R v Sultan

District Court of NSW|2021-12-16

Judgment

HIS HONOUR: Karim Sultan stands for sentence as a consequence of pleading guilty to two substantive charges. The first in time is known as sequence 3 and is an offence contrary to s 86(3) of the Crimes Act 1900. It carries a maximum penalty of imprisonment for 25 years. There is no standard non-parole period. The other offence to which the offender pleaded guilty is the Common Law offence of conspiracy. The conspiracy was to rob in company. As the offence is at Common Law, the penalty is at large. However, some guidance can be gained from the fact that robbery in company is punishable under s 97(1) of the Crimes Act 1900 by imprisonment for 20 years. As the offence is at Common Law, there is no standard non-parole period.
In respect of the first of those two offences, the offender asks me to take into account on a Form 1 an offence of aggravated breaking and entering with the intent to steal whilst he was in company with others. Furthermore, I am required, pursuant to a certificate under s 166(1)(b) of the Criminal Procedure Act 1986, to sentence the offender for doing an act intending to pervert the course of justice. That is an offence contrary to s 319 of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 14 years but I am to exercise the jurisdiction of the Local Court in this regard and the maximum penalty that I can impose for that offence is two years' imprisonment.
The offender was arrested for the crime of conspiracy on 5 December 2019 and has been in gaol since that time. In other words, he has spent over two years in custody to date. At the time of his arrest he was 26 years old; he is now 28 years old. At the time of the first offence chronologically, he was 25 years and 11 months old.

Facts - Kidnapping

At about 9am on 25 July 2019, Mr Naji Nasser parked his car on The Boulevarde in Lakemba and then headed towards the railway station. As he was doing that, he was approached and taken hold of by the offender and two unknown men wearing masks and glasses. All three men were wearing dark clothing and had their hair covered with either a hat or a hood. The three people who had detained Mr Nasser started hitting him and punching him. He was hit in the ribs. They then dragged him along the ground towards a nearby commuter car park and forced him into the back of a black Mazda 3. The Mazda 3 was being driven Mouhammad Al Zoubaydieh; that vehicle belonged to Al Zoubaydieh's wife.
Telephone records show that there was telephone contact between the offender and Al Zoubaydieh earlier on that day, prior to the commencement of the detention. Nasser was picked up by the men and forced into the back of the Mazda motor vehicle. The three men who had detained him got into the vehicle and one of them put his foot on Mr Nasser's head, causing him pain. His face was turned towards the back of the car and pushed against the floor and the back seat of the vehicle, causing him difficulty breathing. Those who had detained him were speaking to him in both Arabic and English.
The struggle of Mr Nasser and those who had abducted him was witnessed by an employee of the Lakemba Club and captured on closed‑circuit television. Due to what he saw, the witness contacted the police who arrived a short time after the vehicle in which Mr Nasser was detained was driven off. From other evidence, I know that Al Zoubaydieh was the driver and therefore the two others who had assisted the offender detain Mr Nasser were other people.
The Mazda motor vehicle was driven to an underground car park in a newly constructed apartment block located in Fifth Avenue Campsie. That was where the offender was living with his lady friend, Ms Dora Szabo. When the vehicle was parked in the car park, Mr Nasser was pulled from the car and forced with his head down into the lift and taken to the offender's unit in the unit complex.
Once inside the offender's unit, the offender actually removed his mask enabling Mr Nasser to identify him because the distinctive tattoo on his neck. Nasser was made to sit on a two seater couch next to one other man who was holding a pair of scissors in each hand. This conversation then occurred: "ONE OF THE MEN: Where is the money at? We want money." NASSER: I swear on my mother, my father, I don't have money. I am the wrong person. I used to have a juice shop. I don't make big money." ONE OF THE MEN: Someone told us that you had big money." NASSER: I don't have money. You must have got the wrong person. I haven't done anything wrong. I am new here. I am certain that the person who told you this is wrong, it's impossible it is me." That appeared to upset the offender who then said this to Mr Nasser: "Speak or else I'll kill you. Stop lying to me." One of the others had a knife in his hand and pressed the knife against Mr Nasser's face.
Shortly thereafter, Mr Nasser was allowed to use the toilet. When in the bathroom, he noticed that his face was bruised and also red in places. When he re-entered the lounge room, Mr Nasser complained to the men there about what they had done to his face.
The man, who was armed with scissors, then said whilst opening and closing the scissors: "I'm going to cut off your nipples. If you don't talk, I'll cut off your penis." Those threats made Mr Nasser very scared. He emptied out his pockets showing that he only had on his person $120. He said that he was a student and kept telling his captors that he did not have money and he did not know what they were talking to him about. One of the other men then lashed out and hit Mr Nasser in the face. The present offender then punched Mr Nasser several times in the face and elsewhere on his body and also kicked him in the chest, those assaults caused Mr Nasser a lot of pain.
Eventually the captors, including the offender, understood that Mr Nasser had come from Germany and was not the man they were looking for. The captors then made Mr Nasser swear on the holy Koran that he would not go to the police about what had happened to him and what the men had done to him. The man, who was armed with scissors said: "If you tell the police...I will kill you." He made a gun shape with his hands and told Mr Nasser that he was going to be let go. Mr Nasser was told by one of the captors: "If the police or anyone knows, we know where you live. We will watch your house and know where you go and what you do."
Mr Nasser was then taken back to the communal lift and taken to the car park and placed on the back seat of the Mazda. All the men, except the present offender, were still wearing masks and glasses. Mr Nasser sat on the back seat next to this offender and another person. He was then driven back to near where he had parked his car in Lakemba. As Mr Nasser walked towards his car, the police approached him and asked him what had happened. He did not tell the police what had happened to him because he was still very scared of what his captors would do if they found out that he had told the police what had happened to him.
It is agreed that as a result of the assaults upon him by this offender and others that Mr Nasser had bruising and swelling to his face, shoulders, arms and chest as well as a cut on his left knee and right shoulder.
On 1 August 2019 the Mazda, which had been used to convey Mr Nasser to the offender's unit, was located by police at an address in Potts Point. In it they found a copy of the holy Koran wrapped in a resealable plastic bag and other evidence containing Mouhammad Al Zoubaydieh's name, garments which may have been used as a disguise and a box of latex gloves and a clown print face covering. They also found a blood spot which proved to be an amount of the blood of Mr Nasser, the victim.
On 2 August 2019 the Mazda was reported stolen by its owner. The police served upon her a statutory demand as to the identity of the persons who used the Mazda on 25 July 2019 and she identified both her husband and his brother, hence then the police were able to identify Mouhammad Al Zoubaydieh.
On 29 September 2019 Mr Nasser reviewed a photo line-up and from those photographs identified the current offender as one of the men who abducted and detained him. It was only after his arrest for the foiled armed robbery related to the conspiracy that the offender was charged with the offence of abducting and detaining Mr Nasser.

