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District Court 12 December 2008

R v Hussein TAOUBE

[2008] NSWDC 369

Assault & violenceDrugsTheft & property
CRIMINAL LAW SENTENCE FORM 1 ARMED ROBBERY ROBBERY IN COMPANY ADDICTION TO DRUGS

Citation: R v Hussein Taoube [2008] NSWDC 369
Court: District Court of New South Wales
Date: 12 December 2008
Judge(s): Berman SC DCJ

Background

The offender, a 32-year-old man with a prior criminal history, appeared for sentence on three separate offences involving armed robbery or being armed with intent to rob. All three offences were committed while the offender was motivated by drug addiction, seeking money to fund his drug use. The offences occurred on 17 April 2000, 9 March 2007, and 18 April 2007.

The most serious offence took place at a convenience store in Petersham, where the offender and an associate, both armed with knives, robbed a shopkeeper in the presence of his wife and their two young children, aged six months and three years. The other two offences involved armed robberies at a Tempe service station and a Pitt Street tobacco store, also carried out with knives.

The offender pleaded guilty to two matters in the District Court and had pleaded guilty in the Local Court to the remainder, being committed for sentence on those. A co-participant in the Petersham robbery, who had been sentenced separately for being an accessory after the fact, had received a suspended sentence of 18 months.

  • What sentence was appropriate for each of the three offences, having regard to their individual objective seriousness?
  • How should the sentences be structured and accumulated to reflect the principle of totality, ensuring the overall term was proportionate to the overall criminality?
  • Whether special circumstances existed to justify a variation in the standard ratio between the non-parole period and the head sentence.
  • How the principles of parity applied given a co-participant had been sentenced separately and more leniently.

Decision

The court identified the Petersham convenience store robbery as the most serious of the three offences. The presence of the shopkeeper's wife and two very young children, and the offender's decision to proceed with the robbery despite those circumstances, significantly aggravated the criminality. The court noted that the co-participant sentenced by Judge Walmsley had been dealt with for a different and lesser offence, on different facts, and that the parity principle did not require equivalent leniency here.

On the question of drug addiction, the court found it was not a mitigating factor in itself, but was relevant to prospects of rehabilitation. The court accepted that the offender was genuinely remorseful and that his presentation had improved after a period of custody without drug use. However, the court expressly declined to characterise his rehabilitation prospects as "good" or to conclude that re-offending was unlikely, given his history.

Special circumstances were found to exist, warranting a departure from the standard non-parole period ratio. Two factors supported this finding: the offender's need for supervised release to address his drug addiction, and the risk that he would serve his sentence on protection, potentially in harsher custodial conditions than the general prison population.

The court applied the principle of totality by structuring the three sentences as partially cumulative, ensuring no offence was effectively committed "for free," while keeping the overall sentence proportionate. Mental health issues, described as partly related to drug use, were taken into account both in reducing the individual sentences and in limiting the degree of accumulation, though the court emphasised they did not justify leniency.

Orders Made

  • For the offence of 17 April 2000 (armed with intent to rob, with Form 1 matters): non-parole period of 2 years from 20 April 2007; head sentence of 4 years.
  • For the offence of 18 April 2007 (armed robbery, Pitt Street): non-parole period of 2 years from 20 April 2008; head sentence of 4 years.
  • For the offence of 9 March 2007 (armed robbery, Petersham, most serious): non-parole period of 2 years from 20 April 2009; head sentence of 5 years.
  • Overall aggregate sentence: 7 years imprisonment with a 4-year non-parole period; eligible for parole from 19 April 2011.

Key Takeaways

  • Drug addiction is not a mitigating factor at sentencing, but the District Court confirmed it remains relevant to the assessment of rehabilitation prospects and can inform findings of special circumstances.
  • Where a co-accused has been sentenced for a materially different offence on different facts, the parity principle does not require the sentencing court to impose a comparable term on a more culpable offender.
  • Special circumstances justifying an extended parole period were found on two independent grounds: the offender's need for supervised post-release support to address addiction, and the risk of serving time on protection in harsher custodial conditions.
  • Partial accumulation of sentences was required to ensure each separate act of criminality, directed at a distinct victim, was reflected in the overall penalty, while the totality principle kept the aggregate sentence proportionate.
  • Mental health issues linked to drug use can support some moderation of sentence length and the extent of accumulation, but do not, of themselves, warrant a lenient outcome where the offending is objectively serious.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346 (principles relevant to sentencing for armed robbery)

Legislation:
- No specific legislation was cited in the judgment text. The Form 1 procedure referenced is a standard mechanism under NSW criminal procedure for taking additional offences into account on sentence without recording separate convictions.