WEDNESDAY 17 NOVEMBER 2004
REGINA v TAREK MOHAMADIN
Judgment
1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty to a number of matters in the Local Court and adhered to those pleas when he appeared for sentence. In all he pleaded guilty to three counts of armed robbery. The applicant asked that a further four offences on a Form 1 document, namely two further offences of armed robbery and two of robbery in company, be taken into account on sentencing. Each of the offences attracted a maximum penalty of 20 years imprisonment. In respect of the first count, the applicant was sentenced to a fixed term of imprisonment for 2 years and 3 months to date from 5 May 2003, which was the date of his arrest. In respect of the second count, a fixed term of 3 years to commence on 5 May 2004 and to expire on 4 May 2007 was fixed. In respect of the final count, and taking into account the matters on the Form 1 document, a non-parole period of 2 years and 4 months to commence on 5 January 2006 and to expire on 4 May 2008 was fixed with the balance of the term fixed to expire on 4 May 2011. The overall non-parole period was one of 5 years imprisonment and the balance of the term one of 3 years, thus producing an overall effective head sentence of 8 years imprisonment.
2 It is unnecessary to describe the background facts in respect of each of the offences in any great detail because in each instance the modus operandi which was employed was very similar. On each occasion, the applicant was in the company of at least one other young man. One of them would place an order by telephone for the home delivery of pizzas, garlic bread and soft drinks to a nominated address. The address nominated was in most instances near to a park where the applicant and his co-offender or co-offenders would be waiting. When the food arrived the person who delivered it was confronted by the applicant and his co-offenders. Only some of the co-offenders have been identified. The two who have been identified are younger than the applicant. In respect of each of the five offences of armed robbery (all of which were committed in company), either the applicant or one of his co-offenders was armed with a knife. In each case the delivery person was robbed of the food and/or money which he was carrying. In all more than $800 in cash was taken. Two mobile phones were also taken. None of that property has been recovered. Two of the offences of armed robbery were perpetrated upon the same victim. The offences in all spanned a period of four months from 6 December 2002 until 20 April 2003.
3 The applicant was just under the age of 19 when he committed the first of these offences. It was to his credit that he had no prior convictions of any kind. The sentencing judge accepted the extensive evidence, which was in testimonial form, which attested to his good character.
4 The applicant was born in Australia to parents of Egyptian descent. There was conflict between his parents as to whether the family should live in Australia or Egypt. The applicant sought to distance himself from that conflict by removing himself from the family home whenever it arose. The sentencing judge concluded that that had led to "his associating with older, more streetwise young men " and in turn to his introduction to illicit drugs.
5 The applicant obtained his Higher School Certificate and in 2002 undertook a business studies course at a TAFE college. In 2003 he switched to doing a diploma in real estate at another TAFE college. He was still doing that course as a full-time student at the time of his arrest.
6 The applicant began smoking cannabis when he was 14 and within a year was smoking it on a daily basis. He then began experimenting with other drugs such as cocaine, amphetamines and ecstasy and soon became dependent upon them as well. By the age of 16 he was also abusing alcohol. He told the sentencing judge that he was motivated to commit these offences in order to obtain money with which to purchase drugs. It would appear that his drug taking escalated after his best friend died in tragic circumstances.
7 The sentencing judge allowed a discount of 25% for the pleas of guilty, which his Honour found had been entered at the earliest available opportunity. In the circumstances, the sentencing judge was inclined to the view that the applicant would be rehabilitated and would not re-offend, particularly were he to make good use of his time whilst in custody.
8 It was submitted on the applicant's behalf that the sentences imposed were manifestly excessive. It was contended that the sentencing judge must have commenced with an overall sentence in excess of 10 years before allowing the applicant the benefit of the 25% discount for the pleas of guilty. It was submitted that such a starting point clearly exceeded what the circumstances called for, particularly in light of the applicant's favourable subjective features, the fact that the offences were unsophisticated and that they occupied but a short period of time in the life of a young man who had otherwise led an exemplary existence. I shall further consider this submission in due course.
9 The applicant then submitted that there were a number of matters which indicated an erroneous approach on the part of the sentencing judge. It was submitted, for example, that the sentencing judge had erred in rejecting a submission that the fact that the applicant was dependent upon drugs was a matter which should mitigate the otherwise appropriate penalty. It was argued that this was a case which could, and should, have attracted the operation of the principles enunciated by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 in which his Honour said:
In my view the relevant principles are as follows:
(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported):
(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;
(c) it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported):