R v Youseff

R v Youseff - [2025] NSWSC 125 - NSWSC 2024 case summary — Zoe

[7]

The evening of Sunday 29 November 2020

On the evening of 29 November 2020, Mr Youseff messaged Ms Jones, stating that he was going to attend Ms Smith's home and see Ms Smith that evening. He enquired as to whether Ms Smith had any weapons. Ms Jones told Mr Youseff that Ms Smith had a pickaxe.
That night, Ms Smith and Mr Salameh were at Ms Smith's granny flat using drugs and recording Snapchat videos.
Between 11:30pm on Sunday 29 November 2020 and 12:47am on Monday 30 November 2020, and 1:46am and 2:30am on 30 November 2020, Mr Youseff was captured on CCTV in his Toyota Camry conducting drive-bys of Ms Smith's residence. CCTV captured Mr Youseff's car driving past Ms Smith's residence eight times.
At around 2:35am, Mr Youseff and another man forcefully entered Ms Smith's granny flat by kicking in the locked front door for the purpose of intimidating Ms Smith in respect of the outstanding drug debt. At the time, Mr Youseff held a loaded black long shotgun, likely a 12-gauge Winchester 00/SG shotgun [2] . Mr Youseff and the other man were wearing all black, including gloves, and had their faces covered.
Mr Salameh moved towards them, failing to comply with the direction from one of the men not to approach. Mr Youseff fatally shot Mr Salameh from close range in the right shoulder and right thigh. Mr Youseff and the other man then fled the scene, leaving in Mr Youseff's car.
Ms Smith made a call to Triple-0 from her phone, after which the police and then an ambulance quickly arrived. When the paramedics entered the granny flat, they observed police performing chest compressions on Mr Salameh, and pressure being applied to the wound on his right thigh. Paramedics applied a tourniquet to the right thigh, and packing was applied to the wound on the shoulder. Defibrillation pads were also applied to Mr Salameh's chest, but defibrillation was not performed as paramedics formed the view that he had suffered an unsurvivable injury. Paramedics confirmed the death at 3:00am.
An expert pathologist who later examined Mr Salameh's body concluded that he had sustained two shotgun wounds, one to the right shoulder and one to the leg. He died from those combined shotgun wounds, although each of the wounds were capable of causing his death.
The entry wound for the shoulder was on the back and top of the right shoulder, angled downwards, right to left at an approximate 45 degree angle. There was no exit wound. The shot pellets had spread throughout the body with many passing through the right lung, then into the heart, spine and other parts of the body.
The entry wound for the right thigh was on the front, with the exit wound at the back of the right thigh. The projectiles caused a complex fracture of the femur and caused disruption to the distal femoral artery (the largest blood vessel in the upper leg) and vein.

[10]

Objective seriousness of criminality

The intentional shooting of another person, at close range, with a shotgun, is clearly a truly grave offence. It occurred when the victim, Mr Salameh, was at the home of his girlfriend, in the early hours of a Monday morning, where they were relaxing in private. Mr Youseff gained access to this home by violent means, entering through a locked door, fully disguised. The experience would have been terrifying.
However, I accept that Mr Youseff did not attend Ms Smith's granny flat intending to kill or cause anyone grievous bodily harm. Rather, Mr Youseff's intention in coming into the granny flat was for the purpose of intimidating Ms Smith in relation to the outstanding drug debt of $1,500. I accept that the intention either to kill or to cause grievous bodily harm was only formed at the time Mr Salameh disobeyed the direction from one of the men not to move, just shortly before the discharge of the firearm. I also note that Mr Youseff attended the granny flat with a phone subscribed in his own name, and driving a car registered to him. Although fully disguised and wearing gloves, this was otherwise not well-planned, sophisticated offending.
The Crown contends that I should find beyond reasonable doubt that Mr Youseff intended, at the time of or shortly before the discharge of the firearm, to kill Mr Salameh. The Crown submits that the only reasonable inference available from the evidence that the shotgun was discharged twice from a short distance, striking Mr Salameh in the shoulder and the thigh, is that Mr Youseff aimed the shotgun at, or in the direction of, Mr Salameh and thereby intended to kill him.
Mr Stratton SC on behalf of Mr Youseff urges that the Court should not find that Mr Youseff had an intention to kill but rather, should find his intention was to cause him grievous bodily harm. Mr Stratton SC contends that if there had been an intention to kill, Mr Youseff would have aimed at Mr Salameh's head or the centre of the torso, which was not where Mr Salameh was shot. It is further contended that Ms Jones reported that Mr Youseff said to her that he had "hurt him", along with the words "shot in the leg", which indicated that at the stage these words were said, he did not know Mr Salameh had been killed.
Taking into account Mr Stratton SC's salient submissions, I cannot be satisfied beyond reasonable doubt that at the point that Mr Youseff shot Mr Salameh he intended to kill him. Rather, I find that he intended to cause him grievous bodily harm. This was designed to be an exercise in intimidation of Ms Smith (and perhaps also a plan to rob) which went drastically wrong, and which fatally escalated because of the decision by the then 19 year old Mr Youseff to arm himself with such a dangerous weapon.
The Crown submitted that the objective seriousness of this offence falls in the mid-range of offences of this type. I agree that this is a grave example of murder which can properly be characterised as falling within the mid-range of offences of this type.