Facts - Aggravated Break and Enter with Intent

In connection with this charge the offender asks me to take into account on a Form 1 an aggravated breaking and entering a building whilst in company with intent to commit the indictable offence of larceny, that is a breaking, entering and stealing. Involved in this crime were Mr Rami Charamand, Mouhammad Al Zoubaydieh, this offender, Ali Khalil and a number of other persons associated with them.
Between 12 September 2019 and 29 September 2019 the offenders entered a joint criminal enterprise to steal tobacco products from Mr Mohamad Omar. Mr Omar had rented a storage unit that formed part of a large warehouse complex in Marion Street, Condell Park. It was believed by the members of the joint criminal enterprise that the tobacco products were stored by Mr Omar at this complex. During this period in September the offenders were captured on lawfully intercepted telephone calls coordinating the breaking and entering of the warehouse complex. The calls capture the coordination and organisation of ladders, vehicles and tools required to cut into the roof of the warehouse complex. On 18 September 2019, that is later than the others, this offender joined the criminal enterprise.
At about 7.07pm on 21 September 2019 CCTV from the complex recorded a Khalil, Al Zoubaydieh and this offender walking into it. All three are seen walking through the complex to the vicinity of units 23 and 24. On 27, 28 and 29 September 2019 further CCTV footage from the complex demonstrates this offender and his co-accused making attempts to locate the storage unit in which they believed the tobacco was stored. At about 7.30am on 28 September 2019 this offender with the assistance of a person identified merely as El Masri (a common Arabic surname) and Puluno Lasalo used a ladder to gain access to the roof of the storage unit complex. This offender used a grinder to cut the roof of the storage unit, number 23, which was the unit that the group believed was being used by Mr Omar to house his tobacco. The group of offenders determined the height from the room to physically access the unit was too high. They did not have the necessary equipment to overcome that issue. The grinder that was used on the roof of storage unit 23 triggered a silent alarm at 7.30am.
The unit was in fact leased by a Mr Michael Ivanisevic. As a result of the triggering of the alarm Mr Ivanisevic contacted police who attended and patrolled the complex a short time later. The storage unit numbered 23 did not contain tobacco. It contained a much more desirable product, wine and other alcoholic beverages. The offender and his accomplices did not gain any substantial bodily entry into the storage unit and therefore nothing was stolen.
A forensic examination of the complex was conducted. That identified numerous holes cut into the metal roof of a number of storage units at the complex. It became obvious to the police that those holes had been cut by a grinder, some of the holes had been crudely repaired with silicon. As a result of the forensic examination a DNA profile belonging to this offender was located on a cigarette butt located on the roof of the complex. Furthermore, a fingerprint profile relating to this offender was located on a piece of the metal roofing.

Facts: Act Intended to Pervert Justice

The offence against the justice system is related to the taking and detention of Mr Nasser. Between 6 December 2019 and April 2021 police intercepted numerous calls between Mr Rami Charamand and members of the offender's family and other associates of Mr Charamand. During those intercepted telephone calls there were numerous discussions and directions relayed about trying to have Mr Nasser change his evidence. The agreed facts contain a large number of intercepts which I shall not cite in full but give the flavour of what was afoot.
The first intercept is of a phone call from Elias Tabchoui, a solicitor, to Rami Charamand. The content of the call indicates that the solicitor was telling Mr Charamand that the current offender had been bail refused because there were two substantive offences and the magistrate had told him that the current offender had been identified from a photo line-up and that the offence happened in the unit in which this offender was living. The solicitor told Mr Charamand more of what the police case was against the offender in respect of the taking and detention of Mr Nasser. Mr Charamand told the solicitor that he needed to speak to him in person. He asked if the solicitor had other lawyers that they could use for the kidnapping victim, Mr Nasser. The solicitor said that that could be done. In one part of the call Mr Charamand confirmed that the solicitor knew what Charamand was trying to tell him. The solicitor indicated that he did and that they would talk further face to face. The solicitor told Mr Charamand that he had acted for a friend of this offender and that his friend had a greater chance of obtaining bail but the magistrate still refused to grant that man bail. The solicitor went on to tell Mr Charamand that the person who was refused bail was Mr Brendon Edralin who was involved in the conspiracy to commit armed robbery.
Another person with whom Charamand spoke was the mother of this offender, identified as Andary. In a phone call between Rami Charamand and the offender's mother on 6 December 2019, there was a discussion about "fixing" things apparently a code or indicating that steps were in hand to make the charge go away.
On 16 December 2019, the offender is recorded talking to his mother instructing her to contact Rami Charamand in order to have Mr Nasser his evidence. In further calls, the offender speaks with his lady friend, Ms Szabo, and also his mother regarding having Mr Nasser change his evidence. Andary and another of her sons, Mohammed, one of the offender's brothers, tell Rami Charamand to deal with Nasser. Mr Charamand tells members of the offender's family to be careful when talking on the telephone and that he had spoken with "the people" who were "fixing the situation."
In further calls between Rami Charamand and a co-accused identified in the facts merely as Hamid. There is a discussion about negotiating payment to Nasser and taking him to a lawyer in order to have the lawyer take a different statement from Mr Nasser.
At 6.05pm on the evening of 17 February 2020, Rami Charamand discusses with Hamid paying Nasser $5,000 to have him sign paperwork in order to "finish the case." Charamand told Hamid to "pay him the money and finalise it." Later, Charamand called the offender's mother and asked her for $5,000 to be given to Mr Nasser.
On 20 February 2020, Rami Charamand took Mr Nasser to a firm of lawyers known as "Future Legal" in order to meet with Mr Steven Kassem for the purpose of having Mr Nasser "change his evidence." On 26 March 2020, Rami Charamand spoke to the offender's mother and discussed the payment to Mr Nasser and a solicitor.
On 14 April 2020, Charamand told the offender, "I don't want to talk too much, my man Nael (Hamid) and I paid him (Nasser), already for all his lawyers and that, I don't want to say name, you know what I mean." There was a further conversation on the same day with both the offender and his mother in which Charamand says, "They are just waiting for him to finish it (additional statement) by Nasser. He has done everything, and everything is all right."
On 28 April 2020, Mr Nasser met with police and confirmed that he was offered $5,000 to change his evidence and that he went with Rami Charamand to see a solicitor. However, Mr Nasser claimed that he never accepted the money and never made a further statement. Mr Nasser indicated that he feared for his safety and refused to provide any further statements about either the principal offence or this offence. I infer that from the verbiage of [34] of the agreed facts.
On 23 April 2020, Al Zoubaydieh was arrested and gave certain information to police about what had happened in the taking and detention including identifying others involved in the offence. That led on 23 April 2020 to Rami Charamand being arrested and also another member of his family being arrested.
The intended beneficiary of this attempted crime was clearly this offender. It was in his interests that Mr Nasser be persuaded to change his story to, for example, say that he misidentified the offender or something to exonerate the offender from the crime which had been perpetrated on him. However, he did not do so and it is clear that the offender was orchestrating this attempt to have himself freed of the charge of the taking and detention of Mr Nasser.

