(2008) 182 A Crim R 571
Lau v R [2010] NSWCCA 43
Legge v R [2007] NSWCCA 244
Muldrock v The Queen (2011) 244 CLR 120
[2011] HCA 39
R v Drollett [2002 NSWCCA 13
R v Henry [1999] NSWCCA 111
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Bugmy v R (1990) 169 CLR 525(2008) 182 A Crim R 571
Lau v R [2010] NSWCCA 43
Legge v R [2007] NSWCCA 244
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
R v Drollett [2002 NSWCCA 13
R v Henry [1999] NSWCCA 111
Judgment (4 paragraphs)
[1]
Solicitors:
Dibb Lawyers (for the offender)
Ms J Azad (for Director of Public Prosecutions)
File Number(s): 2020/00065962
[2]
sentence - ex tempore revised
At about 7.50pm on Friday, 28 February 2020, Mouhammad Mehdi, heavily disguised, ran into the Caltex service station in Windang Road, Windang. He grabbed the console operator and forced him to the till. As he did so, Fatma Nasrallah, also heavily disguised, entered the serving area, wielding a crowbar in an aggressive fashion, smashing it into shelves, banging it on the counter.
As Mehdi, holding a knife to the operator's throat, took money from the till and cigarettes from the counter, Nasrallah, wielding the crowbar and smashing it against the door and an ice-cream cabinet, kept the door open. The two then ran from the premises, taking money and cigarettes. They then hopped into a black Toyota Corolla owned by Nasrallah and drove a relatively short distance to Springhill Road, Southern Wollongong. Shortly after, they were arrested by police.
Nasrallah was born in 1999. Yes, she is young. She has no relevant criminal history. She and the co-offender were wielding weapons. They disguised themselves and took those weapons to the premises. There was a real threat of violence to the console operator, but no actual physical violence was inflicted on him. The CCTV, which I have reviewed, shows as the incident finished, that he gave thanks to God that he had been spared physical harm. Only a small amount of property was taken.
Nasrallah entered a plea of guilty at the earliest available opportunity. She did not seek in any way to put the Court to undue expense. To the contrary, she has done everything that one would expect of a person of prior good character to prove that this was a one-off, aberrant event. She entered the plea to robbery armed with an offensive weapon: s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty is 20 years' imprisonment. She also asked that I deal with a matter, a s 166 Criminal Procedure Act 1986 certificate, of intentionally damage property. The maximum penalty is five years in this Court. As it comes on a s 166 certificate from the Local Court there is a two year cap on any sentence. It's appropriately a Local Court matter, but one that I must sentence her for. Given the property was damaged as part of the intimidatory acts related to her use of the crowbar, I would regard it as a matter that occurred during the course of the conduct of the principal offence, requiring a concurrent sentence.
Nasrallah professes to have no memory of the event. She says, through her psychologist, that she was affected by her abuse of prescription drugs such as Xanax. But it is obvious from the CCTV that, while the drug may have affected her memory, her actions were willed. Drug use and a history of drug abuse can never mitigate the seriousness of a crime; to the contrary, when crimes such as this are committed by people who are badly affected by illicit drugs, it increases the potential risk to the people who are the subject of the robbery. And to that I must turn and to that I will ultimately return.
Armed robbery is not just a crime involving property. It's a crime against people. Where citizens are robbed and threatened at knifepoint and threatened with a weapon such as a crowbar, it can have a terrible impact on them.
When such crimes are committed in places we all have to use such as service stations, there are consequences beyond the immediate impact upon the victim himself. Members of the public lose confidence in going out and attending such premises. The CCTV shows that an older woman was present and saw what occurred. The public feel that they are not safe; they lose confidence in the police and feel that they cannot protect them. They learn to fear and lose trust in others. Where members of the community are fearful, the entire community suffers. As a consequence we lose our freedoms to go out without fear and engage in community activities.
