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District Court 20 September 2024

R v Regan Zia Yousiph

[2024] NSWDC 541

Firearms & weaponsPublic order & justice offences
SENTENCING CRIMES ACT 1900 (NSW) S 93GA(1B) FIRING AT DWELLING HOUSES OR BUILDINGS ‘DRIVE BY’ SHOOTING

Citation: R v Regan Zia Yousiph [2024] NSWDC 541
Court: District Court of New South Wales
Date: 20 September 2024
Judge: Buscombe DCJ

Background

Shortly before 11pm on 9 April 2022, the offender, Regan Yousiph, participated in a drive-by shooting at a residential dwelling in Canley Vale, New South Wales. Acting in a joint criminal enterprise with a co-offender, Steven Hirmiz, Yousiph fired firearms at the house from a hired utility vehicle as it passed the property. A third participant, Alen Yousif, was an accessory before the fact.

The targeted house was a modest fibro dwelling in a suburban street where a family had lived for over 20 years. The parents of the primary occupant, SL, were asleep inside at the time. Multiple bullets entered the front rooms of the house, with bullet fragments and strike marks found in the loungeroom, sewing room, kitchen, and bathroom. No one was physically injured, but the impact on the occupants was significant.

A subsequent search warrant executed at the offender's Smithfield address on 4 August 2022 uncovered a 9mm pistol, a detachable box magazine, and cartridges hidden beneath his home. Ballistics analysis linked that weapon to bullet fragments recovered from inside the targeted dwelling. DNA on the pillowcase concealing the items matched the offender, and his fingerprints were found on the Coles bags wrapped around them. Yousiph pleaded guilty to both the shooting offence and a charge of unlicensed possession of the pistol.

  • Whether the shooting offence under s 93GA(1B) of the Crimes Act 1900 (NSW) ("firing at a dwelling-house in the course of organised criminal activity with reckless disregard for the safety of another person") warranted a sentence above, at, or below the standard non-parole period of six years.
  • What discount, if any, should apply to the starting point sentences in recognition of the guilty pleas.
  • How the two indicative sentences should be structured into an appropriate aggregate sentence and non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the totality principle.
  • What weight to give to the offender's subjective circumstances, including his background and any Bugmy considerations (that is, the relevance of social disadvantage to the assessment of moral culpability).

Decision

Buscombe DCJ assessed the shooting offence as serious within its class. The offending involved a planned, organised criminal enterprise, the use of two firearms, multiple rounds discharged at an occupied suburban home at night, and actual bullet penetration into living areas of the house. The Court found the standard non-parole period of six years to be the appropriate starting point for the shooting offence, reflecting the nature and circumstances of the conduct.

The Crown accepted it could not prove beyond reasonable doubt that the offender knew the occupant, SL, was a serving police officer at the time of the shooting. That finding bore on the assessment of the offending's specific character, though the premises was plainly an occupied family home regardless of the occupants' identities.

After applying a discount for the guilty plea, the indicative sentence for the shooting offence was reduced from six years to five years and eight months, with an indicative non-parole period of three years and nine months. For the pistol possession offence, the starting point of three years was reduced to an indicative sentence of two years and ten months, with a non-parole period of one year and ten months.

Applying the totality principle to arrive at an aggregate sentence, the Court imposed a total term of six years and eight months imprisonment, with a non-parole period of four years and five months. The sentence was backdated to commence on 4 August 2022, the date of the offender's arrest on the firearms possession charge.

Orders Made

  • Offender convicted of both offences.
  • Indicative sentence for the shooting offence (s 93GA(1B), Crimes Act 1900): 5 years and 8 months imprisonment, with an indicative non-parole period of 3 years and 9 months.
  • Indicative sentence for unlicensed pistol possession (s 7(1), Firearms Act 1996): 2 years and 10 months imprisonment, with an indicative non-parole period of 1 year and 10 months.
  • Aggregate sentence: 6 years and 8 months imprisonment, commencing 4 August 2022 and expiring 3 April 2029.
  • Aggregate non-parole period: 4 years and 5 months, expiring 3 January 2027.
  • Earliest eligibility for parole: 3 January 2027 (subject to the State Parole Authority).

Key Takeaways

  • The District Court treated the standard non-parole period of six years under s 93GA(1B) as the appropriate sentencing benchmark for a planned, organised drive-by shooting involving two firearms and multiple rounds fired at an occupied family home.
  • A guilty plea produced a meaningful discount from the starting point for both offences, reducing the shooting charge from six years to five years and eight months and the firearms possession charge from three years to two years and ten months.
  • Under s 93GA(1B), proof that the offender was aware of a particular characteristic of the target occupant (here, their status as a police officer) is required before that characteristic can be treated as an aggravating feature; the Crown's inability to establish that knowledge here confined the sentencing assessment accordingly.
  • Aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW) operates so that the total term is not a simple addition of the indicative sentences; the totality principle shapes the final aggregate to avoid a disproportionate cumulative penalty.
  • Ballistic and forensic evidence, including DNA, fingerprint matching, GPS tracking data, and fired cartridge comparisons, formed the evidentiary foundation linking the offender to both the shooting and the subsequently discovered weapon.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93GA(1B) (firing at dwelling-houses or buildings in course of organised criminal activity)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 7(1) (unauthorised possession of a pistol)

Cases
- White v R [2016] NSWCCA 190
- Bugmy v R (2013) 249 CLR 571 (High Court authority on the relevance of social disadvantage to moral culpability in sentencing)
- Moiler v R [2021] NSWCCA 73