Citation: R v Alameddine, Ahmad [2008] NSWDC 141
Court: District Court of New South Wales
Date: 27 March 2008
Judge(s): Nicholson SC DCJ
Background
Shortly before midnight on 29 December 2003, the offender, then aged eighteen and a half, entered a Pizza Hut store at Guildford with his cousin and a third man after the manager had closed for the night. The three men, armed with a knife and wearing gloves, forced their way back inside with the manager, threatened and bullied him over an extended period, and stabbed him in the left arm when he was unable to open the time-locked safe.
Unable to access the safe, the offenders took the manager's mobile phone, cash, and bank keycard, extracting his PIN by repeated threats. They then conducted six ATM transactions over the following day, successfully withdrawing $1,700 in three transactions and unsuccessfully attempting to withdraw a further $1,300 in three more.
The matter came before the District Court as a "cold case," approximately four years after the offences. The offender faced one count of robbery with wounding in company, three counts of obtaining a financial benefit by deception (the successful ATM withdrawals), and three counts of attempting to obtain a financial benefit by deception (the failed attempts).
Legal Issues
- What is the appropriate objective seriousness of the robbery with wounding in company, and how does it sit relative to the standard non-parole period of seven years?
- What discount, if any, should be applied for the offender's guilty pleas?
- What weight, if any, can be given to a claimed psychological condition as a mitigating factor, and what evidentiary foundation is required before such a condition can be accepted?
- How should the principle of totality govern the structuring of concurrent and cumulative sentences across seven counts?
- What role does the offender's youth at the time of offending play in the sentencing exercise?
Decision
Objective seriousness: The District Court assessed the robbery with wounding in company as falling in the mid-range of seriousness. Although the wounding involved a stabbing and the victim endured sustained threats over an extended period, the court noted that the safe could not be opened due to the time-lock and that the total sum taken was relatively modest at $1,700. A notional starting sentence of seven years was adopted for the principal offence.
Guilty pleas and delay: The court allowed a discount of approximately seventeen months (roughly 20%) from the notional seven-year sentence for the offender's guilty pleas, resulting in a head sentence of five years and nine months. The court also took into account the delay between the offences and sentencing in calibrating the overall result.
Psychological evidence: The offender sought to rely on psychiatric evidence that he had been traumatised by a violent incident involving a guard dog and security guards approximately eight weeks before the robbery. The court declined to give this significant mitigating weight. The judgment sets out two requirements that must be satisfied before a psychological condition can operate in mitigation: first, the history and testing underlying any psychiatric diagnosis must be exposed and tested so that the condition is properly established as a matter of evidence; and second, a causal or contributory link between the psychological condition and the criminal conduct must be demonstrated. Neither requirement was sufficiently met on the material presented.
Youth and totality: The offender's age at the time (eighteen and a half) was treated as a mitigating factor, though it carried limited weight given the seriousness and planning evident in the offending. The court structured the sentences for the deception and attempted deception counts as fixed terms running concurrently with each other but partly cumulative on the principal sentence, with the overall result producing an effective non-parole period of two years and nine months from the date of sentence.
Orders Made
- Count 1 (Robbery with wounding in company): Non-parole period of 2 years and 3 months, commencing 28 September 2008 and expiring 27 December 2010; balance of term of 3 years and 6 months, expiring 27 June 2014.
- Counts 2, 3 and 4 (Obtaining benefit by deception, three counts): Fixed terms of 10 months each, commencing 27 March 2008 and expiring 26 January 2009.
- Counts 5, 6 and 7 (Attempting to obtain benefit by deception, three counts): Fixed terms of 5 months each, commencing 27 March 2008 and expiring 26 August 2008.
- Effective non-parole period of 2 years and 9 months from 27 March 2008, with eligibility for parole from 27 December 2010 subject to Parole Board assessment.
Key Takeaways
- Before a psychiatric or psychological condition can be accepted in mitigation at sentence, the underlying history, clinical testing, and diagnostic reasoning must be exposed to proper evidentiary scrutiny, not simply asserted through a report.
- A causal link between the psychological condition and the criminal conduct is a further, distinct requirement. Evidence of a condition alone does not establish that it contributed to the offending.
- The District Court placed the offence in the mid-range of seriousness for a robbery with wounding in company, notwithstanding the use of a knife and sustained threats, having regard to the modest sum ultimately taken and the failure to access the safe.
- A guilty plea discount of approximately 20% was applied to the principal offence, producing a reduction of around seventeen months from the notional starting sentence.
- Youth at the time of offending retained some mitigating force, but carried limited weight where the offending involved planning, the use of weapons, and a leading role in sustained violence against a lone victim.
Legislation and Cases Referenced
Cases:
- R v Hearne (2007) 124 A Crim R 457
- R v Way (2004) 60 NSWLR 168
Legislation: No specific legislation cited in the decision metadata or provided text (the offences relate to robbery with wounding in company and obtaining/attempting to obtain a financial benefit by deception under NSW criminal law).