Facts: Conspiracy to Rob in Company

I turn now to the facts behind the final offence which has been given a shorthand name in the Crown sentence summary as the "Redfern" matter. Others involved in this offence include Christopher Touma, Brendon Edralin, Deseray Enriquez, who is Mr Edralin's girlfriend, and Puluno Lasalo. The conspiracy was to rob Mr Newman Li.
According to the agreed facts, Newman Li is a tall Asian man who has dreadlocks. That probably makes him easily identifiable. He lives in an apartment above family owned shops on Regent Street, Redfern. Those shops are a fruit shop, a barber shop and a florist shop. The upstairs residence is accessible via the fruit shop or from a back gate which is on Cope Street. A narrow laneway connects Regent Street with Cope Street. There is a security camera installed over the back gate area but it was not working at the time of the attempted offence.
At about 10.15pm on 4 December 2019, Mr Li was at home with two girls and another man. The offender and Touma were in Redfern in the vicinity of Mr Li's residence. The police intercepted phone calls and text messages made to and from this offender discussing Mr Li, locating his address, with whom he was, and what he was doing. The agreed facts contain lengthy quotations from intercepted conversations. Amongst others, the offender was talking with Edralin and at times Enriquez was using the phone that was being used by Edralin. For example, at 11.04pm the following is contained in a phone call between the offender and Edralin: "EDRALIN: He's about to walk out the gate now, he's just pulling a cone or shit. SULTAN: How do you know? EDRALIN: Cos Des [Enriquez] is talking to someone who's up there. SULTAN: Who's there, who's there. (EDRALIN TO ENRIQUEZ: Who's there?) ENRIQUEZ: Two girls one boy."
At 11.09pm, the offender makes another call to Edralin and asks, "Can they fight?" The response from Edralin, "Nah, they're too fried" by which I infer was meant that they were too intoxicated by alcohol and/or drugs to offer any resistance to a proposed robbery.
At 11.47pm, Edralin had this conversation with the offender: "EDRALIN: ...Des is saying do it when she's there on Friday so we can actually work properly...so it's not obvious...like do what's going to happen tonight...she said she would leave the door open. SULTAN: That's a fucken mad idea. EDRALIN: Yeah she'll be in there, and she'll make you like, 'oh what the fuck's happening?'...she'll be scared and everything. SULTAN: I'll just tell her to fuck off...100% you aren't going back on your word? EDRALIN: This is 100%, this is what me and Des came up with. SULTAN: Say thanks to Des. Finally something smart." That evening this offender and Touma were unable to find Li and they decided that the robbery would not proceed on 4 December 2019 and they accepted the plan suggested by Edralin and his girlfriend Ms Enriquez to rob Li when Ms Enriquez was at Li's house on the following day.
During the afternoon of 5 December 2019 police intercepted phone calls made to and from Sultan discussing the plan to rob Li that night. This offender, arranged for Lasalo, Touma and Edralin to go to his home unit in Campsie whence they would drive in two cars to Redfern. It was arranged that Enriquez would open the door of the accused's house when they arrived. Again the agreed facts contained telephone interceptions.
On the evening of 5 December 2019 Mr Li was at home with his girlfriend and Enriquez. Whilst Enriquez was there she was in contact with her boyfriend Edralin, as arranged. She relayed information to Edralin who in turn relayed it to this offender. Between 6.40pm and 7.19pm police monitored the offender's phone and intercepted calls to and from him. He spoke with his girlfriend Ms Szabo and Edralin to ensure that the door to Mr Li's home would be opened by Ms Enriquez.
In conjunction with the telephone interceptions the police were carrying out surveillance of the offender. The police saw a Tucson occupied by the offender, Lasalo and Touma and a Camry occupied by Edralin and Ms Szabo driving in company on 5th Avenue Campsie to Copeland Street Redfern. Lasalo, Touma and Sultan alighted from the Tucson. The group then walked down the laneway towards Regent Street and the offender pulled a covering over his lower face. At the same time Ms Szabo left the Camry and got into the Tucson, both cars then drove further down Cope Street.
At this point the police intervened and stopped and searched this offender, Lasalo and Touma and arrested them. During the search of this offender the police found a knife. Ms Szabo and Edralin were also placed under arrest at this time. They were all taken to Mascot Police Station where all declined to participate in electronically recorded interviews.
A search warrant was executed at the offender's home on 6 December 2019 but the only item of any significance found by the police was a black balaclava which was found in the loungeroom.

