R v Zabul

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60290/00 WOOD CJ AT CL GROVE J

WEDNESDAY 17 OCTOBER 2001 REGINA V ADRIS ZABUL Judgment 1 WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by Maguire DCJ on 12 May 2001 following his pleas of guilty to four offences of robbery in company. One further offence of the same kind was taken into account on a Form 1 in relation to the first count on the indictment. 2 The sentencing order was framed in the following way: "A. Count 1 - imprisonment for a term of six years and six months to date from 9 March 1999 expiring on 8 September 2005 with a non-parole period of three years and three months. B. Counts 2, 3 and 4 - imprisonment in relation to each for a fixed term of three years and three months to date from 9 March 1999 and to expire on 8 June 2002." 3 His Honour specified that he had imposed fixed terms for counts 2, 3 and 4, having regard to the nature of the sentence imposed for count 1. All sentences were to be served concurrently. FACTS 4 His Honour expressly adopted the statement of facts which had been prepared in relation to the five offences, each of which involved a robbery in company of console operators working at service stations in the northern districts of Sydney. Since there is no suggestion that his Honour erred in relying upon this document when assessing the objective criminality of the applicant, I will simply adopt it as a sufficient statement of the circumstances in which the offences occurred. 5 That statement of facts discloses: "Robbery of Caltex Normanhurst on 9 March 1999. At approximately 4 am on 9 March 1999 Naser Ghaderi and Amir Vojdani entered the Caltex Service Station, Pennant Hills Road, Normanhurst. Once inside the service station area the prisoners selected a packet of chips from the display. They then approached the console area where one produced a silver bladed knife, at that time the blade had not been unfolded. The operator, Durga Gutta, fearing for his safety, was pushed to the floor behind the counter by the prisoners. Ghaderi demanded that the till be opened and Mr Gutta reached towards the till, releasing it. The prisoners then removed the money from the till.

Mr Gutta was then taken into the office where the two prisoners were joined by the prisoner Wahidullah Ibrahim-Khel, who was armed with a block splitter. Ibrahim-Khel proceeded to smash the video surveillance cassette recorder with the block splitter. The video cassette recorder was then placed into a Glad garbage bag that the prisoners had brought with them.

On viewing a freestanding floor safe, the prisoners demanded that Mr Gutta open it, however he was unable to do so. The prisoners then placed the safe on a trolley and wheeled it from the office, before taking it out of the service station. The prisoner Ibrahim-Khel remained in the office, smashing various items with the block splitter. Using electrical cords and computer cables, the prisoner tied the hands of Mr Gutta behind his back, before leaving the store.

The prisoners left the service station and went to a white coloured Nissan Pulsar hatchback, registration UZT 829, that was parked by the prisoner Adris Zabul, who was also waiting in the vehicle. The prisoners placed a plastic garbage bag containing a quantity of cigarettes, taken from the service station, into the boot of the car, together with the video cassette recorder, also stolen from the store. The block splitter was placed on the floor in the rear of the car, and the floor safe was placed on the rear seat. The four prisoners then decamped from the area.

As a result of a number of armed robberies within the Ku-ring-gai local area, a police taskforce had been formed to investigate these matters. On 9 March 1999 officers from this taskforce were performing mobile surveillance duties in the vicinity of Pennant Hills Road, Thornleigh.

Some time after 4 am vehicle UZT 829 was observed by police and pursued along Beecroft Road, where it was stopped as it neared Epping. The occupants were arrested and the prisoner Adris Zabul was identified as driving the vehicle, the prisoner Ibrahim-Khel was in the front passenger seat, while the prisoners Ghaderi and Vojdani were in the rear of the car.

The vehicle was searched by police in the presence of the prisoners, and the following property of the service station was located: the surveillance video recorder; the surveillance video cassette; 28 cartons of cigarettes; seven packets of tobacco; six packs of matches; an amount of cash totalling $377.55 and the floor safe.

