District Court New South Wales Medium Neutral Citation: R v Kobeissi [2011] NSWDC 268 Hearing dates: 7 October 2011 Decision date: 07 October 2011 Before: Sides QC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2 years and a total term of 45 months Catchwords: CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Obtaining money by deception Cases Cited: Muldrock v The Queen [2011] HCA 39 R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Khalil Kobeissi Representation: Me R Cooley - Crown Ms S Goodwin - Offender The Director of Public Prosecutions - Crown Saba El-Hanania Lawyers File Number(s): 2010/288611 SENTENCE 1HIS HONOUR: The Offender Khalil Kobeissi appears for sentence consequent upon his pleading guilty on 26 July 2011 to an armed robbery that he committed upon the victim Luciano Ippoliti at Burwood on 14 August 2009. This offence has a maximum penalty of 20 years imprisonment, no standard non-parole period and cannot be dealt with summarily. 2When considering deterrence and retribution the Court took into account two matters of obtaining money by deception on a Form 1 Schedule. 3The Offender pleaded guilty when he was due to face trial in relation to a more serious matter under subs 97(2). In terms of utility, the Court is of the view that the plea was entered late and reduced his sentence by about 10% to reflect the utility of the guilty plea. Having satisfied itself that the conditions referred to in sub para 21A(3)(i) are met and he is remorseful, the Court further reduced his sentence because of remorse. 4On 14 August 2009 the victim went to his friend's place which is located in Burwood Road, Burwood, to visit his friend. His friend, Mr Awad, owns a florist shop and occupies a unit located above the florist shop. When the victim approached the rear gate to his friend's premises, the co-offender Aytac Kusdemi approached, spoke to the victim and told him that Mr Awad was not home and would be back in about an hour. 5The victim then attended to some personal business and telephoned Mr Awad who told him he could wait for him at his house upstairs. As a result, the victim returned to his friend's unit to find that the co-offender was still at the back gate. He told the co-offender about the phone call and then went upstairs and started watching a movie on the television whilst waiting for his friend to return. 6After a period of time this Offender entered the room and told the victim that his friend Mr Awad was downstairs in the florist shop. The victim got up and made his way down the hallway and into a home office. He saw the co-offender seated at the desk and approached the desk. When he turned around, the victim noticed that the Offender had an object that appeared like a rifle in his hand. The Offender told the victim to sit down and empty his pockets. The victim emptied his pockets, placing his wallet, keys and cigarettes on the table. The Offender went through the victim's wallet and took out an NAB card and a Qantas Credit Union card. During this time the item that appeared like a rifle was pointed in the direction of the victim and the Offender told him to write down his PIN number on a post-it note. It seems that the victim complied and, after telling his co-offender to stay with the victim, the Offender left the victim and his co-offender. The events just related give rise to the offence of armed robbery to which he pleaded guilty. 7The Offender walked to a National Australia Bank ATM and withdrew $400 using the victim's Credit Union card. He attempted to withdraw money, using the victim's NAB card but failed. It was apparently 10.30 when he made the withdrawal. The Offender returned to the unit. Apparently the victim and the co-offender were still there and he threw the credit cards and the ATM receipts on the table and complained that he could only get $400 out of the ATM. He told the victim that they would have to wait until after midnight for the credit card limit to go back to $1,000. He and the co-offender spoke for a period of time. 8At one point, when the victim went to grab for his mobile phone, the Offender ran over and smacked him across the face. No charge has been laid in relation to this. It is simply part of the background in connection with the remaining matter on the Form 1 Schedule. The Court should add at this point, the withdrawal of the $400 gives rise to one of the offences on the Form 1 Schedule. 9The victim's friend, Mr Awad then came and the Offender told him that they were just mucking around. Apparently Mr Awad starting cleaning around the victim and was coming in and out of the room. 10Shortly afterwards the Offender left and went to an ATM and withdrew $500 from the ATM. This gives rise to the other offence on the Form 1 Schedule. He returned to the premises and showed the victim the money and returned the victim's credit cards to him. He took the victim's driver's licence but this was apparently later recovered by the victim's friend. However, the victim's friend was unable to recover the victim's money on his behalf. The victim left. After driving around for a period of time, he contacted the police. 