Seriousness

I am required to consider the seriousness of the offences, I shall deal with it in the order I have used above. I have been greatly assisted by written submissions provided to me by Ms Viney on behalf of the Crown and by Mr Barrett of Counsel on behalf of the offender.
In R v Newell [2004] NSWCCA 183 at [32] the Court identified factors relevant to the seriousness of the offence under s 86 of the Crimes Act 1900. Those circumstances are fourfold. The first is the period of detention, the second is circumstances of the detention, the third is the person being detained and the fourth is the purpose of the detention. The aggravating effects of the offence (actual bodily harm and being in company) cannot be considered as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 because that would amount to double counting: R v Davies [2004] NSWCCA 310 at [19]; R v VL [2005] NSWCCA 301 at [30].
In this matter the victim was detained for less than three hours, although it was close to that amount of time, roughly from 9am to around 11.45am. When exactly it was that the captors realised that they had abducted the wrong man is unknown. One would not expect the journey between Lakemba and Campsie to be a lengthy one. That route, of course, was taken in reverse to return Mr Nasser to his motor vehicle at Lakemba. However, one can readily accept that for at least two hours, from 9am to 11am, Mr Nasser would have been in great fear and not only in psychic stress but also suffering from physical pain.
The circumstances of the detention have been outlined in the agreed facts. This was not a man who is told to sit in a chair and stay there or have his hands tied together, this is a man who was moved around forcefully and battered and assaulted from time to time and weapons used to threaten him as well as oral threats made to him.
The person being detained clearly relates to, for example, where the person is a celebrity who is being detained for monetary advantage or for physical or the like pleasure, where the person is a prominent member of our society, or, for example, a vulnerable person, such as a child or an elderly person. I know very little about Mr Nasser, but clearly he was the wrong person and eventually his abductors and captors realised that. The purpose of the detention was clearly financial gain.
What is not stated in the agreed facts becomes obvious, from the oral evidence given by this offender yesterday and by the judgment of Syme DCJ who sentenced one of the co-offenders, that this abduction was proposed not by this offender but by a relative of Rami Charamand who was referred to by her Honour in her judgment as Mr Charamand, that is the relative, not Rami. That relative believed that he had been "ripped off" by the person whom he intended to kidnap and demand money from, a person who had stolen tobacco products, indeed a container load of tobacco products is mentioned. This was clearly a job which this offender and those acting with him agreed to do at the behest of another, clearly for some form of financial reward and the offender said that it may have been for either money or drugs, or both.
The offender admitted in cross‑examination that he was not told by the promoter of this kidnapping to threaten to kill the victim, that is something which he volunteered. Whether the threat was intended or idle is an interesting question. Many threats to kill are made not with intent to do so, merely with intent to constrain a person to do the threatener's will. It is clear, however, that this offender used physical violence on Mr Nasser. He battered him (technical lethal language). However, he did not use either the scissors or a knife clearly intended to threaten the victim, especially the scissors which were clearly intended to strike fear in the victim when what it was intended to sever was pointed out to him.
The Crown submits that here in the circumstances this offence fall in the mid-range of objective seriousness. Objectively it is serious. But considering that many detentions go for much longer than that, that a person is constrained by being tied up or tied to things such as trees or items of furniture and deprived of food and sustenance, the detention and abduction is, in my view, below the mid‑range of objective seriousness.
Furthermore, the offender realised, when the captors realised that they had abducted the wrong person, the terror or fright that had been engendered in Mr Nasser and of how it must have distressed the victim, because he had not, as he protested, done anything to deserve what was being done to him.
As far as the matter on the Form 1 is concerned, the aggravated breaking and entering with intent to steal in company, that is really for offences of that nature towards the bottom of the range. The substantive damage done was property damage to the roof of the storage units where attempts had been made to enter them to seek to identify and extract the tobacco product the group were looking for. Again, as I understand it, the offender was recruited into this event by somebody who believed that the unit contained tobacco products which had been "ripped off" the principal.
There is no suggestion that the offender was the principal. The premises were not occupied by anybody, it was a storage unit, these were commercial premises rather than residential premises and the fact that there are a number of men involved, that is they were in company, loses its significance because there was no one there whose will could be overawed by a large number of people amassed against that person and there was no one to fear that one offender would come to the aid of another offender. Again, as I say, that is really towards the bottom of the range for offences of that nature.
I turn to the offence against the justice system. The Crown's submissions contain this: "The Court of Criminal Appeal has observed the seriousness with which the community regards offences against justice, in noting that these offences 'strike at the heart of our judicial system', including by implicating the public's confidence in the administration of justice: Marinellis v R [2006] NSWCCA 307 at [10] citing R v Pangallo (1991) 56 ACrimR 441 at 443; Richards v R [2006] NSWCCA 262 at [64]. Hoeben J (as his Honour then was) observed in R v PFC [2011] NSWCCA 117 that it is an error to take into account the fact the act was unsuccessful in perverting the course of justice when assessing the objective seriousness of an offence: [66] - [67] citing Taylor v R [2007] NSWCCA 99 at [25]. Similarly, McColl JA stated in Marinellis at [10] that it is 'the tendency of the conduct which [is] decisive'. In R v Giang [2001] NSWCCA 276, McClellan J (as his Honour then was) stated at [26] - [27]: '[26] there can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed fact, extraordinary circumstances will be required before a custodial sentence is not appropriate. [27] The situation may be different where the offender, although a willing participant, neither initiates or stands to benefit from the offence.'"
I accept those are the relevant principles. Here, the person who would gain the benefit of persuading Mr Nasser to change his evidence would be this offender. The proposed bribe, $5,000, was to be provided by the offender's mother and no doubt he would have to repay her if the bribe were accepted. Clearly, his mother and members of his family were concerned to try to have the charge withdrawn or dropped and that was what they were actively engaged in and Rami Charamand appears to have been coordinating and there may have been collusion in the matter by a lawyer. I understand that someone has been struck off as a result of his or her involvement in this scheme. The facts speak for themselves. Fortunately, Mr Nasser was a man of integrity. He did not accept the bribe.
Again, although any offence against the justice system is to be condemned it must be borne in mind that the offence has to be dealt with as if I were a magistrate sitting in the Local Court rather than sitting, as I am, in the District Court where, if the matter were heard here the maximum penalty would be imprisonment for 14 years. The offence is serious but again when viewed against all possible offences contrary to s 319 of the Crimes Act 1900 I accept that it falls below the mid-range of objective seriousness.
I turn then to the conspiracy charge. The focus of sentencing in a matter of conspiracy is what the conspirators intended to bring about, not whether their object was achieved: Dickson v R [2016] NSWCCA 105 at [104]-[105]. The fact that an attempt is foiled does not lessen the seriousness of what was intended to be achieved by the conspiracy. Conspiracy can be a continuous crime extending over a period of the agreement until either the object of the agreement is achieved or prior to that the police intervene and the conspiracy fails: R v Masters (1992) 26 NSWLR 450 at 458.
When a court is sentencing for a crime of conspiracy it may take into account the overt acts of the conspiracy insofar as they bear upon the content and duration and reality of the conspiracy and indicate the true nature and degree of the criminality involved in the conspiracy: R v Savvas (2) (1991) 58 A Crim R 174 at 178.
A relevant consideration in sentencing for conspiracy is the role played by each offender: Tyler v R (2007) 173 A Crim R 458 at [78]. The assessment of culpability for of each offender requires precise identification of his or her criminal conduct constituting the offence: R v Shore (1992) 66 A Crim R 37. However, that must be done by reference to the context of the conspiracy as a whole.
As I indicated at the commencement of these reasons, although the Common Law offence of conspiracy carries no fixed penalty one can be guided by the fact that robbery in company, which was here the object of the offence, is punishable by imprisonment for up to 20 years. However, the only weapon identified is the knife found on this offender's person, whether that was actually to be used or not or needed to be used or not is completely unknown. Robbery is punishable by imprisonment for 14 years. Robbery in company also carries a maximum penalty of 20 years.
Both the Crown and the defence referred me to the guideline judgment in R v Henry (1999) 46 NSWLR 346. In that case, a majority the Court of Criminal Appeal determined that a full term sentence of between four and five years' imprisonment was warranted in cases involving the following seven characteristics identified by Spigelman CJ at [162]: "(i) Young offender with no, or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position, such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case."
In R v Thomson (2000) 49 NSWLR 383, it was said that the guideline judgment in R v Henry should be understood as involving a late plea of guilty for the purposes of the application of the guilty plea guideline promulgated in Thomson itself.
One can see therefore in a sentence of four to five years a discount of only 10%, and therefore a full discount of say 25% could result in a lesser penalty. The Crown submits, properly so, that the guideline judgment in R v Henry is equally applicable to the offence of robbery in company, which has the same maximum penalty as armed robbery, and can be seen as broadly equivalent to it: R v Murchie (1999) 108 A Crim R 482 at [20].
Here it has been submitted by the Crown that the offender's role in this conspiracy was "the most significant." The offender gave oral evidence about that yesterday. The Crown has submitted that he was an honest witness. I agree. He maintained that this was a proposal made to him and to the others and they all agreed to participate in it. It is clear from the intercepted material that the proceeds of the robbery, if it were carried out, were to be split equally between all those involved. Although when one looks at the facts closely, one appears to see the offender as the principal organiser, he was in fact not the planner or person who suggested and encouraged this crime, but merely the head of the group of workers going about their director's business.
Equally, it must be pointed out that Mr Edralin and Ms Enriquez came up with the eventual plan that was adopted, but which was foiled by the police before it could be carried out. Ironically, Edralin has been sentenced for his part in the conspiracy. He identified the current offender as the principal proponent of the scheme. The current offender pointed out that Edralin was a principal in the scheme as well as may have been Touma. However, of all the co‑offenders who have been sentenced thus far, the offender appears to be the only one who has had the fortitude to enter the witness box to explain himself and be the subject of cross‑examination by the Crown. I accept that the offender was not the principal in this crime, but the principal was someone else who suggested the crime and that the offender participated in it, although appearing to be on the surface the organiser.
The Crown submitted that there was a moderate degree of planning. The Crown submitted that the offending was not "at the upper level of sophistication." With the utmost respect, I cannot see anything sophisticated about the scheme, that was actually planned at all. Clearly, any armed robbery requires someone planning, and where a number of people are involved, they all have to be in contact. They have to be gathered together and roles assigned to them. Clearly, roles were assigned to the drivers of the vehicles and one of the offenders was recruited because of his physical size and presence, which no doubt was to be used to overawe Mr Li. However, this is hardly any sophisticated scheme. The fact that there was to be insiders involved was not the plan of this offender but was the suggestion of Mr Edralin and his girlfriend, Ms Enriquez.
The other thing which is the subject of some concern is whether this crime was to obtain money or drugs. It was probably to steal whatever could be stolen that was found in Mr Li's possession. In fact, one of the intercepts made at 3.53pm on 5 December indicates that what was sought was in fact money. The intercept is this, it was between this offender and Mr Lasalo: "SULTAN: 7 o'clock me, Chris [Touma], you, everyone. LASALO: 7 o'clock? SULTAN: We've got a person inside [Enriquez] who's gonna be inside opening the door for us. LASALO: Alright done. SULTAN: 7 o'clock be at mine...we go in two cars...the only reason we have to fuckin do it today before he [Li] reloads tomorrow. LASALO: What is it? SULTAN: Do it today before he reloads tomorrow and spends his money...cause his best mate says he's got money and he is going to buy tomorrow - pounds and occers [ounces], so I gotta go tonight. LASALO: Done. SULTAN: And I'm with Chris [Touma] now so we're all in it for tonight. LASALO,: Sweet." That probably represents the recruitment of Lasalo into the conspiracy but it also indicates that the idea was to do the robbery on the evening of 5 December before Mr Li spent the money he had accumulated to buy whatever it was he was going to buy, whether it was items of one of the shops or drugs.
Again it must be pointed out the fact that the proceeds of the robbery were to be shared equally between those participating in it is hardly indicative of this being solely the project designed by the offender. The Crown also pointed out the presence of the knife found on the offender and clearly the intercepted messages indicate that the offender was going to have it available to him when he went to the rear door of Mr Li's residence when he was to be admitted by Ms Enriquez but, of course, whether it was necessary for him to use that at all, if he used it. is a matter that is completely unknown. However, the fact that he had it and that it might have been used is a telling factor against this offender.
The Crown submitted that the offender's efforts to avoid detection could be described as being "low to moderate". The Crown points out that he donned a face covering and he demonstrated some knowledge of the CCTV camera at the rear of the premises. In [7] of the agreed facts there is a statement made by the offender "So if I go into that little alleyway he won't see me with the camera" but he did not know that the camera was not working in any event. Clearly he would have seen the camera at least on the previous day. I would not describe this as being a moderate attempt to avoid detention. It was clearly a basic attempt to avoid detection and whether he maintained wearing the face covering after entering into the premises is another moot question because he did not maintain it when he entered his own home when he brought Mr Nasser to it after Mr Nasser had been abducted.
I would characterise this conspiracy as a fairly basic conspiracy, not the subject of any level of sophistication at all and the more persons involved in it the greater the chance of its going astray. Again, as far as conspiracies are concerned it is in my view well below the mid-range of seriousness.