Police also located in the vehicle the block splitter, together with the silver bladed knife and a packet of Glad garbage bags similar to those used in carrying the property from the service station.

During the robbery Mr Gutta stated that he was fearful that the prisoners would hit him, because of the threats that they made towards him and would suffer injuries as a result.

On 5 March 1999 the BP service station, Sherwood Road, Merrylands was the subject of a robbery. At about 4 am two males entered the service station shop and asked for hot food. When the operator, Peter Lenardon, turned his back he was grabbed from behind and pushed towards the storeroom. The men proceeded to ask for the money and demanded that the register be opened. A threat was made that Mr Lenardon would be stabbed if he did not comply.

At this point a third male, the prisoner Ibrahim-Khel, entered the store carrying a block splitter, another said they had a shotgun. Mr Lenardon opened the till as requested and was pushed into a storeroom. Ibrahim-Khel said, 'Where is the video?' and he was told that it was locked in the office. Two of them then began to fill garbage bags with cigarettes from the shelves in the storeroom, while the third was heard banging with the block splitter. The men also filled their pockets with money found in the till in the storeroom. While this was occurring, Mr Lenardon was told to remain in the corner of the storeroom.

The men decamped and the attendant called police and then rang his employer at 4.30 am. At the same time as the robbery, police in a routine patrol saw a white Nissan EXA parked in Kenyon Road adjacent to the service station. They stopped and spoke to the driver, who was lying back in the seat, and he told them he was resting before driving home to Westmead. When police returned to the service station when called by the attendant, the Nissan had gone. The vehicle, owned by Adris Zabul, was not at home when police attended a short time later. When he was later interviewed, Zabul told police that he was in the car and was driving home to Westmead from Fairfield, but after the police spoke to him in the car, he then went to a friend's place at Merrylands. The service station attendant described the three men who robbed him as follows: 5'4", black T-shirt, long track pants, 20 years, short black wavy hair, baseball cap, medium build, olive skin, Lebanese appearance.

5'7", slim, short dark hair, baseball cap, dark track pants and white T-shirt, 20, olive complexion, Lebanese.

6'0", slim to medium, T-shirt, baseball cap, 20 years old and Lebanese.

Mr Lenardon later identified a photograph of Ibrahim-Khel as the robber with the axe.

Robbery of Caltex service station, Carlingford on 16 December 1998

On 16 December 1998 the Caltex service station at Carlingford was the subject of a robbery. At approximately 2 am the console operator, Mr Brian Williams, was packing the fridges in the store when he noticed the prisoner Adris Zabul and the co-offender standing outside the store. The men motioned to be let in and Mr Williams opened the door for them. As he did so, one of the men grabbed his upper arm and pulled him around, facing into the store. Zabul then grabbed him about the neck in a headlock type hold. The men forced Mr Williams to the floor before dragging him about to the console sales area.

One of the men then said, 'Open the fucking till, keep your head down, lift the tray'. Mr Williams did as he was told. However, there was only a small amount of cash there. The man then said, 'Where's the fucking money? Where's the fucking money? Open the safe.' He took the money from the till and Mr Williams replied, 'I'm only an employee, I can't.' The man then asked where the cigarettes were and Mr Williams told him that they were in the back storeroom.

The men dragged Mr Williams into the storeroom and one of the men said, 'Where are the cameras? Where's the fucking cameras?' Mr Williams replied, 'The place has just been taken over and they don't have any.' While Mr Williams was being held by one of the men, Zabul produced an orange bag from his pants, pulled his tracksuit arms over his hands and proceeded to walk along the shelves, scooping cigarette cartons into the orange bag as he walked along. The male holding Mr Williams then reached towards Mr Williams' back pocket and said, 'Give me your wallet.' Mr Williams showed him the wallet and said, 'Rob the company, don't rob me.'