Generally, when criminals are caught committing such offences, the community will lose trust in the courts if they do not punish such crimes and punish them severely. Many years ago, at the time this offender was born, the Court of Criminal Appeal in this State brought in the guideline judgment - R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. It was brought in to ensure some consistency in the sentencing of armed robbers and because of a fear that excessive leniency was being shown by the judges of this Court. The Court of Criminal Appeal indicated that in the ordinary case of an armed robbery - and this tragically is such an ordinary case - sentences at the low end of the range would be in the vicinity of four years, following a late plea. Other decisions of the Court of Criminal Appeal indicated that only in exceptional circumstances should persons who commit offences such as this, even a first offender and a person with potential, receive other than a full‑time custodial sentence.
The Court of Criminal Appeal, following decisions such as Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, have indicated that guidelines exist to ensure consistency of sentencing, but no one factor can and should be determinative of a sentence. Courts do not simply start by looking at the guideline and then making proportional deductions from it. As early as 2007, well before Muldrock, Spigelman CJ said that guidelines are not meant to be "tram lines:" Legge v R [2007] NSWCCA 244. They're there to assist judges in the exercise of their sentencing discretion.
Every offence and every offender requires individualised treatment, but courts have to take guidance from a number of sources. Here, they include the maximum penalty. They include decisions of other courts, particularly decisions designed to give guidance. They take into account the purposes of sentencing, which here importantly include deterrence of this offender and perhaps more importantly the deterrence of others from committing similar crime, and the need to give proper recognition to the harm done to individual victims and the community.
While not prescriptive, careful attention to the maximum penalty and the guideline judgment is required: s 42A Crimes (Sentencing Procedure) Act 1999. The guideline judgment has statutory force and I am obliged to take it into account.
Neither Mr Barrack, who appears for the offender, or Ms Azad, solicitor who appears for the Director of Public Prosecutions, suggest other than a custodial sentence be imposed. Mr Barrack asks however that I impose an aggregate sentence that would enable the offender to serve her sentence in the community.
A powerful case has been made for that disposition. But I can only do so if having found that a custodial sentence is warranted and if an aggregate sentence of three years or less is imposed. Mr Barrack suggests that an appropriate consideration of all the individual factors in this matter and appropriate considerations of all the purposes of sentencing would lead me to an aggregate sentence for the two matters before me of less than three years.
An Intensive Correction Order can only be imposed if the aggregate of the two offences for sentence exceed 3 years. I then have to consider s 66 of the Crimes (Sentencing Procedure) Act and the requirements in s 66(1) in particular. As the Court of Criminal Appeal recently pointed out in Wany v DPP [2020] NSWCA 318, that consideration is not necessarily determinative, but it must be made. The Court has to ultimately synthesise all relevant factors and reach a just and appropriate sentence.
Matters that were raised in submissions were supported by evidence before the Court. The first is the offender has no relevant criminal convictions and can and should be treated as a first offender. Secondly, a Sentence Assessment Report notes; her disgust at herself, that she is currently receiving treatment for depression and anxiety and that a supervision plan could be put in place that would act to prevent re-offending.
Nasrallah has written a letter to the Court expressing appropriate remorse and regret. She told me how embarrassed she is at the shame she has brought upon her family. She says of the lessons that she's learnt and the efforts that she has made, supported by the certificates before the Court, by engaging in the Positive Lifestyle program, the SMART program, attending AA and other programs. She is presently engaged with mental health professionals and is clearly maturing and learning from them.
Her mother indicates that she has returned to the fold. So far as the family is concerned, is engaging with the community, engaging again with her religious faith and supporting her mother, who at the moment suffers a debilitating illness and struggling to raise her children. Her father, who had disengaged from the family for a period, has returned to support her.