Personal Circumstances

There are before me a number of sources concerning the offender's background but the easiest way of dealing with it is to deal with history as recorded by Mr Sam Albassit a psychologist who interviewed the offender by AVL on 12 November 2021 and prepared a report bearing date 14 November 2021.
The offender was born in Iraq. Due to the war in Iraq his family moved to Lebanon. At the time the offender was only two or three years old. He understood that his family moved to Lebanon because of his father's political position. Apparently his father was a senior lawyer, perhaps even a judge, in Iraq and he found it necessary for political reasons to leave the country. According to the history obtained by Mr Albassit the family came to Australia in the year 2000, when the offender was 7 years old.
The offender is one of 11 siblings. He has seven full siblings, three half siblings from his father's other marriage and a half sibling from his mother's second marriage. According to the histories and what the offender told me, his parents were always involved in arguments and there was physical violence perpetrated on the offender's mother by his father. The offender grew up in an atmosphere of domestic violence.
The history obtained by Mr Albassit continues in this fashion: "4. Mr Sultan reported that he had a difficult and traumatic upbringing. He stated that his parents constantly argued and that his father was physically and emotionally abusive towards his mother. Mr Sultan often recalls seeing his mother crying in her bedroom, and constantly leaving the house after an altercation. 5. Mr Sultan reported that his mother was the nurturer and caregiver in the family, and his father was a violent person with an authoritarian parenting style. He reported that his relationship with his father was toxic and strained. Mr Sultan said he experienced physical and psychological abuse from his father throughout his childhood. He reported that his father would physically assault him with sticks and hoses on a regular basis. Mr Sultan said that even when his siblings were being mischievous and acting up, he always bore the brunt of his father's violent behaviour. 6. He stated that his mother would often intervene to protect to protect him; however, she was unable to successfully a lot of the time. Mr Sultan said there was a particular occasion when it was raining, and his father would take him outside in the rain and assault him with a wet hose. He stated that he was approximately 11 years of age when this was occurring, and the memory of the event has always stayed with him. 7. Mr Sultan reported that his parents divorced when he was approximately 13 years of age. [I interpolate that he may have only been 12]. He said that his mother left the family home and took him with her. He stated that he lived with his mother for approximately six months. He stated he learnt that his mother had been unfaithful to his father, and that she was going to be married again. Mr Sultan recalled his mother saying to him that 'he looked too much like your father' and abandoned him at the local police station. Mr Sultan stated that he was devastated by his mother's actions. He recalled flashbacks of him sitting at the police station waiting for his father to pick him up. 8. Mr Sultan lived with his father for approximately three days before leaving his house. He said his father packed up the house belongings and moved overseas. Mr Sultan said he has not seen his father since that day. He said that he has spoken to him briefly two years ago. 9. Mr Sultan said at the age of 13 he was living on the streets of Melbourne. He stated that he slept at bus shelters and in street laneways. He reported that he also couch-surfed at friend's places for approximately six to eight months. Mr Sultan stated that he met a 'random man' who took him under his wing, gave him sheltered accommodation and provided him with an opportunity to work. He was grateful for the assistance, and tried hard to make something of his life. Mr Sultan was subsequently referred to the Department of Community Services (DoCS) where he was placed in a foster home until he was 18 years of age. Mr Sultan reported that he continued to struggle personally. He stated that he struggled to sleep, eat and find motivation."
I again interrupt quoting this history to point out that the random man who took the offender under his wing was somebody who worked at the Melbourne Showground apparently as part of some amusement ride team. The offender was not physically or sexually abused by that man but needed to live with others who worked for him, who were much older than the offender. As a result of his interaction with these men the offender commenced drinking alcohol at the age of 13 and commenced to smoke cannabis. That eventually led to long-term addiction to those substances. The government department to whom Mr Albassit referred is the name of a NSW government department. In fact, it was a Victorian government department who took over the offender's "care" in his teenage years. There had been a report that he was a missing person and he was located in a fair ground in Tasmania and was taken back to Melbourne where he was entered into official care.
I return now to Mr Albassit's history: "10. Mr Sultan attended Camp Meadows Primary School where he completed Kindergarten to year 6. He then went on to attend Hillcrest High School for year 7. He reported that due to his homelessness and displaced living arrangements, he hardly attended school. He stated that when he did attend, he was disruptive and oppositional. He stated that his interest in school was deteriorating as he was more concerned about his living arrangements and associating with other people he considered 'family'. He stated that they were not 'good people' however they showed him love and respect, and he was able to fit in with them. He said that they used illicit substances regularly, and in turn he said began using substances too. 11. Mr Sultan first used illicit substances at the age of 13. He said he began using cannabis and alcohol. He reported that he used it recreationally before it eventually became a habit. He said he ceased using cannabis and alcohol when he was playing AFL, however by the time he was 19, he recommenced using which coincided with him [sic] ceasing to play AFL and the tragic events that would follow soon after. 12. While in foster care, Mr Sultan experienced the loss of four of his peers, including two of his closest friends. When aged 16 years, Mr Sultan was drinking with friends at the [Yarra] River near Flinders Street, Melbourne, when an argument manifested in their social group. Consequently, his friend, James, was pushed into the river and drowned due to his inability to swim. Then, when aged 19 years, Mr Sultan's friend, Tami, who [sic] he described as a very sad girl, committed suicide via hanging. 13. Mr Sultan reported that at the age of 19 he got involved in an intimate relationship. He reported that they dated for a long time and then settled down together. He reported that his partner fell pregnant with their first child. He reported at the age of six months, his daughter tragically died of sudden infant death syndrome (SIDS). He stated that that period of his life further exacerbated his trauma related symptomatology and he was left devastated. He said it was hard for him to recover following her unexpected death. He reported that he started using alcohol and cannabis heavily again. Mr Sultana stated that his relationship with his partner could not withstand the trauma and their relationship ended approximately a few months later. 14. Following his daughter's death and his partner leaving him, Mr Sultan starts to consume excessive amounts of alcohol and cannabis. He stated that his life spiralled out of control and he was living his life with reckless abandonment. He reported that he stopped caring about anything and had lost his focus completely. He stated that he suffered incredibly in his childhood and to lose his only child was significantly traumatic. He reported he began experiencing suicidal ideation and subsequently tried to overdose on approximately 15 tablets of Xanax and excessive amounts of alcohol. He was subsequently taken to Footscray Hospital in Melbourne where he was scheduled and provided treatment. Upon his release from hospital, Mr Sultan was recommended psychological therapy but did not commit to it. 15. Mr Sultan moved to Sydney at the age of 21. He reported that he met his now current partner Dora [Szabo], and that they have been together ever since. Mr Sultan stated that she has been very supportive, and loving. He reported however, that he continued to use these substances which led to them [sic] breaking up as she did not see a future with him. He reported that he graduated to the use of cocaine at the age of 26. He reported that he consumed the substance regularly, but that for approximately seven months before his offending behaviour he used cocaine daily and excessively. He reported that it consumed his life, and hindered many aspects of his life. 16. Mr Sultan stated that he started his own construction company in 2019. He had previously worked as a carpenter, as a Renderer, and other construction-related roles. He reported that his business was struggling as contracts were ceasing. He reported that his business was 'collapsing'. He said that he was continuing to consume these substances and it was becoming increasingly hard financially to support his illicit substance habit and find money to keep his business afloat for as long as he could. He reported that he was offered a 'job' to make money. Mr Sultan said that he'd previously refused any association or connection with this offending behaviour; however he ended up being involved out of desperation."
It would appear from that history and from the facts which I have so far described of the offending in this State that both the taking and detention of Mr Nasser, the aggravated breaking and entering and attempting to steal tobacco products and the conspiracy to commit robbery were all the result of his succumbing to participating in criminal activity at the behest of others for financial reward, to try to redeem his business or provide for his living needs and his drug addiction.

