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Court of Criminal Appeal 1 September 2004

Regina v Alameddine

[2004] NSWCCA 286

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW ARMED ROBBERY IN COMPANY THEFT OF HANDGUNS WHETHER SENTENCE MANIFESTLY EXCESSIVE OFFENDER.

Citation: Regina v Alameddine [2004] NSWCCA 286
Court: New South Wales Court of Criminal Appeal
Date: 1 September 2004
Judge(s): Beazley JA; Wood CJ at CL; Hulme J

Background

The appellant pleaded guilty in the District Court to one count of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900, following a planned armed robbery at a firearms range in Condell Park on 19 June 2002. The offence involved multiple armed offenders who forced their way into the premises wearing balaclavas, held patrons at gunpoint, fired shots, and stole a significant number of handguns along with $1,680 in cash. Police had been forewarned of the robbery by an informer and had placed the group under physical and electronic surveillance, capturing intercepted mobile phone calls in which the appellant played a coordinating role on the ground.

The appellant was sentenced by Christie DCJ in the District Court to 7 years and 6 months imprisonment, with a non-parole period of 5 years and 6 months. Fifteen additional matters were taken into account on a Form 1, ten of which were directly or indirectly linked to the principal offence. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, and also raised a parity argument based on the sentence received by a co-offender.

  • Whether the sentence of 7 years and 6 months with a 5 year and 6 month non-parole period was manifestly excessive in the circumstances.
  • Whether the appellant had a justifiable sense of grievance arising from a disparity between his sentence and that imposed on a co-offender.

Decision

The Court of Criminal Appeal refused leave to appeal, finding no basis to disturb the sentence imposed at first instance.

On the question of manifest excess, the Court noted that the offence was at the serious end of the spectrum. It involved careful planning, weapons capable of killing or inflicting serious injury, multiple offenders acting in concert, the discharge of firearms during the robbery, and the theft of handguns that could readily be used in further criminal activity. The appellant had a coordinating role, evidenced extensively by the intercepted phone calls.

On the parity argument, the Court acknowledged the principle that a co-offender receiving a lighter sentence can, in some circumstances, give rise to a justifiable sense of grievance. However, the Court declined to reduce the appellant's sentence on that basis. It reasoned that, given the gravity of the offence and the appellant's substantial participation, any reduction would work a greater injustice to the community than any grievance the appellant might have from the disparity.

Hulme J, in a separate judgment, went further and observed that the sentencing judge had made several findings arguably favourable to the appellant, including treating the appellant's breach of a recognisance as a marginal factor when it had been imposed only three months before the offence. Hulme J also noted that, comparing the sentence to the guideline figures discussed in R v Henry, the sentence of 7 years and 6 months might in fact be considered unduly light, though no Crown appeal had been brought and the issue did not require determination.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle does not automatically justify reducing a sentence merely because a co-offender received a lighter term; the gravity of the offence and the degree of participation remain central considerations.
  • A justifiable sense of grievance will not be established where reducing the appellant's sentence would produce a result that is unjust to the community, particularly where the crime is serious and the offender's role was substantial.
  • Offending on conditional liberty (here, a recognisance in place only three months before the robbery) is a well-established aggravating factor, and the sentencing court's characterisation of it as "marginal" attracted criticism from Hulme J.
  • Hulme J's observations suggest the 7 year and 6 month sentence may have been lenient rather than excessive when measured against the relevant sentencing guidelines for armed robbery, though this finding was not formally required given the absence of a Crown appeal.
  • Under s 97(2) of the Crimes Act 1900, armed robbery carries a maximum penalty of 25 years imprisonment; the presence of multiple armed offenders, advance planning, the use of firearms during the offence, and the nature of the stolen goods are all factors that increase objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 98 A Crim R 134
- R v AEM [2002] NSWCCA 58
- R v Daridis (NSWCCA, 18 December 1986)
- R v Donovan [2003] NSWCCA 324
- R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346
- R v Hosche [2001] NSWCCA 317
- R v Lawson [2000] NSWCCA 214
- R v McCarroll [1999] NSWCCA 237
- R v Moratti (NSWCCA, 31 July 1995)
- R v Nevermann (1989) 43 A Crim R 347
- R v Palu [2002] NSWCCA 381
- R v Qutami [2001] NSWCCA 353
- R v Readman (1990) 47 A Crim R 181
- R v Rushby [1977] 1 NSWLR 594
- R v Simpson (2001) 126 A Crim R 525
- R v Tran [1999] NSWCCA 109
- R v Watego [2001] NSWCCA 236
- R v Welsh (1996) 90 A Crim R 364
- Weininger v The Queen (2003) 140 A Crim R 184