R v ELZEYAT [2011] NSWDC 218

District Court New South Wales

Medium Neutral Citation: R v ELZEYAT [2011] NSWDC 218 Hearing dates: 17 November 2011 Decision date: 17 November 2011 Before: Berman SC Decision: Sentenced to imprisonment to an overall term comprising of a non parole period of 4½ years and a head sentence of 7 years Catchwords: CRIMINAL LAW - Sentence - Armed robbery - Dangerous weapon - Offensive weapon - Principle of totality Category: Sentence Parties: The Crown Ali Elzeyat Representation: Director of Public Prosecutions File Number(s): 2011/177280

Judgment 1HIS HONOUR: Ali Elzeyat appears for sentence today on nine offences of armed robbery. In two of those the weapon was a dangerous weapon and in the remaining seven it was an offensive weapon. The maximum penalties for the first two offences are twenty-five years imprisonment and twenty years for the remainder. The number of offences and the maximum penalties indicate that necessarily lengthy periods of imprisonment must be imposed. 2The offender got into debt. This was because he was a drug user and had been using drugs on credit. Eventually his drug supplier lost patience with him and made demands that the money be repaid. Those demands were accompanied by threats to the offender's family. At this stage the offender had a choice. He had a number of options, all of them unattractive. But he did have choices which did not involve the commission of offences as serious as these. He could have, for example, told his family what had occurred and sought their help. He could have reported the matter to the authorities and sought their assistance. But instead the offender continued to use drugs, obtaining his drugs from another source and in order to pay off the debt he committed with others the serious offences I am about to describe. 3On 19 April this year the offender and two others, one of whom was a juvenile, attended the Bankstown Relaxation Centre. They rang the doorbell. Inside was a man by the name of Michael Chen who was working there. He opened the door and three men walked inside. One of them, and it may well not have been the offender but it matters little, punched Mr Chen to the left side of his face saying, "Give me your money". The young person produced a knife. This offender was armed with a taser. To emphasise that it was dangerous, no doubt, he activated it so that it began making noises. He pointed the taser at Mr Chen and said, "Give me all your money". He and the young person then grabbed Mr Chen by his arms and took him to an office, again demanding money. He reached into his pockets and removed $1,240 in cash which were the day's takings. He gave the money to one of the men and they ran away. 4About an hour later the three offenders went to a motel in Bankstown. They walked into the office where they asked for a room. They were told there were no vacancies. The offender then tried to unlock a side door in the reception area while the young person took a knife from his pocket. He said, "This is a hold up, give me all your money", and once more the offender pointed a taser at the victim of the robbery Mr Hiralal, and once more the offender activated the taser so that it made a noise. Demands for money were made which the victim complied with. He said, "Here is the money, take it". At this stage his wife entered the room and the offender pointed the taser at her. One of the offender's co-offenders removed the cash tray from the drawer and further cash that was kept under the tray, totalling all of $400. They then ran away. 5A few days later on Friday 22 April the offender and the young person went to a brothel in Granville. Mr Zhang worked there. He opened the door, told the offenders that they should wait, after which the offender then pushed Mr Zhang and walked into the room. He took out a knife that he had with him and the young person also produced a knife. The offender said, "Give me the money." The victim said he did not have any. Further demands were made until the offender said, "Show me the boss, take me". The victim took the offenders to another office but there was no one in that room. The offender then said, " Are you joking with me, playing games with me" and walked back to the main office. By now another female employee was present. They asked her where the money was kept. The victim said she did not know. He said, "Let the girl leave the office now, we'll get you the money" . She was allowed to leave the room but the offenders continued to point their knife blades at Mr Zhang. The offender then grabbed Mr Zhang's shirt and pushed him into another room and the young person punched him to the side of his face. The offender put his hand in the victim's pocket and pushed his knife towards the victim until the blade actually touched his chest. Not surprisingly this caused Mr Zhang to comply. In fear he removed some cash from his pocket and handed it to the offender, but more was demanded. Mr Zhang took out the rest of the money that he had in his pocket, handing over a total of $1,600. The offenders ran away. That offence was committed shortly after midnight on Friday 22 April. 6Some time later that evening the offender and his co-offender, not the young person this time, went to the Bellevue Five Star Retreat in Carlton. Amber Don worked there as an administration assistant. Ms Don answered the door and the offender and his co-offender walked in. The offender was armed with a knife which he pointed at Ms Don. He said, "Get me the fucking money, bitch". The knife of course was bad enough, but the expression used by the offender could only have added to the fear which Ms Don felt. She walked to the money drawer and opened it. The offender said, "I want five grand". There was not nearly that much money in the drawer. Ms Don saying, "I don't have that much money here, you can take everything". She gave the offender $300 from the drawer. But this was not enough for him. He said, "I know you have more money, you're lying to me, bitch" . Ms Don responded by holding up her hands and saying, "I swear that's all I've got". The co-offender found another $120 in cash. Ms Don