R v Mohammad Hraichie [2011] NSWDC 219

District Court New South Wales

Medium Neutral Citation: R v Mohammad Hraichie [2011] NSWDC 219 Hearing dates: 5 August 2011 Decision date: 05 August 2011 Before: Judge S Norrish QC Decision: Term of imprisonment of six years and six months commencing 06/11/2010 and expiring on 06/05/2017 with a non parole period of three years nine months expiring 05/08/2014. Catchwords: SENTENCING: Armed robbery: special circumstances, conditional liberty. Legislation Cited: Crime (Sentencing Procedure) Act 1999 Cases Cited: The Queen v Callaghan The Queen v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Walker [2002] NSWCCA 178 R v Martin [2004] NSWCCA 416 R v Tuncbilek [2004] NSWCCA 139 R v Fry [2004] NSWCCA 238 R v Sua [2000] NSWCCA 94 R v RMK [2002] NSWCCA 414 Category: Sentence Parties: Regina Mohammad Hraichie Representation: Mr Tabuteau - Crown Mr Price - offender Department of Public Prosecutions Legal Aid File Number(s): 2010/261212

Sentence 1HIS HONOUR: Mohammad Hraichie appears today for sentence, after being found guilty by a jury of an offence alleging an armed robbery committed on 8 April 2010 at Bankstown. The allegation was that he was armed with an offensive weapon, namely a gun, and he robbed Fazin Attar of $50, one 'iPod' music player, one mobile phone and a packet of cigarettes the property of that victim. 2A co-accused was acquitted and her acquittal is of no moment in these sentencing proceedings, as the submissions made clear. 3The prisoner has been in custody, as I understand it, since his arrest on 6 August 2010. He was bail refused in relation to the current matter, not only because of the seriousness of the allegation but he was then on parole and his parole had been revoked. I assume police became aware of a warrant requiring his apprehension. His parole had been revoked, I am informed today, on 8 July 2010. I am informed that he served the balance of parole for a period of six months and one day from the date he came into custody, 6 August 2010, and that expired on 6 February 2011. The prisoner has remained in custody, of course, since the parole that was revoked expired because he was bail refused. 4I have a general discretion in terms of the fixing of the commencement date of the sentence. I could commence the sentence from the date he came into custody at the expiry of the revoked parole period, or a period in between. In considering this issue, that is the issue of the commencement of the sentence, I have had regard to the decision of The Queen v Callaghan , particularly the judgment of Simpson J, and her assessment of the authorities relating to this matter. Bearing in mind in due course I will be finding as an aggravating factor that the prisoner committed the offence whilst on parole, I have determined that I should commence the sentence that I impose for the offence, for which the prisoner was convicted by the jury, from a date three months into that revoked parole period. 5I also note ultimately the sentence I impose will therefore be partially cumulative upon another "sentence" and this, amongst other reasons, has led me to a finding of special circumstances in respect of the fixing of the nonparole period. 6The offence for which the prisoner was found guilty by a jury carries a maximum penalty of twenty years imprisonment. The offence is not one that carries with it a standard nonparole period. The prisoner was born on 15 April 1990. The offence having been committed on 8 April 2010, was therefore committed by the prisoner when he was nineteen years of age, one week shy of his twentieth birthday. 7In relation to the principles in respect of fact finding, I note the written submissions from the Crown at paras 5 and 6 set out reference to some principles and authorities. The matters in mitigation I accept need to be proved on the balance of probabilities. I am required to sentence the prisoner on my view of the facts, so long as it is consistent with a jury's verdict, although the facts in this matter having regard to the issues at trial are very easy to determine. The prisoner at trial pleaded not guilty and put the Crown to proof as to the identification of him. The Crown's case was one that depended upon the identification of a stranger by the victim, however on the other hand the victim saw the prisoner at a later time, in circumstances which reflected certainty on his part of the identification of the prisoner as the perpetrator. 8Would you be quiet, Mr Hraichie. Your misbehaviour during the trial cost you dearly. I do not know whether you understand it, but when you reflect upon the time you spend in custody, although your counsel did not refer to it, your behaviour in the presence of the jury from time to time did you no services whatsoever. Please be quiet, be silent and show some respect. Show the same respect as you have been shown by myself, if you do not mind. 9The facts I find in relation to this matter are that the victim had walked to an area in the vicinity of Pringle Avenue Bankstown, near Marion Street, shortly before midnight on 7 April 2010. Shortly after midnight on 8 April 2010 the victim was standing either on the footpath or on the roadway at Pringle Avenue, near the intersection of Marion Street, when he saw a motor vehicle approach which had within it two people. The victim was a young man who was waiting to meet a person who was referred to in the trial as "Laptop Man", with a view to discussing the purchase of electronic equipment. "Laptop Man" was known to the victim and they had spoken by phone the evening before, a matter of a few hours before the robbery. There is no evidence available to this court that the prisoner had any connection with "Laptop Man", or that the prisoner, until he saw Mr Attar waiting in Pringle Avenue, knew that Mr Attar was there or that Mr Attar had arranged to meet a particular person. 