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District Court 28 September 2006

R v Yousif

[2006] NSWDC 98

Theft & propertyFirearms & weapons

Citation: R v Yousif [2006] NSWDC 98
Court: District Court of New South Wales
Date: 28 September 2006
Judge(s): Conlon SC DCJ

Background

The offender, an 18-year-old male, pleaded guilty to four counts of armed robbery and asked the court to take into account a further four armed robbery offences on a Form 1 schedule. All eight offences were committed over a three-week period between 26 June and 19 July 2005. The targets were service stations and a convenience store, with the offender typically jumping counters while armed with a knife, demanding cash and cigarettes, and acting alongside co-offenders including a juvenile.

The offender had arrived in Australia as a refugee from Iraq in 1996 following the execution of his father by Saddam Hussein's regime. His background included significant childhood trauma, disrupted schooling, early workforce entry, and exposure to renewed conflict during a return visit to Iraq in 2003 to 2004. He had no prior convictions other than traffic matters.

The total value of cash and goods taken across the four indictment counts exceeded $17,000. CCTV footage and the offender's own police interview admissions provided strong Crown evidence. He had been in custody since 22 July 2005.

  • What sentence was appropriate for four counts of armed robbery, taking into account the Henry guideline requiring full-time custody absent exceptional circumstances?
  • What discount should apply for the guilty plea, and to what extent did genuine contrition provide additional mitigation?
  • Whether "special circumstances" existed to justify adjusting the balance between the non-parole period and the balance of the sentence.
  • How the principles of totality applied across the four counts and the Form 1 matters.

Decision

The court applied the guideline in R v Henry (1999) 46 NSWLR 346, confirming that full-time imprisonment is required for armed robbery offences absent exceptional circumstances. The fact that the offender acted in company was identified as an aggravating feature, consistent with The Queen v De Simone (1981) 147 CLR 383, which limits the use of uncharged aggravating circumstances in sentencing. The court found that general and specific deterrence were clearly engaged.

On mitigation, the court accepted that the offender's guilty plea attracted a 25 per cent discount. Over and above that discount, the court found genuine contrition and remorse demonstrated through both a personal letter (Exhibit C) and oral evidence at the sentencing hearing. Together, these factors produced a total mitigation of approximately one-third.

The court found special circumstances within the meaning of the relevant sentencing legislation, citing the offender's age (18 at the time of the offences), his good prospects for rehabilitation, and the recommendation of a psychologist (Ms Seidler) for ongoing counselling following significant trauma from exposure to war in Iraq. This finding allowed the court to reduce the non-parole period relative to the overall sentence beyond the standard ratio.

Applying the totality principle across all counts and the Form 1 matters, the court arrived at an effective sentence of four years and three months with a non-parole period of 21 months. The court also recommended the offender's admission to the Young Offenders' Program, consistent with the psychologist's report.

Orders Made

  • Counts 1 and 2: convicted and sentenced to fixed terms of 18 months imprisonment, commencing 22 July 2005.
  • Counts 3 and 4: non-parole period of 18 months commencing 22 October 2005 and expiring 21 April 2007, with an additional term of two years and six months expiring 21 October 2009.
  • Form 1 matters taken into account in respect of count 4.
  • Effective sentence: four years and three months, with a non-parole period of 21 months.
  • Recommendation for admission to the Young Offenders' Program.

Key Takeaways

  • Under the Henry guideline, full-time custody is the required outcome for armed robbery offences absent exceptional circumstances, and acting in company constitutes a recognised aggravating factor.
  • A guilty plea discount and a separate allowance for demonstrated genuine contrition can operate concurrently, producing a combined mitigation of around one-third where both elements are clearly established on the evidence.
  • Special circumstances justifying an extended additional term (that is, a longer period on parole relative to the non-parole period) can be found where a young offender presents with good rehabilitation prospects and documented psychological needs arising from serious trauma.
  • The District Court applied the totality principle to structure the sentences across multiple counts so that the aggregate penalty remained proportionate to the overall criminality, rather than accumulating each count without regard to the combined effect.
  • Refugee background, childhood trauma, and exposure to armed conflict do not displace the need for full-time custody in cases of serious violent offending, but they remain relevant subjective factors that can moderate the length of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 22

Cases
- R v Henry (1999) 46 NSWLR 346
- The Queen v De Simone (1981) 147 CLR 383
- R v Sharma (2002) 54 NSWLR 300
- R v Ponfield (1999) 48 NSWLR 327
- R v R [2000] NSWCCA 163
- R v Thomson and Houlton (2000) 49 NSWLR 383