Citation: R v ISSA & YOUSIF [2009] NSWDC 337
Court: District Court of New South Wales
Date: 25 September 2009
Judge(s): Berman SC DCJ
Background
Two offenders, Sean Issa and Yousif Yousif, pleaded guilty to aggravated kidnapping in company, with a related offence of demanding money with menaces in company taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional offences when passing sentence, without convicting the offender of those additional matters). The offences arose from events on 7 June 2007 involving a young victim, Abraham Mavlian, who had already paid $1,000 to a group of men to resolve an unrelated dispute.
Mr Mavlian was lured to Fairfield in the early hours of the morning under threat of violence, directed into an alley, and confronted by a group of men including both offenders. He was pinned against a wall at knifepoint and subjected to demands for $13,000. The offenders were present throughout these events and were active participants in what followed.
Mr Mavlian was then forced into a vehicle and driven around for approximately 25 minutes while being assaulted and threatened with death. At one point a hard object, believed to be a gun, was pressed against his head. He was ultimately released outside his home, where members of his family were present and where the group continued to demand payment after his release.
Legal Issues
- What sentence was appropriate for each offender for aggravated kidnapping in company, taking into account the Form 1 offence of demanding money with menaces in company?
- What weight should be given to mitigating factors, including the timing of guilty pleas, remorse, and prospects of rehabilitation?
- Whether special circumstances existed to justify varying the standard ratio between the non-parole period and head sentence.
Decision
Berman SC DCJ characterised the offending as very serious. The maximum penalty for aggravated kidnapping is 20 years imprisonment, and the Form 1 offence of demanding money with menaces carries a maximum of 14 years. The court found that both offences were committed purely out of greed, with the group deliberately terrorising Mr Mavlian to extract money they had no legitimate claim to.
The court assessed the harm to the victim as a central consideration. Mr Mavlian provided a victim impact statement describing ongoing flashbacks, continuous fear for his safety, and a lasting inability to feel safe outside his home. The court found these consequences were entirely foreseeable, and indeed were what the offenders had intended by their conduct.
On mitigation, the court gave credit to each offender for his guilty plea, though it found the timing of those pleas reduced the weight afforded. The court was unable to find genuine remorse in either case, noting that assertions of remorse came largely from the Bar table without adequate evidentiary foundation, and that both offenders had initially given false denials in police interviews. The court found that prospects of rehabilitation were not good, though it acknowledged Mr Yousif's position was somewhat better given his lack of criminal history.
A finding of special circumstances was made in favour of both offenders, extending the parole period beyond what would ordinarily apply, on the basis that an extended period of post-release supervision was warranted to assist rehabilitation and provide personal deterrence.
Orders Made
- Sean Issa: sentenced to imprisonment with a non-parole period of three years commencing 3 January 2008, and a head sentence of five years. Eligible for release to parole on 2 January 2011.
- Yousif Yousif: sentenced to imprisonment with a non-parole period of three years commencing 18 August 2009 and expiring 17 August 2012, and a head sentence of five years.
Key Takeaways
- The District Court confirmed that the objective gravity of an offence is a fundamental consideration in sentencing, and that the sentences imposed must reflect that gravity regardless of mitigating factors.
- Victim impact, including lasting psychological harm, carries significant weight in assessing the seriousness of offences involving deliberate intimidation and violence.
- Where assertions of remorse come only from counsel at the Bar table and are unsupported by evidence, the court will afford them little or no weight.
- A finding of special circumstances, which permits a longer parole period relative to the non-parole period, was available on these facts where extended post-release supervision was considered necessary for rehabilitation and personal deterrence.
- Form 1 offences, while not resulting in additional convictions, are taken into account in determining the overall sentence and can meaningfully increase the penalty imposed for the principal offence.
Legislation and Cases Referenced
Legislation:
- No specific legislation was cited by name in the provided judgment text. The offences of aggravated kidnapping and demanding money with menaces are offences under the Crimes Act 1900 (NSW), with maximum penalties of 20 years and 14 years respectively as noted in the judgment.
Cases:
- No cases were cited in the provided judgment text.