10The prisoner was in a BMW motor vehicle driven by another person. It is clear that he was armed with a shortened firearm. I am unable to conclude whether it was an operational firearm or a replica firearm, but clearly it was a firearm that was very realistic. Whether it was loaded or not I cannot conclude. I accept that no attempt was made to discharge it. The motor vehicle in which the prisoner was travelling first appeared in Pringle Avenue, having driven along a laneway which ultimately leads back to the home of the prisoner's mother, as I understand it, in Marion Street. The court had available to it maps and aerial photographs to show the relationship of the prisoner's mother's home to the relevant events. The mother's home would appear to me to be no more than 200 metres from where the victim was robbed. 11The BMW vehicle left the laneway and turned right into Pringle Avenue, drove up alongside where Mr Attar was standing. The prisoner alighted from the motor vehicle, producing to Mr Attar the apparent shortened firearm. This I am quite satisfied placed the victim in fear and I accept his assertion that he was scared. The prisoner pointed the firearm at the victim's face, only a matter of some short distance away. He demanded money and also demanded all the property that Attar had upon him. I accept that the prisoner could not have known what property, if any, Attar had at that particular point of time. 12At one point the prisoner showed the victim a number of pieces of ammunition. Whether they were bullets or empty cartridges it is not clear. The victim's fifty dollar note, taken from his pocket by himself, was given to the prisoner. The prisoner searched the victim's pockets while pointing the firearm at him and ultimately took possession of an iPod, a mobile phone and a packet of cigarettes. The victim was then told to kneel and face away and was threatened with violence if he turned around. The prisoner got back in the motor vehicle from which he had alighted, driven by another party, and the vehicle drove to the intersection of Marion Street and, as I understand the evidence, turned left and drove away. 13It is clear that the victim was shaken by the experience and he walked to a licensed premises some distance away, approximately a kilometre, made a complaint about being robbed, which caused police to attend. Ultimately, the following day or later that same day he gave a statement to police. Some weeks later he saw the prisoner at a video store or near a video store where he, the victim, worked. He identified the prisoner as the person who had robbed him. At this point he had made a statement or statements to police. He took note of the registration of the vehicle from which the prisoner had alighted. It was a registration identical to or very similar to the registration that he believed he saw on the motor vehicle in which the robber travelled away from the robbery. 14The vehicle driven to the video store that was identified belonged to, or was in the control of, the coaccused. But there are many reasons to conclude that the identification of her vehicle and/or her was unsound and I need not dwell upon that. 15On the evidence available to the court there were sound reasons to differentiate between the two accused. The victim notified the police of his observations of the prisoner and by inquiry with the records of the video store subsequently identified the prisoner as having conducted a transaction at the time that he visited the video store. This inevitably led to the prisoner's arrest in early August 2010. 16As the Crown identifies in the written submissions, the crime of armed robbery is a very serious offence, reflected by the maximum penalty to which I have referred. This crime, like all armed robberies, involves either violence or the threat of violence, the putting of a person in fear and the taking from a person of their property without lawful excuse. The use of the firearms in public places to commit this crime is a violation of the good order and safety of the community, to quote the words of the Crown's submissions. The committing of armed robbery with the use of a firearm in public streets cannot be tolerated in a civilised society. 17The prisoner's actions were brazen. He wore no disguise and he committed the crime, as I pointed out, close to an address with which he had a connection. The prisoner obviously had no compunction in using a firearm to achieve his short term ends of obtaining property from a complete stranger. He was not to know, as I pointed out, how much property he could obtain, but of course the property was of considerable value to the victim, who was a young man not of great means. 