said, " Sorry, I forgot that was there, that's the girls' money" and the offender then moved the knife closer to her. She handed the money to him and removed the cash drawer to show the offender that it was empty. She also opened other drawers to show the offenders that there was no other money there as well. The offenders ran away. 7About fifteen minutes later they were at it again. This time they went to the Allawah Mini Market where Mr Song Huangg was working. The two offenders approached him and the offender produced a knife, pointed it towards Mr Song and said, "Money, money." He kicked the counter and moved the knife back and forth. He then jumped over the counter and stood close to the victim holding the knife to his chest. At this stage Mr Huang's wife walked out of the back room and saw the offenders. The co-offender went over towards her and told her to stay away. The offender again said, "Money, money " so Mr Huang opened the register. The offender took some notes, so did the co-offender. They were able to get this time $300 in cash before running away. 8There was something of a break, perhaps in the order of half an hour before the next offence was committed. Once more the offender and his co-offender went to some premises in Railway Street, Lidcombe. A woman by the name of Ping Lee was working there. She walked to the front counter as the offender's arrived. One of the offenders said, "Fuck, take the money" and Ms Lee saw that one of them was holding a knife. They took $1,300 from the cash register than ran away. 9We now move to the following day. At about 5.45pm the three of them, once more reunited, went to a bottle shop in Regents Park. Ricky Nguyen owned that bottle shop. His nephew Minh Nguyen was working there with his uncle that evening. Rick Nguyen approached the offender saying, "Can I help you" and saw that the offender was holding a knife. The offender pointed the knife at his nephew Minh Nguyen and said , "Give me the fucking money". The young person was also armed with a knife. Minh Nguyen opened the cash register, the offenders took out the entire cash tray and ran away taking $2,000. As they left one of the co-offenders threw a bottle of red wine at the counter. 10Under an hour later they went to a brothel in Greenacre. A Mr Griggs worked there. When the offenders walked, in this time without the young person, they walked into the office area and said, "Give me the money." Mr Griggs said, "I haven't got any money". One of the offenders said, "Come on you must have money, where's your keys?" Both of the males then produced knives. One of them pointed the knife towards Mr Griggs' stomach and said, "Get your keys and get the money". Mr Griggs said, " I have no money". He opened the till drawer and said, "That's all I've got, take it". The offenders thus took $384. 11We now move to 29 May, the final offence committed by the offender. At about 3.05am the offender went to Studio 32 brothel in Berry Street, Bankstown, a place he had earlier robbed on 22 April. This time he was with the young offender. The offender entered the brothel and was greeted by Quan Zhang. The offender took out a kitchen knife and said, "Give me your money", put the knife against Mr Zhang's stomach, which caused Mr Zhang to remove $1,000 from his pocket which he gave to the offender. Once more they ran away. 12The following day 30 May the offender was arrested at his residence. The police located $620 cash in the offender's pocket. The adult co-offender was arrested on 24 April and the young person was arrested on 4 June. This offender has been in custody since the date of his arrest. 13As I have described the offences it is obvious that they were very serious and capable of causing fear and indeed terror in the minds of many of those people who were subject to the threats, both implied and explicit, made by the offender. Recognition of the seriousness of offences such as these was one of the matters which led to the Court of Criminal Appeal, some time ago now, formulating a guideline judgment regarding sentencing for armed robbery offences. It is undeniable that offences such as those I have just described are capable of causing great harm and it is likely that at least some of those who are the victims of these offences have been significantly affected by their experiences. The offences were made more serious by the fact that the offender did not operate alone and also because of the presence on more than one occasion of persons other than the immediate victim of the offence. 14The offender was eighteen at the time of these offences and is only nineteen now. He is of Lebanese background but was born and raised in Australia. There are five brothers and two sisters in the family. The family is, apart from this offender and one brother, law abiding members of society. The brother immediately older than this offender, Ali, has spent time in custody having been a drug user. He has apparently now been released from gaol, is working and is drug free. The offender did well at school intending to go to perhaps to year 11 and 12 and complete his HSC, but left in year 10 when he was waylaid with drugs. The offender's life went downhill after he commenced using ice when he was about seventeen. He was able to keep a job but other aspects of his life deteriorated, in particular his interest in sport waned when he began to use drugs and his offending commenced. 15The offender's record has a number of matters on it, including an offence of aggravated break and enter and commit serious indictable offence in company, committed when the offender was a juvenile. To say, however, that his offending has escalated through the commission of these offences is something of an understatement. The offender has plans for the future. He has told his family about what has occurred and they remain supportive of him. He expressed his remorse to the author of the pre-sentence report and says that he will not be committing further offences in the future. 