[11]

Section 21A Sentencing Act aggravating factors

I take into account that the offending involved the use of a weapon (Sentencing Act, s 21A(2)(c)). However, as acknowledged by both parties, and as observed by me previously in R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057 at [85]-[86], the presence of a weapon for an offence of murder is unlikely to have much effect on the objective seriousness of the offending by that fact alone.
In this matter, the use of a shotgun (just prior to the shooting because of its intimidating appearance, and at the time of the shooting because of the noise and rapid discharge of the ammunition when fired) is likely to have increased the fear felt by Mr Salameh. As pointed out by Mr Stratton SC, this may well have been tempered by Mr Salameh's intoxication at the time, the high level of which is illustrated, for instance, by Mr Salameh approaching the intruders in defiance of a direction not to move. In my view, the use of the weapon in this case increases the objective criminality of the offending, albeit only to a limited extent.
Given Mr Salameh was shot twice, with a shotgun, within the confines of a modest sized granny flat, with Ms Smith in the vicinity when he was shot, I am of the view that this involved a grave risk of death to Ms Smith (Sentencing Act, s 21A(2)(ib)). Mr Stratton SC acknowledged such a risk but contended the risk was limited given the evidence indicated that Ms Smith was not immediately behind the deceased. I do not accept that submission. In my view, given there were two firings of the weapon, with dispersal of shot in a confined space, the risk was substantial and not limited due to where Ms Smith was standing.
Mr Youseff has a criminal history (Sentencing Act, s 21A(2)(d)) which disentitles him to leniency, albeit he had never been in custody before his arrest for this offence. The criminal history is also relevant to the sentencing purposes of retribution, deterrence and protection of the community. Although his history is limited, it includes a previous conviction for a stalk/intimidate offence in 2019 (a serious personal violence offence for the purposes of s 21A(2)(d)), and an aggravated break enter and commit serious indictable offence, namely intimidation (knowing persons present) committed on 9 October 2020, less than two months prior to the current offence ("the October 2020 offence"). The facts of the October 2020 offence were tendered in these sentence proceedings.
The October 2020 offence involved Mr Youseff driving two unknown men in his car to the targeted home, with the two other men wearing gloves and a balaclava and armed with a sniper style firearm and a shotgun. Whilst Mr Youseff stayed in the car, the two men broke into the home, tied up and intimidated the residents and stole several items including a car. The facts make it clear that Mr Youseff did not enter the premises with the two men and it could not be proved beyond reasonable doubt that Mr Youseff knew about the existence of the firearms. He was sentenced for the October 2020 offence on 15 March 2023, and received an Intensive Correction Order of 10 months and 10 days. It can be noted that as he was bail refused in relation to the present offence, he did not serve any period of the Intensive Correction Order in the community.

[12]