18I accept the submission from learned counsel for the accused that the crime could be characterised as opportunistic. It is clearly so in light of the fact that I could not be satisfied that the prisoner knew that Mr Attar was there on the side of the road. There is absolutely no evidence, as I said, to justify the finding that the prisoner had set up the victim or had arranged for the victim to be set up. However, the way the crime was committed shows the prisoner was travelling at the relevant time with a shortened firearm in a public area, and was ready to use it for his own ends at short notice. 19The Crown in his oral submissions said that many armed robberies are "opportunistic". Some armed robberies certainly have that characteristic, but the features of this case are that I could not conclude that the prisoner had a plan necessarily to rob anybody at the time that he came across the victim. The robberies of which the Crown spoke in his helpful submissions usually involve, from my experience, and again this is purely anecdotal, in an opportunistic robbery, in circumstances where persons are shown to be concerned to commit a robbery, not knowing precisely who the intended victim should be. 20That having been said, noting the absence of any planning whatsoever, it is a very poor reflection upon the prisoner that he would resort to such an act of violence without hesitation, as is explicit in such an opportunistic undertaking. I bear in mind of course that opportunistic though it was, he was not beyond oral threats to the victim. The fact that he produced the firearm would have been enough to achieve what he wanted, and he was not beyond not only taking from the victim what the victim produced with his own hands, but personally removing property from the victim that was on his person. 21Of course as I have pointed out by reference to the prisoner's age, he was a very young man at the time. But, unfortunately, he was quite an experienced offender. He has been appearing at court since he was fifteen years of age, his initial appearances in the Children's Court. In the Children's Court, albeit at times when he was much younger than he is now in a totally different sentencing environment, he has been found guilty of various offences involving acts of violence, intimidation and dishonesty. He has a finding of guilt for a robbery in company, committed when fifteen. Ultimately, for that matter he was called up to be sentenced and, ultimately, was the subject of a control order with a nonparole period. 22In his brief criminal career as an adult, he has convictions for dishonesty, driving offences, acts of violence including acts of violence against police, and has been granted a variety of orders reflecting some leniency, including s 9 bonds, suspended sentences pursuant to s 12 Crimes (Sentencing Procedure) Act , and other orders. At least one of the suspended terms of imprisonment sentences has been revoked. As I understand the criminal history, he was committed to prison for seven months as a consequence of that revocation. In 2009 he was convicted of assault occasioning actual bodily harm and sentenced to a total term of eighteen months imprisonment, commencing on 30 June 2009. 23My understanding of the criminal history would suggest that that sentence was ordered to commence at a future date, apparently cumulative upon a revoked s 12 order. A nonparole period was fixed on appeal by his Honour Judge Blackmore of five months, and, as I understand the matter, that nonparole period was to expire on 29 November 2009. I have been provided with his Honour's remarks, which are very brief. He made a finding of special circumstances. It would appear that the critical issue for determination by his Honour was a failure by the sentencing magistrate to take into account the effect of another term of imprisonment. 24Be that as it may, the consequence of that order of his Honour was that the prisoner, as I have pointed out, was on parole at the time of the commission of the subject offence and that that parole was revoked. In relation to that aspect of the matter, I have the report of the Probation and Parole Service which was ordered by me, given the fact that I was aware that the prisoner was subject to parole. The report of the Probation and Parole Service officer reflects upon the unsatisfactory character of the prisoner's response to parole in the past. It may be in part fairly said that this failure of the prisoner to respond to orders made by courts as a juvenile and as an adult, and in the circumstances of being supervised by the Probation and Parole Service, may be explained by his lack of maturity. 25I do not wish to speak disrespectfully of the prisoner, he should understand that, but at the very least he showed a very clear lack of maturity during the course of the trial. I have already made the point, when he sought to interrupt my remarks on sentence, that his behaviour in the presence of the jury did him no favours. It should have been clear to him, as it was explained to him by his counsel as I was told, that he was in the care of the jury. He was in their charge, yet he took no active steps to create a favourable impression in the opportunity they had to view him whilst he sat in the dock. 26I am not saying for one moment the jury's verdict reflected a failure to fully appreciate the evidence. I am not suggesting for a moment that a person who misbehaves in the dock or does not behave as one would expect an accused person to behave should be treated unfairly by a jury. But the facts are that the prisoner has shown a lack of maturity in this Court, which is reflected in the Probation and Parole Service report. 