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District Court 7 October 2011

R v Kobeissi

[2011] NSWDC 268

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE FORM 1 ARMED ROBBERY OBTAINING MONEY BY DECEPTION

Citation: R v Kobeissi [2011] NSWDC 268
Court: District Court of New South Wales
Date: 7 October 2011
Judge: Sides QC DCJ

Background

The offender pleaded guilty to one count of armed robbery committed at Burwood on 14 August 2009. He and a co-offender lured a victim to an upstairs unit, where the offender produced an object resembling a rifle, compelled the victim to empty his pockets, and forced him to write down his PIN number. The offender then used the victim's bank cards to withdraw $900 in two separate ATM transactions.

Two additional offences of obtaining money by deception, arising from those ATM withdrawals, were placed on a Form 1 schedule (meaning they were taken into account in fixing the sentence without the offender being separately convicted of them). The original charge was brought under the more serious armed robbery provision in s 97(2) of the Crimes Act, but the offender pleaded guilty to the lesser offence under s 97(1), which carries a maximum of 20 years imprisonment with no standard non-parole period.

The sentencing hearing required the court to assess a range of subjective factors, including a late guilty plea, remorse, a prior robbery conviction, intellectual disability at the borderline level, post-traumatic stress disorder arising from a prison assault, and the need for parity with the sentence imposed on the co-offender.

  • What sentence was appropriate for armed robbery, having regard to a late guilty plea and remorse?
  • How should the offender's borderline intellectual disability and PTSD be weighed in the sentencing exercise?
  • What discount, if any, applied to reflect the utility of the guilty plea?
  • How should the principle of parity apply given the co-offender had already been sentenced?
  • Did special circumstances exist to justify a longer than usual ratio of parole to non-parole period?

Decision

The court allowed a discount of approximately 10% for the utility of the guilty plea, characterising it as late because it was entered when the offender was due to face trial on the more serious charge. A further, separate reduction was made for genuine remorse, the court having satisfied itself that the statutory conditions for that discount were met.

The court considered the offender's borderline intellectual disability in detail, drawing on the High Court's recent remarks in Muldrock v The Queen [2011] HCA 39, decided only days earlier. That decision quoted a NSW Law Reform Commission observation that the classification of intellectual disability as "mild" or "borderline" can mislead criminal justice personnel into treating it as inconsequential. The court accepted that the offender's disability caused marked difficulties with attention, reasoning, and applying common sense, and that his PTSD, diagnosed after a serious assault while he was on remand in 2005, remained untreated largely due to circumstances outside his control.

On the question of parity, the court compared the offender's position with that of his co-offender, who had received a 25% plea discount, had no prior robbery convictions, carried no intellectual disability, and had been found to have acted spontaneously. The court found those distinctions justified some difference in outcome but noted that the two men's roles in the offence were not significantly different from one another.

The court found special circumstances existed, principally because the offender's intellectual disability and PTSD meant he required an extended period of supervised parole. This allowed the court to depart from the standard non-parole to parole ratio and set a longer parole tail.

Orders Made

  • The offender was convicted of armed robbery.
  • A total sentence of 45 months imprisonment was imposed.
  • A non-parole period of 2 years was fixed.
  • The sentence commenced on 31 August 2010 (the date of arrest).
  • Parole eligibility date was set at 30 August 2012.
  • The two Form 1 offences (obtaining money by deception) were taken into account in fixing the sentence.

Key Takeaways

  • The District Court treated a plea entered at the point of trial as a late plea, warranting a reduced discount of approximately 10% for utility, with remorse assessed and discounted separately.
  • Borderline intellectual disability is not inconsequential in sentencing: the District Court applied the High Court's guidance in Muldrock to find that such a classification can be misleading and should be assessed by reference to actual functional impairment rather than label alone.
  • PTSD arising from an assault suffered while on remand was accepted as a relevant mitigating factor, even where the offender had not undertaken recommended treatment, where the failure to engage with treatment was at least partly explained by circumstances outside his control.
  • The parity principle required the court to justify differences in sentence by reference to objective distinctions between co-offenders, including criminal history, the nature of charges pleaded to, and personal characteristics such as intellectual disability.
  • Special circumstances sufficient to extend the parole period beyond the standard ratio were established where the offender's intellectual disability and untreated PTSD pointed to a need for longer supervised reintegration.

Legislation and Cases Referenced

Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) and 97(2) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(i) (purposes of sentencing; remorse discount)