New South Wales District Court CITATION: R v Ahmed Raad [2007] NSWDC 56 HEARING DATE(S): 19/1/07; 23/2/07 & 15/3/07 JUDGMENT DATE: 16 March 2007 EX TEMPORE JUDGMENT DATE : 26 September 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted robbery whilst armed with offensive weapon; Sentenced to Non Parole Period 2years 6months to commence 16/3/06 and expire 15/9/08. Balance of term 1year 6 months to expire 15/3/08. Referred offender to Drug Court for eligibility into compulsory drug treatment program. [see paragraphs 47-48]. CATCHWORDS: Criminal Law - Sentencing after trail - Robbery whilst armed with offensive weapon - knife - street crime - objective seriousness - recidivist offender - victim of domestic violence as youth - drug related offence - prior drug related offences - compulsory drug treatment order - eligibility criteria - Court's duty to refer. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Queen v Gladue R v Cuthbert 1967 2NSWR329 R v Rushby (1977) NSWLR 597 CASES CITED: R v Hayes [1984] 1 NSWLR 740 R v Rause; unreported, NSWCCA 8 August 1992 King v Porter (1993) 55 CLR 182 R v Henry & Ors (1999) 46 NSWLR 340 Callaghan v Queen (1952) 87 CLR 115 PARTIES: Regina Ahmed Raad FILE NUMBER(S): 06/21/3182 SOLICITORS: Mr C Brown - Office of Director of Public Prosecutions for Crown Mr P Townsend - Legal Aid Commission of NSW for accused. SENTENCE 1 HIS HONOUR: Ahmed Raad was granted parole on 28 January 2005. He returned home to live with his mother and sister. He became engaged to a young lady, Maria, with whom he had been close to for two years. She has no prior history of drugs. He was ten months into a three year parole period when five minutes walk from where he lives a robbery occurred. 2 Nicholas Borel born in Shambourg, France qualified in architecture and interior design, at the conclusion of his studies travelled from Lyon in France to Australia in 2005 to improve his English and gain international experience in interior design. He was twenty-five years old. He started his working career in Australia washing cars. He then met a fellow countryman living in Riverwood. Nicholas Borel moved there to share a flat in Michigan Road, that was the road that was five minutes walk from Ahmed Raad's house. 3 On 29 October 2005 on returning from the city looking for work, he was robbed at knifepoint by another man of about the same age. That robbery occurred at the entrance to the block of flats where he lived. A jury after a three day trial convicted the Ahmed Raad as being the man who robbed Nicholas Borel. Today he is to be held accountable for his criminal conduct. As the sentencing Judge it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, harming this victim, in this community. Queen v Gladue [1999] SCR 688 at [80]. 4 My initial task requires an assessment of the objective criminality of this offence. I will also need to have regard to matters personal to the offender (his subjective features). The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to both the offence and to the offender. I shall also have to assess the rehabilitation prospects of the offender even though looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, whether special circumstances are to be found, the length of the parole period and finally, of course, the ultimate length of the term of imprisonment or other penalty that is to be imposed. None of that can be determined until the primary facts of this case are determined. 5 What weight needs to be given to all of these matters against the imperative that all sentencing should have as its focus the protection of the community needs to be determined. See Queen v Cuthbert 1967 86 Weekly Notes, part 1, 272, 2NSWR329; Queen v Rushby (1977) NSWLR 597 and Queen v Hayes 1984 1 NSWLR 740. Facts: 6 Nicholas Borel made his way from the railway station to Michigan Road. He noticed Raad walking slowly in front of him. He passed Raad and walked down the footpath towards his block of flats. He passed through the gates to the flats, then felt Raad grab his right arm. Borel turned, there was a knife held close to his abdomen. Raad was holding this knife. Raad said "Your telephone". Borel gave over his phone. Raad said "Your money". Borel took a $50 bill from a pocket in his clutch bag. Raad said "No I want more". There was another $250 that fell to the ground. Raad grabbed the money. Raad's fourth demand was "Your watch". Borel surrendered his Fiesta brand watch. Raad ran toward the interior of the block of flats. I am satisfied he was taking a short cut to his premises. Borel estimates the robbery took approximately two minutes. 7 There can be no doubt the robbery terrified Nicholas Borel. He ran to his flat, locked himself inside and waited several hours for his flatmate to return. Some two or three days later, forced to use the public phone because of the loss of his mobile, he was ringing his mother. He saw Raad; believed Raad recognised him. Borel cut short the telephone call and went directly to his flat, again locked himself inside, did not put on any light and waited in the growing darkness for his flatmate to return. The following day Borel moved from the area. Objective Criminality: 8 From the facts as he finds them to be the sentencing Judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is in this way that the seriousness of this offence can be evaluated. The objective criminality will have an important impact on the overall sentencing outcome. 