Nasrallah has opened up to Mr Albassit, psychologist, about some traumatic incidents in her past. It is his opinion that the history meets the criteria for post-traumatic stress disorder and substance dependence disorder. He concludes, in his professional opinion, that there is a direct correlation between her offending and her ongoing chronic psychological conditions. With respect, his professional opinion really goes to why she took up the use and abuse of illicit drugs, her "rebellion" (as he calls it), the impact of challenges and trauma.
Although he mentions terms such as "neglect" - again with respect, and acknowledging everyone is different, the offender's troubled lifestyle pales into insignificance when compared with the sort of chronic profound deprivation often seen in this Court; and to be frank, seen in three other matters that I have disposed of today. Her background has sad and tragic aspects to it but they are all too common the factors that lead to the uptake of illicit drugs among young people.
As the Court in Henry made clear, I cannot take into account as a mitigating factor that the crime was committed while under the influence of drugs. The fact of addiction, how it came about and what is done about it, are relevant, particularly in explaining how a previously law‑abiding person did what she did. Her drug abuse and its genesis can help understand her state of mind at the time and any lack of capacity to exercise sound judgment. It can also help explain the impulsivity of the offending and the limited planning involved. It also helps explain why she took the risk she did, despite the fact that principles requiring harsh punishment as a general deterrent to armed robbery have operated for over 20 years. This offender was not in a position to think about the consequences to herself, let alone the consequences to others. The principles of general deterrence did not prevent this crime occurring.
Her drug use and all of the considerable efforts that she has taken to put that part of her life behind her, the origin, the extent of her drug problems, do help me assess her prospects for the future.
Her co-offender was sentenced by Judge O'Brien. I do not have His Honour's judgement. I do have the co-offender's criminal history, which existed, in contrast to this offender. He was six years older. He played a more active role in the robbery. It was he who wielded the knife.
This sentence must be determined by having regard to the circumstances of the co-offender. Like should be compared with like. Different personal criminal histories can justify a real difference in the sentence. The principle is known as parity. It is a classic example of the need, so far as possible, to ensure equal justice. In cases, that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43.
Mehdi and Nasrallah were party to the same joint criminal enterprise. While her role was the lesser one, her objective criminality is only moderately less than that of her co-offender, but she was younger and had no criminal antecedents.
Madam Crown, by reference to decisions of the late Justice Sully J, a very respected judge. She repeated His Honour's point that youth should not be "a cloak of convenience" behind which offenders who committed crimes such as this could hide: R v Mastronardi (2000)111 A Crim R 206 at [20]; R v Drollett [2002 NSWCCA 13 at [19]. Principles relating to sentencing young and youthful offenders have moved on since Justice Sully's comments. It is accepted that the potential for cognitive and emotional or psychological maturity of young persons can contribute to their offending. It is now well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be as developed until a person's mid-20s: Clarke-Jeffries v R [2019] NSWCCA 56 and KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571.
In submissions, oral and written, Madam Crown accepts a number of factors advanced by the defence. She submits that, while an Intensive Correction Order might seem superficially attractive, in the ordinary circumstances, it would not ordinarily be applied unless this offence was regarded in the lowest category in terms of objective seriousness and full weight was given to subjective factors. Her written submissions made it clear that no other penalty other than full‑time imprisonment was appropriate.
She cautioned me about self-serving statements not supported by evidence on oath, however much of what is said in those reports and in the letters to me is uncontroversial.
A defence submission was made that the background as set out in Mr Albassit's report fell into the category commonly referred to as profound deprivation or matters attracting the principles in Bugmy v The Queen (2013) 249 CLR 571. I do not devalue the impact of the particular traumatic events detailed in that report and a destructive period during this offender's adolescence, her rebellion and drug use. The rationale for her drug use and associating with negative peers are set out in the report. I will not repeat them. Those matters gave rise to a symptomology consistent with post-traumatic stress disorder, but it is not a history of profound deprivation. Her background can be contrasted with a case cited to me by Mr Barrack, IS v R [2017] NSWCCA 116 at 26-29. Nevertheless, a background such as that established is always relevant in matters such as this.
