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District Court 30 June 2006

R v Djait, Samadi

[2006] NSWDC 71

Sexual offencesAssault & violenceDrugsTheft & property

Citation: R v Djait, Samadi [2006] NSWDC 71
Court: District Court of New South Wales
Date: 30 June 2006
Judge(s): Tupman DCJ

Background

Two co-accused were tried jointly over seven weeks and convicted by a jury on 24 March 2006 of a series of offences committed across multiple occasions. The offending centred on the unlawful administration of Clonazepam (sold under the brand name Rivotril, a sedative drug) to victims, with the intention of enabling the accused to steal from those victims. Both accused denied all charges at trial and gave evidence, but the jury rejected their accounts.

Twelve counts of unlawfully administering a stupefying drug were charged jointly against both accused under section 38 of the Crimes Act. Each accused also faced individual sexual assault charges: the first accused faced three counts of sexual intercourse without consent, and the second accused faced one count of the same offence.

The first accused was convicted on all fifteen counts he faced. The second accused was convicted on all thirteen counts he faced. Sentencing proceeded on 30 June 2006 following the March verdicts.

  • Whether the evidence, including victim accounts of physical symptoms and memory loss, supported the drink spiking convictions under section 38 of the Crimes Act where some counts lacked direct medical proof of drug ingestion
  • Whether coincidence evidence from one count could be used to support proof of other counts, given the distinct similarities across incidents
  • The appropriate sentences for multiple counts of drug-facilitated theft and sexual assault, including how to structure cumulative terms and parole periods across a large number of counts

Decision

The jury convicted both accused on all counts. Tupman DCJ noted that victim testimony regarding physical symptoms, feelings, and memory loss experienced after drinking with the accused was important, and in some cases crucial, to the Crown case. Medical evidence confirming Clonazepam ingestion existed for some counts but not all. Before trial, the court ruled that evidence from each count could be used as coincidence evidence across the other relevant counts, given the distinct pattern of similarity across all incidents.

Both accused pleaded not guilty and each gave evidence denying the allegations. The jury's verdicts demonstrated it accepted the overall thrust of the Crown case and rejected the accused's denials. Other circumstantial evidence, including stolen property found in the possession of one or both accused, further supported individual counts.

On sentencing, Tupman DCJ structured the terms so that each group of counts attracted its own eight-year sentence (with a five-year non-parole period), cascading annually from the date of arrest, with the sexual assault counts attracting a longer nine-year sentence (six-year non-parole period) at the end of the sequence. This approach produced an overall head sentence of 15 years for each accused, with a total non-parole period of 12 years.

Orders Made

Chebli Djait (convicted on 15 counts):
- Counts 1, 2, 3: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2004
- Count 4: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2005
- Counts 5, 6: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2006
- Counts 7, 8: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2007
- Counts 9, 10, 11: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2008
- Count 15: 8 years imprisonment, non-parole period of 5 years commencing 19 October 2009
- Counts 12, 13, 14 (sexual assault): 9 years imprisonment, non-parole period of 6 years commencing 19 October 2010
- Overall: 15 years total, with a 12-year non-parole period commencing 19 October 2004, expiring 18 October 2016

Adel Samadi (convicted on 13 counts):
- Counts 1, 2, 3: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2004
- Count 4: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2005
- Counts 5, 6: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2006
- Counts 7, 8: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2007
- Counts 9, 10, 11: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2008
- Count 15: 8 years imprisonment, non-parole period of 5 years commencing 20 October 2009
- Count 16 (sexual assault): 9 years imprisonment, non-parole period of 6 years commencing 20 October 2010
- Overall: 15 years total, with a 12-year non-parole period commencing 20 October 2004, expiring 19 October 2016

Key Takeaways

  • Under section 38 of the Crimes Act, a conviction for unlawfully administering a stupefying drug does not require direct medical proof of drug ingestion in every case; credible victim evidence of physical symptoms and memory loss can be sufficient, particularly where coincidence evidence from similar counts reinforces the Crown case.
  • Coincidence evidence, where incidents share sufficiently distinct similarities, is capable of admission in a joint trial to support proof of individual counts, subject to a pre-trial ruling by the court.
  • The District Court structured cumulative sentences using an annually cascading commencement approach across multiple count groupings, producing an effective aggregate term substantially longer than any single sentence while preserving the requirement for each sentence to be proportionate to the individual offending it addressed.
  • Sexual assault offences under section 61I attracted a longer individual term (9 years, with a 6-year non-parole period) than the drug-facilitated theft offences (8 years, with a 5-year non-parole period), reflecting the standard non-parole period framework applicable to sexual intercourse without consent.
  • Both accused received identical overall terms of 15 years imprisonment with 12-year non-parole periods, notwithstanding that one faced three sexual assault counts and the other faced one, reflecting the court's assessment of the totality of each offender's conduct.

Legislation and Cases Referenced

Legislation:
- Section 38, Crimes Act 1900 (NSW) (unlawful administration of stupefying drug; maximum penalty 25 years)
- Section 61I, Crimes Act 1900 (NSW) (sexual intercourse without consent; maximum penalty 14 years)
- Section 45B, Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period of 7 years for offences under s 61I)

Cases cited: None identified in the provided text.