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District Court 29 July 2008

R v Ahmad Kai ABOUCHAM

[2008] NSWDC 385

DrugsTheft & property
CRIMINAL LAW SENTENCE PLEA OF GUILTY EXTENSIVE CRIMINAL RECORD PARTICULAR NEED FOR PERSONAL DETERRENCE CUSTODIAL SENTENCE INEVITABLE

Citation: R v Ahmad Kai Aboucham [2008] NSWDC 385
Court: District Court of New South Wales
Date: 29 July 2008
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to one count of break and enter and commit a serious indictable offence under s 112(1) of the Crimes Act 1900, carrying a maximum of 14 years imprisonment. On 26 October 2006, he broke into an unoccupied residential property in Belmore, stealing consumer electronics and other personal items of modest value. Police identified him through DNA matching of blood he left at the scene, and he was not arrested until November 2007, over a year after the offence.

At the time of the offence, the offender was on parole for a prior break, enter and steal matter, and was also on bail for separate pending charges. His criminal record for break-and-enter offending dated back to age 18, and included a prior four-year sentence with a three-year non-parole period imposed by the same court in 2003. He had been in continuous custody since his arrest in November 2007, during which time he was also serving an unrelated sentence.

A forensic psychology report tendered on his behalf described a long history of illicit drug use beginning at age 14, escalating to intravenous heroin use from age 18, with past rehabilitation efforts producing only limited results. The report identified possible drug-related schizophrenia, entrenched drug dependence, and significant deficits in life management skills.

  • What custodial sentence was appropriate for a persistent break-and-enter offender who committed the offence while on parole and on bail?
  • What weight should be given to the offender's drug addiction, guilty plea, and the delay between offence and arrest?
  • Whether the offender should be referred to the Drug Court for assessment for a compulsory drug treatment order.

Decision

Cogswell SC DCJ held that a custodial sentence was inevitable given the offender's extensive record of similar offending and the fact that he was on conditional liberty at the time of the offence. The court identified a particular need for personal deterrence, applying s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, which requires prior convictions for similar offences to be treated as an aggravating factor.

The court assessed the appropriate starting sentence at approximately five to six years, before applying a discount of around 25 per cent for the guilty plea entered in good time. This reduced the sentence to four years imprisonment. The court backdated the sentence to 12 November 2007, the date of arrest.

The court declined to increase the sentence beyond the four-year term the offender had previously received, despite the general expectation that sentences escalate for repeat offenders. This was because of the delay between the DNA identification in March 2007 and the arrest in November 2007, and the relatively modest value of the items stolen. The offender's drug addiction was taken into account not as an excuse but as a factor indicating limited planning and as the evident driver of the offending.

On the question of rehabilitation, the court accepted that a referral to the Drug Court was warranted. It found there were grounds on which the Drug Court might consider the offender eligible for a compulsory drug treatment order, and made a formal referral under the Drug Court Act 1998.

Orders Made

  • Convicted of break and enter and commit a serious indictable offence contrary to s 112(1) of the Crimes Act 1900.
  • Sentenced to four years imprisonment, commencing 12 November 2007 and expiring 11 November 2011.
  • Non-parole period of three years, commencing 12 November 2007 and expiring 11 November 2010.
  • Referred to the Drug Court to determine whether the offender should be subject to a compulsory drug treatment order.

Key Takeaways

  • Under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, prior convictions for offences similar to those being sentenced are an aggravating factor requiring particular emphasis on personal deterrence.
  • A guilty plea resulting in a sentence reduction of approximately 25 per cent was applied where the plea was entered in good time and the offender cooperated.
  • Committing an offence while on both parole and bail was treated as a significant aggravating circumstance, reflecting that multiple courts had extended conditional liberty to the offender.
  • Drug addiction was treated as contextually relevant to the nature of the offending (indicating limited planning), but did not operate as a mitigating excuse.
  • The District Court retained the power to refer a sentenced offender to the Drug Court for assessment under the Drug Court Act 1998, even where a substantial custodial sentence had already been imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d)
- Drug Court Act 1998 (NSW) ss 6(2), 18(b)

Cases cited: None cited in the judgment.