Citation: R v Hussein; R v Barghachoun; R v Manly; R v Riley [2013] NSWDC 39
Court: District Court of New South Wales
Date: 31 January 2013
Judge(s): Murrell SC DCJ
Background
Following a four-week trial, a jury convicted four offenders of multiple offences arising from events on the night of 19 August 2011. The offences involved a coordinated attempt to intercept and rob a Pantech truck carrying mobile phone handsets and foreign currency travelling from Bankstown north along the Pacific Highway toward Queensland.
The joint enterprise unfolded in stages. Two of the offenders first attempted to steal vehicles from a service station at Silverwater to use in the planned robbery. After those attempts failed, a security officer was robbed of his Mazda sedan at gunpoint, and the group travelled north in convoy. Near Bulahdelah, the stolen Mazda was used to intercept and stop the truck. The truck driver was held at gunpoint, a firearm was discharged several times, and cargo was taken. The stolen Mazda was later deliberately destroyed by fire. When the truck became stuck in a culvert, two of the offenders stole a bus from a nearby sawmill to make their escape before being arrested in the early hours of 20 August.
The four offenders varied in their roles and levels of involvement. Hussein was the primary gunman. Barghachoun participated throughout the robbery phase. Manly drove the getaway vehicle and assisted at various points. Riley's involvement was more limited: he joined the group after it left Sydney, entered the stolen vehicle, and participated in the truck robbery and subsequent bus theft.
Legal Issues
- What sentences were appropriate for each offender across ten distinct offences, including armed robbery, attempted theft, firearms offences, destruction of property by fire, and being carried in a stolen conveyance?
- To what extent did drug addiction reduce moral culpability, given the level of planning involved?
- What weight should be given to mental disorder and intellectual disability in assessing moral culpability?
- What were the prospects of rehabilitation for each offender, and did those prospects justify a finding of special circumstances to extend supervision beyond the standard non-parole period ratio?
- How should the sentences be structured across multiple co-offenders with differing criminal histories, roles, and personal circumstances?
Decision
Murrell SC DCJ sentenced each offender separately, weighing their individual roles, criminal histories, personal circumstances, and prospects of rehabilitation against the objective seriousness of the offences.
For Hussein, who carried and discharged the firearm throughout the enterprise, the court found his moral culpability to be high. However, the court accepted that Hussein had a significant mental disorder that reduced his moral culpability to some extent. Hussein had no prior adult criminal history, and the court accepted that, with adequate treatment, he had reasonable prospects of rehabilitation. The court imposed an effective non-parole period of seven years and an effective total term of eleven years, with special circumstances found to allow for extended supervision.
For Barghachoun, aged 42 at the time of the offences, the court rejected the submission that his heroin addiction reduced his moral culpability, given the substantial planning involved in the principal offence. His lengthy criminal history, including prior armed robbery convictions and periods of imprisonment, weighed against him. The court imposed an effective non-parole period of seven years and an effective total term of eleven years, noting limited prospects of rehabilitation.
For Manly, who had been on parole at the time of the offences and whose parole was subsequently revoked, the court took into account an intellectual disability that affected his moral culpability. The court found that, with appropriate support, Manly had reasonable rehabilitation prospects. The sentences imposed were structured to run after his existing parole obligations. For Riley, the court accepted that his involvement was more opportunistic than planned, that he joined the group after it left Sydney, and that his participation in the truck robbery was an aberration from what was otherwise a less serious criminal history. Special circumstances were found in relation to his need for support with substance abuse and vocational skills. Riley received an effective non-parole period of three years and six months and an effective total term of five years and six months.
Orders Made
Hussein:
- Offence 7 (unauthorised use of firearm): 3-year non-parole period; balance of term of 2 years
- Offence 8 (fire firearm in public place): 2 years concurrent
- Offence 1 (attempt to steal shuttle bus): 18 months concurrent
- Offence 2 (attempt to steal BMW): 18 months concurrent
- Offence 3 (armed robbery of Mazda): 6-year non-parole period accumulated by 4 years on Offence 7; balance of term 3 years
- Offence 4 (steal number plates): 6 months concurrent
- Offence 6 (armed robbery of truck): 7-year non-parole period accumulated by 3 years on Offence 3; balance of term 4 years
- Offence 9 (destroy Mazda by fire): 2 years concurrent
- Effective non-parole period: 7 years; effective total term: 11 years
Barghachoun:
- Offence 1: 12 months fixed term
- Offence 2: 12 months concurrent
- Offence 3: 4-year non-parole period accumulated by 12 months on Offence 1; balance of term 2 years
- Offence 4: 6 months concurrent
- Offence 6: 7-year non-parole period accumulated by 3 years on Offence 3; balance of term 4 years
- Offence 10: 2 years concurrent
- Effective non-parole period: 7 years; effective total term: 11 years
Manly:
- Offence 1: 12 months fixed term
- Offence 2: 12 months concurrent
- Offence 3: 3-year non-parole period accumulated by 12 months on Offence 1; balance of term 2 years
- Offence 4: 6 months concurrent
- Offence 6: 5-year non-parole period accumulated by 2 years on Offence 3; balance of term 3 years
- Offence 9: 2 years concurrent
- Effective non-parole period: 5 years; effective total term: 8 years
Riley:
- Offence 5 (carried in stolen conveyance): 12 months fixed term
- Offence 6 (armed robbery of truck): 3-year non-parole period accumulated by 6 months on Offence 5; balance of term 2 years
- Offence 10 (steal sawmill bus): 2 years concurrent
- Effective non-parole period: 3 years 6 months; effective total term: 5 years 6 months
Key Takeaways
- A claim that drug addiction reduces moral culpability will not succeed where the offending involved a significant degree of planning and coordination, as the District Court held in relation to Barghachoun's heroin addiction.
- Mental disorder and intellectual disability remain relevant mitigating factors in sentencing, capable of reducing an offender's moral culpability even where the offences are objectively serious, as reflected in the sentences imposed on Hussein and Manly.
- Differing levels of participation within a joint criminal enterprise produce meaningfully different sentences: the gunman and the principal planners attracted non-parole periods of seven years, while the offender with the most limited and opportunistic involvement received a non-parole period of three years and six months.
- Special circumstances, justifying an extension of the supervision period beyond the standard non-parole ratio, were found across multiple offenders where rehabilitation needs, including treatment for substance abuse and development of vocational skills, required a longer period of post-release supervision.
- Being on bail or parole at the time of offending is treated as an aggravating factor under the sentencing framework, and where parole is revoked as a direct consequence of the new offending, that revocation and its reasons are taken into account in structuring the new sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 19(10)(b), 93G(1)(b), 97(2), 117, 154A(1)(a), 154A(1)(b)
- Firearms Act 1996 (NSW), s 7