27It reflects upon a history of supervision which has led to revocation of various bonds. The report from the Probation and Parole Service, which is very thorough, states: "The offender's most recent contact with this service was when he was released on 18 June 2010 to supervised parole." 28I do not understand that that date could be right: "Service records indicate that his initial response was unsatisfactory, as he received two warnings as a result of his continued drug use. His response improved and he made a concerted effort to address his illicit substance abuse, however further breach action was initiated due to his failure to maintain contact with this service. The parole order was revoked and the offender served the remaining six months and one day in custody." 29As I pointed out parole was revoked in July. It may have been that the prisoner was fearful of being arrested in relation to the current matter and went to ground. I do not have evidence from the prisoner either in relation to the instant offence, or in relation to matters concerning his subjective circumstances. 30The prisoner is currently classified as an "A2 unsentenced prisoner". Generally he is compliant in custody, but there have been some disciplinary matters. The report notes a background of physical abuse and domestic violence perpetrated upon him by his father that he has disclosed. The report reflects upon what he has disclosed as homelessness. The Juvenile Justice report available to the Service, dated 29 July 2007, indicated that the offender's behaviour throughout his formative years was difficult to manage due to his ongoing drug use, regular stealing from the family, and selling the goods to pay for his illicit substance abuse. 31As to the extent to which his claims of abuse may reflect a discipline being meted to him for his antisocial and uncooperative behaviour, I cannot say. It is difficult to judge the truthfulness of the situation in the absence of any direct evidence beyond untested representations by the prisoner. 32The prisoner was sent to Lebanon at the age of thirteen to a religious boarding school for a period of nine months, but this did not improve his behaviour. I note that act of sending him to Lebanon in those circumstances occurred well before he started appearing in the Children's Court, so far as the record that is available to me. It is alleged, on what basis I do not know, that in Lebanon he would consume alcohol and illicit substances daily to deal with being alone. His parents are now separated. His father he has no contact with, although his mother does, and I accept his mother is supportive of him, as is his now wife. 33He has had very little educational opportunity. He only completed year seven. He was expelled from several high schools "due to his problematic behaviour". He has limited and sporadic employment, and such employment as he has had has been unskilled. He has largely, in fact, been unemployed and in receipt of Centrelink benefits. His wife, who I will come to in a moment, will provide or try to provide him, through her brother, with employment. 34The Probation and Parole Service speaks of his background of the use of drugs, including cocaine, heroin and methylamphetamine. He was using, he claimed, high levels of prohibited drugs up until the time of his arrest. I note the report says, "During discussions with the offender he was unable to provide specific details regarding his substance abuse; however he did state that he was spending between $600 and $700, daily." I note, of course, these assertions are untested. 35It is stated that he attempted some drug rehabilitation programs. He undertook the detoxification program at Odyssey House residential program, and expressed willingness to undertake that program in the future. It is clear, whether it be by abstinence in the course of his sentence or by the use of rehabilitation services, he will need to address his dependence or his use of prohibited drugs, otherwise, based upon past experiences, he has little hope of avoiding offending. 36He also has a gambling dependency, spending money not only on illicit substances but poker machines. I am aware of the insidious character of poker machines and the difficulty to defeat that addiction as evidenced by many people who have come to this court. 