R v ATTAR, Ali; HAWAT, Hasan & HUYNH, John [2010] NSWDC 199

New South Wales District Court

CITATION: R v ATTAR, Ali; HAWAT, Hasan & HUYNH, John [2010] NSWDC 199

JUDGMENT DATE: 11 June 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

ALI ATTAR: Convicted. Sentence to 2 years and 2 months imprisonment; a non-parole period of 20 months. Sentence be served by way of periodic detention. Balance of term of 6 months. HASAN HAWAT: DECISION: Convicted. Sentence 20 months imprisonment. Sentence suspended John Huynh Convicted Sentenced 2 years and 6 months imprisonment; non-parole period of 22 months; balance of term 8 months; sentence be served by way of periodic detention.

CATCHWORDS: Criminal law - sentence - co-offenders - robbery - department store takings - inside planning - takings $81,000 - roles assigned - planner, recruiter and loot delivery - target identifier - robber - getaway driver - $5,000 recovered - serious example of offence, early pleas.

Regina v Rause unreported NSWCCA 8 August 1992 Gladue v The Queen [1999] 1SCR 688 [80] CASES CITED: R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329

Regina PARTIES: Ali Attar Hasan Hawat John Huynh

FILE NUMBER(S): 2009/00073023; 2009/00256748; 2009/00057735

COUNSEL: Defence for HAWAT: P Linegar Defence for HUYNH: G Heathcoate

SOLICITORS: Crown: Ms T Roberts Defence for ATTAR: Mr R Macaulay

JUDGMENT 1. In September and October 2008 John Huynh was an employee of Bing Lee. Ali Attar, known to Huynh through a family relative, was a customer of Bing Lee, served on occasion by Huynh in September 2008. Hasan Hawat worked out in a Bankstown gym where Attar also worked out. These three with one HA - I have used initials because he is an alleged offender yet to be tried - agreed to rob and did rob a Bing Lee employee of $81,000 in cash in circumstances I shall describe in more detail shortly. 2. Today, each of these three offenders is to be held accountable for his role in this robbery. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for each offender before the court harming this victim in the community in which it occurred, see Gladue v The Queen [1999] 1SCR 688 [80]. 3. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to each of the offenders known as subjective matters. The starting point for these assessments requires me to make findings of fact from the material before the court relating to both the offence and the relevant offender. My fact finding task has been circumscribed to some extent in that the parties have tendered an agreed set of facts to which I will shortly return. It is sufficient that at this point I remind all that a judge is not party to an agreed set of facts. The tender of agreed facts does not relieve him or her from the fact finding task. It simply limits the material from which facts may be found. To the extent, if it be the case, that facts as agreed do not reflect the actual events that occurred it must be remembered the court can only find facts from the evidence placed before it. 4. Each of the offenders' rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be pronounced there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, and, finally of course the ultimate term of imprisonment or other penalty to be imposed. None of those matters can be determined until the primary facts are determined. What weight needs to be given to all of this against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740 and R v Cuthbert (1967) 2 NSWR 329. Facts 5. Bing Lee own a number of stores operating in New South Wales. In September and October 2008 Huynh was an assistant manager at the Bing Lee store in Bankstown. During 2008 he served a customer Ali Attar who purchased a plasma TV and other items. During that or some other purchases or contacts Huynh and Attar had a casual conversation about the banking procedures used by the store. 6. On 2 October 2008 they met at a coffee shop near the Bing Lee store. They discussed organising a robbery at Bing Lee. Huynh outlined the banking procedures to Attar. He explained in detail about who would walk out of the store with the cash, which car they would approach, where that car would be parked and occasions when this would be occurring. He told Attar that the weekly takings were usually banked on a Monday of the week. Attar informed Huynh it was better to stage a robbery outside the store or on the way to the bank. 7. Attar arranged with Huynh that a robbery would happen on Monday 6 October 2008 outside the store but that was a public holiday and the banks were not opened so the date was changed to the following 7 October. Attar further informed Huynh that two others would be involved in the robbery plan and the proceeds of the robbery would now need to be shared four ways with Huynh getting a share. Attar told Huynh that one of the others would be a driver of a getaway vehicle and the fourth would be the actual robber. 8. Attar told Huynh that a male would approach the expected victim, one Jenny W, and take the bag containing the week's takings. That male would then run towards a waiting car with the driver who would then drive off. This meeting between Attar and Huynh lasted about fifteen minutes. 9. After it Attar starting looking for people to carry out those roles. He made contact with HA who, at the time, was working with Attar at a car wash in Bankstown. Attar asked him if he was interested in carrying out the actual robbery. HA agreed. 10. Attar then started looking for a driver of the getaway car. He approached Hasan Hawat who was training with Attar at the gym as I earlier mentioned. When asked if he was interested Hawat was struggling with a few personal debts. He thought about the offer for a day and ultimately agreed to become the driver of the getaway vehicle. 11. There were two telephone contacts at 11.39 and 11.43 on 6 October between Attar and Huynh. The contacts were initiated by Attar. Attar asked Huynh if the week's takings had been banked and was informed that the banking had not been completed since the banks were closed. It is to be remembered that there is a long weekend the first weekend in October which I think if memory serves me is the Labour Day weekend. Attar and Huynh agreed that the robbery should take place the following day and there were calls that could have been confirmed in evidence if necessary. A time was set between 9.30 and 10.30 outside the Bing Lee store when the victim and Huynh were to walk towards Huynh's car with the takings. 