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District Court 7 August 2009

R v Youssaf SARAYA

[2009] NSWDC 280

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ROBBERY WITH A DANGEROUS WEAPON FIREARMS FORM 1

Citation: R v Youssaf Saraya [2009] NSWDC 280
Court: District Court of New South Wales
Date: 7 August 2009
Judge(s): Berman SC DCJ

Background

The offender, a man born in 1984, participated in an armed robbery at a Sydney service station on 22 January 2008. He and three others targeted a Chubb security van attending to fill an ATM with cash. The group was armed with handguns. The offender entered the service station, disarmed a security guard, and removed cash bags and ATM contents totalling approximately $160,000, of which only around $40,000 was later recovered.

The offender had joined an outlaw motorcycle gang while serving an earlier prison sentence. When he later sought to leave the gang, he was required to pay a $50,000 "fine." He told the court this debt drove his involvement in the robbery.

The offender pleaded guilty to robbery with a dangerous weapon, an offence carrying a maximum penalty of 25 years imprisonment. Two further offences, the robbery of the two security guards' firearms during the same incident, were placed on a Form 1 (a document allowing additional offences to be taken into account at sentencing without separate conviction).

  • What is the appropriate head sentence and non-parole period for an offence of robbery with a dangerous weapon, taking into account the offender's personal circumstances, criminal history, and guilty plea?
  • How should the parity principle apply, given a co-offender (Mr Chaouk) had previously been sentenced for the same robbery, along with additional serious offences on his Form 1?
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and head sentence.

Decision

The court weighed a range of aggravating factors heavily against the offender. He was on parole for a firearms offence at the time of the robbery, a matter the court identified as a significant aggravating feature. He had an extensive criminal history, including prior weapons offending, and was older than his co-offender. His guilty plea was entered later than that of the co-offender Mr Chaouk.

On mitigating matters, the court accepted the offender's expressed desire to reform was genuine, but found it could not conclude he had good prospects of rehabilitation given his background. His remorse was accepted but characterised as limited: he declined to identify two unidentified co-offenders, citing safety concerns for himself and his family, and the court held that complete remorse involves a willingness to accept such risks.

Applying the parity principle, the court compared the offender's circumstances with those of Mr Chaouk. Several factors pointed toward a longer sentence for the offender: his more extensive criminal history, his greater age, his parole status at the time of the offence, and his later guilty plea. One factor favoured the offender relative to Mr Chaouk: Mr Chaouk's Form 1 included two additional and very serious armed robberies, whereas the offender's Form 1 offences arose from the same incident.

The court found special circumstances, concluding that an extended period of parole supervision would assist the offender's rehabilitation and help him address his drug use, benefiting both him and the community.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of three years, dating from 31 January 2008 (the date of arrest).
  • Head sentence set at five and a half years.
  • Eligible for release on parole on 30 January 2011.
  • Special circumstances found, resulting in an extended parole period relative to the standard ratio.

Key Takeaways

  • The District Court confirmed that the parity principle does not require identical sentences for co-offenders; meaningful differences in criminal history, age, parole status, and timing of plea can justify divergence.
  • Being on parole at the time of the index offence was treated as a significant aggravating factor in the sentencing exercise.
  • Limited remorse, where an offender declines to provide information about unidentified co-offenders citing personal safety concerns, does not amount to the complete remorse that would carry full mitigating weight.
  • Special circumstances were established where an extended period of supervised parole was considered necessary to support rehabilitation, particularly in addressing long-term drug dependency.
  • The court exercised its discretion to backdate the sentence to the date of arrest, even though some of that time in custody was attributable to the revocation of parole for a prior offence, because that revocation arose solely from the commission of the present offence.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited by name in the judgment, though the offence of robbery with a dangerous weapon (maximum penalty: 25 years imprisonment) was the subject of sentence. Form 1 procedure under NSW criminal procedure law was applied.

Cases:
- No cases were cited by name in the judgment. The court referred to the principles of parity in sentencing as established doctrine without attributing them to a specific decision.