Subjective and other considerations

Mr Sam Albassit, Psychologist, interviewed Mr Youseff on 21 January 2025 for over an hour via audio-visual link. He had previously interviewed Mr Youseff on 21 February 2023. He had also been provided with Crown material including the Crown facts document and Mr Youseff's criminal and custodial history. He was also provided with two letters from Mr Youseff's paediatrician from 2008. I note that Mr Albassit was the subject of cross-examination by the Crown, and ultimately some parts of his report were not pressed by Mr Stratton SC.
The following background information was obtained from Mr Albassit's evidence as well as evidence by way of affidavits from Mr Youseff's mother and sister.
Mr Youseff is currently 24 years old. He has two older sisters and a mother to whom he is very close. He also has a father but since the age of about six has had little contact with him, and no contact since he has been in custody. His parents were born in Iraq and fled that country for New Zealand because of the war. Mr Youseff was born in New Zealand, as was one of his sisters. They all came to Australia as refugees when Mr Youseff was two years old.
Mr Youseff had a troubled and traumatic upbringing while his parents lived together. His father was extremely violent and abusive towards his mother, himself and his sisters. He also controlled the finances, although only Mr Youseff's mother earnt income. I will not detail the extent of the violence, suffice to say it was extreme and terrifying for everyone, including Mr Youseff when he was a young child. Mr Youseff's mother finally left her husband, taking the children, when Mr Youseff was about six years old. A paediatrician who saw Mr Youseff as a seven year old noted his aggression and stated: "His whole problem stems from domestic violence he was exposed to and a domestic violence episode that resulted in his father being put into jail in about October last year."
Mr Albassit also set out that Mr Youseff was sexually assaulted at primary school, and that he attended multiple schools including behavioural schools from Year 4 onwards. He was expelled or suspended from nearly every school he attended. His poor attendance and behaviour at school was such that he repeated Year 10 and was then expelled for poor and disruptive behaviour.
At 14 years old, Mr Youseff experienced another traumatic event in that he was pulled into a car and held against his will while someone tried to stab him with scissors. He managed to escape before he was seriously hurt.
Approximately two months after that event, he was attacked by a group of men and savagely beaten. At this time, he was associating with an anti-social crowd, and began using illicit drugs, starting with cannabis. By the time he was 16 years old, he was using cocaine.
After leaving school, he was employed in a variety of roles, including in the electrical field, as a removalist and as an National Broadband Network contractor. He was unable to maintain stable employment, partly because of the sporadic nature of the work and partly because of the COVID-19 pandemic.
At around the age of 18, he was involved in a major motor vehicle accident and was injured, remaining in hospital for a week following emergency surgery. Around this time, his illicit substance use markedly increased and he used cannabis and cocaine on a daily basis. He also experimented with ice and prescription medication (Valium and Endone).
Mr Albassit was not qualified to formally diagnose Mr Youseff but was of the opinion, and I accept, that his symptoms are consistent with the criteria in the DSM-5 for Post Traumatic Stress Disorder ("PTSD") and Substance Dependence Disorder.
Mr Albassit opined that Mr Youseff would benefit from ongoing therapy to address his ongoing psychiatric and psychological issues, and to help him to remain abstinent from illicit drugs. As to his custodial experience, it was Mr Albassit's view that Mr Youseff would be more vulnerable, due to his conditions, to the effects of stress in the jail environment and/or the effects of being "stood over". He had sometimes spent up to 18 hours a day in lockdown which was also harmful to his mental health.

[13]

Moral culpability

Whilst acknowledging that I cannot take into account self-induced intoxication as a mitigating feature (Sentencing Act, s 21A(5AA)), there is an important distinction between using such intoxication as a mitigating feature generally and using it to reduce the offender's moral culpability as part of a general mix of factors which are intrinsically connected - in this case Mr Youseff's early exposure to extreme domestic violence and the maladaptive behaviours flowing from that exposure, which in turn led to learning difficulties and poor educational outcomes. As recognised in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] and as expressed eloquently by Simpson J in R v Millwood [2012] NSWCCA 2 at [69]: "[…] I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility […]"
The Crown has conceded that Bugmy factors should be recognised in this case. Further, I also acknowledge Mr Youseff was only 19 years old when he committed the offence, and I accept, as stated in the authorities, that emotional maturity and impulse control develop progressively and may not be fully developed until the early to mid-twenties: Carreno v R [2023] NSWCCA 20 at [69] - [70].
Whilst this offence and the circumstances leading up to it are undoubtedly very serious, I must note that there was no significant planning or signs of mature decision making in the carrying out of the shooting of Mr Salameh. In my view, Mr Youseff's youth, his early exposure to extreme domestic violence, his behavioural difficulties and disrupted schooling, as well as other traumas from which he suffered, affected his capacity to exercise good judgment and to make pro-social choices. As such, I find that Mr Youseff's moral culpability for the offending is reduced.

[14]

Other matters

I take into account in Mr Youseff's favour the manner in which the trial was conducted by his counsel which facilitated the course of justice (Sentencing Act, s 22A).
I also take into account that the factors which have led me to reduce Mr Youseff's moral culpability are such that general deterrence should be given less weight in the sentencing exercise. On the other hand, and balanced against this, without appropriate and effective therapy, Mr Youseff is likely to have a continued problem in conducting himself in a lawful manner. Accordingly, on his release, absent meaningful intervention, he may present more of a danger to the community. This means that specific deterrence has a greater part to play in the overall sentencing exercise.
I take into account Mr Youseff's past conditions of custody, some of which was spent in protective custody with some periods of extensive lockdown, and that his past and future custody is made somewhat more difficult by his PTSD.
In considering his prospects of rehabilitation, I note that Mr Albassit opined that Mr Youseff has positive prospects of rehabilitation based on his willingness to engage during the assessment. Further, Mr Stratton SC also submits that the Court would find he has good prospects of rehabilitation based on his relatively minor prior criminal record and his youth. He also notes that he has strong support from his mother and sisters. In my view, while the ongoing support of his mother and sisters is positive, it can also be noted that Mr Youseff has consistently had such support, and he was living at home at the time of this offending. I also note that there is no evidence of remorse. I am also mindful that where there are lengthy terms of imprisonment, the prospects of rehabilitation may well take on less significance.
Notably, however, as already observed, Mr Youseff was only 19 years old when the offence was committed. It is to be hoped that the combination of his family support, his present predicament and his growing maturity may bring home to him his need for therapeutic intervention. In all the circumstances, I accept that if he were able to obtain meaningful therapy and continue his positive associations with his supportive family, he may have some real prospects of rehabilitation. However, I note again, in cases such as this involving lengthy terms of imprisonment, prospects of rehabilitation take on less significance.
I accept Mr Youseff's submission that I should make a finding of "special circumstances" under s 44(2) of the Sentencing Act on the basis that this is his first full-time custodial sentence and that his conditions of custody have been, and will be, additionally challenging. I am also of the view that a longer period on parole would be beneficial to Mr Youseff and to the community. This would allow Mr Youseff to benefit from additional supervised assistance to help him live a productive drug-free life.

