R v Ahmad Alameddine; R v Lee McArthur

Events of 22 December 2015.

1. At 5.39pm police intercepted a telephone call from Alameddine to one of the co‑accused where they discussed going fishing. Alameddine told the co‑accused he would pick them up at 9pm. At 10.04pm police observed Alameddine drive his vehicle from his residence to McArthur's residence in Granville.
2. Police observed McArthur leave his house and enter Alameddine's vehicle. At 10.22pm police intercepted a telephone call indicating that Alameddine picked up one of the other co‑accused from his residence at Lidcombe. Alameddine then drove to Moorebank to the residence of the other co‑accused. At 11.46pm Alameddine, McArthur and the two co‑accused left the residence at Moorebank and travelled in convoy with a Toyota Landcruiser to the BP Service Station at Chipping Norton.
3. The vehicles then travelled in convoy to Meadowbank with the vehicles frequently stopping and the parties engaging in discussions. The movements of Alameddine's vehicle were tracked by police, the offenders and the co‑accused were engaged in recognisance of the shopping centre.

Events of 23 December 2015.

1. At 1.46am Alameddine dropped off one of the co‑accused at his residence in Lidcombe. At 1.58am Alameddine dropped off McArthur at his residence in Granville.
2. At 7.54pm police intercepted a telephone call between Alameddine and McArthur where they agreed to meet at Alameddine's residence at 10pm. At 10.17pm McArthur arrived at Alameddine's residence. At 10.33 pm police observed Alameddine leave his residence with two other occupants in his vehicle. At 11.08pm Alameddine travelled to the co‑accused's residence at Lidcombe and picked him up. Alameddine, McArthur and one of the co‑accused travelled in Alameddine's vehicle to West Ryde where they met the other co‑accused who was driving a Toyota Landcruiser and had a discussion.
3. The vehicles then travelled to Walker Street, Rhodes where a Mitsubishi Pajero four wheel drive was stolen. Alameddine's vehicle and the stolen Pajero stayed in Meadowbank while the Toyota Landcruiser was driven to Dickson Avenue, Ryde where a Toyota Hi‑Ace was stolen. The stolen Hi‑Ace and the stolen Pajero were driven to Meadowbank where they travelled around often stopping to allow the occupants to have discussions. At 3.08am on 24 December 2015 the stolen Hi‑Ace and the stolen Pajero travelled in convoy to the shopping centre at high speed.
4. They travelled up a pedestrian walkway where the Pajero was driven over a steel bollard into the side of the shopping centre and rammed into a freestanding ANZ Bank ATM knocking it off its mountings. The offenders were unable to steal the ATM because one of the mountings was still fixed to the floor. Immediately after the offence police followed Alameddine's vehicle to his residence where he was arrested. McArthur left the address in his vehicle at high speed. McArthur was arrested a short time later at his residence.
5. Alameddine participated in an interview with police in which he told them that he had been at home sleeping and watching television. McArthur declined to be interviewed. The owners of the shopping centre incurred costs to clean up and to repair the damage in the sum of $41,483.70. The ANZ Bank incurred costs to provide static guarding and to repair the ATM in the sum of $13,330.16. There was damage to the stolen vehicles but there was no evidence of the costs of that damage.

Alameddine's Case on Sentence.