37The prisoner claimed to both the Probation and Parole officer and a psychiatrist who examined him that he had no memory of the offence due to his ongoing use of illicit substances. I have a great deal of difficulty accepting this and certainly could not accept it as a hearsay representation contained within reports. It is not tested in any way. It is an easy assertion to make, but to my mind a convenient one. The lack of reliability of the assertion can be seen, as I have pointed out to the counsel for the prisoner, in the account the prisoner gave to the psychiatrist. Quoting from the report of the psychiatrist it notes: "Mr Hraichie said he was using drugs at the time and had no memory of the offence. He was convicted of it at trial last month. He said, 'I don't remember anything...I had not slept for a couple of days. I don't even remember coming to gaol.'' 38The problem with the assertions that I have just read is that the going to gaol and the offence are not conjunctive in any way, shape or form by reference to time. The offence was committed on 8 April, the prisoner was arrested nearly four months later. I do not believe for a moment that his memory was absent over a four month period. It is really reflective of an element of hyperbole so far as the prisoner is concerned. Furthermore, the account of the victim shows the perpetrator, that is this prisoner of which there can be no doubt, knew exactly what he was doing, made clear and concise commands, presented a firearm, searched the victim, made threats and told him not to look around. 39There was no suggestion in the evidence of the victim in the manner of the robber that he was in some way affected by some substance. I have heard what was said about the fact that the prisoner got out of the car without any shirt and was not disguised, but this hardly indicative of a person who was under the influence of drugs. Certainly, standing by itself without other evidence, this is not capable of either raising a reasonable doubt about that matter, if it be something that needed to be proved by the Crown, or establishes that matter on the balance of probabilities. 40The victim apparently, as I recall the circumstances of the offence, did see a tattoo which is said to be prominent on the prisoner, but did not refer to this in his statement. Some point was made about that in the trial. Ultimately it is clear that the victim in the circumstances in which he was confronted by the prisoner might be excused for remembering only particular parts of what occurred, and could remember only particular observations that he was able to make in the limited time he had the prisoner under observation. 41The Probation and Parole Service, returning to its report, notes the prisoner's supportive partner and his difficult childhood. It notes the difficulties the prisoner has had in overcoming a lengthy substance abuse problem. It notes the prisoner's verbalising of a willingness to undertake relevant courses, but also notes it is difficult to assess the prisoner's attitude towards his offending behaviour given his continual denial of his involvement in the offence and also noting, of course, the commonsense conclusion one reaches on all this material that it is easy for the prisoner to make assertions of what he will do properly in the future. The real test will be in his willingness so to do. He is thought to be suitable for a high level of intervention by the service, particularly to deal with ongoing psychological counselling, his propensity for violence, his alcohol and drug dependency and his gambling dependency. 42I have a psychiatric report from Dr Furst. It sets out a great deal of the prisoner's history which I have taken into account. It also notes treatment in the past for a mental disorder. The prisoner was suffering in 2007 from "drug induced psychosis" and was treated with anti psychotic medication. The prisoner has had periods of depression for which he has been treated in 2008. The reliability though of the information provided to the prisoner could be tested by the assertion that the prisoner claimed that he was doing fairly well in the community and abiding by parole conditions. That does not entirely accord with the matters that emerge from the Probation and Parole Service report. The report of the psychiatrist refers to the fact that the prisoner was incarcerated in April 2010 for an offence that he did not commit and when emerging from custody became angry about those circumstances, thus returned to substance abuse. Again, that does not entirely fit with the history as provided by the Probation and Parole Service about problematic use of drugs. 43The reference to him going into custody in April 2010 is somewhat difficult to reconcile with the criminal history. The prisoner was sentenced to one month imprisonment in 2008 for stealing from a shop and did appear in the Downing Centre Local Court in relationship to some summary for which he received an order under s 10A Crimes (Sentencing Procedure) Act . That occurred on 28 April 2011. Perhaps he was in custody bail refused until that order was made. 44In any event the psychiatrist's principal task was to examine matters relevant to his skills to assess whether the prisoner was suffering from any particular conditions that may be relevant to sentencing. Ultimately his conclusion was that the prisoner when examined was not psychotic or suffering from any mental illness, notwithstanding some history of mental illness. He has no significant medical conditions at the moment. He is not subject to any medication whilst in custody. There is no history of mental illness in his family. The psychiatrist noted his anxiety was heightened in custody and his mood was somewhat depressed. He concluded there is no indication that Mr Hraichie suffers from a developmental disability. He appeared to be of low average intelligence. Whilst he has had an unfortunate childhood and whilst he has been a regular user of drugs which has affected his life in a range of ways and whilst there was some evidence he suffered from depressed mood during previous periods of incarceration this was more a reaction to his incarceration in the form of an adjustment disorder with depressed mood rather than "an enduring mental disorder." I accept that he will have difficulties in custody given his past experience. 