11The Offender was 25 when he committed this offence. He is now 27 years of age. He has an older brother and sister. 12He was suspended from high school during Year 9 and did not return to school. After leaving school he undertook a number of courses at TAFE and worked casually as a cleaner and as a tiler. The Court notes that he also participated in boxing and kick boxing and ultimately became a trainer in these sports. It seems that up until 2008 he did not abuse either drugs or liquor. 13The Offender does not have the benefit of prior good character. On 9 February 2006 he was sentenced to imprisonment for 2 years with 12 months non-parole that was suspended for an aggravated robbery. The Court notes that there was some presentence custody in connection with that matter to which the Court will refer in due course. 14On 8 August 2006 he was ordered to perform community service for stealing from a person and demanding property whilst in company. It seems that the Community Service order for the latter was subsequently revoked and he was fined. 15On 1 May 2008 he was dealt with for larceny, convicted rather in his absence for larceny, which was later dealt with by way of s 10A. 16The Offender has been in custody since his arrest on 11 August 2010. He has not breached any prison discipline rules. The Court notes that he has done a course in word processing. 17The Offender was bail refused for the aggravated robbery between 26 April 2005 and 13 July of the same year. He was attacked by a group of inmates on 16 May 2005, sustaining a puncture a wound to his scapula and a wound to his head. The Court is satisfied that as a consequence of this attack, he suffers post-traumatic stress disorder. This was diagnosed early in 2008 and a cognitive behaviour therapy was recommended. It seems that he did not undertake that therapy. Part of the problem may have been his poor memory so far as appointments is concerned and also no-one being available to take him to appointments. 18He also has an intellectual disability at the borderline level that places him in the lowest 3% of the population. It is possible that this is due to brain damage. This has not been confirmed by a neuropsychological testing. It is possible that if he suffered brain damage that it is a consequence of the assault in 2005. 19Amongst other things, the implications so far as his intellectual disabilities are, that he has marked difficulties: * in attention and concentration; * understanding the implications of verbal communications; * reasoning and expressing thoughts; and * applying common sense to the thought process. 20The High Court earlier this week in the decision of Muldrock v The Queen [2011] HCA 39 had caused a comment upon the impact of an intellectual disability in the sentencing process. In the course of doing so, they quoted a passage from a New South Wales Law Reform Commission discussion paper apparently published in 1994. The passage is set out in para 50 of the judgment of the Court. It reads as follows: "A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline' is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic skills such as speech, walking and personal care and is likely to require supported accommodation. The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community'. These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential." Their Honours went on to say: "The fact that the appellant had engaged in some paid employment and that he held a driver's licence does not detract from the assessment of his retardation. The evidence was that he had 'enormous difficulty with employment'." 21There is limited evidence about the Offender's ability to function independently in the community in this case. The Court does note that, whilst in custody, he has done a word processing course of some sort, the details of which are not revealed in the evidence. The Court notes also that he was able to operate an ATM machine to withdraw money and appreciated that he may be able to withdraw more money after midnight because of the limitations on daily withdrawals. Mr Jacmon in his report comments on none of these matters. Mr Jacmon, in his report exhibit 3B, refers to the Offender starting to abuse drugs some time in 2008 to cope with his problems. There is some evidence from Ms Pike today that she observed indications of drug use in the Offender. 22Mr Jacmon in his report of 2011, which is exhibit 3B, reaches the conclusion that the Offender has attention deficit hyperactivity disorder. There is no such opinion expressed in his report exhibit 3A, which is dated 2008, and nor does he comment upon this difference and other differences in results from testing that he administered between [should read in] 2008 and 2011. As the Court observed during the tendering process, it raises questions about the weight that should be given to some aspects of this individual's reports in this particular case, which is confirmed by his response in exhibit 3D. The Court is not persuaded in the circumstances that the Offender has ADHD, or suffered from it at the time of the commission of the offence. 