16The offender pleaded guilty at the earliest opportunity and so the sentences I impose upon him will be twenty-five per cent less than they would otherwise have been. 17I wish to spend some time dealing with the offender's youth. He is, as I have said, nineteen now and was eighteen at the time of the offences. He was obviously very young. I have more than once remarked on the circumstance that although the law requires bright lines, there are no bright lines in terms of an offender's maturity. Had the offender been under eighteen he would have been dealt with under a very different sentencing regime to that which now applies to him. I have to recognise that although I earlier described the offender as having a choice as to whether he would commit these offences, he had to make that choice with the lack of maturity that comes with any eighteen year old. Had the offender been an older man the sentences I would impose would have been much longer indeed. 18I cannot say that the offender has good prospects of rehabilitation. They are almost entirely dependant on how he deals with his drug addiction once he is released from custody. It is clear that there is a significant connection between the offender's drug use and offending behaviour and so if he can put his problems with drugs behind him there is a good chance that he will be able to put his offending behaviour behind him. That is one of the reasons that I have decided to make a finding of special circumstances in the offender's favour. Lest it be thought that I have not also taken into account in determining the appropriate head sentences, I should specifically state that I have. 19Since going into custody the offender has given up drugs and done what he can to access courses and counselling and the like, although he has experienced the common problem faced by those on remand awaiting sentence. The Corrective Services in their wisdom make it hard, if not impossible, to access such courses before sentence. Although the offender says he will not offend again, that of course does not mean that personal deterrence becomes irrelevant. These offences were truly frightening, committed for, on occasions, comparatively small amounts of money. Indeed the total amount gained over all of these nine armed robberies was $8,600. 20General deterrence is also very important. Part of the problem with armed robbery offences is that they can often escalate into offences involving serious and actual physical harm. The carrying of a knife has always been regarded by the courts as particularly reprehensible, not only because of the fear it engenders in others but because of the real risk that, even accidentally, serious injuries will be inflicted. The capacity for such injuries to be occasioned by offences such as these is obvious. It is fortunate indeed that each of the victims of these offences cooperated as they did. General deterrence does have less weight because of the youth of this offender, but it remains of importance in determining the length of the appropriate sentences. 21I spoke a little while ago about the use of knives. Of course, two of the offences involved a taser which led to a higher maximum penalty then being applicable. Mr Schaudin made the point, and it is a good one, that in terms of dangerous weapons the taser is towards the bottom of the range. There is clearly some overlap as regards the seriousness and dangerousness of weapons which are described as "dangerous" and weapons which are described as "offensive". Indeed I suspect that most people would probably prefer to be robbed by an offender armed with a taser than an offender armed with a thirty centimetre long knife. 22One of the issues which was addressed in submissions because of its importance in affecting the length of the overall term, concerns accumulation and concurrence. There is clearly a limit to what I am about to say but no offender should think that having committed one offence he can commit other offences for free. On the other hand the principle of totality clearly applies, a principle which I am sure some victims of crime have difficulty accepting. As it turns out, the way I have structured the sentences that I am about to announce means that effectively he gets four offences for free because of the way I have grouped the offences. But it is important, with the constraint of the principle of totality in mind, to recognise that each further offence represented further serious offending with further serious harm possibly occasioned to another victim. I fully accept that particularly on a young person the sentence I am about to announce might be perceived as being a lengthy one. Imposing a sentence of this length on someone who is nineteen years of age is not a pleasant experience, but it is one which has to be done. If the offender chooses to decide to pay off a drug debt by repeated offending of this kind he really can have no quarrel with the proposition that he needs to be punished and significantly so for what he has done. 23The sentences imposed are as follows. For the two offences of 19 April I impose fixed terms of imprisonment of two years to date from 30 May 2011. Those sentences are fixed term because of the sentences I am about to announce. For the offences of 22 April committed on Shwa Zhang and Amber Don the offender is sentenced to imprisonment. I set a non-parole period of two years to date from 30 May 2012 with a head sentence of four years. For the offences of 22 April 2011 committed on Song Huang and Defraga Wong the offender is sentenced to imprisonment. I set a non-parole period of two years to date from 30 May 2013 with a head sentence of four years. For the offences of 23 April 2011 the offender is sentenced to imprisonment. I set a non-parole period of one and a half years to date from 30 May 2014 with a head sentence of four years. For the offence of 29 May 2011 the offender is sentenced to imprisonment. I set a non-parole period of six months to date from 30 May 2015 with a head sentence of three and a half years. That makes an overall term comprising a non-parole period of four and a half years, a period of eligibility for parole three years, making a total sentence of seven and a half years. The offender is thus eligible to be released to parole on 29 November 2015.