45There is no evidence nor any suggestion that the prisoner suffered a mental illness or a medical or psychological condition at the time of the offending which could explain the offending, which could create a causal link or some relationship between such a condition and the offending as to warrant consideration of the principles set out in the decision of The Queen v Hemsley ([2004] NSWCCA 228). The diagnosis pursuant to DSM-4-TR Axis II is of "antisocial personality traits" and ultimately the other conditions he suffers from are relatively inconsequential in the scheme of things beyond reflecting the disadvantaged upbringing that he has had which I take into account. 46The prisoner has produced some references. A reference from his mother-in-law reflects the fact that she has actually never met him, but believes him to be respectful and polite when she has spoken to him on the phone. She confirms, however, that her daughter does "love him very much" and she has written a very lengthy letter to the Court. 47She reflects upon his disadvantaged background. The fact that she lives with the prisoner's mother. That they have become married whilst he has been in custody and that they are very happy and that she would wish to support him in the future. She states that the prisoner has shown a "major improvement" whilst in custody on this occasion and the he would wish to forget his old life and start anew. She would wish that he not be sentenced to a lengthy term of imprisonment so that he will not "give up on himself". 48There is a reference from his stepfather, who talks of his positive qualities and says that he will support him in the future. 49I have taken all the material tendered on behalf of the prisoner into account. 50The submissions on behalf of the prisoner, which I also take into account, in summary stress his comparative youth, what are said to be his psychological conditions, which I have dealt with, particularly his background of drug dependency and his disadvantaged upbringing. I hasten to say that I am satisfied requisitely that the prisoner over the period of time of this offending was using prohibited drugs, albeit that the history he gives is somewhat inconsistent to that proposition in the report of the psychiatrist. I accept that marriage will provide an opportunity for him to mature and settle down. I accept that he needs professional assistance on his release from custody in a range of ways and it is by reason of that fact, his relative youth and the partial accumulation upon the balance of parole sentence which has now expired that I have concluded that there are special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. I accept that he needs intensive professional assistance for an extended period of time than would otherwise be available, not only to adjust to community living, but the address fundamental issues which have led to his current situation. 51I have earlier indicated I do not accept that he has no memory of the offensive. That is very convenient and I believe a totally unreliable representation. He may well have used drugs before he committed the offence, he may have been affected by drugs, but it certainly did not prevent him committing an act that he well knew as wrong. On the other hand it is clear from his criminal history and the report of the Probation and Parole Service that unless he addresses his drug use and his drug dependency the citizens of this State will be the ones to suffer. His wife will be someone who will suffer and he will no doubt suffer to the extent he does by being in custody. 52It is submitted to the Court that I should find that he has good prospects of rehabilitation. That the Probation and Parole Service report is supportive of an extended period of supervision, notwithstanding his previous breaches of supervision which I have taken into account. 53The learned Crown Prosecutor's written submissions cover many of the legal and technical matters. The facts, the objective seriousness, relevant matter to be concerned with for the purposes of sentencing for an offence of this type pursuant to s 3A, s 21A of the Crimes (Sentencing Procedure) Act and of course the relevant guideline judgment of Henry . 54Naturally I have had regard to the guideline judgment of Henry ((1999) 46 NSWLR 346), particularly the observations of the learned Chief Justice at [161]-[170]. It is a guideline for a particular profile of offender and offence. This offence is one committed with some of those characteristics, but there are, of course, other factors which separate it from the "usual" or "ordinary" case of which the Chief Justice spoke. Particularly here. The prisoner is an experienced criminal, in my view, although not necessarily experienced in offences of this type. He certainly does not have any prior convictions for armed robbery, but is a person who has committed violent acts in the past and was subject to parole. The property that he took, of course, was of substantial value to the victim. 