R v Kobeissi

SENTENCE 1HIS HONOUR: The Offender Khalil Kobeissi appears for sentence consequent upon his pleading guilty on 26 July 2011 to an armed robbery that he committed upon the victim Luciano Ippoliti at Burwood on 14 August 2009. This offence has a maximum penalty of 20 years imprisonment, no standard non-parole period and cannot be dealt with summarily. 2When considering deterrence and retribution the Court took into account two matters of obtaining money by deception on a Form 1 Schedule. 3The Offender pleaded guilty when he was due to face trial in relation to a more serious matter under subs 97(2). In terms of utility, the Court is of the view that the plea was entered late and reduced his sentence by about 10% to reflect the utility of the guilty plea. Having satisfied itself that the conditions referred to in sub para 21A(3)(i) are met and he is remorseful, the Court further reduced his sentence because of remorse. 4On 14 August 2009 the victim went to his friend's place which is located in Burwood Road, Burwood, to visit his friend. His friend, Mr Awad, owns a florist shop and occupies a unit located above the florist shop. When the victim approached the rear gate to his friend's premises, the co-offender Aytac Kusdemi approached, spoke to the victim and told him that Mr Awad was not home and would be back in about an hour. 5The victim then attended to some personal business and telephoned Mr Awad who told him he could wait for him at his house upstairs. As a result, the victim returned to his friend's unit to find that the co-offender was still at the back gate. He told the co-offender about the phone call and then went upstairs and started watching a movie on the television whilst waiting for his friend to return. 6After a period of time this Offender entered the room and told the victim that his friend Mr Awad was downstairs in the florist shop. The victim got up and made his way down the hallway and into a home office. He saw the co-offender seated at the desk and approached the desk. When he turned around, the victim noticed that the Offender had an object that appeared like a rifle in his hand. The Offender told the victim to sit down and empty his pockets. The victim emptied his pockets, placing his wallet, keys and cigarettes on the table. The Offender went through the victim's wallet and took out an NAB card and a Qantas Credit Union card. During this time the item that appeared like a rifle was pointed in the direction of the victim and the Offender told him to write down his PIN number on a post-it note. It seems that the victim complied and, after telling his co-offender to stay with the victim, the Offender left the victim and his co-offender. The events just related give rise to the offence of armed robbery to which he pleaded guilty. 7The Offender walked to a National Australia Bank ATM and withdrew $400 using the victim's Credit Union card. He attempted to withdraw money, using the victim's NAB card but failed. It was apparently 10.30 when he made the withdrawal. The Offender returned to the unit. Apparently the victim and the co-offender were still there and he threw the credit cards and the ATM receipts on the table and complained that he could only get $400 out of the ATM. He told the victim that they would have to wait until after midnight for the credit card limit to go back to $1,000. He and the co-offender spoke for a period of time. 8At one point, when the victim went to grab for his mobile phone, the Offender ran over and smacked him across the face. No charge has been laid in relation to this. It is simply part of the background in connection with the remaining matter on the Form 1 Schedule. The Court should add at this point, the withdrawal of the $400 gives rise to one of the offences on the Form 1 Schedule. 9The victim's friend, Mr Awad then came and the Offender told him that they were just mucking around. Apparently Mr Awad starting cleaning around the victim and was coming in and out of the room. 10Shortly afterwards the Offender left and went to an ATM and withdrew $500 from the ATM. This gives rise to the other offence on the Form 1 Schedule. He returned to the premises and showed the victim the money and returned the victim's credit cards to him. He took the victim's driver's licence but this was apparently later recovered by the victim's friend. However, the victim's friend was unable to recover the victim's money on his behalf. The victim left. After driving around for a period of time, he contacted the police. 11The Offender was 25 when he committed this offence. He is now 27 years of age. He has an older brother and sister. 12He was suspended from high school during Year 9 and did not return to school. After leaving school he undertook a number of courses at TAFE and worked casually as a cleaner and as a tiler. The Court notes that he also participated in boxing and kick boxing and ultimately became a trainer in these sports. It seems that up until 2008 he did not abuse either drugs or liquor. 13The Offender does not have the benefit of prior good character. On 9 February 2006 he was sentenced to imprisonment for 2 years with 12 months non-parole that was suspended for an aggravated robbery. The Court notes that there was some presentence custody in connection with that matter to which the Court will refer in due course. 14On 8 August 2006 he was ordered to perform community service for stealing from a person and demanding property whilst in company. It seems that the Community Service order for the latter was subsequently revoked and he was fined. 15On 1 May 2008 he was dealt with for larceny, convicted rather in his absence for larceny, which was later dealt with by way of s 10A. 16The Offender has been in custody since his arrest on 11 August 2010. He has not breached any prison discipline rules. The Court notes that he has done a course in word processing. 17The Offender was bail refused for the aggravated robbery between 26 April 2005 and 13 July of the same year. He was attacked by a group of inmates on 16 May 2005, sustaining a puncture a wound to his scapula and a wound to his head. The Court is satisfied that as a consequence of this attack, he suffers post-traumatic stress disorder. This was diagnosed early in 2008 and a cognitive behaviour therapy was recommended. It seems that he did not undertake that therapy. Part of the problem may have been his poor memory so far as appointments is concerned and also no-one being available to take him to appointments. 18He also has an intellectual disability at the borderline level that places him in the lowest 3% of the population. It is possible that this is due to brain damage. This has not been confirmed by a neuropsychological testing. It is possible that if he suffered brain damage that it is a consequence of the assault in 2005. 19Amongst other things, the implications so far as his intellectual disabilities are, that he has marked difficulties: