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District Court 27 February 2009

R v Almoustafa, Ali

[2009] NSWDC 217

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING ROBBERY LARCENY OF GOOD FROM VEHICLE ON FORM 1 VICTIM SALES STAFF OF LIQUOR OUTLET THREAT OF CONCEALED WEAPON

Citation: R v Almoustafa, Ali [2009] NSWDC 217
Court: District Court of New South Wales
Date: 27 February 2009
Judge(s): Nicholson SC DCJ

Background

The offender was released from police custody on bail at 1:55 pm on 6 April 2008. Within twenty-five minutes, he entered a liquor outlet on Enmore Road and proceeded to rob the sole staff member on duty, a 23-year-old employee, over a period of at least twenty minutes.

During the robbery, the offender used a combination of implied threats involving an alleged gang waiting outside, a suggestion of a concealed weapon, and repeated demands for cigarettes, alcohol, and cash. He ultimately left with approximately $1,500 in alcohol and cigarettes and $1,900 in cash. Before police arrested him later that afternoon, the offender also broke into a motor vehicle and stole property from it, damaging the ignition in the process.

The offender had a significant criminal history, including a prior term of imprisonment for being armed with intent to commit an indictable offence, assault convictions, drug-related offences, and a sentence for threatening a witness. At the time of the robbery, he was in breach of a 12-month good behaviour bond imposed in November 2007.

  • What was the appropriate head sentence and non-parole period for the robbery, having regard to its objective seriousness?
  • What discount should be applied for the guilty plea entered in the Local Court?
  • Whether special circumstances existed to justify a variation from the standard ratio between the non-parole period and the balance of term
  • How the Form 1 matter (larceny from a motor vehicle) should be taken into account
  • What weight to give the competing sentencing objectives of deterrence, rehabilitation, and community protection given the offender's history and personal circumstances

Decision

Nicholson SC DCJ assessed the robbery as a serious instance of the offence. Aggravating features included the extended duration of the ordeal, threats implying a concealed weapon, threats to bring associates into the store, a personal threat to the victim that he would be pursued if police were contacted, the fact that the offence was committed within minutes of the offender's release from custody on bail, and the breach of an existing good behaviour bond.

The court identified the offender's significant criminal history as a relevant factor, noting that general and personal deterrence had plainly failed on previous occasions. The court nonetheless acknowledged the offender's drug dependency as an underlying factor in his offending, and expressed some, albeit cautious, view about rehabilitation prospects. The Form 1 matter involving the motor vehicle theft was taken into account in arriving at the overall sentence.

The court determined a pre-discount head sentence of five years imprisonment. A 25 percent reduction was applied for the guilty plea, producing a sentence of three years and nine months. Special circumstances were found, based on the offender's need for drug rehabilitation in a community setting, justifying a non-parole period shorter than the statutory default proportion.

Orders Made

  • Convicted of robbery of Chung Chan on 6 April 2008 at Enmore
  • Total sentence of 3 years and 9 months imprisonment
  • Non-parole period of 2 years and 8 months, backdated to 6 April 2008, expiring 5 December 2010
  • Balance of term of 1 year and 1 month
  • Offender referred to the compulsory drug treatment program with a view to acceptance and compulsory treatment for drug abuse
  • Papers to be forwarded to the Drug Court forthwith
  • Larceny from motor vehicle taken into account on a Form 1

Key Takeaways

  • The District Court treated the extended duration of the robbery, the implied weapon threat, threats of associates, and a personal threat to the victim as significant aggravating factors that elevated the objective seriousness of the offence.
  • Committing a serious offence within minutes of release from police custody, and while subject to a good behaviour bond, was treated as a weighty consideration in assessing both objective criminality and the failure of prior deterrence.
  • A 25 percent discount for a guilty plea entered in the Local Court was applied in full, reducing a five-year head sentence to three years and nine months.
  • Special circumstances were found where an offender's need for drug rehabilitation in a community setting warranted a non-parole period that departed from the standard statutory ratio, enabling a longer post-release supervision period.
  • General deterrence remained a required sentencing consideration even where the sentencing judge expressed doubt about its practical effect on offenders of this profile, consistent with the principles in R v Cuthbert, R v Rushby, and R v Hayes.

Legislation and Cases Referenced

Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Rause (unreported, NSWCCA, 8 August 1992)

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 and 12 (good behaviour bonds)