55I have also taken into account, I hasten to say, arising from the judgment of Henry , the observations of the learned former Chief Judge at Common Law Wood J, set out at [273] of the same judgment. There his Honour, with the agreement of the learned Chief Justice and most of the other judges, reflected upon the fact that drug dependency or addiction was not a mitigating factor in sentencing for armed robbery, but it had relevance in other ways, such as to the impulsivity of the offence, which could be fairly reflected in this matter, although the extent to which the prisoner was dependent is not established certainly by the offender from the material available to me. I also note the observations made, not only in respect of the relevance of drug addiction in terms of assessing the objective facts, but also the subjective circumstances. This prisoner, I hasten to say, by reference to some of the remarks of his Honour, is not at "the crossroads" at this early stage, but I do appreciate the difficulties this offender has, as I have earlier pointed out, of leading a law abiding lifestyle when using drugs. 56The Crown's submissions also dealt with the time spent in custody and the non parole period to which I have addressed some remarks. The oral submissions of the Crown in part I have dealt with in the course of my earlier remarks on sentence. 57In sentencing the offender, of course, as proposed from both the Crown's submissions and Mr Price's submissions I am obviously required to have regard to s 5 and s 3A Crimes (Sentencing Procedure) Act . Clearly, there is no penalty other than imprisonment that is appropriate in this case, and that was conceded by Mr Price. With regard to s 3A Crimes (Sentencing Procedure) Act here, I am required to ensure that the prisoner is adequately punished and prevent him and others from committing similar offences and protect the community from the offender. 58The facts of the matter are that in sentencing offenders for robbing strangers with firearms in public streets there must be an element of general deterrence to deter others and also specific deterrence to deter this offender. He had only been released from gaol, according to the criminal history, within six months before he was quite willing to resort to this sort of behaviour. As to protecting the community from the offender, clearly a person who is prepared to behave this way so brazenly presents an ongoing risk to the community, whatever be the causes of his offending behaviour, until such time as he addresses the reasons for his offending behaviour. In fact Mr Price specifically dealt with this matter and acknowledged that his behaviour in Court reflected what he described as a short attention span and that ultimately he will need to address the matters that will lead him, to quote Mr Price's eloquence, "on the straight and narrow track". 59On the other hand I have to make the prisoner accountable for his actions and denounce the conduct of the prisoner, recognise the harm done to the victim (he has lost valuable property). He has been sorely frightened by this experience, although I have no victim impact statement. I am also required to promote the rehabilitation of the offender as best I can. 60With regard to s 21A Crimes (Sentencing Procedure) Act dating the terms of subs (1) and the general applicability of the "common law" principles of sentencing, so far as they apply. Given the terms of s 21A(2) and (3), I note the fact that any particular aggravating or mitigating factor is relevant and known to the Court does not require to increase or reduce the sentence for the offence and I am certainly not to have regard to any aggravating or mitigating factor in sentencing that would be contrary to any Act or law to do so. That would include not having additional regard to any aggravating factor in sentencing if it is an element of the offence. 61The Crown urges upon me several aggravations which ultimately I cannot accept are present here. 62Firstly, if I might deal with the issue of the status of the victim. Yes, he was a young man. From memory - I have not researched this from the transcript - about nineteen or twenty years of age. He was alone in a public street. But there is nothing in the evidence to conclude that the prisoner chose the victim because of his vulnerability, other than the fact that he was alone in the street when the prisoner approached the victim. Given the lighting he might have had little idea as to the age of the victim, his physical characteristics other than his general shape. Ultimately, I am not satisfied that that aggravation is made out as suggested by the Crown. 63Notwithstanding his criminal history, nor could I conclude that his record of previous convictions is an aggravating factor pursuant to s 21A(2) of the Act. Certainly his criminal history does not entitle him to any particular leniency, but it is not a relevant aggravating factor. To my mind the significant aggravating factor that arises under s 21A(2) is the fact that the offence was committed subject to conditional liberty and given the prisoner's previous performance whilst under supervision, it is a matter that is of substantial importance, along with the objective seriousness of the offending. 