[15]

Victim impact

In the course of the sentencing proceedings, the Court received a victim impact statement from Mr Salameh's father, Mr Adel Salameh. It was read by a volunteer.
Pursuant to s 30E(3) of the Sentencing Act, I consider that it is appropriate to take this statement into account on the basis that the harmful impact of the offending on Mr Salameh's family is an aspect of the harm done to the community. The victim impact statement has also allowed the Court to obtain a better understanding of Adnan Salameh and how deeply his death impacted his family and loved ones.
Mr Adel Salameh powerfully set out that his son's murder has shattered his life and the lives of every member of his family, with every day since his death a struggle and their pain is beyond words. Although Adnan Salameh faced challenges towards the end of his life, he was, at his core, a beautiful, intelligent and eloquent person who cared deeply for his family and those around him. He was a young man with potential, strength and the will to overcome his hardships.
The impact on Adnan Salameh's mother, Najah, has been especially profound. She has fallen into a deep sadness, barely able to eat, and has lost a significant amount of weight. Both Adel and Najah Salameh experience overwhelming loneliness and suffer from insomnia. They are haunted by memories and the painful reality they will never see their son again. Their health is significantly affected.
Adnan Salameh's absence has left a void for the whole family, and there is profound sadness in knowing the younger generation will never truly know him and will never experience the kindness, warmth and laughter that he brought into every room he entered.
The loss of Adnan Salameh is even more unbearable because, ten years earlier, Adel and Najah Salameh also lost their eldest son to a health condition.
I am acutely aware that no mere words, nor the sentence I impose, can mitigate the loss of Adnan Salameh's parents and wider family, nor provide them any comfort. But it is important that the impact of the offender's crime upon the victim's loved ones be recognised and never forgotten. On behalf of the Court, I extend my sincere condolences.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Youseff

Legislation Cited (4)

(Crimes Act 1900(NSW)

Crimes Act 1900(NSW)

Crimes (High Risk Offenders) Act 2006(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Cases Cited (16)

General sentencing principles

In making any findings of fact, those facts must be consistent with the jury's verdict. If I make a finding of fact adverse to Mr Youseff, I must be satisfied of that fact beyond reasonable doubt. If I make a finding of fact favourable to Mr Youseff, I must be satisfied of that fact on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. In sentencing Mr Youseff, I must apply the purposes of sentencing established at common law and as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act").
The conduct must be denounced, and Mr Youseff must be held to account and punished appropriately. The Court must recognise the harm done to the victims and to the community. The sentence must deter Mr Youseff, as well as others, from engaging in this type of conduct. The protection of the community is also an important consideration. Further, it is important, both for Mr Youseff and the community, that the sentence should promote his rehabilitation to the extent it is appropriate. As for all sentencing exercises, some of the factors pull in different directions.
The offence of murder carries a maximum penalty of life imprisonment (Crimes Act 1900 (NSW), s 19A). A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence (Sentencing Act, s 61(1)). The Crown Prosecutor did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate.
A standard non-parole period of 20 years for the offence of murder has been specified by the legislature (Sentencing Act, s 54A).
The maximum penalty and the standard non-parole period are both important statutory guideposts which need to be kept in mind when I consider all of the factors relevant to the sentencing task, assess their significance, and then determine the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] - [27]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
Murder involves the taking of human life. Any sentence must reflect the profound seriousness of this offence in light of the maximum penalty of life imprisonment which has been prescribed by our parliament on behalf of our community. In this case, the life of Adnan Salameh was taken. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case and the particular circumstances of the offender.

[2005] HCA 25

(2013) 249 CLR 571

(2005) 228 CLR 357

(2011) 244 CLR 120

(1999) 199 CLR 270