9 Justice Gleeson when Chief Justice of New South Wales encapsulated the essence of the legal wrong, or the criminal wrong if you like, done by robbers and the reason why substantial punishment is required. See Queen v Rause unreported NSWCCA 8 August 1992. His Honour said: One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily business without fear of violence. It also embraces respect for the property of others. So offences of the kind committed by the present [offender] are not trivial instances of disrespect to private property. They amount to serious breaches of the peace. They are direct attacks upon the security of the person and the property which the law exists to protect. 10 The criminal essence of armed robbery is the use of a weapon, in this case a knife, to overcome the willpower of the person to whom the knife is presented, so that he, against his will, surrenders property of some personal value to him. 11 This offender presents as a strongly built young man. Borel obviously felt he was no match for the offender, armed as he was with a knife. The knife was described as a blue handled fishing knife. The presentation of the weapon constitutes one of the elements of the offence and for that reason does not amount to a circumstance of aggravation. The victim had four demands made upon him, his watch and his phone were personal items. The taking of the phone deprived him of the means of seeking emergency help for himself at a time of trauma and clearly increased the offender's chances of getting away without detection. 12 It is reasonable to infer, contained within the phone, was a phone index of contacts and their phone numbers. The watch, as with other jewellery, may well have had sentimental significance for Borel. 13 The evidence has made apparent the significant traumatic effect Raad's criminal conduct had upon his victim. The violence of the conduct was real and felt by Borel. It was a violence accomplished by the powerful force of menace. Menace from the exposed weapon near his abdomen and in my view the offender's powerful physical presence. I say "in my view" because the victim himself described him as being much the same build, but that was certainly not so. There was also the element of surprise and brazenness. 14 The violence of course is an element of the offence, it does not amount to aggravation. I cannot be satisfied that there was any planning. It would appear this was an opportunistic offence. The principal feature of aggravation is that the offence occurred whilst Raad was on parole. I deal with this aspect in more detail later. For reasons I give later I am satisfied this was a drug related offence. 15 I have had regard to matters of aggravation enumerated in s 21(A) Crimes (Sentencing Procedure) Act. In this case though, I have sought to deal with all matters of aggravation by reliance upon the Common Law principles and the relevant factors of aggravation in assessing the object criminality. This is not a case where I would regard factors of aggravation being so prominent as to require them to be dealt with anew by reliance upon s 21(A). Subjective Factors: 16 I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence I have just described, but also I am sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by him, or some reason why a more, or less, sentencing outcome is appropriate. Family Dynamics, Background and Relationships: 17 Ahmed Raad was born in Sydney in December 1982. He is twenty-four years old and a single man. His parents had earlier migrated to Australia from Lebanon. He is the youngest of four siblings. He has lived with his family in Riverwood Housing Commission accommodation for twenty years. His father, a barber, owns his own business. There are plans for the offender to take over the business, although it would seem he needs to complete his qualifications before that can happen. 18 His mother focussed on home duties and raising the children. She may well be depressed. The offender's sister gave evidence in the trial. While the jury verdict strongly suggests it rejected the main thrust of her evidence, she gave evidence that she was her mother's main carer. For what reason the mother needs a carer is unclear. Ahmed Raad claims his father and elder brother were disciplinarians towards him. He describes his father as having a tendency towards extreme anger on occasions. He claims his elder brother, Zac, physically assaulted him daily for awhile. These assaults were said to be condoned by the father. Ahmed Raad ran away from home aged sixteen and a half, only to be found by both the father and brother, and beaten by the father. His sister and mother protested this treatment. 19 In his early days he idolised his father. He would go each weekend to football games. Aged eleven though, things changed. With hindsight it seems the father was having an extramarital affair. The father's priorities within the family became altered. The offender's response was to look for comfort and acceptance among a negative peer group. In more recent years the father has reconciled with the family and it would seem, contact between father and son has increased perhaps even to a working relationship. Education, Skills, Vocational Training: 20 During primary school the offender apparently performed reasonably well. He was accepted by students and staff. In his final year at primary school he was appointed school captain; that is a leadership roll. However by Year Eight and Nine of high school there was a significant deterioration. His peer group had changed as mentioned above. He had truanted frequently. At very least he was supporting others of his group bullying and standing over children and taking their money, probably their lunch money. 