Citation: R v Youssef [2015] NSWDC 388
Court: District Court of New South Wales
Date: 3 December 2015
Judge: Judge S Norrish QC
Background
In the early hours of 24 September 2013, the offender approached a bread delivery driver in Banksia and demanded his wallet, brandishing what appeared to be a small silver pistol. The victim, believing the object to be a real firearm, handed over $100 in cash. The object was in fact a cigarette lighter designed to closely resemble a Beretta self-loading pistol. Police located the offender nearby shortly after the incident, and DNA recovered from the lighter later matched his profile.
The offender was originally charged with armed robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900, which carries a higher maximum penalty. He pleaded not guilty to that charge but entered a guilty plea to the alternative charge under s 97(1), armed robbery with an offensive weapon, which carries a maximum of 20 years imprisonment. The plea was entered on 16 March 2015, before the judge delivered his reserved ruling on the admissibility of the offender's electronically recorded interview.
At the time of the offence, the offender was subject to parole. He had a prior criminal history and there was evidence of drug use. Psychiatric and psychological material before the court addressed the offender's mental health and cognitive functioning, which bore on the sentencing exercise.
Legal Issues
- What was the appropriate sentence for armed robbery under s 97(1) of the Crimes Act 1900, having regard to the objective seriousness of the offence?
- What utilitarian discount applied to the guilty plea, given the circumstances in which it was entered?
- Whether special circumstances existed within the meaning of the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard non-parole period ratio, particularly in light of the offender's mental disability and rehabilitation needs.
- How the sentence should be structured in light of the offender's existing parole obligations and the period already served.
Decision
Judge Norrish sentenced the offender to 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. The sentence was backdated to 24 January 2014, reflecting the period during which the offender had been serving time in custody following a breach of parole. The non-parole period was set to expire on 23 July 2016, with the balance of sentence expiring on 23 July 2018.
His Honour assessed the objective seriousness of the offence as falling within the mid-range for armed robbery. The use of a replica firearm that was convincingly designed to resemble a real weapon, combined with the threatening demand and physical contact, placed the offence at a level warranting substantial punishment. The fact that the weapon was not real was nonetheless taken into account.
A discount of 10 per cent was applied to reflect the utilitarian value of the guilty plea. His Honour carefully considered the timing and circumstances of the plea, noting that the offender's decision to plead guilty was made before the court delivered its ruling on the admissibility of the electronic interview. While acknowledging this was not the earliest possible plea, the discount reflected the genuine utilitarian benefit of the plea to the criminal justice system.
The court found special circumstances warranting an adjustment to the standard ratio between the non-parole period and total sentence. The offender's mental health, cognitive limitations, history of drug dependence, and the need for structured supervision and rehabilitation upon release justified a longer-than-standard period on parole. The court also took into account the offender's re-engagement with his religion and expressed hope for his rehabilitation.
Orders Made
- The offender was convicted of armed robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.
- Sentenced to imprisonment with a non-parole period of 2 years and 6 months, commencing 24 January 2014 and expiring 23 July 2016.
- Balance of sentence of 2 years, expiring 23 July 2018.
- Eligibility for release to parole on 23 July 2016, subject to the determination of the Parole Authority.
Key Takeaways
- A replica firearm designed to closely resemble a real weapon can constitute an "offensive weapon" for the purposes of s 97(1) of the Crimes Act 1900, even though it falls short of a "dangerous weapon" under s 97(2).
- The District Court applied a 10 per cent discount for the guilty plea, notwithstanding that it was not entered at the earliest opportunity, on the basis that the decision to plead was made independently of any knowledge of the court's ruling on the admissibility of the electronic interview.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where an offender's mental disability, cognitive limitations, and rehabilitation needs collectively justify increasing the proportion of the sentence spent on supervised parole.
- Where an offender is already serving a breach of parole period at the time of sentencing, backdating the new sentence to an appropriate point in that period can be a relevant factor in achieving a just and proportionate total term.
- A guilty plea's utilitarian value is assessed by reference to the savings it generates for the criminal justice system, and that assessment is not substantially altered merely because the plea was entered close in time to a pending admissibility ruling on evidence against the offender.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 199
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39
- R v Callaghan [2006] NSWCCA 58
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Todd (1982) 2 NSWLR 517