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District Court 5 August 2011

R v Mohammad Hraichie

[2011] NSWDC 219

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Mohammad Hraichie [2011] NSWDC 219
Court: District Court of New South Wales
Date: 5 August 2011
Judge: Judge S Norrish QC

Background

The offender was found guilty by a jury of armed robbery committed at Bankstown on 8 April 2010. The victim was approached near an intersection shortly after midnight, confronted at gunpoint, and forced to hand over $50, an iPod, a mobile phone, and cigarettes. The offender had alighted from a BMW, pointed a shortened firearm at the victim's face, displayed what appeared to be ammunition, searched the victim's pockets, and instructed him to kneel and face away before leaving.

At the time of the offence, the offender was nineteen years old and on parole. His parole was revoked on 8 July 2010, and he was taken into custody following arrest on 6 August 2010. He remained in custody throughout proceedings after being refused bail.

The sentencing proceedings therefore required the court to address the commencement date of the new sentence in light of the revoked parole, as well as to weigh the applicable aggravating and mitigating factors for a young adult offender convicted of a serious armed robbery.

  • What commencement date should apply to the sentence, given that the offender had served a period in custody on revoked parole before the new sentence was imposed?
  • Whether committing the offence while on parole applied as a statutory aggravating factor
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the total sentence under the Crime (Sentencing Procedure) Act 1999
  • What weight should be given to the offender's youth, background, rehabilitative prospects, and any relevant mitigating factors against the objective seriousness of the offence?

Decision

Judge Norrish commenced the sentence from 6 November 2010, three months into the revoked parole period rather than from the date the revoked parole expired (6 February 2011). Relying on the principles in The Queen v Callaghan and the judgment of Simpson J in that matter, his Honour exercised the general discretion available when fixing the commencement date. The court also found as an aggravating factor that the offence was committed while the offender was on parole.

The court found special circumstances existed under the Crime (Sentencing Procedure) Act 1999, warranting a non-parole period that was proportionally shorter than the statutory default. The reasons included that the total sentence was partially cumulative on the revoked parole period, and that the offender's youth and circumstances made an extended period of supervised parole appropriate to assist with rehabilitation.

The objective seriousness of the offence was significant. The use of a realistic shortened firearm in a public place, the display of apparent ammunition, and the deliberate targeting of a lone victim at night were all treated as serious features. The court accepted the victim was genuinely frightened. However, the offender's young age at the time of the offence, his background, and other personal circumstances were weighed as mitigating considerations.

The court also had regard to a range of comparable Court of Criminal Appeal decisions cited by both the Crown and defence, as well as sentencing statistics, but concluded that no single comparable case was compelling and that the sentence must reflect the particular facts.

Orders Made

  • The offender was convicted of armed robbery.
  • Sentenced to a total term of imprisonment of six years and six months.
  • Non-parole period: three years and nine months, commencing 6 November 2010, expiring 5 August 2014.
  • Balance of sentence: two years and nine months, expiring 6 May 2017.
  • The court recommended to the Parole Authority that it give consideration to the recommendations in the report of Dr Furst regarding the care of the offender in custody and upon release on parole.

Key Takeaways

  • The District Court exercised its general discretion to backdate a sentence to a point within the revoked parole period, rather than commencing it only from when that parole period expired, drawing on the principles in The Queen v Callaghan.
  • Committing an offence while on parole was applied as a statutory aggravating factor, consistent with the Crime (Sentencing Procedure) Act 1999.
  • Special circumstances were found where the new sentence was partially cumulative on a revoked parole period and where the offender's youth and rehabilitative needs indicated an extended post-release supervision period was warranted.
  • A realistic shortened firearm used to threaten a lone victim at night, including the display of apparent ammunition and a demand to kneel and face away, were treated as features that elevated the objective gravity of the armed robbery.
  • Court of Criminal Appeal sentencing comparisons and statistics were acknowledged as providing a general range, but the sentencing court confirmed each matter must ultimately be resolved on its own facts.

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999 (NSW)

Cases
- The Queen v Callaghan
- The Queen v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Walker [2002] NSWCCA 178
- R v Martin [2004] NSWCCA 416
- R v Tuncbilek [2004] NSWCCA 139
- R v Fry [2004] NSWCCA 238
- R v Sua [2000] NSWCCA 94
- R v RMK [2002] NSWCCA 414