AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 4 August 2023

R v Alameddine

[2023] NSWDC 299

Sexual offences
SENTENCING — PENALTIES — IMPRISONMENT RELEVANT FACTOR DELAY REMORSE LIMITED RISK OF REOFFENDING FAMILY HARDSHIP

Citation: R v Alameddine [2023] NSWDC 299
Court: District Court of New South Wales
Date: 4 August 2023
Judge: Noman SC DCJ

Background

The offender pleaded guilty in the Local Court in October 2022 to two offences arising from a single incident that occurred nearly 28 years earlier, in June 1995. The offences were attempted sexual intercourse without consent (contrary to ss 61I and 61P of the Crimes Act 1900) and forcible abduction of a woman with intent to carnally know her (contrary to s 89 of the same Act), each carrying a maximum penalty of 14 years imprisonment. A further offence of indecent assault was placed on a Form 1 to be taken into account on sentencing for the principal offence.

The victim was 22 years old at the time of the offending. She had consumed alcohol throughout the day and was found unconscious on a roadway late at night. The offender, then 21, placed her in his car. While she initially believed she was being assisted, the offender drove her to an isolated location where the sexual offending occurred. The victim resisted throughout, and the offender ultimately desisted voluntarily and drove her to a police station.

The offender denied the offending for many years before eventually entering guilty pleas. The significant delay between the offending in 1995 and the sentencing proceedings in 2023 was a central consideration for the court, alongside the offender's personal circumstances, remorse, and the impact of any custodial sentence on his family.

  • What were the appropriate indicative and aggregate sentences for the two offences, accounting for the 25% discount for guilty pleas?
  • Whether the offending fell within the definition of "prescribed sexual offence" under s 67(2) of the Crimes (Sentencing Procedure) Act 1999, such that an Intensive Correction Order (ICO) was unavailable as a sentencing option.
  • Whether special circumstances existed justifying a variation from the statutory non-parole period ratio, given the need to accumulate sentences, the historic delay, and family hardship.
  • How to treat the disputed facts concerning the location of the sexual offending (in the car versus outside it) in circumstances where neither party sought a judicial determination of those facts.

Decision

The District Court found both offences to be serious. The attempted sexual intercourse offence was characterised as a serious example of attempt, noting the offender persisted despite the victim's obvious distress and verbal resistance, and that his attempt to achieve penetration was as close to completion as possible without crossing that threshold. The abduction offence was similarly assessed as a serious example, given the victim's known vulnerability through intoxication and the offender's exploitation of the situation. The opportunistic nature of the offending was noted, as was the aggravating feature that the offender must have actually known of the victim's lack of consent.

The court acknowledged several matters in the offender's favour, including that he voluntarily desisted from further offending, drove the victim to a police station rather than abandoning her, and had since demonstrated genuine remorse and a limited risk of reoffending. The court also recognised the significant delay of nearly 28 years between the offending and sentencing, which was a relevant mitigating factor, as well as the hardship any custodial sentence would cause to the offender's family, particularly his children.

On the question of ICO availability, the court concluded that s 67(2)(g) of the Crimes (Sentencing Procedure) Act 1999 did not operate to capture these offences. The offences were committed before the relevant legislative provisions were in place, and a 2022 amendment that would have resolved the issue expressly did not apply to proceedings commenced before its commencement date. The court followed the reasoning in R v KH and R v Heyward and determined that an ICO could nonetheless be considered, though ultimately a term of imprisonment was imposed.

Special circumstances were found to exist, warranting a substantial variation from the standard ratio between the non-parole period and total sentence. The court identified the need to accumulate indicative sentences, the historic delay, and family hardship as the basis for that finding. Each indicative sentence was reduced by 25% to reflect the timing of the guilty pleas.

Orders Made

  • The offender was convicted of both offences.
  • The indecent assault offence was placed on a Form 1 and taken into account in sentencing for the attempted sexual intercourse offence; it did not warrant any increase to the sentence imposed.
  • Indicative sentence for attempted sexual intercourse (Sequence 2, including the Form 1 offence): 3 years and 4 months imprisonment.
  • Indicative sentence for forcible abduction (Sequence 4): 3 years imprisonment.
  • Aggregate sentence imposed: 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months.
  • Sentence to commence from 28 July 2023 (accounting for 7 days pre-sentence custody).
  • Sentence to expire on 27 January 2027.
  • Eligibility for parole from 27 April 2025.
  • The non-parole period reflects a variation to the statutory ratio (approximately 50%), giving effect to the finding of special circumstances.

Key Takeaways

  • The District Court confirmed that the voluntary cessation of offending and the decision to take a victim to police, while not excusing conduct, are matters capable of weighing in an offender's favour at sentencing, even where they would not have prevented more serious charges had offending continued.
  • Significant delay between historic offending and sentencing (here, approximately 28 years) operates as a mitigating factor relevant to the weight given to general deterrence and the assessment of current risk.
  • Under s 67(2) of the Crimes (Sentencing Procedure) Act 1999, offences committed before relevant provisions were enacted did not qualify as "prescribed sexual offences" for the purpose of excluding ICO eligibility, and the 2022 legislative amendment closing that gap applied only to proceedings commenced after its commencement date.
  • Where agreed facts contain disputed elements but the parties do not invite the court to resolve them, the court proceeds without making findings on those disputed matters and does not treat the dispute as automatically resolved in the offender's favour.
  • A finding of special circumstances is available where the need to accumulate sentences, combined with factors such as delay and significant family hardship (particularly the impact on dependent children), justifies a substantial departure from the standard non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 61P, 89
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 67(1), 67(2)

Cases:
- R v Todd [1982] 2 NSWLR 517
- Jackson v R [2023] NSWCCA 121
- R v KH [2022] NSWDC 706
- R v Heyward [2020] NSWDC 248