At this point there was a conversation between the two robbers and Mr Williams was asked if the driveway was clear. Mr Williams replied, 'The paper man and the milko will be here, they're running late.' With that, the man holding Mr Williams threw him on the ground and slammed his foot onto his back, which winded him. He said, 'Stay there and you won't get hurt.'

Mr Williams heard the front door open and got off the floor and ran from the store. He noticed the men drive from the service station in a small red car, which he described to police as the same size as a three door Barina, about five to ten years old, with number plates which looked like TYY 389 or TVY 389.

Police inquiries revealed that Adris Zabul was the owner of a small red Daihatsu registration TYV 389. Further to this Zabul reported his vehicle stolen to police at 2.55 pm on 16 December 1998, stating that it was stolen between the hours of 12.30 am and 1 pm on that day.

Mr Williams gave the following description of the men involved in the robbery: Male one: Middle Eastern appearance; early to mid twenties, wearing light blue track suit top, dark track suit pants; Nike runners, dark coloured baseball cap - peak over his eyes. Height 6 ft; stocky build.

Other male: Middle Eastern; early to mid twenties; 5 ft 11; stocky build - heavier than the other. Wearing black track suit; white T-shirt; gold necklace and Nike runners.

On 23 March 1999 Mr Williams viewed an identification video and identified the prisoner Zabul as being a person involved in the robbery on 16 December 1998.

Robbery of Ampol service station, Dural on 14 December 1998.

On 14 December 1998 the Ampol service station, Dural was the subject of a robbery. At about 2 am the console operator, Mr Michael Avery, was on duty when he noticed a man standing near the hot dog machine. Mr Avery went to speak to the man when he was pushed in the chest, and told to go to the cash register. The man then grabbed him on the right upper arm and pushed him behind the console area. At this point Mr Avery noticed a second man, the prisoner Zabul, enter the store.

The man holding Mr Avery said to him, 'Open the register or I will kill you.' Mr Avery complied and the man took the money from the drawer. While this was happening Zabul came around the counter and kept saying, 'If you fuck with me, I'll kill you.' The other male asked if there was any more cash and when Mr Avery replied no, stated, 'If you're lying to me, I'm going to kill you.' He then demanded that Mr Avery open the other drawers around the console.

Mr Avery was then asked where the cigarettes were kept and he replied that they were kept out the back in the storeroom. He was then taken out to the storeroom and as he was pushed through the door, he noticed that the prisoner Zabul was holding a knife. He said to Mr Avery, 'If you don't do what we say, we will kill you.' Both men then proceeded to unload cigarette cartons from the cabinet into a green plastic garbage bag with yellow drawstrings. Whilst the prisoner Zabul was packing the cigarettes, he passed the knife to the co-offender, who was still holding Mr Avery. This man then told Mr Avery to get on the floor.

At this stage a customer entered the store and Mr Avery was told to go and serve them and not to do anything stupid or they would kill him. Mr Avery went out and served the customer who wanted to purchase petrol and required the pump to be activated. The co-offender then gestured for Mr Avery to return to the back room. When he returned the male asked where the video surveillance equipment was. Mr Avery replied that it was in the office and he was told to get the video from the video player. Again, another customer entered the store and Mr Avery was told to serve them. As he returned to the storeroom he heard them ripping out the video player, and when he arrived he saw it lying on the floor. Mr Avery was then told to wait under the table in the office until the men left the store. After about twenty seconds Mr Avery activated the alarm button and called the police.

Mr Avery was able to give the following description of the two men: First male: about 19-22 years old; taller - 5'9"; skinny/athletic build; face was thin, nose quite long and pointy, some acne scars, short hair, Mediterranean appearance. Wearing white baseball type cap; cream/grey shorts cut above the knee and a plain shirt - darker than the shorts. Second male: about 23-25, older than the tall guy; shorter, stockier - 5'7", bigger, stockier build; face fattish; short black hair; goatee with a moustache; rest of face clean shaven; Mediterranean appearance. Wearing track suit pants with three white strips down the side, long sleeve dark grey shirt, almost black, pocket on left side of chest. Both ears pierced with thick silver sleepers.

