Citation: R v Ghoulmieh [2022] NSWDC 470
Court: District Court of New South Wales
Date: 2 August 2022
Judge: M L Williams SC DCJ
Background
A 21-year-old Aboriginal offender appeared for sentencing after pleading guilty to a series of serious violent offences committed over a short period in early 2021. The offences arose from two distinct incidents involving the same victim, as well as a separate armed robbery. At the time of sentencing, the offender had spent seven years of his life in juvenile or adult custody, and had only approximately ten months at liberty as an adult.
The first set of offences centred on the offender's belief that the victim had stolen an electric scooter from him. Over the course of a night in late March 2021, the offender detained the victim at a residential address while armed with a bolt-action rifle, struck the victim in the face with the rifle butt causing serious injuries, and made repeated demands for money from the victim and his family. The victim's father ultimately transferred approximately $2,800 under duress. A second incident in early April 2021 involved the offender again detaining the victim, this time in the company of a co-offender, and forcing him into a vehicle. A separate armed robbery formed the basis of the final charge.
The offender was on parole at the time of the offending, and his parole was subsequently revoked. His subjective circumstances included a serious drug addiction, a diagnosis of mental illness, and a background consistent with Bugmy-type considerations (that is, the sentencing principles applicable to Aboriginal offenders with histories of profound disadvantage, as recognised by the High Court in Bugmy v The Queen).
Legal Issues
- What aggregate sentence and non-parole period were appropriate for multiple serious violent offences, including two counts of detain for advantage, reckless wounding, and armed robbery?
- How should the court weigh aggravating factors, including the use of a firearm, the detention of the victim over an extended period, breach of conditional liberty (parole), and the vulnerability of the victim?
- How should the court weigh mitigating factors, including the guilty plea (attracting a 25% discount), youth, Aboriginal background, mental illness, drug addiction, and the risk of institutionalisation?
- Was there a proper basis to find "special circumstances" justifying a departure from the standard ratio between the non-parole period and the total sentence?
- How should Form 1 offences (additional matters taken into account at sentencing without separate conviction) be treated in setting the overall sentence?
Decision
Williams SC DCJ identified the offending as extremely serious. The first detention offence involved the use of a firearm to inflict actual bodily harm, prolonged detention of the victim overnight, and coercive demands for money backed by ongoing threats to the victim and his family. The second detention offence was aggravated by being committed in company. The armed robbery constituted further serious offending. Breach of conditional liberty, namely the commission of these offences while on parole, was an additional aggravating factor.
Against this, the court gave considerable weight to the offender's subjective circumstances. His Aboriginal background and associated disadvantage, mental illness, serious drug addiction, and age were all relevant to his moral culpability. His guilty pleas attracted a 25% discount. The court also took into account the difficult conditions experienced in custody during the COVID-19 pandemic, including extended periods in lockdown and restricted access to family contact, citing the observation of Hamill J in DPP (Cth) v Saadieh that pandemic conditions affecting prisoners should not be treated as unremarkable or "the new normal."
The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, which permitted a non-parole period that represents a greater proportion of the overall sentence being set aside as parole time than would ordinarily be the case. The basis for this finding included the offender's young age, the risk of institutionalisation given his history of continuous custody, his mental illness, and the need for an extended period of supervised support and drug treatment upon release.
The court set indicative sentences for each individual offence before imposing an aggregate sentence of six years' imprisonment, with a non-parole period of three years and four months commencing 2 December 2021. Two minor driving matters were disposed of by conviction with no further penalty under section 10A.
Orders Made
- Conviction recorded for each offence.
- Indicative sentences (after 25% guilty plea discount):
- Detain for advantage, inflicting actual bodily harm (with Form 1 demands with menaces): 4 years
- Detain for advantage while in company, inflicting actual bodily harm (with Form 1 demands with menaces): 4 years 6 months
- Reckless wounding: 2 years 6 months (indicative non-parole period of 18 months)
- Armed robbery: 3 years
- Aggregate sentence of 6 years' imprisonment imposed.
- Non-parole period of 3 years and 4 months, commencing 2 December 2021.
- Special circumstances found.
- Two driving matters (drive without consent; drive while disqualified) dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty.
Key Takeaways
- The District Court confirmed that even where an offender presents with compelling subjective circumstances, including youth, mental illness, Aboriginal background, and addiction, a significant term of full-time custody remains mandatory for multiple serious violent offences involving firearms, prolonged detention, and injury.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was supported by the combination of young age, demonstrated risk of institutionalisation, mental illness, and the need for an extended period of post-release supervision and treatment. No single factor was determinative.
- Pandemic-related custodial conditions, including lockdowns and restricted family contact, remained a relevant mitigating consideration at sentence, and the court rejected any approach that treats such hardship as unremarkable simply because it is widely shared among the prison population.
- Breach of parole at the time of offending was treated as a formal aggravating factor under the sentencing framework, operating to increase the objective seriousness of the conduct.
- Where indicative sentences are set for multiple offences as part of an aggregate term, the aggregate sentence may be substantially less than the sum of the individual indicative sentences, reflecting the principle of totality, which requires that the overall sentence not be crushing or disproportionate to the offender's total criminality.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 35(4), 86(2)(b), 86(3), 97(1), 249K
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 10A, 166
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2