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14
Court of Criminal Appeal 10 October 2006

Alameddine v Regina

[2006] NSWCCA 317

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE HIMSELF AN ADDICT SERIOUS INJURIES (BURNS) SUFFERED LONG TERM CONSEQUENCES EXTRA CURIAL PUNISHMENT

Citation: Alameddine v Regina [2006] NSWCCA 317
Court: New South Wales Court of Criminal Appeal
Date: 10 October 2006
Judges: Grove J, Kirby J, Hislop J

Background

The appellant was serving a home detention sentence for driving offences when his probation and parole officer attended his Blacktown premises to investigate a suspected breach. During the officer's search, drug-related items were discovered, prompting the appellant to attempt to dispose of evidence. He then went to a shed at the rear of his property.

Shortly after, the shed exploded. The appellant emerged badly burnt. Police later discovered the remains of an amphetamine laboratory in the shed, along with quantities of methylamphetamine and the precursor pseudoephedrine. The explosion had been caused accidentally when the appellant used a flame from a butane gas bottle in connection with the drugs. He suffered burns to more than 50 percent of his body.

The appellant pleaded guilty in the District Court to knowingly taking part in the manufacture of methylamphetamine and to possessing pseudoephedrine as a precursor intended for that manufacture. He was sentenced to four years imprisonment with a non-parole period of eighteen months on the first count, and a concurrent eighteen-month term on the second count. He sought leave to appeal on the ground that the total sentence was excessive.

  • Whether serious self-inflicted injuries, sustained in connection with the commission of the offence itself, can constitute extra-curial punishment and therefore serve as a mitigating factor in sentencing.
  • Whether the total head sentence of four years was excessive having regard to the appellant's role, the extra-curial punishment he suffered, and comparable sentences revealed in sentencing statistics.
  • Whether the non-parole period of eighteen months was appropriate or should also be reduced.

Decision

On the central question of extra-curial punishment, the Court of Criminal Appeal confirmed that no principle exists barring a court from treating self-inflicted injuries as a mitigating factor simply because those injuries were sustained in the course of the offending. The Court rejected any proposition that the mitigation is unavailable where the injuries are connected to, or even directly caused by, the offender's own criminal conduct.

The Court accepted that the appellant's injuries were severe and carried long-term consequences. Giving significant weight to those injuries as extra-curial punishment, and having regard to the appellant's role and the comparable sentences disclosed in sentencing statistics, the Court found the total term of four years was excessive. The total sentence was accordingly reduced to the equivalent of three years.

The non-parole period of eighteen months was, however, held to be irreducible. The Court found that no less than approximately fifteen months of minimum detention was warranted for offences of this nature. The non-parole period remained at eighteen months, which the Court regarded as consistent with the principle in Power v The Queen.

A practical benefit flowed from reducing the total term to three years: with that adjustment, the total sentence fell within the range that entitles an offender to automatic release on parole at the expiry of the non-parole period, rather than requiring a determination by the Parole Board.

Orders Made

  • Extension of time and leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • District Court sentence quashed and the appellant resentenced as follows:
  • Count 1: imprisonment with a non-parole period of 18 months commencing 12 December 2005 and expiring 11 June 2007, with a balance term of 18 months commencing 12 June 2007.
  • Count 2: fixed term of 18 months commencing 12 December 2005 and expiring 11 June 2007, to be served concurrently.
  • Appellant ordered to be released to parole on 11 June 2007.
  • Special circumstances noted as applying to the setting of the non-parole period; no separate non-parole period set for count 2, as it is fully subsumed within the concurrent non-parole period on count 1.

Key Takeaways

  • No legal principle prevents a sentencing court from treating self-inflicted injuries as extra-curial punishment and using them to mitigate sentence, even where those injuries arose directly from the offender's own criminal conduct.
  • The Court of Criminal Appeal confirmed that the relevant inquiry is the nature and severity of the punishment already suffered outside the formal sentencing process, not whether the offender bears moral responsibility for causing those injuries.
  • A total head sentence may be excessive even where the non-parole period is appropriate; the two components can be assessed and adjusted independently.
  • Reducing a total sentence to three years carries a procedural consequence: it places the offender in a category entitled to automatic parole release rather than requiring a Parole Board determination.
  • Where sentencing statistics reveal that a total term equals the longest comparable sentence on record, and significant mitigating factors are present, that equivalence invites close scrutiny of whether the head sentence is proportionate.

Legislation and Cases Referenced

Cases:
- Power v The Queen (1974) 131 CLR 623
- R v Allpass (1993) 72 A Crim R 561
- R v Azar [2004] NSWSC 797
- R v Barci (1994) 76 A Crim R 103
- R v Daetz & anor (2003) 139 A Crim R 398
- R v Haddara (1997) 95 A Crim R 108
- R v Noble [1996] 1 Qd R 329
- R v Webb [2004] NSWCCA 330
- Sharpe v R [2006] NSWCCA 255

Legislation: No specific legislation was cited in the text provided.