Citation: R v Obeid (formerly Charraue); R v Raharuhi; R v Hanna [2024] NSWDC 699
Court: District Court of New South Wales
Date: 20 November 2024
Judge: Neilson DCJ
Background
Three men appeared for sentence following their respective roles in a robbery committed on 14 May 2023 at Fortune Abalone Australia, an upmarket Chinese delicatessen in Sussex Street, Haymarket. The three offenders, referred to here by their roles, were the first offender (the chisel-bearer), the second offender (the lead robber, who had also conducted a separate theft from the same store weeks earlier), and the third offender (the second bag-carrier). Each was also to be sentenced for additional, separate offending.
The robbery was methodical and premeditated. Earlier that afternoon, the first and third offenders stole number plates from parked cars in Brighton Le Sands, and a grey Honda Civic bearing those false plates transported all three men to the store. Once inside, the second offender forced open locked display cabinets and, together with the third offender, filled shopping bags with valuable goods including sea cucumbers and dried fish maw. The first offender held a steel chisel and, according to disputed facts resolved by the judge, pointed it at the two female shop assistants and directed them not to move.
Each offender carried a significant criminal history and had individual personal circumstances that required separate consideration. The sentencing exercise was accordingly conducted for each offender individually, with different outcomes reflecting those differences.
Legal Issues
- Whether, and to what extent, the chisel was used to threaten the shop assistants, and whether the second and third offenders knew the first was carrying it
- How to assess the objective seriousness of a robbery in company where offenders played different roles
- How to balance the criminality of each offender against individual subjective factors, including social disadvantage, background trauma, and prospects of rehabilitation
- The appropriate non-parole period ratios for each offender, particularly where strong personal circumstances justified departure from the statutory norm
- Whether additional offences (the earlier theft, the stolen number plates, and breaches of existing orders) should be dealt with on the indictment or on a Form 1 (a procedure allowing a court to take further offences into account without recording a separate conviction)
Decision
His Honour resolved the disputed facts regarding the chisel by watching the CCTV footage multiple times. He accepted that the first offender pointed the chisel at the two shop assistants and said words to the effect of "don't move," causing fear. The second and third offenders' awareness of the chisel was also considered in light of the CCTV evidence and the surrounding circumstances.
The robbery in company was treated as a serious offence for all three men, though their roles and culpability differed. The first offender, who had wielded the chisel and had an extensive criminal history but also a background of severe childhood trauma, social disadvantage, and substance dependency, received a sentence that reflected both the gravity of his conduct and the sentencing principles from Bugmy v R concerning the ongoing relevance of background disadvantage. A significant downward departure from the statutory non-parole period ratio was considered warranted given the particular rehabilitation prospects in his case.
The second offender faced the additional charge of stealing from the person arising from the 26 April 2023 theft of a glass jar of birds' nests valued at approximately $15,000, an offence under s 94(b) of the Crimes Act 1900 carrying a maximum of 14 years' imprisonment. His overall sentence accounted for that antecedent offending, his role in the robbery, and his personal circumstances.
For the third offender, the court imposed a non-parole period of 11 months, set to expire on 7 December 2024, making him eligible for parole almost immediately. His Honour was satisfied that this departure from the standard non-parole period ratio was justified on stronger grounds than those considered (but ultimately not sufficient) in the analogous decision of R v Ibrahim, because early release to parole represented the most viable pathway for this offender to break longstanding patterns of offending and reintegrate into society.
Orders Made
Note: The orders section provided relates primarily to the third offender (Hanna). Full sentencing orders for Obeid and Raharuhi were not reproduced in the text provided.
Third offender (Hanna), robbery in company on 14 May 2023:
- Convicted of robbery in company contrary to the Crimes Act 1900
- Sentenced to imprisonment with a non-parole period of 11 months commencing 8 January 2024 and expiring 7 December 2024
- Additional term of 1 year and 7 months commencing upon expiration of the non-parole period and expiring 7 July 2026
- Two further matters taken into account on the Form 1
- Eligible for consideration for release on parole at expiration of the non-parole period
Orders for the first and second offenders are not fully reproduced in the text provided.
Key Takeaways
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The District Court confirmed that where an offender's personal history of severe disadvantage and trauma is established, Bugmy v R principles require that background to be given genuine weight in sentencing, even where the criminal history is extensive.
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A non-parole period well below the statutory proportion (here, 37.5% rather than the standard 75% in the Hanna sentence) is not automatically erroneous, but the sentencing court must articulate a sufficiently compelling reason, beyond mere hardship of imprisonment, to justify the departure.
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Where co-offenders participate in the same robbery, their sentences may differ substantially based on individual roles, levels of culpability, and personal circumstances, even when the underlying facts are shared.
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The use of a weapon (here, a steel chisel) to threaten store employees during a robbery materially affects the objective seriousness of the offence, and the extent of any threat is a factual question requiring close scrutiny of available evidence including CCTV footage.
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Pre-existing community-based orders (such as Community Release Orders and Community Corrections Orders) in force at the time of further offending are an aggravating factor, and an offender who breaches those orders during a robbery faces separate consideration of the breach alongside the new sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94(b) (robbery, and stealing from the person)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases:
- Bugmy v R (2013) 249 CLR 571
- DG v R (No 1) [2023] NSWCCA 320
- R v Henry (1994) 46 NSWLR 349; (1999) NSWCCA 111
- R v Ibrahim [2021] NSWCCA 296
- RC v R; R v RC [2020] NSWCCA 76