64With regard to mitigating factors they are few. I accept the offence was not part of a planned or organised criminal activity. Otherwise there is nothing that I can find arising from the facts of the matter that constitutes a mitigating factor pursuant to s 21A(3) of the Act. 65The one matter that was urged upon me ultimately was that the prisoner has "good prospects of rehabilitation". I cannot accept that submission. I cannot predict the future. I trust that his prospects of rehabilitation are improved by his marriage and the offer of a stable domestic relationship. His partner appears to be an attractive young woman, who will be of comfort to him on his release from custody. But as I said earlier, the prisoner is not at the crossroads and there is much revealed in the evidence and the prisoner's attitude in Court to suggest that the prisoner does not have a full realisation of the significance of his criminal behaviour. Until people take responsibility for their criminal behaviour, amongst other reasons in this case, they cannot be said to have good prospects of rehabilitation. But having made that finding one would hope that the prisoner's added maturity on his release might lead him to conclude that time spent in gaol is definitely time in one's life that is wasted. 66The prisoner's future will be, so far as his release from custody, very much in the hands of the Parole Authority. The sentence I will impose will not permit me to direct that he be released to parole. He will be required to undertake the relevant course demanded of his by the Corrective Services authorities and he must understand that while he is in custody his behaviour will be closely monitored and his release from custody will be very much dependent upon his behaviour. 67In determining the appropriate sentence in this matter, having had regard to all the submissions, I have also had regard to what was said to be sentences - I think to quote or at least paraphrase the learned Crown's words that might "inform" my sentencing discretion. The Crown referred me to Court of Criminal Appeal decisions of Walke r [2002] NSWCCA 178, Martin [2004] NSWCCA 416, Tuncbilek [2004] NSWCCA 139. Of course, in reflecting upon the ultimate sentences imposed by the Court of Criminal Appeal or confirmed by it in relation to those cases I appreciate the facts of each case are different, the circumstances are different in a range of ways. The penalties imposed in the cases referred to by the Crown arose from pleas of guilty at first instance, thus this prisoner does not have the benefit of any relevant discount. The criminal histories of the offenders differ, as do other subjective circumstances. The themes of the crimes, the subject of those appeals, involve what could be called street robberies, the stealing by threat of weapon of a stranger entitled to his or her safety on the street. 68In the case of Tuncbilek I note that the prisoner, as this prisoner, had a history of drug abuse, but had a mild intellectual disability. The use of drugs or the dependency upon drugs is a feature in each of those cases. I have had regard to those decisions, as I have regard to the decisions cited by learned counsel for the prisoner. Fry [2004] NSWCCA 238, Sua [2000] NSWCCA 94 and RMK [2002] NSWCCA 414. Again, as I pointed out in some brief discussion with Mr Price about two of those judgments, there are some similarities, but a number of significant differences. I accept that whilst decisions of the Court of Criminal Appeal on sentence can provide some assistance in guiding or structuring sentencing discretion, each case must be decided on its merits. I have had regard to all judgments to which I was referred including a judgment of this Court. None is compelling indication of the course I should follow. 69I have also had regard to the statistics that were provided by the learned Crown Prosecutor. Statistics are of limited value, of course. They might show a range of sentences in a particular instance or show a range of alternatives that might realistically be available, but ultimately the statistics shown provide little concrete assistance beyond confirming the obvious that I must impose a term of imprisonment. 70Thus, hopefully, having now referred to all the relevant matters and certainly having taken into account all the material available to me, I propose to make the following orders. 71If you could stand up thank you very much, Mr Hraichie. 72In relation to the offence to which you have been found guilty you are convicted. You are sentenced to a term of imprisonment by way of a non parole period of three years nine months. That will commence on 6 November 2010 and will expire on 5 August 2014. The balance of sentence will be two years nine months. The balance of sentence will expire on 6 May 2017. The total sentence I have imposed is six years and six months. It will be a matter for the Parole Authority as to when you .are released. 73I recommend to the Parole Authority to give consideration to the recommendations made in the report of Dr Furst as to the care to be provided to the prisoner in custody and beyond when he is released on parole. 74Thank you, Mr Hraichie, you can take a seat. 75Mr Crown, any technical matters from you? 76TABUTEAU: There aren't any, your Honour. 77HIS HONOUR: Any technical matters from you, Mr Price? 78PRICE: No thank you, your Honour. o0o 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. Decision last updated: 29 March 2012