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District Court 5 June 2020

R v Charrouf (aka Obeid)

[2020] NSWDC 311

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Charrouf (aka Obeid) [2020] NSWDC 311
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Bennett SC DCJ

Background

The offender pleaded guilty to one count of break and enter a dwelling house and commit a serious indictable offence in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence occurred on 26 April 2017 at Wentworth Point, where the offender and two co-accused, Najman and Zahed, broke into the victim's apartment in a secured residential building.

The group's original purpose was theft. However, during the intrusion, the offender and Zahed wounded the victim. Zahed was armed with a .38 calibre self-loading pistol, which was used to inflict the wound. The circumstances of aggravation included acting in company and being armed with a dangerous weapon.

The offender had been in custody since his arrest on 17 May 2017, at which time he was also subject to parole from a prior matter. That parole was revoked following his arrest, and he was required to serve the balance of that parole before his custody became referable solely to this offence.

  • What is the appropriate starting point for pre-sentence custody, given the offender was simultaneously serving a revoked parole period?
  • Where does this offence fall on the scale of objective seriousness, having regard to the standard non-parole period of seven years and the maximum penalty of 25 years?
  • What discount applies for the plea of guilty, and at what stage was it entered?
  • Whether special circumstances exist justifying a longer parole period relative to the non-parole period.
  • What parity considerations arise from sentences imposed on the two co-accused, Najman and Zahed?

Decision

Objective seriousness: The sentencing judge assessed the offence as falling above the mid-range of objective seriousness, placing it roughly midway between mid-range and the upper end of the scale. The serious indictable offence committed inside the dwelling (wounding) attracted a high maximum penalty in its own right. The presence of a firearm, the in-company circumstances, and the invasion of the victim's home all elevated the gravity of the conduct.

Standard non-parole period: The court noted the standard non-parole period of seven years as a legislative guidepost, consistent with the approach required after Muldrock v R [2011] HCA 39. That figure did not automatically dictate the sentence. The court applied an instinctive synthesis of all objective and subjective factors, including the offender's drug misuse (said to have contributed to his participation), his antecedent record, his conditional liberty at the time, and the parity considerations arising from co-offenders' sentences.

Plea of guilty: Both parties agreed to a 10% discount for the utilitarian value of the plea. The plea was entered on 1 April 2020, on the first day of the third listed trial, after several earlier vacations attributable in part to changes in legal representation. The court applied the principles in Borkowski v R [2009] NSWCCA 102 in fixing the discount.

Special circumstances: The court found special circumstances warranting an extended parole period. The offender had spent most of his adult life in custody, creating a real risk of institutionalisation. A longer period under community supervision was considered appropriate to assist his reintegration. Accordingly, the balance of sentence after the non-parole period was extended to three years and six months, producing a total head sentence of eleven years.

Orders Made

  • The offender was convicted of the offence contrary to s 112(3) of the Crimes Act 1900.
  • Non-parole period of 7 years and 6 months, commencing 17 October 2017 and expiring 16 April 2025.
  • Balance of sentence of 3 years and 6 months, commencing 17 April 2025 and expiring 16 October 2028.
  • Total head sentence: 11 years.

Key Takeaways

  • The District Court placed this break and enter with wounding above mid-range objective seriousness, drawing on the nature of the serious indictable offence committed inside the dwelling, the use of a firearm by a co-offender, and the in-company circumstances.
  • A standard non-parole period functions as a legislative guidepost within a single-stage sentencing process; following Muldrock, it does not operate as a presumptive starting point or floor.
  • Drug misuse that contributes to offending is a relevant factor in assessing moral culpability, to be weighed against the seriousness of the conduct rather than treated as a straightforward mitigating factor.
  • Special circumstances were established where an offender's extensive custodial history created a genuine risk of institutionalisation, justifying a longer parole period to assist reintegration into the community.
  • A 10% discount for the utilitarian value of a late guilty plea (entered on the first day of the third scheduled trial) was confirmed as appropriate on the facts, consistent with Borkowski v R.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A

Cases:
- Borkowski v R [2009] NSWCCA 102
- Callaghan v R [2006] NSWCCA 58
- Cheung v The Queen (2001) 209 CLR 1
- Muldrock v R [2011] HCA 39
- Munda v The State of Western Australia [2013] HCA 38
- Neal v The Queen (1982) 149 CLR 305
- Qutami [2001] NSWCCA 353
- R v Henry [1999] NSWCCA 111
- Tepania v R [2018] NSWCCA 247