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District Court 17 September 2009

R v Zia YOUSIF

[2009] NSWDC 290

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY WHILE ARMED BREACH OF PAROLE

Citation: R v Zia Yousif [2009] NSWDC 290
Court: District Court of New South Wales
Date: 17 September 2009
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to robbery in company while armed, arising from an incident in which he and unnamed associates entered a service station at 4:30 in the morning and threatened two employees. The group took the cash register and its contents, stole the employees' mobile phones, and took soft drink and confectionery as they left. Photographs tendered by the Crown supported the inference that the offender was armed.

The offender had previously been sentenced in the Wollongong District Court in September 2006 for a series of similar offences committed around the same time. He was released to parole in June 2007 but was returned to custody in July 2008 after committing further offences and breaching his parole conditions.

The present offence was only linked to the offender in August 2008, when fingerprints lifted from a glass door at the service station were matched to him. He had placed his hand on the door during the robbery. He was arrested and charged in November 2008 and immediately admitted the offence.

  • What sentence was appropriate for an armed robbery in company, having regard to the guideline judgment in R v Henry?
  • How should the sentencing court apply the totality principle, given the offence could have been dealt with alongside the earlier matters before Judge Conlon?
  • Did the delay between the offence, identification, and charging mitigate the sentence?
  • Was a finding of special circumstances warranted to adjust the ratio between the non-parole period and the head sentence?
  • How should the court treat the offender's parole breach when arriving at the sentence?

Decision

Berman SC DCJ accepted that the offence closely matched the "ordinary" armed robbery scenario described in the R v Henry guideline judgment, with the significant distinction that the offender's guilty plea was entered at the earliest possible opportunity rather than late in proceedings. All other features of the offence aligned with the guideline's baseline scenario.

The court acknowledged the offender's difficult personal history, including his displacement from Iraq and Pakistan as a child, the murder of his father by security forces, and his subsequent role as the family's primary provider. His work as an interpreter for coalition forces in Iraq had been highly regarded. The court also accepted that drug dependency and a desire to support his family had been the context for the offending. However, his claim to genuine remorse was undermined by the commission of further offences after release to parole in 2007.

On the question of delay, the court rejected the argument that the gap between the offence and the charge could be attributed entirely to the authorities. The offender had the opportunity, when arrested for the earlier armed robberies, to disclose this offence and have it dealt with simultaneously. The totality principle nonetheless remained relevant. The court was careful not to impose a sentence that effectively wrote off the parole breach, nor one that ignored the fact that, had this matter been before Judge Conlon at the time, the additional custodial period would likely have been reduced under totality principles. That consideration influenced the commencement date of the sentence.

Special circumstances were found to exist for two reasons: the pre-sentence and psychological reports identified a genuine rehabilitation need, and the sentence was being imposed on top of an existing term of imprisonment, a factor that has consistently been recognised as justifying departure from the standard ratio between non-parole period and head sentence.

Orders Made

  • Non-parole period of 18 months, commencing 7 November 2008 and expiring 6 May 2010, on which date the offender became eligible for release to parole.
  • Head sentence of three and a half years.

Key Takeaways

  • The District Court confirmed that an early guilty plea is a meaningful point of distinction from the baseline "ordinary" armed robbery scenario in the R v Henry guideline, even where all other features of the offence align with that scenario.
  • A finding of special circumstances is supported where a new sentence is imposed on top of an existing term of imprisonment, as this factor warrants adjusting the statutory ratio between non-parole period and head sentence.
  • Under the totality principle, a sentencing court considers what the additional custodial period would likely have been had the matter been dealt with concurrently, and that consideration may properly influence the sentence's commencement date.
  • Delay between an offence and a charge does not automatically operate in a defendant's favour where the defendant had the opportunity to bring the offence to the attention of authorities and did not do so.
  • Claims of remorse carry reduced weight where an offender committed further offences following release to parole, with the court noting that compliance with parole conditions is not optional.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing for armed robbery)

Legislation:
No specific legislation was cited in the text of the judgment.