21 He was experimenting with illegal drugs. He left school at school certificate year which he claims to have completed. He commenced a hair dressing course at TAFE. He has completed all but six months of the theoretically component of his hair dressing apprenticeship but there are still substantial practical requirements, I think a year of work experience, to be completed. He has had some experience working in his father's shop. There is apparently a hope and plan that he will take over the father's business. 22 In evidence before me he claims to have worked there in 2005 whilst on parole. However he told Mitchell Player, a forensic psychologist he would see his father once every few weeks whilst on release. Those two statements do not work well together for me. After release he worked for four months doing formwork. That requires intensive physical labouring. He sustained injury to his back and shoulders. He has an interest in physical fitness and in body building. He presses weights. He takes pride in, and it would appear he is competent at body building. The injury slowed up his capacity to participate in that sport. Health: 23 Ahmed Raad presents as physically powerful, consistent with his interest in the sport of body building. He reports he is over his back injury. So far as one can tell he would appear to otherwise enjoy good physical health. Mental Health Issues: 24 Prior to this present incarceration his GP diagnosed him with depression and prescribed Auroix. He claims that depression has lifted. Currently he is not taking medication. However, he reports a significant change of mood whilst incarcerated. There are increases in feelings of anger, a sometime symptom of depression. Occasionally he has experienced an impulse to explode but today has been able to resist it. He recognises gaol as a stress for him. Custody records would indicate his custodians are aware of depression and anxiety issues. I suspect that he still has his depression. Drug Abuse Issues: 25 The author of the pre-sentence report notes that historically the offender has struggled with illicit drug dependencies primarily heroin and cannabis. The offender denies drug involvement whilst on parole. Accepting that his fiancé is free of drugs and probably opposed to drugs, the offender would have a powerful motive for lying. 26 He was admitted to custody on 8 December 2005. Within a month he supplied a dirty urine. The Probation and Parole author regarded him as struggling with drug dependencies. Any supervision of him by Probation and Parole would require of him, among other things, treatment for drug dependency and random urine analysis to confirm abstinence. 27 The commission of the offence, whilst denied, means that motive is unclear. However the taking of money and items to be pawned/sold is consistent with drug related needs. There was no evidence of gambling in his past or at the trial. There is no evidence of any other addiction. Nor do the circumstances of the robbery suggest any pathological disturbance or any other mental imbalance. The only need that I can fathom is a drug related one. I am satisfied the offence was a drug related crime. I am satisfied the offender seeks to minimise and under-report his drug abuse in the community seeking to hide it from his family and his girlfriend. Character and Criminal History: 28 This offender appears to be well regarded and supported by his mother and sister. Yet again, I see there is a contingent of persons related to him and associated with him present in court. There appears to be some reconciliation with his father. He appears to have work experience and a sometimes willingness to work. He does, however, have a growing catalogue of criminal offending. In February 2001 he was travelling in a stolen conveyance and had goods in his custody reasonably suspected of being unlawfully obtained. These matters were resolved by fines. Seven days after these matters he was charged with an armed robbery. Four months later he was charged with armed robbery and assault with intent to rob whilst armed with a dangerous weapon. It is likely these last two offences were committed whilst he was on bail. Whilst on parole he committed this offence. A little over a week later he was charged with having custody of a knife in a public place. For that last offence he received a six month term of imprisonment. That term has been served subsequent to his incarceration. Attitude to Offence: 29 The trial was hard fought. It was a trial dependent upon identification evidence coming from the victim. The jury was given every reason by the defence to come to another verdict. The offender claimed to have been elsewhere, that claim was supported by sworn evidence of alibi from his sister and his girlfriend, both of whom produced diary entries in support of their evidence. The jury no doubt considered the evidence carefully before rejecting it. Consequently there is no evidence