Citation: Regina v Walid Alameddine [2005] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 3 March 2005
Judge(s): Grove J, James J, Barr J
Background
The respondent pleaded guilty in the District Court to two charges of robbery in company and one charge of assault with intent to rob. The offences arose from a single incident on 12 September 2003, in which the respondent and a companion confronted three teenagers aged 14 and 15 on a street, threatening them with what appeared to be a knife and stealing a mobile phone and a bum bag containing cash and other items. The respondent was 20 years old at the time and was subject to an existing Local Court bond.
On 28 October 2004, Payne DCJ remanded the respondent for sentencing to 10 March 2005 under section 11 of the Crimes (Sentencing Procedure) Act, which permits deferral of sentencing for rehabilitation purposes. Her Honour imposed bail conditions requiring the respondent to remain employed, comply with Probation and Parole supervision, and be of good behaviour during the adjournment period.
The Crown (represented by the Director of Public Prosecutions) appealed that decision, arguing there was no proper basis for the adjournment and that sentencing should have proceeded immediately.
Legal Issues
- Whether the District Court judge had a proper basis under section 11 of the Crimes (Sentencing Procedure) Act to remand the respondent for sentencing rather than proceeding to sentence him immediately.
- Whether the Court of Criminal Appeal should intervene and quash the adjournment order in circumstances where the sentencing hearing was imminent (seven days away).
Decision
The Court accepted that there was substance to the Crown's complaint. Barr J (with whom Grove J and James J agreed) found that the sentencing judge had before her a complete pre-sentence report, a psychiatric report, and full knowledge of the respondent's personal circumstances, including the impact of his father's death. There was no realistic prospect that a further adjournment would produce any significant new information bearing on the sentencing discretion.
The Court found that the District Court had fallen into the error identified in R v Palu and R v Trindall, where courts cautioned that the section 11 power to defer sentencing should be used only where wholly justified, and that unnecessary delay in sentencing proceedings creates unfairness.
Despite finding the error, the Court declined to intervene. The sentencing hearing was listed for just seven days after the appeal was heard. Quashing the adjournment order, as the Crown invited the Court to do, would itself produce greater delay than simply allowing the matter to proceed as listed. The Court exercised its residual discretion against interfering, noting that the sentencing judge had not indicated any intention to deal with the matter in any particular way at the upcoming hearing.
The appeal was accordingly dismissed on discretionary grounds, not because the underlying adjournment was found to be appropriate.
Orders Made
- The appeal is dismissed.
Key Takeaways
- A finding that a sentencing court erred does not automatically lead to appellate intervention. The Court of Criminal Appeal retains a discretion to decline to interfere where intervention would itself produce the very harm complained of.
- Under section 11 of the Crimes (Sentencing Procedure) Act, the power to defer sentencing for rehabilitation purposes must be used only where wholly justified. Having a complete pre-sentence report, a psychiatric assessment, and full knowledge of the offender's circumstances may leave no sufficient basis for further adjournment.
- The principles from R v Palu (2002) 134 A Crim R 174 and R v Trindall (2002) 133 A Crim R 119 were reaffirmed: unnecessary delay in sentencing proceedings is itself an injustice, and the section 11 power is not a routine tool.
- In dismissing the appeal, the Court balanced the acknowledged sentencing error against the practical reality that quashing the adjournment order would delay the very sentencing hearing due to occur within a week.
- The District Court had not signalled any intention to impose a non-custodial sentence. Her Honour had expressly left open the possibility of full-time custody, periodic detention, or a non-parole period, which reduced the urgency of appellate correction.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), section 11 (deferral of sentencing for rehabilitation and other purposes)
Cases:
- Regina v Henry (1999) 106 A Crim R 149 (exceptional circumstances required for non-custodial sentence for serious offences)
- R v Trindall (2002) 133 A Crim R 119 (limits on use of sentencing adjournment power)
- R v Palu (2002) 134 A Crim R 174 (Howie J: section 11 power to be used only where wholly justified; delay in sentencing produces unfairness)