R v Aboukhalil [2019] NSWDC 408

Citation: R v Aboukhalil [2019] NSWDC 408
Court: District Court of New South Wales
Date: 28 June 2019
Judge: P Taylor SC DCJ

Background

The offender was one of four men who planned and carried out an armed robbery of a victim in Strathfield on the evening of 7 June 2017. The group lured the victim by pretending to need help with a broken-down car on a dark, rainy night. When the victim stopped and allowed two of the offenders into his vehicle, they immediately produced weapons: a handgun pointed at the victim's face and a hunting knife pointed at his stomach.

In the ensuing struggle, the victim suffered a serious wound to his left forearm, consistent with the knife. He later required surgery, which revealed deep tissue damage including tendon and nerve injuries. The wound ended his career as a bricklayer.

The offender was convicted by jury of robbery in company with wounding under s 98 of the Crimes Act 1900, which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. At the sentencing hearing, the court was required to determine the appropriate sentence in light of the offender's role in the joint criminal enterprise, the objective seriousness of the offence, and considerations of parity with a co-offender.

Legal Issues

What role did the offender play in the joint criminal enterprise, and what did he foresee about the use of weapons?
How serious was the offence, measured against the statutory guideposts of maximum penalty and standard non-parole period?
What aggravating and mitigating factors applied to the sentencing exercise?
What sentence was appropriate given the parity principles applicable to co-offenders, and what weight should be given to the utilitarian value of a guilty plea to a lesser charge?

Decision

The court found, on the balance of probabilities, that the offender did not personally carry the knife or inflict the wound. However, the court was satisfied beyond reasonable doubt that he knew both a knife and a gun would be used in the robbery. That conclusion rested on the group's prior planning, the frequent telephone contact between the offender and the co-offender carrying the knife in the hour before the offence, the coordinated roles each participant played, and the fact that both weapons were deployed immediately upon entering the vehicle, before any struggle occurred.

The court assessed the offence as falling in the middle of the range of objective seriousness for this type of offending. Aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 included the use of two weapons, the substantial physical and psychological harm caused to the victim, and the planned nature of the criminal activity. Additional factors not listed in s 21A, but relevant to objective seriousness, included the involvement of four offenders, the significant value of the vehicle stolen, the continued assault on the victim after he had been wounded and fallen from the car, and the unprovoked and opportunistic danger posed to any passing motorist.

The court also considered parity with the sentence imposed on co-offender Matthew Guirguis, who had pleaded guilty and received a head sentence of six years with a non-parole period of three years and six months. The offender before the court had been convicted after a jury trial, having pleaded guilty only to the lesser offence of assault with intent to take a motor vehicle. The court gave some, though limited, utilitarian weight to that plea. Taking all factors into account, the court sentenced the offender to seven years' imprisonment with a non-parole period of four years.

Orders Made

The offender was convicted of robbery in company with wounding, contrary to s 98 of the Crimes Act 1900, committed on 7 June 2017 at Strathfield.
Sentenced to a term of imprisonment of seven years, commencing 22 June 2019 and expiring 21 June 2026.
Non-parole period of four years, commencing 22 June 2019 and expiring 21 June 2023, at which date the offender will first be eligible for parole.
Victim Impact Statement received and noted.

Key Takeaways

A jury verdict of robbery in company with wounding under s 98 of the Crimes Act 1900 requires the sentencing court to find that the offender foresaw the possibility of wounding, even where the offender did not personally inflict the injury or carry the relevant weapon. The District Court here drew that inference from the totality of the planning and coordination involved.
Where an offender participates in a joint criminal enterprise involving multiple weapons, the court may treat the use of each weapon as an aggravating factor, even if the offender's precise role could not be individually ascribed beyond his participation in the shared plan.
Parity between co-offenders remained relevant even where one was convicted after trial and another after a guilty plea. The seven-year head sentence (against the co-offender's six years) reflected the absence of a full guilty plea and the consequent reduced utilitarian discount.
Planned criminal activity, established as an aggravating factor under s 21A(2)(n), was supported here by pre-offence meetings, coordinated telephone contact, and the rehearsed deployment of weapons, all of which pointed to deliberate rather than spontaneous offending.
Substantial victim impact, including career-ending physical injury and ongoing psychological harm, was a weighty aggravating consideration under s 21A(2)(g), reinforced by the victim's own statement describing lasting financial and emotional consequences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 98, 154C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A

Cases
- Dayment v R [2018] NSWCCA 132
- Ith v R [2013] NSWCCA 280
- PMW v R [2009] NSWCCA 34
- R v Matthew Guirguis (District Court (NSW), Woodburne J, 22 March 2019, unrep)
- R v Sio [2013] NSWSC 1872
- R v Wate [2001] NSWCCA 474
- Regina v Fidow [2004] NSWCCA 172
- Regina v Ngo [2001] NSWCCA 15
- Regina v Pham [1999] NSWCCA 362