Criminal History

Unsurprisingly, with that personal history, the offender has a lengthy criminal history. In Melbourne on 7 December 2012, he appeared before the County Court on a charge of armed robbery. He was sent for two years to a youth justice centre. On 23 January 2013, he appeared in a Magistrate's Court in Melbourne and was dealt with for affray and criminal damage. On 11 April 2013 he appeared before a Magistrate's Court and was sentenced for recklessly causing injury. I have omitted all references to appearances in the Children's Court.
On 13 May 2015 he committed domestic violence offences which were dealt with by the Bankstown Local Court on 28 May 2015. One of those offences was for common assault for which he was placed on a 12 month bond under s 9. However, he breached that bond and as a result of that he was sentenced to imprisonment for seven months but the sentence was suspended pursuant to the former s 12. On 19 May he was charged with a drug offence and having goods in personal custody suspected of being stolen. For those offences he was fined. On 5 July 2015 he committed the crime of affray. Eventually he appeared for that offence before Baly DCJ sitting here in the Downing Centre. Her Honour placed him on a bond to be of good behaviour for a period of two years. That sentence, however, was not imposed until 18 August 2017, more than two years after the offence. In the meantime there were other offences.
On 26 August 2015 he committed larceny for which he was fined by the Local Court at Gundagai. A little earlier, on 8 August 2015, had been dealt with by the Local Court at Burwood for possessing a prohibited drug for which a $1,000 fine was imposed. On 13 August 2015 he committed some domestic violence offences for which he was both fined and placed on bonds to be of good behaviour. On 25 August 2015 he committed a driving offence, driving under the influence of alcohol. On 26 August, the following day, he committed an offence of driving whilst there was illicit drug present in his blood. That charge was laid at Cootamundra and eventually led to his appearing before the Local Court at Goulburn.
On 1 October 2016 he committed offences of resisting an officer in the execution of duty and destroying or damaging property. For the latter offence he was sentenced to imprisonment for two months. For the first offence he was sentenced to imprisonment for nine months but the non-parole period was on two months. The offender breached his bonds for the offences of 13 August 2015 and he was called up. Initially further bonds were imposed, but eventually a sentence of imprisonment for six months was imposed.
Subsequent to the appearance before Baly DCJ in the District Court here at the Downing Centre on 18 August 2017 there was only the one driving offence prior to his commission of the offences for which he stands for sentence before me, indicating an attempt to stay away from illegal activity. However, clearly his relapse to drug and alcohol use of which he told me in his oral evidence, when his business started to collapse commencing at around June 2019, led to his committing the offences for which he now stands for sentence.

Support in the Community

The offender has, since he moved to Sydney, been in contact with his mother and siblings. For example, the offence of affray for which he was sentenced by Baly DCJ was an offence which occurred because he went to the assistance of one of his brothers who had become involved in an argument.
The offender still has the support of Ms Szabo. She is currently a student studying psychology at university. She has known the offender for seven years. Their friendship commenced as such and developed into a more intimate relationship. It is clear that the relationship had broken down in 2019 because of the offender's relapse to alcohol and drugs. Ms Szabo's reference contains this: "Karim comes from a large family, being the eldest of 11 siblings. Karim's parents separated when he was young, and he couldn't live with either of them. This resulted in a constant cycle of being in and out of DoCS care. Karim eventually ended up being homeless and living in a trailer caravan at the Easter showground at 14. It was during this time that Karim started using alcohol and drugs heavily. He was eventually picked up by DoCS and returned to his family. He later got offered a contract to play football which he accepted. He became clean of drugs because of his contract and committed himself to playing football. It was during this time that Karim met his last partner and entered a serious relationship. The couple eventually had a child together. Unfortunately, Karim suffered extreme distress when he lost his child six months after she was born. The events preceding the offence were a large indicator of Karim's mental state and wellbeing at the time. Although Karim and I lived together, we were not in a relationship due to his heavy substance dependence and gambling addiction. As someone who constantly saw him I realised he was spiralling out of control, being unable to find himself. This quickly turned to Karim abusing substances in hopes to create a diversion and cope with childhood trauma, death of his daughter and personal failures. Karim's wellbeing severely deteriorated and the substance abuse only expedited his downfall. This downward spiral led to Karim compromising his health, not eating or sleeping. He refused to recognise or accept that he had a problem with gambling or with drug abuse. He was unwilling to help himself out of his black hole he had created, choosing to numb the pain by using drugs instead. Karim has now spent two years in custody, and we have spoken frequently as friends during this time. Karim has finally acknowledged that he had a problem with drugs and gambling, which is something he has never done before. Karim has remained drug free during his time in custody despite drugs being available to him. I believe this is a testament he has changed in character. Karim has acknowledged that his criminal behaviour is linked to his drug use and has finally admitted he requires professional help to continue his path to rehabilitation. Rather than turning to using substances, Karim in now open to the idea of seeing a psychologist, participating in drug and alcohol recovery programs, exposing himself to alternative methods of coping and implementing what he has learnt to this day-to-day life to prevent any form of relapse. When discussing his offending, Karim constantly expresses his remorse and guilt, how much he regrets the decisions to commit these offences which have altered his entire life for the worse. He punishes himself daily, consistently expressing how ashamed he is when thinking about the consequences of the offence and on the victims, the greater community and his family. Whilst in custody, Karim maintained a job for ten months in buy-ups, where he was expected to deal with inmate goods. Such a position requires an inmate that his highly regarded, showing that corrective staff has trusted Karim's character enough to provide him with such opportunity. Karim has also sought out programs to address his substance abuse, childhood trauma and loss of his daughter, however, due to COVID-19 such efforts have not been fruitful as the programs have been suspended. Karim has told me the strain COVID-19 has had on him, especially being unable to see myself and his family in person, making him feel isolated. He has been in custody through two different COVID lockdowns and it has been extremely hard on him as he has gone months and months with only one hour yard time and constant COVID scares." The letter goes on by pointing out that Ms Szabo is adamant that she will not recommence her relationship with the offender if he continues to abuse alcohol and drugs and continues his gambling. Her letter is extremely sensible but it is clear that she hopes that the offender will change his life about and if he does so, she would be happy to recommence living with his as his wife.
Perhaps I have cited too much of her letter but all of what she had to say is completely relevant to this case. Of course she misunderstands something of the offender's background. He was not returned to his family in Victoria at all but went into firstly some form of orphanage or refuge and then into the home of the person who trained him to be an AFL player and obtained for him a contract to earn money by playing AFL. However that did not eventuate to any long-term work. The offender completed the school certificate through MacKillop Family Services Program known as "Western Bulldogs Fresh Program" and eventually qualified as a carpenter.
At one stage he was working for the father of Ms Szabo. He worked for two years for Mr Szabo as a renderer and Mr Szabo supplied the offender with a reference which was put Baly DCJ when she sentenced the offender in 2017. I accept that the offender is a qualified carpenter and has different work experiences in the construction industry. His brother, Omar, works in construction and has his own business. He will provide work to the offender when he is released from custody. He described the offender as "loving, smart and business-savvy". He is prepared to give the offender work on his release from gaol in the construction industry.
Therefore, if when released from prison the offender maintains his abstinence from alcohol and drugs, stays away from gambling, works for his brother, he may be reunited with Ms Szabo and he and she may build together the family which each of them want to have. Ms Szabo points to their looking to building a house and making a family together somewhere on the shores of the Nepean/Hawkesbury River.