23The circumstances are such that the Court is satisfied in the case of this Offender that the offence was premeditated. Not only did he have the item that he used as a weapon, but he was in company. It seems that he orchestrated the situation to bring the victim into the office where the co-offender was. The weapon he used looked like a firearm but there was no evidence that it was a firearm, although it may have been capable, depending on how it was used, of inflicting some injury. There were no threats apart from those implied by the use of the gun. There was no corporal violence perpetrated during the course of the robbery but the Court does note the slap in the context of events that unfolded leading up to the second time that he went to take money out of the ATM. 24The two cards that were stolen were returned to the victim but the money taken from the ATM machines was not. They of course are not the proceeds of the robbery but are the proceeds of the offences on the Form 1 Schedule. 25Obviously the victim was very frightened. There is no victim impact statement in this case but it is possible that the victim may have suffered longterm emotional or psychological problems. Although there are some factors in this case that distinguished it from the decision in R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R , that guideline judgment is still relevant. Because of his mental health and intellectual disability, the Offender's moral culpability is less. Deterrence has little relevance and less weight was given to retribution and denunciation. Greater weight was given to rehabilitation. 26In the circumstances the Court is satisfied that his prospects of rehabilitation and not re-offending are reasonable and came to this conclusion bearing in mind his family and community support. 27Judge Johnstone sentenced the co-offender on 15 October 2010 after the co-offender pleaded guilty to an offence under subs 97(2). Taking into account one matter of obtain by deception on a Form 1 Schedule, his Honour imposed a sentence of 4½ years imprisonment with 2½ years nonparole. 28The similarities, so far as the evidence reveals, between the two Offenders are as follows: * their age; * both have post traumatic stress disorder; * both used illicit drugs to self-medicate; * their prospects of rehabilitation; * custody being more burdensome because of their mental health; and * in this man's case, his intellectual disability. 29The dissimilarities, so far as the evidence reveals, between the two are that: * unlike this man, the co-offender had no prior conviction involving robbery. His record comprised motor traffic offences and one matter of public nuisance in Queensland; * unlike this man, he had one, rather than two matters on a Form 1 Schedule; * unlike this Offender, the co-offender did not have an intellectual disability; * the co-offender received the discount of 25% for the utility of his guilty plea; * His Honour found that the co-offender's involvement was spontaneous; and * the co-offender pleaded guilty and was therefore sentenced in relation to a more serious matter which has a greater maximum penalty. Although, having said that, in terms of their roles, there is nothing significant to distinguish between them. 30Bearing those matters in mind, the Court applied the principle of parity. 31Subject to what the Court has already said in relation to the purposes of sentence, the Court consider the other purposes of sentence referred to in s 3A and that a custodial sentence is a sentence of last resort. The Court concluded that a custodial sentence is called for in this case. It found special circumstances because of his need for an extended period of time on supervised parole. 32Khalil Kobeissi, the Court convicts you and sentences you to imprisonment. It fixes a non-parole period of 2 years and a total term of 45 months to commence on 31 August 2010. The Court orders your parole eligibility date is 30 August 2012. If I have not said so, I have taken the two matters on the Form 1 into account when sentencing him. 33I have sentenced you to 45 months with 2 years non-parole commencing on the date of your arrest. That means you will become eligible for release to parole on 30 August next year. Release to parole on that date is not automatic. You will have to go before the State Parole Board, they will hold a hearing and decide whether they will let you out on parole that day or some other day. If you were released to parole you will be subject to stringent conditions that you should understand. If you do not understand, you are going to have to ask people to explain them to you. If you commit any offences whilst on your parole, do not do as your parole officer says, or breach other conditions of your parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of the sentence. Do you understand? 34OFFENDER: Yes. ********** 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: 19 February 2014