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District Court 30 October 2009

R v Nazih ZANTOUT

[2009] NSWDC 415

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY OFFENDER ARMED WITH KNIFE SERIOUS CRIME STRONG FAMILY SUPPORT

Citation: R v Nazih Zantout [2009] NSWDC 415
Court: District Court of New South Wales
Date: 30 October 2009
Judge(s): Cogswell SC DCJ

Background

The offender was a young man with no prior criminal history who participated in a robbery in company on 10 October 2008. The victim, a man involved in recycling car parts, was lured to a block of units in Auburn on the pretext of purchasing car parts. When he drove into the underground car park, he was confronted by three men, one of whom held a knife to his throat and threatened to kill him.

The victim was robbed of $11,500 in cash and a GPS navigator. Police attending the scene chased the offender and found the stolen navigator in his possession. He was charged with robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment.

The offender pleaded guilty at the earliest opportunity. Medical evidence before the court revealed he had Marfan syndrome (a connective tissue disorder) and a significant degree of developmental delay, both of which affected his judgment and his susceptibility to peer influence.

  • What head sentence was appropriate for robbery in company, by reference to the guideline judgment in R v Henry?
  • What discount should apply for an early guilty plea?
  • Whether the offender's developmental delay, health conditions, and personal circumstances justified a reduced non-parole period relative to the standard proportion?
  • Whether a non-custodial or partly suspended sentence was available given the seriousness of the offence?

Decision

The court applied the guideline judgment in R v Henry (1999) 46 NSWLR 346, which places the range for a typical armed robbery at four to five years as a head sentence. Given the higher-than-usual degree of planning involved, including the deliberate luring of the victim, the court assessed a starting point of five years.

The offender's early guilty plea attracted a 25 per cent discount, reducing the head sentence to three years and nine months. The court then rounded this to a three-year head sentence, reflecting the totality of the mitigating circumstances, including no prior convictions, strong family support, genuine prospects of rehabilitation, and the unlikelihood of re-offending.

The court accepted that the offender's developmental delay meaningfully compromised his capacity for sound judgment and made him more susceptible to peer influence. On that basis, the court treated general deterrence as slightly less significant than it would ordinarily be in cases of this kind. A full-time custodial sentence was nonetheless considered unavoidable given the gravity of the offence.

A reduced non-parole period of 18 months was set, rather than the usual proportion of approximately 70 per cent of the head sentence, reflecting the combination of mitigating factors. The court declined to make a compensation order in favour of the victim without further submissions and relevant legislative guidance, leaving that matter open to a formal application.

Orders Made

  • Head sentence of 3 years imprisonment, commencing 30 October 2009.
  • Non-parole period of 18 months, expiring 29 April 2011.
  • Balance of term of 18 months on parole.
  • Compensation order not made; prosecutor directed to file a notice of motion if the application was to be pursued.

Key Takeaways

  • Under the R v Henry guideline, robbery in company cases typically attract a head sentence in the range of four to five years; where there is a higher-than-usual degree of planning, the upper end of that range may be the appropriate starting point.
  • A 25 per cent discount for a plea of guilty entered at the earliest opportunity was applied to reduce the head sentence from five years to approximately three years and nine months.
  • The District Court confirmed that a finding of significant developmental delay can reduce the weight given to general deterrence, where the condition is shown to have impaired the offender's judgment and increased susceptibility to peer influence.
  • No amount of mitigating personal circumstances, including youth, first-offender status, health conditions, and family support, will displace the need for a full-time custodial sentence where the offence involves armed robbery with a weapon and a deliberate targeting of a vulnerable victim.
  • Declining to make a victim compensation order without proper submissions and legislative guidance, the court preserved the prosecution's ability to pursue the matter by formal motion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 50
- Victims Support and Rehabilitation Act 1996 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)