suggesting insight into, or contrition for the offence before me. 30 While the alibi evidence may be relevant to my assessment of the offender's rehabilitation prospects, it is not otherwise a matter that aggravates his criminality. Breach of Conditional Liberty: 31 A matter seriously aggravating this offence is it's commission by the offender whilst on parole. His parole was given to him on condition that he be of good behaviour. His commission of this offence in breach of that undertaking, so far as this offence is concerned, aggravates his criminality for it. Rehabilitation Prospects: 32 One of the matters that brought success to this offender when he appealed to the Court of Criminal Appeal in respect of some of the offences earlier mentioned was his rehabilitation prospects. His prospects are still good but the question of whether he is willing to grasp them is a more clouded proposition. He has strong family support and support of his fiancé. He has a vocational path, hairdressing mapped out for him. He enjoys good physical health. His mental health issues appear to be manageable with and respond to medication when required. He is, at least insofar as where he will live and work, and also with whom he will live, formulating post release plans and goals. He has community based support from neighbours and associates. 33 There are some negative factors to be considered. He has a history of recidivism. To the extent that the future can be predicted by past history, his recidivism needs to be addressed. His work history is sporadic at best. His income stream has not been identified. He has a past extensive history of drug abuse, an absence of drug treatment and a willingness to deny drug involvement. As I remarked, his prospects appear good but it is how he responds to them that will be determinative. Setting the Sentence: 34 This is an offence in which general deterrence must necessarily be a component of the sentencing outcome. In modern Australian Society there is an extensive raft of criminal laws passed by the Federal and State Parliament. The chief purpose of the criminal law put in place by Parliament is to deter those who are tempted to breach the provisions of the criminal law. Parliament does that by prescribing maximum penalties for those engaged in criminal law with a view that the maximum penalties will deter others from offending. 35 Consequently when a person is sentenced for a breach of the criminal law he is exposed to the possible maximum penalty provided by the statute breached. In this case the maximum penalty is one of twenty years imprisonment. Sentencing for breaching of the criminal law requires the Judge to keep in mind the general deterrence aims of the criminal law for the community at large, by keeping in mind that maximum sentence which was set with deterrence in mind. There is also a specific deterrence aimed at individuals likeminded to this offender who but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced. 36 Finally there is a component of deterrence to be considered which is personal to the offender, with a view to deterring him or her from re-offending. 37 The starting point in all sentencing is to understand the purpose of the sentencing proceedings: "The purpose of the Criminal Law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law so that when people have committed offences the law considers that they merit punishment. But the prime purpose is to preserve society from the depredations dangerous and vicious people. Dixon J in King v Porter (1993) 55 CLR 182". 38 Armed robbers, using knives to terrify their victims, qualify as dangerous and vicious people because of the violence of the trauma inflicted upon their victims. Impact of Guideline Judgment: 39 Regina v Henry & Ors notes a number, I think it's seven, criteria typical of these offences. Against that criteria the suggested guideline starts at four to five years. This offence must be viewed as exhibiting greater criminality because it is a second armed robbery and was committed whilst on parole for similar offending. Secondly the offender is entitled to less leniency than was built into the guideline because of his record of offending again with similar offences. The guideline was also predicated on a guilty plea which recognised some mitigation on that account and which recognised some insight into the offending conduct. None of these are available here. On the other hand mitigating his offending is the turbulent dysfunctional upbringing that he had, particularly from the age of eleven on. 40 I am of a view the overall sentence required for this offending conduct is one of four years imprisonment. This offender has been in custody since 7 December 2005. Since that time his custody has been revoked. The revocation dating from 7 December 2005. He has also served a sentence of six months relating to his custody of a cutting instrument. I have assumed that sentence expired on 6 June 2006. 