R v Tarek Mohamadin [2004] NSWCCA 401 | Case summary

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):

(iii) justify special consideration in the case of offenders judge to be at the "cross roads": R v Osenkowski (1982) 30 SASR 212; 5 a Crim R 394. To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case. The legislature has, by the heavy maximum penalty prescribed for armed robbery, spoken clearly in relation to this offence. Drug dependent persons should not be encouraged, as a class, to think that they are free to engage in serious criminal conduct of whatever kind with impunity, or with any hope of favourable treatment because they are able to show that they needed money through their addiction. (at 397-8) 10 Particular reliance was placed upon paragraph (c)(ii) of his Honour's remarks. 11 In my view a fair reading of the Sentencing Remarks reveals that the sentencing judge did have proper regard to those principles. His Honour, for example, specifically found that there was no evidence that the applicant was withdrawing from drugs at the time of committing any of the offences with which he was charged. His Honour also rejected a submission that his drug use had led to "a disorder of thought process" or that the applicant "lacked maturity or was developmentally delayed or was mentally retarded". In essence, the sentencing judge found that the circumstances did not call for any particular moderation of the otherwise appropriate sentence by reason of the applicant's dependency on drugs. That finding was, in my view, well open to the sentencing judge. 12 It was next contended that the sentencing judge had erred in diminishing the extent of the applicant's contrition. His Honour said: I accept that the offender is, to some extent, contrite for his conduct. His being contrite is shown by his guilty pleas and his expression of sorrow to his relatives and friends, the psychologist and the Probation and Parole officer. I say "to some extent" because it seems to me that a young man, armed with a knife, who robs pizza delivery boys of food and money and mobile telephones in order to obtain money to obtain a preferred prohibited drug, would not give one moment's thought to the fear instilled in the victims or the emotional reaction of those victims to that fear. 13 It is submitted that in making those observations the sentencing judge thereby "vitiated the genuineness of his contrition". I am unable to accept the thrust of the applicant's submission. The applicant, at least "to some extent", received the benefit of a favourable finding in respect of his expressions of remorse. The extent to which the applicant was entitled to leniency by reason of this consideration was clearly a matter which fell within the sentencing judge's discretion. The applicant gave evidence in answer to a leading question from his counsel that he "very deeply" apologised to his victims. In cross-examination he gave the following evidence touching upon this issue: Q You told the probation and parole officer that you were sorry for your victims? A Yes. Q Can you explain to me what you mean by sorry? A I just didn't want to put them in fear or anything, I never had intentions of hurting any of my victims. Q But you carried, or your co-accused, carried a knife each time you committed these offences? A Yes but neither victims were hurt in any serious way. Q No but they didn't know that did they? A Sorry. Q They wouldn't have known that would have they, they would have seen a knife and thought you were going to hurt them? A Yes. 14 The sentencing judge's observations are to be understood in the light of that evidence. In those circumstances I detect no error in his Honour's approach. 15 It was then submitted that whilst the sentencing judge was entitled to partially accumulate the sentences which were imposed in respect of counts two and three, his Honour did so in a fashion which produced sentences which were manifestly excessive. Putting the matter another way, it was submitted that the sentencing judge misapplied the principle of totality. In that context, reference was then made to two other cases said to bear some comparability to the present case. This Court has said repeatedly that it will not compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the offenders may share similar characteristics and may have committed similar crimes. That approach is adopted because what must be looked at is whether the challenged sentence is within the appropriate range and not how it compares with some other sentence which merely forms part of the applicable range. See R v Morgan (1993) 70 A Crim R 358. Nor were the errors that were identified in those cases apparent in the present case. 16 Finally complaint was made about the fact that the sentencing judge referred to several matters which are specified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 as being matters of aggravation. The checklist of such matters to which his Honour referred included the fact that the "offence involved the actual or threatened use of violence", the fact was "the offence involved the actual or threatened use of a weapon" and finally the fact that "the offence was committed in company". The submission was made that the sentencing judge fell into error in having regard to those considerations as being aggravating factors because it overlooked the injunction contained in the concluding words to ss (2) namely that "the court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". See R v Wickham [2004] NSWCCA 193; R v Cramp [2004] NSWCCA 264. I accept the submission that error has been thus established. 17 The question which then arises is whether, pursuant to s 6(3) of the Criminal Appeal Act 1912, the court is of the opinion that some other less severe sentence is warranted in law and should have been passed. The applicant's conduct was of considerable objective gravity. Each of the offences to which the applicant pleaded guilty, when considered on its own, fitted the profile of the typical case identified in Henry. It was there said that such a case should normally attract a penalty of between 4 and 5 years imprisonment, albeit that the case identified in Henry unlike the present one, assumed a late plea. Accordingly, the fact that there were seven such offences had to be brought into account. Each offence involved a degree of planning and an attack upon a vulnerable victim. The offences themselves took place over a not inconsiderable period of time. In those circumstances, notwithstanding the applicant's favourable subjective features I am not of the opinion that some lesser sentence was warranted in law and should have been passed. It follows that I am also not persuaded that the sentences imposed were manifestly excessive. I propose that leave to appeal should be granted and the appeal be dismissed. 18 BELL J: I agree. The order of the Court will be as Buddin J proposed.

R v Tarek Mohamadin

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