Ultimately, the Court has to synthesise all relevant factors. It is clear that every effort has been made by this offender to show that this offence was an aberrant act and that she can lead a law-abiding life in the community, support her family, practise her religion. An aggregate sentence of less than three years is appropriate, taking into account parity principles, taking into account the early plea of guilty and giving appropriate weight to the various guiding factors that I have already indicated. Community safety would be contributed to by her leading a normal community life as a daughter and ultimately a worker in our community.
Mr Barrack submits that, while she's unable at the present to do community service, home detention and curfews could ensure appropriate punishment as part of an Intensive Corrections Order. To send this offender to gaol, he submitted, would carry the risk that negative associations with persons in gaol will set back her prospects of leading a normal community life. It is notorious that those who go to gaol come out more likely to return to gaol than those who avoid gaol altogether.
I also have to consider all of the other purposes of sentencing and here one has to focus on and return to what the offender did. A man carrying out his lawful business, providing a community service, was confronted by two armed offenders. Those offenders were affected by drugs. He was held at knifepoint. The knife was held only centimetres, millimetres, from his throat. The second offender, Nasrallah, was wielding a crowbar. That crowbar was thrown around willy-nilly. The business had its till ransacked. A member of the community witnessed this event take place.
Where crimes against people such as this are committed, courts often speak of a principle called general deterrence, but that term is also refers to the need for retribution and appropriate punishment: R v Herring (1956) 73 WN (NSW) 203, at 205; Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
The sentence that has to be imposed must bear some relationship to the objective seriousness of what was done. A sentence served subject to an Intensive Corrections Order could not do that. The sentence can be moderated by a finding of special circumstances. Here, there is no need to further deter this offender. Here, her progress towards rehabilitation must and should be recognised. Here, although the ICO option was not available, her co-offender did receive a full‑time custodial sentence, a matter that I've already alluded to. That does not preclude the imposition of a non-full-time custodial sentence, but is a matter that I must synthesise with all other relevant matters. Here, a custodial sentence is warranted. The non-parole period of that sentence must retain some relativity to the circumstances of the offence and the other purposes of sentencing. The non‑parole period must be the minimum period of custody appropriate to all of the circumstances of the offence: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525.
It gives me no pleasure to impose a full‑time custodial sentence, but the crime was so serious that the purposes of sentencing could not be met by an Intensive Correction Order. Nasrallah must go into gaol. She must go to gaol for a period of time. I have sought to give proper effect to all of the mitigatory factors to make that period of custody the absolute minimum that law and justice demand.
[3]
Orders
The formal orders of the Court are these. In relation to the two matters before the Court, The offender is convicted.
In relation to the intentionally damage property offence, there will be a sentence of three months' imprisonment to date from today. It's a fixed term because it's less than six months.
In relation to the s 97(1) offence, there would have been a sentence of three years and nine months, less 25% and with some rounding down. There is no need for absolute arithmetical precision in the assessment of sentences: Kristensen v R [2018] NSWCCA 189. Despite the apparent mandatory terms of s25D Crimes (Sentencing Procedure) Act 1999, the specification of a term in days or hours is not necessary: Ruano v R [2011] NSWCCA 149 at [20]; Rios v R [2012] NSWCCA 8 at [42]-[43].
There will be a sentence of two years and nine months' imprisonment. For appropriate parity and to give effect to the demonstrated progress to rehabilitation by a substantial finding of special circumstances, the non-parole period will be slightly less than 50% of the total sentence - a period of one year four months.
The sentence of the Court is - A non-parole period of one year and four months commencing 16 December 2020 and expiring 15 April 2022. The total sentence will be sentence 2 years 9 months. The offender is to be released to parole at the expiration of the non-parole period on 15 April 2022. There will be a parole period of one year and five months. The sentence expires on 15 September 2023.
[4]
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Decision last updated: 21 April 2021