Citation: R v Salem Soukkar [2014] NSWDC 160
Court: District Court of New South Wales
Date: 26 September 2014
Judge: Mahony SC DCJ
Background
The offender pleaded guilty to one count of attempted robbery armed with a dangerous weapon and five counts of robbery armed with an offensive weapon, all charged under s 97(2) of the Crimes Act 1900, each carrying a maximum of 25 years imprisonment. The offences were committed across a roughly two-month period between December 2013 and February 2014, targeting service stations and a sporting club in the Sydney and regional NSW area. A handgun, which the offender had owned for four years, and a taser were used in the offences.
The offences followed a consistent pattern: the offender would enter a premises, select items, approach the counter, and then produce the weapons while demanding cash. The most serious offence involved the offender and a co-accused entering the North Richmond Sportsman's Club and stealing $15,000 in cash and mobile phones from a manager who was sorting funds near an open safe. The offender was arrested at a rural property, where seized items included two handguns, a taser, and the bulk of the stolen cash.
The offender also sought to have two break, enter and steal offences taken into account on a Form 1. He had provided written statements to police implicating himself and a co-accused in those burglaries and in two of the armed robberies, and he undertook to give evidence against the co-accused at trial.
Legal Issues
- What discount applied for the early guilty pleas entered at committal?
- How should the guideline judgment in R v Henry (1999) apply to multiple armed robbery offences?
- What weight should be given to mitigating factors including youth, remorse, subjective circumstances, and assistance to police?
- How should the totality principle and the requirement to avoid double-counting be applied when imposing an aggregate sentence across six offences?
- What indicative individual sentences should be stated for transparency alongside the aggregate sentence?
Decision
Mahony SC DCJ accepted that the offender was entitled to a 25% utilitarian discount for guilty pleas entered at committal. The court considered the offender's subjective case, including evidence of remorse, his assistance to police, his personal letter to the court, testimonials, a psychological report, and his stated motivation of helping his parents meet mortgage repayments. The offender's drug use was noted but not given significant mitigatory weight, given his own evidence that it likely had little effect on his decision-making.
The court applied the guideline judgment in R v Henry, which addresses the sentencing range for armed robbery offences. The individual offences were assessed as falling within the range contemplated by that guideline, with the North Richmond Sportsman's Club robbery treated as the most serious given the larger sum stolen, the use of both a firearm and taser, and the involvement of a co-offender. The court also took into account Form 1 matters, the co-accused's sentence imposed by Judge Sides QC, and the principles from Pearce v The Queen on avoiding double-counting when sentencing for multiple offences.
To ensure transparency, the court set out indicative individual sentences before arriving at the aggregate. The offences arose out of similar criminal conduct over a short period, which warranted partial concurrency in what would otherwise have been consecutive sentences. The court then applied the totality principle to arrive at a sentence that was just and proportionate to the overall criminality without being crushing.
Orders Made
- The offender was convicted of all six offences (one attempted robbery, five robberies) under s 97(2) of the Crimes Act 1900.
- An aggregate sentence of imprisonment was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
- Aggregate non-parole period: 4 years, commencing 7 February 2014, terminating 6 February 2018.
- Total aggregate term of imprisonment: 7 years, with the balance of term (3 years) commencing 7 February 2018 and terminating 6 February 2021.
- Parole eligibility date: 6 February 2018.
- Exhibit C (sealed envelope containing evidence of police assistance) directed to remain sealed on the court file, not to be opened without judicial authorisation.
Key Takeaways
- When imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, the District Court confirmed the importance of stating indicative individual sentences to maintain transparency in the sentencing process.
- The guideline judgment in R v Henry (1999) 46 NSWLR 346 remains the applicable framework for sentencing armed robbery offences under s 97(2) of the Crimes Act 1900, and the court applied it to each individual offence before applying the totality principle.
- Where multiple offences arise from similar criminal conduct over a short period, the sentencing court may apply partial concurrency to ensure the overall sentence is proportionate and not crushing, consistent with the principles in Pearce v The Queen.
- Assistance to police, including providing witness statements and undertaking to give evidence against co-accused at trial, constituted a mitigating factor, with the materials evidencing that assistance kept sealed from public access.
- A 25% utilitarian discount for early guilty pleas entered at committal was applied uniformly across all charges, consistent with established New South Wales sentencing practice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(2), 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 53A
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- Pearce v The Queen (1998) 194 CLR 610 (sentencing for multiple offences, avoiding double-counting)
- Cahadi v The Queen (2007) 168 A Crim R 41
- Dougan v R (2006) 160 A Crim R 135
- R v Ellis [2002] NSWCCA 211
- R v Goundar (2001) 127 A Crim R 331
- R v Sharma (2002) 54 NSWLR 300
- R v Smith [2007] NSWCCA 100
- R v Sok [2000] NSWCCA 121
- R v Rae [2013] NSWCCA 9