12. Attar advised Huynh to stay calm during the robbery and everything would be taken care of. There were further instructions to stay calm after the robbery and act as if he was a normal witness to the robbery. There was an agreement that Attar would contact Huynh shortly after the robbery to hand over Huynh's share of the proceeds. 13. The night before the robbery Hawat, Attar and HA met at HA's premises. Attar explained how the robbery was to be carried out. He planned the location where the getaway vehicle was to be parked and what HA and Hawat were supposed to do after the incident. 14. The three visited the location of the planned robbery together. About 8am on 7 October Hawat and HA attended Attar's house. Again, Attar confirmed the plan and the roles of both men. At that time, HA was in possession of a white Mazda which had distinctive registration number. After a short meeting Hawat drove the vehicle to Canterbury Road Bankstown, parked it in the vicinity of Bing Lee. At that time HA was seated in the front passenger seat. On arrival HA left and waited directly outside the Bing Lee store while Hawat stayed with the vehicle. The ignition was on and, as I understand it, although it is not a detail here but I imply, the engine was left running. 15. On 7 October Huynh commenced to work at about quarter to nine fully aware of the timetable for the robbery. The victim, an administrative officer with Bing Lee, started reconciling the week's takings which amounted to about $81,000 plus. Huynh approached the victim on numerous occasions saying that the banking had to be done immediately. 16. At 10.28 Huynh and Jenny W commenced walking from the store towards his red coloured car, a Ford Capri. As they approached the car he walked a little faster than she leaving her behind. He approached the driver's door and entered the vehicle. She reached the front passenger side door, was about to open it, she felt an object getting pushed against her back. She felt a person present behind her. She heard HA say, "Give me the money". On hearing this her response was to hold tightly to the bag. HA commenced pulling it from her shoulder. She started resisting by holding onto the bag. He grabbed her left arm, there was a brief struggle between them. She started yelling and screaming for help. She felt a sharp pain to her left hand and let go of the bag. As a result of the incident she sustained a deep laceration to her finger requiring stitching. 17. HA, now armed with the bag, ran east towards Canterbury Road. A witness, stationary in the traffic on Canterbury Road watched as he ran along Canterbury Road to the white Mazda. He took note of the number plate. HA entered the vehicle, how it drove along Canterbury Road and turned left into Clements Avenue. Another independent witness who happened to drive behind the Mazda started following it along Canterbury Road. That witness observed the Mazda turn left into Clements and travel straight onto Marshall Street. The witness saw the Mazda pull up beside a Mercedes driven by Attar. HA leaned from the Mazda and handed the backpack to Attar. Both vehicles left the scene. 18. Hawat and HA drove to Attar's house where they counted the proceeds from the backpack. The cash was divided among Hawat, Attar, HA and Attar held on to Huynh's share. Numerous enquiries were carried out on the mobile services used by HA, John Huynh, Ali Attar and Hasan Hawat. Numerous telephone calls were made between the services by HA, Ali Attar, Hasan Hawat including between HA and Attar on 7 October just minutes before the robbery. 19 On 14 October 2008 HA was arrested, charged with aggravated robbery and his matter is listed for trial sometime next week at the Sydney District Court. 20. John Huynh, on 31 March 2009 was arrested and charged. He made full admissions as to his involvement in the offence. A plea of guilty has been accepted to robbery on the basis that he did not contemplate any injury would be occasioned to the victim. Huynh also made a statement about Attar's role in the offence which he was prepared to give as evidence. 21. Ali Attar on 23 June 2009 attended Bankstown Police Station. He was placed under arrest. He was cautioned and as was his right declined to be interviewed. On 20 October 2009 he voluntarily participated in an interview with police where he made admissions as to his involvement and implicated HA and Hawat and Huynh. He also agreed to give evidence in any proceedings against any of the other co-offenders or alleged co-offender. A plea of guilty has been accepted to robbery by him on the basis that he did not contemplate any injury would be occasioned to Jenny W. 22. Hasan Hawat was attended upon by police on 14 November 2009. They placed him under arrest, he was cautioned, taken to Bankstown Police Station, he willingly participated in an electronically recorded interview. He made full and what I described as frank admissions about his role and the role played by the two people he had contact with HA and Ali Attar. Hawat appeared to be remorseful for his actions. He participated in a computer photo board identification in which he identified HA as the person he met with on the night before the robbery and who he drove to and from the robbery location. A plea of guilty has been accepted to robbery on the basis that he did not contemplate that any injury would be occasioned to the victim. 23. There is a claim for compensation. That matter is yet to be determined and may even be the subject of consent agreement. 24. The statement of facts identifies areas of dispute. Those disputes concern and are maintained in this hearing as to who was the instigator of the robbery; as to who conceived the idea of the robbery; as to whether Huynh was paid his share of the robbery proceeds; as to whether the full robbery proceeds were divided and in any event Ali Attar says that he gave John Huynh $10,000 as his share of the proceeds consistent with there only being a $40,000 haul which Hasan Hawat asserts there was less than $40,000. Objective Criminality