41 I intend to date the sentence I am imposing from 16 March 2006, that is partly cumulative and partly concurrent with his last sentence. In that way I can take account of the needs of totality with the two sentences that have detained him, namely his balance of parole and his six months sentence. See Callaghan v Queen (1952) 87 CLR 115. Special Circumstances: 42 I find special circumstances. The accumulation of the sentences, his youth, his need to rehabilitate from drugs in a community based setting and his reasonable rehabilitation prospects. Shortly I will be sentencing him to a non-parole period of two and a half years back dated to 16 March 2006. It will expire on 15 September 2008 that will mean that I will be setting a balance of term of 18 months to expire on 15 March 2010. Compulsory Drug Treatment Program 43 A recidivist is a person who re-offends having already been convicted of and punished for an earlier offence. The Bureau of Crime Statistic reports that more than half of those going to goal for the first time re-offend. Many of those who re-offend are young men with serious drug problems. I am satisfied Ahmed Raad is a recidivist offender because of serious drug problems that he seeks to hide from his family and those interested in his rehabilitation. 44 The Government has introduced a rehabilitation program where the Drug Court is empowered to make a compulsory drug treatment order compelling recidivist offenders to participate in a drug rehabilitation programme. This Court has a duty to refer offenders who might qualify to the Drug Court for its assessment as to whether the relevant offender does, in fact, qualify. The Drug Court is the final arbiter of the eligibility. When a sentenced offender is eligible, it is the Drug Court and not this Court that will make the Compulsory Drug Treatment Order. There are eight criteria necessary for eligibility, five of them, with which I am concerned, appear to be me to be satisfied. That is, firstly that the offender is sentenced to full time imprisonment with an unexpired non-parole period of at least 18 months at the time of sentence and does not exceed three years at the time the compulsory drug order would be made. Secondly, that in the five years preceding sentence the offender has been convicted of at least two offences not arising from the same circumstances that resulted in imprisonment. Thirdly, the offender has never been convicted of murder, attempted murder, sexual assault, offences involving the use of a firearm or offences involving the supply or manufacture of a commercial quantity of prohibited drug. Fourthly, the offender's usual place of residence lies within the broader Sydney region; and fifthly that the offender is over eighteen. There are three further eligibility criteria considered in the Drug Court, they will include these: * A consideration of whether the offender has a long term drug dependency and associated lifestyle. * Whether the offender's antecedents indicate the offence was related to long term drug dependency, and * whether the offender should be disqualified from consideration by reason of any serious mental disorder. 45 This is a new drug treatment programme opened in August 2006 operating out of a designated custodial area at Parklea prison. It targets recidivist offenders with long term drug addiction who have associated life of crime and imprisonment. The programme is abstinence based. It comprises three stages. Stage one is a stage of closed detention. The offender whilst in that stage will participate in a range of drug treatment and social reintegration programmes closely monitored whilst in full time custody. That particular stage usually lasts with a cooperative offender for six months. The second stage is semi-open detention. Following successful completion of stage one the Drug Court may impose a community supervision order, allowing the offender to attend employment, training or social programmes in the community, while remaining at the Parklea prison in the evening. Stage two will last for a minimum of six months and at stage three, if he completes successfully the semi-open detention programme, the Drug Court may vary the community supervision order, allowing him to reside outside the goal at approved accommodation whilst under intensive supervision, so that employment, training and social programmes can continue into the future. 46 I intend to refer this offender to the Drug Court for its assessment as to the eligibility of the offender for that programme. If he does not understand his solicitor should explain it to him. Formal Orders: 47 Ahmed Raad I convict you of this offence, that you on 29 November 2005 at Riverwood when you were armed with an offensive weapon, namely a knife, robbed Nicholas Borel of his mobile phone, Festina men's wrist watch and $300, all of which was his property. For that offence I set a non-parole period of two and a half years to date from 16 March 2006 and will expire on 15 September 2008. I set a balance of term of 18 months to expire on 15 March 2010. If you are not accepted into the compulsory drug programme your eligible date for release will be 15 September 2008, that is next year. Whether you are released or not on that date will depend upon the way in which you conduct yourself whilst you are in custody. This Court has no influence on the Parole Board's decision. It is the Parole Board who will determine whether you are to be released, not me. You would well know this, probably better than I. 48 I refer the papers to the Drug Court and to the attention of the Senior Judge of that Court or to the Registrar of that Court for your eligibility into the compulsory drug treatment order to be determined. Is there any other order? ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.