After Mr Zabul's arrest on 9 March 1999 police executed a search warrant on the prisoner's residence. During the course of the search a scrunched up video tape was found under the prisoner's bed. The tape was respooled and was revealed to be the video surveillance tape taken from the Ampol service station, Dural on 14 December 1998.

Robbery of Ampol service station, Chatswood on 22 February 1999.

On 22 February 1999 the Ampol service station, Chatswood, was the subject of a robbery. At approximately 5 am the console operator, Mr Ismail Patel, was on duty in the store and stocking the magazine racks when he was grabbed from behind and pulled towards the storeroom. As he was pulled, Mr Patel felt something hard press against his right hand side. Mr Patel began to struggle. However he stopped when he saw three other men walk into the store. As he was struggling the man holding him was yelling, 'Don't move or I'm going to kill you. I've got a pistol.'

Mr Patel was then dragged into the storeroom and the man holding him told him to sit down. The other three men then entered the storeroom and one of them asked Mr Patel how to open the till. When he replied that he did not know the man stated, 'Don't be silly, otherwise I will kill you.' He then leant forward and punched Mr Patel with his fist and took the glasses that he was wearing. The man again asked Mr Patel how to open the till stating that, 'otherwise we'll hit you'. Mr Patel then gave instructions on how to open the till.

One of the men then left the storeroom and moved into the service area of the store. When he returned Mr Patel observed that he had money in his hand. One of the men then asked whether the door from the storeroom led to the security system and Mr Patel replied, 'Yes'. He was then asked where the garbage bags were kept and told, 'Show me or else I'll kill you', by one of the men. Mr Patel was also asked where the video was, however he replied he did not know.

At this point the man who had hold of Mr Patel let go and then three of the men commenced hitting the door with their shoulders until the door broke open. While this was occurring, a customer pulled into the outside area of the service station and the men allowed Mr Patel to activate the petrol dispenser for the customer. The customer then entered the store and Mr Patel served him. Three of the men waited in the storeroom while the fourth stood near the counter, however he was far enough away for Mr Patel to tell the customer, Mr Damien Macey, that he was being robbed. The customer replied that he would get the police and left the store.

Another customer then entered the store and asked for the balance on his card to be checked. While this was occurring the three men in the storeroom came into the main store area, all were carrying garbage bags which were full. The four men then left the store and Mr Patel activated the store alarm. Along with the cash that was taken from the store, was a large quantity of cigarettes and the videotape from the security video.

Mr Patel gave the following description of the men responsible for the robbery: Male 20 to 25 years, 6'0", thin build, black curly, short hair, Middle Eastern, wearing black trousers and dark blue shirt.

The one in charge as: 25 years, medium to large build, 5'6" tall, black short hair, Middle Eastern, black trousers, white T-shirt.

Two other males about 25 years, about 5'10" tall, black short hair, black trousers.

The customer, Damien Macey, described the men he saw at the service station as: 6'0" tall, solid build, Adidas type track suit, Mediterranean, short black curly hair, clean shaven. Shorter, wearing black oversized trousers, light hair, less Mediterranean, both 18 to 22 old.