"Bugmy" Considerations

This is a case which clearly attracts the "Bugmy" principles. This offender had a very deprived upbringing, not deprived in the economic sense until he was a teenager but deprived of the normal amenity of family life. He grew up as a refugee in a violent family, was exposed to domestic violence and was the subject of domestic violence himself.
He was abandoned by both his mother and his father when he was 12 or 13 years old and took to alcohol and drugs when he could hardly know the problems that addiction to those substances would lead him to years after he started experimenting with cannabis and alcohol. His addiction was such that he turned to cocaine and to another form of addictive behaviour, gambling. It is clear to me that the offender's background led to mental illness and the two compounded leading to self-medication with alcohol and drugs leading to the commission of offences including the offences for which he appears before me.
Mr Albassit diagnoses a Complex Post-Traumatic Stress disorder which he thinks the offender has suffered from for most of his life. He also diagnosed substance dependence since the age of 12 and anyone who takes any form of illicit drug is usually diagnosed with substance abuse disorder and anyone who takes too much alcohol, in the view of a psychiatrist or psychologist, is also diagnosed with alcohol abuse disorder. However, whether it be substance abuse disorder or alcohol abuse disorder they derive from the attempt to treat the condition that Mr Albassit diagnosed a Complex Post-Traumatic Street disorder.
In 2017 the offender was interviewed by another psychologist, Mr Chafic Awit. He diagnosed a generalised anxiety disorder and a major depressive disorder. The diagnoses, obviously are different to those found by Mr Albassit. However, there is much in common between Post-Traumatic Stress disorder and major depressive disorder. Psychologists and psychiatrists often provide multiple diagnoses when only one diagnosis is necessary to explain a patient's symptom complex. In those circumstances I generally apply Occam's razor: why postulate more than one entity when one entity explains what is going on. Whether it be a major depressive disorder or a Complex Post-Traumatic Stress disorder it matters little. The important thing is the effect it has had on the offender and what must be done to treat the condition so that the offender can recover from that psychiatric illness.
The offender's psychiatric illness explains why his life has been what it has been since his teenage years and his life prior to that time is attributable not to any act or default of the offender himself. In R v Henry (1999) 46 NSWLR 348 Simpson J (as her Honour then was) said this: "336. It is a mistake, in my opinion, to regard drug addiction as a starting point. It is an end point, or a point on the way to the end, of a process. Where the process begins may vary in individual cases but it does not necessarily begin when a person decides to use a prohibited substance. It probably has its origins well before the date of the first use of drugs. In the worst, or at least forgivable, cases it may have its origins in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character. In other cases, I have no doubt, it has its origins in social disadvantage, poverty, emotional, financial, or social deprivation, poor educational achievement, unemployment, and the despair and loss of self-worth that can result from these circumstances or any combination of them. In this Court, one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young and sometimes precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease. 337. Drug addicts do not come to their addiction from a social or environmental vacuum. This Court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not regard for a moment all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency cannot be laid down. 338. I cannot accept that the blameworthiness of one drug taker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experience or the normal developmental or path that permit a conclusion that the decision to take drugs was a decision made in the exercise of free choice in the sense in which that phrase is ordinarily understood."
The impact of mental illness was considered in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. At [177] McClellan CJ at CL set out a number of propositions. They include these:

Where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability maybe reduced. Consequently the need to denounce the crime may be reduced with a reduction in sentence...
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...
It may mean that a custodial sentence may weigh more heavily on the person. Because sentencing would be more onerous for that person the length of the prison term or the conditions under which it is served maybe reduced...
It may reduce or eliminate the significance of specific deterrence...
Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances consideration of specific deterrence may result in increased sentence.... Where a person has been diagnosed with an Antisocial Personality Disorder there may be particular need to give consideration to protection of the public..." The last point is of no current relevance.

I accept that the offender's mental illness diagnosed by Mr Albassit as PTSD led to his developing addictions initially to alcohol and cannabis and more recently to cocaine. His criminality was driven by his drug addiction and his necessity to obtain money on which to live and to obtain money to support his drug addiction and thus his moral culpability for these offences is reduced significantly in light of the Bugmy principle.
Mr Barrett in his written submissions said this: "28. The Court is not required to find that 'profound childhood deprivation' exists as a threshold test to applying the Bugmy Principles. As was stated in Hoskins v R [2021] NSWCCA 169, at [57]: Although the High Court used the term 'profound childhood deprivation' when referring to its enduring effects, what was said to require consideration was 'an offender's deprived background'. There is no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged." I accept that to be correct. However, for my own part I would be quite prepared to categorise Mr Sultan's background as being one affected by profound childhood deprivation. This man was rejected by both his father and his mother at the commencement of his teenage years, probably around the time that he was pubescent, and that is a very unhappy thing for any child of either sex. Before that his childhood could be described as one of suffering from profound deprivation and it was made even worse by his being rejected by his parents leading to his tragic circumstances between the ages of 12 or 13 and the age of 21.

Rehabilitation

The Court is required to consider the prospects of rehabilitation and the converse of that formulation is the prospects of recidivism. The sentencing assessment report dated 12 November 2021 assessed a medium risk of reoffending according to the Level of Service Inventory - Revised. Community Corrections recommended referral for appropriate drug and alcohol rehabilitation that would provide the offender with appropriate life skills to enable him to live a drug and alcohol free lifestyle, referral for psychiatric or psychological treatment for his past traumatic experiences and providing guidance to target stress and anger management and a management of cravings and impulses and also to give him and to provide some pro-social skills. They also thought that the offender was suitable to undertake community service work. However, none was available at the time the report was written.
However, it was common ground that the offences committed by the offender crossed the s 5 threshold and that no sentence other than a sentence of full time imprisonment ought be imposed. That is hardly a significant concession bearing in mind that the offender has already been incarcerated for over two years.
If the offender can stay away from drugs and alcohol, and he will require assistance to do that, if he can return to work in the construction industry, if he can stay away from gambling for which he can be assisted, for example, if he is on parole, it is likely that he will recommence his relationship with Ms Szabo and the prospect of their building a family together in some residence on the Hawkesbury River may well come about and remove this still relatively young man from the cycle in which he has found himself since his childhood.
The prospects of rehabilitation are fair and, if the offender maintains the resolve which he has shown thus far and expressed in the witness box and expressed, for example, to Mr Albassit, to his brother and to Ms Szabo, then they may be better than one might otherwise think.

