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District Court 9 February 2018

R v Ahmad Alameddine; R v Lee McArthur

[2018] NSWDC 43

Assault & violenceTheft & property
CRIMINAL LAW OFFENCE PLEA OF GUILTY AGGRAVATED BREAK AND ENTER LARCENY MITIGATING FACTORS

Citation: R v Ahmad Alameddine; R v Lee McArthur [2018] NSWDC 43
Court: District Court of New South Wales
Date: 9 February 2018
Judge: Judge AC Scotting

Background

Two co-offenders, Ahmad Alameddine and Lee McArthur, appeared for sentencing after each pleaded guilty in the week before their scheduled trial. Both men had participated in a joint criminal enterprise with two other co-accused, the objective of which was to steal heavy vehicles and use them to ram an ATM at the Meadowbank Village Plaza Shopping Centre in Sydney.

The operation was carefully planned over several weeks in December 2015. Police intercepted multiple telephone calls and tracked vehicle movements revealing extensive reconnaissance of the shopping centre and searches for suitable vehicles to steal. On the night of 23 to 24 December 2015, the group stole a Mitsubishi Pajero four-wheel drive from Rhodes and a Toyota HiAce van from Ryde. They then drove both stolen vehicles at high speed to the shopping centre, where the Pajero was rammed over a bollard into the side of the building and driven into a freestanding ANZ Bank ATM. The ATM could not be removed because one mounting remained fixed to the floor. The damage to the shopping centre and the ATM cost the owners and ANZ Bank a combined total of over $54,000.

Both offenders were arrested shortly after the incident. Alameddine was intercepted at his residence and gave a false account to police claiming he had been home sleeping. McArthur left his vehicle at high speed but was arrested at his residence shortly afterwards.

  • What sentence was appropriate for each offender, having regard to the objective seriousness of the offences and each offender's individual circumstances?
  • Whether special circumstances existed for either offender justifying a departure from the standard ratio of non-parole period to total sentence.
  • How the parity and totality principles applied, given that the offenders were co-participants and each had prior criminal histories and pre-existing sentences.
  • What weight should be given to Alameddine's rare and serious medical condition (Susac Syndrome) in determining his sentence and parole period.
  • How the sentences should be backdated and structured in relation to time already served and any earlier sentences.

Decision

Judge Scotting sentenced both men using the aggregate sentence provisions under section 54A of the Crimes (Sentencing Procedure) Act 1999. For each offender, the court identified the sentences it would have imposed on individual counts before arriving at a single aggregate term.

For Alameddine, the court treated the offending as objectively serious, noting the careful planning, the involvement of multiple participants, and the significant property damage caused. The late guilty plea reduced the sentencing discount available compared with an early plea. The court accepted that Alameddine's Susac Syndrome, a rare autoimmune condition causing inflammation of cerebral and retinal blood vessels resulting in cognitive impairment, personality changes, seizures, and potentially fatal outcomes if untreated, was a significant mitigating factor. The condition had not been adequately monitored during his time in custody, and the court found that he required close specialist oversight more readily available in the community. This supported a finding of special circumstances, justifying a longer additional (parole) term relative to the non-parole period.

For McArthur, the court noted a significantly more serious criminal history, including convictions for armed robbery and approximately eight and a half years of incarceration over the preceding decade. The court found a real risk of institutionalisation and determined that a longer parole period was warranted to support reintegration. McArthur's parole had been revoked in connection with these offences, though he had been compliant with parole conditions up to that point. The court backdated McArthur's sentence to partially accumulate it on the time served for the revoked parole.

Both aggregate sentences were structured to reflect the totality principle, ensuring the combined punishment was proportionate to the overall criminality rather than simply adding individual terms together.

Orders Made

  • Alameddine: Convicted. Aggregate sentence of imprisonment with a non-parole period of 2 years and 3 months, commencing 14 April 2017 and expiring 13 July 2019, with an additional term of 2 years expiring 13 July 2021. Eligible for parole on 13 July 2019.
  • McArthur: Convicted. Aggregate sentence of imprisonment with a non-parole period of 3 years and 6 months, commencing 24 September 2016 and expiring 23 March 2020, with an additional term of 2 years expiring 23 March 2022. Eligible for parole on 23 March 2020.

Key Takeaways

  • A serious autoimmune condition affecting cognitive function and requiring specialist monitoring can constitute a significant mitigating factor at sentencing and support a finding of special circumstances, particularly where adequate treatment is demonstrably more accessible in the community than in custody.
  • Under the totality principle, where multiple offences arise from a single criminal enterprise, an aggregate sentence must reflect the overall criminality without simply accumulating individual terms that would produce a disproportionate result.
  • A guilty plea entered in the week before trial attracts a reduced discount compared with an earlier plea, a factor the District Court applied to both offenders here.
  • Where an offender has spent the substantial majority of their adult life in custody, the risk of institutionalisation is a recognised basis for finding special circumstances and extending the parole period to support rehabilitation and community reintegration.
  • Sentences imposed on co-offenders in joint criminal enterprises must be assessed for parity, but differences in criminal history, personal circumstances, and individual roles can justify materially different outcomes even where the charged conduct is identical.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(2), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(d), 21A(2)(g), 21A(2)(j), 21A(2)(n), 21A(3)(h), 21A(3)(i), 54A

Cases:
- Muldrock v R (2011) 244 CLR 120
- Palijan v R [2010] NSWCCA 142
- R v Elemes [2000] NSWCCA 235
- R v Innis [2008] NSWDC 260
- R v Lawrence [2005] NSWCCA 91
- R v Reilly [2012] NSWCCA 166
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Youkhana [2004] NSWCCA 412
- RL v R [2015] NSWCCA 106