On 29 March 1999 Mr Macey viewed an identification video and identified a photograph of the prisoner Adris Zabul as a person in the store on 22 February 1999." 6 The criminality of the applicant, it may be observed, spanned a period between 14 December 1998 and 9 March 1999. When sentencing the applicant his Honour also dealt with Naser Ghaderi and Wahidullah Ibrahim-Khel, who had respectively pleaded guilty to four counts of robbery in company on an indictment, and one count on a Form 1; and five counts of robbery in company on an indictment and two offences on a Form 1. 7 The offences to which the other offenders pleaded guilty were the same kind as those committed by the applicant, but only one of them was committed by Ghaderi in company with the applicant and only two were committed by Ibrahim-Khel in company with him. 8 The effective overall sentencing order for each offender was the same. That circumstance gives rise to the sole ground of appeal - namely that there was a disparity in sentencing such as to engender a legitimate sense of grievance in the applicant. 9 Otherwise it is clear that his Honour in a carefully considered and very thorough statement of reasons: (a) properly weighed the objective criminality involved in offences of the kind here involved, as well as the need for a significant element of general deterrence in accordance with the principles enunciated by this Court in decisions such as Regina v Thwaites (Unreported, NSWCCA 9 October 1993); (b) gave proper credit for the pleas of guilty and contrition expressed by the applicant; (c) carefully and fairly weighed his subjective circumstances and his prospects of rehabilitation; (d) properly found special circumstances to exist, which were then reflected in the adjustment of the statutory ratio between the non-parole period and the head sentence; and (e) appropriately reflected the totality of the criminality taken into account in relation to the first count in accordance with the decision of this Court in Regina v Morgan (1993) 70 ACrimR 368. 10 Standing alone there could be no possible argument to the effect that the sentences imposed upon the applicant were outside the proper range of sentencing discretion available for offences each of which carried a potential maximum penalty of imprisonment for twenty years. Those offences were particularly serious and they were potentially very frightening for the victims. 11 While in the case of each offender the offences were committed in order to feed a drug habit, this provides no excuse whatsoever for what occurred. His Honour appropriately remarked in this respect: "The needs of drug users which they satisfy by preying on shop assistants are of little interest to the victims. Their lives are so often seriously affected by their terrifying experiences. Those who seek to earn a modest income by manning service stations and like facilities at night are entitled to think that judges will act responsibly when dealing with those who terrify and rob them. They have a real interest in the operation of the criminal justice system and its treatment of those who rob service stations and as to whether they are to be protected by deterrent sentences. The community generally has a legitimate expectation that sentences will be imposed which will act as a deterrent to other would-be robbers." 12 With those remarks, I would express my wholehearted agreement. As I have observed, the sole question alive is that of parity. 13 In that regard it may be first noted that his Honour expressly found that there was "no significant difference in the criminality" of the three young men standing for sentence. 14 The parity argument advanced by the applicant, in substance, involves the following propositions, which, it was submitted, leave the applicant with a legitimate sense of grievance: "A. He was dealt with for five offences while Ibrahim-Khel was dealt with for six offences and Ghaderi faced sentence for seven offences;

B. He had no prior criminal record, whereas Ibrahim-Khel, who was said to have a record of no great significance, was on a three year bond for a series of driving offences including an offence of high range PCA; and Ghaderi also had a criminal history, although it similarly was assessed to be 'minor and of no real significance to the sentencing exercise';

C. At the time of sentencing the applicant was aged twenty-one years, Ibrahim-Khel was aged twenty four and Ghaderi was aged twenty;

D. Subjectively, each of the applicant and Ibrahim-Khel had been born in Afghanistan and had drug dependencies which they had begun to address, while Ghaderi had similarly come to Australia as a refugee and had a problem with heroin." 15 The relevant question for consideration is whether, when comparing the sentence of the applicant with the sentences of his two co-offenders, the applicant could be properly left with a "justifiable sense of grievance", as that expression has been explained in Lowe v The Queen (1984) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295. 16 As Sully J, with whom Newman J agreed, said in Regina v Doggett (Unreported NSWCCA 24 March 1997), in order to succeed on appeal:

"what has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved but that a reasonable mind looking overall at what has happened, would see that the offender's grievance is justified". 17 That sense of grievance, it was submitted would be evident to a reasonable mind looking at what had occurred, once it was appreciated that: A. Ibrahim-Khel was older than the applicant, had committed six offences and was on a bond, a circumstance recognised as an aggravating factor (see Regina v Readman (1990) 47 ACrimR 181); B. While Ghaderi was younger, he was being dealt with for two more offences than the applicant and he did not have a clean criminal record. 18 Despite the cogent and careful submissions of Mr Button of counsel for the applicant, I am not persuaded that this submission has been made good. In Regina v Hoole (Unreported NSWCCA 17 March 1998), Hunt CJ at CL said:

