various activities which led him before the drugs or the addictive lifestyle which is often common to those in that particular part of the drug culture.

157 In those circumstances, the offender's psychological or psychiatric condition is one of a general mix of subjective factors to be taken into account in sentencing. Specifically it means that there is a lesser requirement to take into account principles of general deterrence.

158 The offender is deemed to be unsuitable by the Probation and Parole Service for a community service order and ineligible for periodic detention order due to his unresolved drug dependence issues.

159 I will also need to take into account the principles of general deterrence and specific deterrence.

160 That is a particular part of the Crimes (Sentencing Procedure) Act which does bear re-examination, particularly when one looks at the offender's age and the circumstances that these offences were committed within one month of each other.

161 I have dealt with the offender's employment, his supportive family. Defence counsel Mr Parsons submits that the family now know of his drug taking and have done and taken steps to get him professional treatment catering for his specific Muslim and Islamic value system. That is very much to their credit, but it must be a matter of speculation as to whether the offender will comply with that programme and whether he will take any notice of his family's urgings to participate and follow any of the precepts of that programme. That is particularly important because Dr Jacmon said that he, the offender, could not take anything of a seriously rehabilitative nature without the benefit of that family.

162 Also tendered was the plan outlined by the psych centre which became exhibit S14. That was an additional part of the offender's rehabilitation in my view, and I recommend that the matters outlined in that report be part of the terms of any parole orders and the conditions imposed.

163 In terms of the overall finding of special circumstances, taking into account particularly the offender's age, the environment with which he has been brought up, a family environment in particular, and the circumstances of the offence and the offender, it does seem to me appropriate that there be a departure downwards from the statutory formula to reflect those matters and I will be taking those into account.

164 Then we finally come to the question of my overall consideration. These sentencing proceedings concerning a young man aged 20 and a half who has no prior convictions, who comes from what appears to be a good and supportive family.

165 Given the findings of criminality which I have made, in other words, that the offences are at least of the order of mid range criminality, these are serious offences requiring a condign penalty.

166 The pre-sentence report makes it clear the offender is not a candidate either for a periodic detention order or a community service order because it is unresolved drug issues.

167 In any event, I do not think that either offence warrants anything other than a period of fulltime custody. As I said, the criminality involved in pulling a lady through the window of a car late at night when there were four other people around or involved is a particularly serious one. She was thrown on the ground and when she attempted some degree of retaliation, she was again thrown down on the ground. True it is that the offender did not strike the victim nor is there any evidence connecting him with those physical assaults. Nevertheless, he was part of a group and I accept, as was said in the statement tendered on behalf of the victim, it would have been a frightening experience for her.

168 I also regard the criminality involved in the robbery to be of low range.

169 It was submitted that these two offences should be regarded as an aberration being committed within one month of each other, and that prior to that the offender was a blameless young man living at home in a stable home environment, and a young man who subsequently got employment and was described by his employer as being reliable, honest and trustworthy.

170 It is also submitted that the offences should be regarded as episodic rather than the manifestation of any ingrained criminal tendencies in the light of the principles expressed in Griffiths v R (1989) 167 CLR 372 and 379.

171 I agree that the actual offences appear to have been episodic and apparently unconnected. Nevertheless, the offender's associates and his drugs habits, which were an essential part of why he was involved in the various activities which put him before the courts extended for a long period of time. Those matters and those concerns were not episodic or opportunistic. To make the arrangements that the offender did in the circumstances that he did at the time of the robbery, particularly do not lend itself to a matter being totally opportunistic or episodic.

172 It was also submitted on behalf of the offender that in view of the fact that the offences occurred within one month of each other, the sentences should be concurrent. I disagree with this submission.

173 The offences involved different kinds of criminality, different victims, different areas and different dates, albeit within a month of each other. I do not think that it could be said that they were said to be or were one part of the one episode of violence.

174 However, it is clear that at the time the offender was experiencing some difficulties with his employment, they were relatively marginal matters given his circumstances of drug use from the age of 16.

175 Nevertheless, that does seem to be a matter that should be taken into account in a general way. His association with criminal associates over what seems to be a fairly long period of time and the nature of the acts themselves also needs to be taken into account.

176 I am of the view that there should be a very limited degree of concurrency to take into account and to reflect principles of totality to ensure that for a young man of this age, the sentence imposed should not be one of a crushing burden.

177 In relation to the offence of aggravated carjacking, the offender has been in custody since 25 September 2007 and the sentence will commence from that date.

178 In relation to the offence of armed robbery, the offender was granted bail, he was on bail on 25 September 2007 when he was arrested for the aggravated carjacking offence.

179 On 1 May when the jury returned a verdict of guilty for armed robbery, the matter was stood over for sentence on 25 July 2008. He did not apply for bail and in my view sensibly so, and bail was refused.

180 The defence submits that the offender has therefore been in custody for the armed robbery offence since 1 May 2008. Although this was not solely referable to the armed robbery offence, I consider that the commencement date of the sentences as I have outlined them is a matter marginally to the benefit of the offender, and I will adopt that course of action.

181 In terms of the formal orders, you are formally convicted on both offences. You will recall that took place in any event in relation to the robbery matter after the jury gave its verdict.

182 In relation to the carjacking offence, the sentence will be one of head sentence of four years and six months imprisonment. That would reflect normally a sentence of five years and eight months imprisonment or 68 months, but I would apply to that a discount of 20 percent for the plea of guilty, reducing that down to the figure rounded down to your benefit of four years and six months imprisonment.

183 To that head sentence, I would apply the ratio of the finding of special circumstances being one of two thirds for the reasons I have outlined earlier and that will mean that the non-parole period that you would serve inside would be one of three years actual imprisonment. In terms of that offence, the sentence will expire on 24 September 2010.

184 In terms of the armed robbery matter, you are sentenced to a total term of four years, three months imprisonment, that is 51 months, to commence on 25 December 2009 and expire on 24 March 2014, with a non-parole period of two years to expire on 24 December 2011. That means there is a degree of partial accumulation between the sentences in the order of one year and three months.

185 The total effect of the sentence will therefore be one of six years and six months imprisonment as a head sentence, with a non-parole period of four years and three months imprisonment, a total of 51 months.

186 In terms of my recommendations as to your parole on release, and that would be firstly Mr Houzeife, you should be aware that if there is a repetition of your conduct within the gaol sentence, that the authorities may take a different view about your release, but that is a matter for you.

• be of good behaviour
  • notify the Probation and Parole Service of your place of residency
  • comply with all programmes directed by the Probation and Parole Service as to drug treatment and psychological treatment enable them to monitor your associates

188 I would hope that those matters would be acted upon by the Probation and Parole Service on your release. I would indicate to the correctional service officers that a typed version of those dates will be available to you so that you will not have to rush that through, and also to you Mr Parsons and to you Mr Crown.

189 I will not take those out formally and sign them until you have had the opportunity to check them today because sometimes it is not unknown for judges to get the maths wrong. Those are the dates, they have been double checked, but I would be grateful if you could check them.

190 Mr Houzeife, this is a matter that I have given some considerable thought to over the intervening period of time since the trial in Campbelltown, I really do hope that you don't come back. But I must say that the matter is of particular concern to me if you maintain those associates. Anyway, you've heard what I've had to say.

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