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District Court 20 September 2024

R v Alen Yousif

[2024] NSWDC 540

Assault & violenceDrugsFirearms & weaponsPublic order & justice offences

Citation: R v Alen Yousif [2024] NSWDC 540
Court: District Court of New South Wales
Date: 20 September 2024
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to two principal charges. The first was being an accessory before the fact to a drive-by shooting that occurred on 9 April 2022, in which two co-offenders fired multiple rounds from a hired utility vehicle into a residential dwelling occupied by a suspended police officer and his parents. The offender's role was limited to advising one of the principal offenders to conceal the signage on the hired vehicle before the shooting took place.

The second charge was knowingly taking part in the supply of a 9-millimetre pistol on 11 September 2022, without the recipient holding an authorising licence or permit, contrary to s 51(1A)(a) of the Firearms Act 1996 (NSW). The offender had secreted the pistol on neighbouring property and negotiated its sale via encrypted messaging applications, while acknowledging in those messages that the weapon had been used in a drive-by shooting. Two further offences, directing the activities of a criminal group and supplying cocaine, were placed on a Form 1 to be taken into account on sentence.

The sentencing proceedings were part of a broader set of proceedings against the co-offenders in the shooting. The court had already sentenced one co-offender before dealing with the present offender.

Legal Issues

  • What was the appropriate objective seriousness of each offence, having regard to the offender's actual role and conduct?
  • To what extent, if any, did the offender's traumatic childhood, mental health conditions, and drug dependency reduce his moral culpability, consistent with the principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194?
  • How should the court treat the offender's drug use and addiction at the time of the offences, given the prohibition in s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on treating self-induced intoxication as a mitigating factor?
  • What aggregate sentence and non-parole period were appropriate, having regard to totality, the Form 1 offences, the late guilty pleas, and the finding of special circumstances?

Decision

Issue 1: Objective seriousness

The court assessed the accessory offence as falling below the mid-range of objective seriousness. The offender's involvement was limited to advising a co-offender to conceal identifying signage on the hired vehicle prior to the shooting, and the Crown accepted that characterisation of his role (at [56]-[58]). By contrast, the pistol supply offence was assessed as falling within the mid-range of objective seriousness. The offender had taken multiple active steps over several weeks to negotiate the sale of a pistol he knew to be in working condition and to have been used in criminal activity, and the evident purchaser was part of the criminal element of the community (at [59]-[61]).

Issue 2: Moral culpability and background

The court found a reduction in moral culpability was warranted by reference to the offender's disadvantaged and traumatic background and associated mental health conditions. The offender reported suffering childhood bullying, paternal physical abuse, and a sexual assault by a teacher at school. A psychologist diagnosed him with PTSD, moderate Stimulant Use Disorder, severe Sedative Hypnotic Anxiolytic Disorder, and severe Opioid Use Disorder. The court accepted that his mental health was linked to his traumatic childhood and that his drug addiction was connected to that same history, engaging the principles in De La Rosa concerning social disadvantage (at [101]).

Issue 3: Drug use and s 21A(5AA)

Following its approach in the sentencing of co-offender Regan Yousiph, the court applied the remarks of Button J in Moiler v R [2021] NSWCCA 73 and declined to treat the offender's drug use and addiction at the time of the offences as a mitigating factor. However, the court distinguished between self-induced intoxication, which s 21A(5AA) excludes as a mitigating consideration, and the broader disadvantaged background and related mental health conditions, which retained relevance (at [102]-[103]). The court also noted that the offender's mental health did not reduce the need to reflect general deterrence in the sentence, while accepting that custody would be more onerous given his conditions (at [104]).

Issue 4: Sentencing discretion and aggregate sentence

The late guilty pleas attracted only a 5 per cent discount for utilitarian value (at [105]). Remorse was accepted in part, but the offender's denial of involvement in organised criminal activity in his Sentencing Assessment Report reduced its weight (at [106]). Rehabilitation prospects were assessed as no better than guarded (at [107]). A finding of special circumstances was made, given the offender's need for substantial support upon release to address his drug dependency (at [110]). The two principal offences were unrelated, warranting a reasonable degree of accumulation (at [112]). Taking into account the concurrent service of a prior sentence and the principle of totality, the aggregate sentence was backdated to 26 April 2023 (at [111]).

Orders Made

  • The offender is convicted of both offences to which he pleaded guilty.
  • An aggregate sentence of five years and eight months' imprisonment is imposed, commencing on 26 April 2023 and expiring on 25 December 2028.
  • The aggregate non-parole period is three years and seven months, expiring on 25 November 2026.
  • The offender is eligible for release to parole on 25 November 2026, subject to the determination of the State Parole Authority.

Key Takeaways

  • A sentencing court may reduce an offender's moral culpability where mental health conditions and drug dependency are causally linked to a traumatic and disadvantaged childhood, consistent with De La Rosa principles, even where the offending involved a degree of planning (at [101], [103]).

  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication at the time of the offence cannot be treated as a mitigating factor, but this does not preclude a court from having regard to the broader disadvantaged background and mental health conditions associated with the offender's substance dependency (at [102]-[103]).

  • Where two offences are unrelated in their factual basis, a sentencing court will apply a reasonable degree of accumulation when imposing an aggregate sentence, rather than treating the sentences as wholly concurrent (at [112]).

  • Late guilty pleas attract only modest utilitarian discounts. Here, the court applied a 5 per cent reduction, and an offender's partial denial of the full extent of their criminal conduct in a Sentencing Assessment Report can diminish the weight given to expressions of remorse (at [105]-[106]).

  • Participation in the sale of a firearm known to have been used in criminal activity, where the likely purchaser is part of the criminal element, was assessed at the mid-range of objective seriousness for supply of pistol offending, with general deterrence identified as a significant sentencing consideration (at [61], [114]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 3A, 21A(5AA)
- Firearms Act 1996 (NSW), s 51(1A)(a)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Moiler v R [2021] NSWCCA 73