"Where two or more offenders are sentenced in relation to multiple offences (whether by the same or different judges) and where they are co-offenders in relation to some but not to all of the multiple offences for which each was sentenced, there is little if any value in attempting to compare the individual sentences imposed upon the different offenders in relation to the same offence." 19 Mr Button sought to distinguish that proposition by reference to the fact that his Honour was directing his attention particularly to individual sentences with the consequence, so it was submitted, that the proposition was of limited, if of any value, where there were a series of offences being dealt with upon a totality basis. There is some force in that submission, however, it is not to my mind persuasive. 20 The same proposition does apply, to my mind, where there are a series of different offences, and where the offenders involved fulfilled different roles in relation to each of them. In a case such as the present, where there was a multiplicity of offences, with each offender performing a different role, it would involve a somewhat pointless, if not hypothetical exercise to attempt a weighing process in relation to their individual culpability for each offence. 21 At the end of the day, what a sentencing judge must do is to regard the matter in a global way, taking into account the objective and subjective circumstances present, and come to a conclusion in relation to the criminality of the individual offences involved. 22 In the present case I am satisfied that this is precisely what his Honour did and it was that to which his Honour referred when observing that the criminality of the individual offender was of a similar degree. 23 Moreover, in my view, when offenders are involved in a series of offences of this type, there is not necessarily any significant difference objectively between the position of an offender who carried out five such offences and one who committed, for example, eight such offences. What was more material, in my view, was the fact that the applicant offended over a longer period, that is, between 14 December 1998 and 9 March 1999, while Ibrahim-Khel's offences were confined to a period of approximately one month, between 4 February 1999 and 9 March 1999; and those of Ghaderi were confined to a period of six weeks, between 24 January 1999 and 9 March 1999. 24 The one matter which I accept does call for closer reflection is the fact Ibrahim-Khel was subject to a bond and did have a worse record than the applicant. That clearly was a difference of importance which would have been of considerable significance had the offences for which it had been imposed been of the same genus as those for which he and the applicant stood for sentence before his Honour. 25 A counterbalancing consideration in this case, it seems to me, is the circumstance that the applicant had a personal experience of being the victim of an armed robbery, which he acknowledged had been an occasion of great trauma for him. To deliberately offend against others in a similar way, after having had this experience and within a matter of days of it, was quite inexcusable and a circumstance which, in my view, disentitled him to much in the way of leniency. 26 At the end of the day, I am of the view that to intervene in this case would result in a sentence that would be manifestly lenient, and one that would not be reflective of the significantly serious objective circumstances involved. In that regard, counsel did accept that to intervene would produce a lenient sentence, although he argued not one which would be manifestly lenient. That was a fair concession on his part. However, I think it understates the consequence of intervention. 27 In this regard it is accepted that the doctrine of parity is not to be applied so as to require the imposition of an inadequate sentence (see Regina v Pritchard and McDonald (Unreported NSWCCA 22 April 1993). In Regina v Steele (Unreported NSWCCA 17 April 1997) Simpson J, in declining to reduce a sentence by reason of parity said:

"The frequently cited passage from the judgment of Mason J ( Lowe ) is not authority for the proposition that, in any case where such disparity is shown, a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to do so."

28 Although I am not convinced the applicant is entitled to entertain a sense of grievance of any great magnitude, quite independently of that conclusion, I am satisfied that an application of this principle is decisive. To reduce the sentences here imposed would be an affront to justice, particularly having regard to matters discussed in the guideline judgment in Regina v Henry (1999) 46 NSWLR 346. 29 I would accordingly grant leave to appeal but would dismiss the appeal. 30 GROVE J: I agree. 31 WOOD CJ AT CL: The order of the Court will therefore be as I propose. **********

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