COVID-19

Another matter which I must bear in mind is the fact that for most of the time the offender has been in custody the custodial system has been gravely affected by the COVID 19 pandemic. It is referred to eloquently by Ms Szabo in her letter which I have quoted. Mr Barrett turned my attention to Valentine v R [2020] NSWCCA 116 in which this was said: "I accept that Corrective Services have taken steps which have proved effective, to date, in avoiding the risk of COVID 19 entering correctional centres in New South Wales. Nevertheless, these steps have had significant negative impacts upon inmates wellbeing...even if the COVID 19 pandemic does not worsen and restrictions are gradually lifted the applicant will have been adversely affected by the measures taken to deal with the pandemic for a substantial portion of his sentence." That was said in the middle of 2020 shortly before or shortly after the end of the first "lockdown" in this State. Subsequently there has been a further lockdown in 2021 which has only relatively recently ended and in this year there have been major outbreaks of the COVID-19 within Corrective Services institutions that have caused major problems for the institutions themselves and have gravely affected the prisoners themselves who have been deprived of things such as programs, visits, exercise and find it difficult to communicate with the outside world because of the amount of telephones available to them and other electronic means of communication are limited. In R v Colvin (No 2) [2021] NSWDC 494 at [19] Haesler DCJ said: "social visits have been suspended for over a year reducing any capacity to remain in contact with pro-social family and friends. Access to telephone calls and AVL links has increased. Although recent evidence in this court is there are often lengthy delays. I have always heard evidence about there being fewer programs, reduced work opportunities and more lockdown where prisoners are confined to cells." Similarly, Weinstein DCJ said in R v Jones [2021] NSWDC 478 at [193]: "Corrective Services NSW has imposed a number of protective measures to prevent and isolate any outbreak of COVID-19 amongst the prison population. The date of this sentence (September 2021) there is a significant outbreak in the prison population. The Court understands that there are presently conditions, include suspending visits to inmates, restricting travel between and within correctional facilities, and restricted access to social activities. These measures, although designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by an offender in custody..."

Parity

There are parity considerations that to a large extent they may not be relevant because I do not understand any of the other offenders to have the same background as this offender, nor did any of the other offenders give evidence on oath and be accepted as being truthful witnesses. In Lowe v R (1984) 154 CLR 606 the Gibbs CJ said at 609: "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, and such matters as the age, background, previous 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." In Postiglione v R (1997) 189 CLR 295 the Dawson and Gaudron JJ said at 301: "The parity principle mainly based on an aspect of equal justice...Equal justice requires that like should be treated alike, but that, if there are relevant differences, the allowance should be made for them...In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so the notion of equal justice is not violated..."
Mouhammad Al Zoubaydieh was sentenced by Syme DCJ on 4 March 2020. Her Honour described the take and detain charge as the most serious charge faced by that offender. Before considering any discount her Honour thought that the facts of the offending indicated a head sentence of six years' imprisonment. However, her Honour granted to that offender a 50% discount on sentence. Her Honour pointed out that the offender who did not give evidence, expressed no remorse for his actions involved in the taking and detention. Her Honour said this: "He gave no thought whatsoever to the consequence of his offending on...Mr Nasser and others. There is no evidence that he has ever considered this at all except by his early plea [of guilty]." Mr Al Zoubaydieh did not have the deprived background that the current offender has. He did not give evidence. That offender was not sentenced for any other relevant offence.
Rami Charamand was sentenced by Magistrate Stewart sitting in the Central Local Court on 9 June 2021. In essence, he was sentenced for his role in attempting to pervert the course of justice. He pleaded guilty and was entitled to a discount of 25%. His Honour thought that the appropriate sentence for that offence was two years before applying the 25% reduction. His Honour also sentenced the offender for two other offences which are not faced by the current offender. Eventually, there was an overall sentence of 22 months and 18 days of which 11 months and 18 days had already been served. His Honour directed that the offender enter into parole on that day for the balance of the term, which was 11 months.
O'Brien DCJ sentenced Brendon Edralin on 12 November 2020. He pleaded guilty to one count of conspiring to commit robbery in company, the final offence for which this offender stands for sentence. On the evidence put before him, his Honour accepted that this offender was the prime mover in the conspiracy and that the offender before him had a much more limited role, but I have sought to explain how the evidence before me is to the contrary. His Honour thought that Mr Edralin was an immature 19 year old at the time of the offending. He thought the appropriate sentence was two years and four months which was discounted by 25% for the early plea of guilty, leaving a residual term of one year and nine months, which was to be served by way of an Intensive Corrections Order.
On 4 February 2021, Buscombe DCJ sentenced Lasalo for his role in the conspiracy. Essentially, he was given the same sentence that had been given by O'Brien DCJ to Edralin, again, a sentence of 18 months' imprisonment to be served by way of an Intensive Corrections Order. However, none of those offenders has the same background or reduced moral capability as does the current offender.

Consideration

Doing the best I can weighing all the matters which I am required to weigh together, I have reached the view that the appropriate starting point for the taking and detention of Mr Nasser but bearing in mind the matter on the Form 1, the aggravated breaking and entering with intent to steal, is a sentence of four years and three months. I discount that by 25% and round it down in favour of the offender. That gives a head sentence of three years and two months.
For the conspiracy charge, I have reached the view that the appropriate starting point is a head sentence of two years and three months. I reduce that by 25% and round it down in favour of the offender. That comes to a head sentence of one year and eight months.
For the attempt to pervert the course of justice, I start with a theoretical head sentence of two years and six months. I reduce that by 25% and round it down to one year and ten months.
The total of those three head sentence is six years and eight months. However, I intend to impose an aggregate sentence. Bearing in mind the principles of totality, I reach the view that the appropriate aggregate sentence is one of imprisonment for five years.
I find special circumstances. This man must be given as much assistance as is possible on his return to the community to stay abstinent from alcohol and drugs and gambling and such assistance can be given to him by Community Corrections in the way they have outlined in the Sentence Assessment Report.
I determine that the appropriate non-parole period will be two years and six months. That means the offender should be released from custody on or about 4 June 2022.
Karim Sultan, on each of the charges to which you have pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of two years and six months commencing on 5 December 2019 and expiring on 4 June 2022. I impose a further period of imprisonment of two years and six months to commence upon the expiration of the non-parole period and expiring on 4 December 2024. The total sentence therefore is five years comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.
The sentence is an aggregate sentence. The indicative sentences are: 1. For taking and detaining together with the matter on the Form 1, three years and two months; 2. For sequence 1, conspiracy, one year and eight months; and 3. For sequence 5, attempting to pervert the course of justice, one year and ten months.
I should tell you this, Mr Sultan, that I have given you a very generous period on parole. You have to make the best of it you can because if you don't, if you breach your conditions of parole, the Parole Board will revoke the parole and you'll go back into gaol. OFFENDER: Yes, your Honour. HIS HONOUR: So you must realise that you risk putting yourself back into gaol for up to two and a half years if you don't observe your bail conditions. OFFENDER: Yes, your Honour. HIS HONOUR: I'm handing you your life back on certain terms, you understand. OFFENDER: I appreciate it, your Honour, appreciate it. HIS HONOUR: Any other orders sought? VINEY: No, your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2022

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Cases Cited (22)