1. Mr Alameddine tendered a report of his treating neurologist Dr Andrew Henderson dated 6 February 2018. Mr Alameddine was diagnosed with Susac Syndrome in 2014. He has been under the care of Dr Henderson since 31 March. Dr Henderson last reviewed Mr Alameddine on 8 February 2017 despite advising that he have three monthly appointments.
2. Susac Syndrome is a very rare autoimmune condition that causes inflammation of the retinal and cerebral blood vessels as well as those in the inner ear. It causes abnormal brain function manifesting in impaired judgment, memory and thought patterns and personality changes. Symptoms can also include headaches, seizures, vision and hearing loss. Untreated, it can be fatal and there is no cure. The syndrome is treated with immune suppressant treatment which makes the patient more susceptible to infections and precautions need to be taken to avoid the risk of infection.
3. Mr Alameddine has suffered cognitive impairment, personality change, headaches and seizures. He requires regular review by a neurologist with specialist expertise in neuro‑immunology. If he is not regularly reviewed there is a risk of relapse of the condition that could have serious adverse consequences for his health. Dr Henderson is presently unable to say if Mr Alameddine's treatment is appropriate, not having seen him since February 2017.
4. Mr Alameddine has also tendered a copy of his Justice Health file. The following salient points come from that material. A discharge summary from Westmead Hospital dated 22 April 2014 indicates that Mr Alameddine was first diagnosed with Susac Syndrome after presenting to the hospital suffering headaches, confusion and a general deterioration of cognitive functioning. He was treated as an inpatient for about three weeks.
5. In June 2017 Mr Alameddine reported to Justice Health staff that he was not being given his medication. On 3 July 2017 Mr Alameddine was transferred to Westmead Hospital and admitted. On 7 July 2017 Mr Alameddine was discharged back into custody. It was recommended that he attend follow‑up vestibular and audiology testing and that he consult the liver clinic and Dr Henderson within one month.
6. On 17 July 2017 Mr Alameddine suffered a suspected seizure in relation to which a general practitioner at Justice Health was consulted, who was reported to be "unconcerned". On 19 July 2017 Mr Alameddine underwent hearing tests that were curtailed because his transport from the gaol was delayed by 45 minutes making him late for the appointment. The tests confirmed mild to moderate bilateral hearing loss.
7. Mr Alameddine has also tendered a number of decisions made by the Guardianship Tribunal. In summary a guardianship order was made for his welfare in April 2014 at the time he was first admitted to hospital, appointing his brother‑in‑law to make decisions for him relating to his accommodation, health care and medical treatment. On 15 May 2014 his brother‑in‑law was incarcerated and the guardian was replaced. On review in early 2015 the guardianship order was revoked.
8. Mr Alameddine tendered a report of Ms Anne‑Marie De Santa Brigida, psychologist, dated 29 January 2018. The psychologist saw Mr Alameddine twice in custody for the purpose of preparing the report. She conducted a semi‑structured interview over a period of two hours and one hour of psychometric testing. Mr Alameddine has expressed his remorse for his involvement in the current offences and stated that following his release from custody he intends to disassociate himself from his criminal associates.
9. He is the fourth of seven children and lives at home with his parents who are still alive but not particularly well. He married in 2011 and then separated in 2014. He is now divorced from that relationship. There is one child from this marriage, a daughter aged six, and she is currently in the care of her mother. He has in the past shared in the care of his daughter and she is very important to him. In 2017 he remarried. They separated after seven months and are now divorced.
10. The source of the breakdown of this relationship was his need for care on a daily basis. He intends to return to his parents' home on his release from custody. He does not believe that he is capable of living independently because of the Susac Syndrome and intends not to marry again. He left school at year ten and obtained some employment most recently in 2014 shortly prior to his diagnosis. After his diagnosis he has not worked again but has applied for a disability support pension.
11. He was taken off that subsequently because he did not attend appointments. He has had some experience with drugs and in 2016 and 17 was abusing alcohol, drinking half a bottle of scotch per night. He was admitted to Cumberland Hospital in January 2017 to undertake detoxification from cocaine and Xanax. During that admission he displayed some acute behavioural disturbances. The psychologist noted that Susac Syndrome results in cognitive decline particularly memory impairment.
12. She conducted a battery of tests, noting that she did not have any previous testing available to her in order to form a baseline. His total score from that testing scored within the extremely low range, particularly in relation to delayed memory, immediate memory, expressive language functioning and verbal memory functioning. Mr Alameddine reported to the psychologist that he struggled to cope in custody because of his Susac Syndrome. He has placed himself voluntarily in strict protection with limited association.
13. He stated that he is often impulsive and says things without any comprehension of the ramifications particularly with other inmates. His memory is so poor that he forgets what he has said to other inmates from one day to the next. This has resulted in him fearing for his safety in custody and his purpose for disassociating himself from other inmates in protection because of his fear that he will say the wrong thing. Another inmate has adopted significant care for him.
14. The psychologist rated his overall score as a percentile rank of less than or equal to point one per cent of his age‑matched peers, placing him in the extremely low range with a total index score also in the extremely low range. The court received letters from two of Mr Alameddine's sisters as well as his parents. His sisters report a strong bond with him and a marked change in his personality since his diagnosis with Susac Syndrome. After he was discharged he required high doses of medication and he was concerned that people were laughing at him or thinking that there was something wrong with him.
15. They described him as losing everything, including his job, money and relationships. They described him as having a very close bond with his daughter and also having considerable difficulties with his failed marriages. They report that he has expressed remorse to them. They describe him as requiring very high levels of care often as high as 24 hours per day. The tenor of the family material is that the Susac Syndrome has a considerable and continuing impact on him.

Mr McArthur's Case on Sentence

1. The court received a presentence report dated 8 February 2018. Mr McArthur is currently housed at Bathurst Correctional Centre and has not incurred any institutional misconduct charges in his current incarceration. He has had previous supervision from Community Corrections, including being on parole for a little over 12 months. He reported a positive upbringing with his parents separating when he was in his teenage years which had a negative effect on him emotionally.
2. He remains close to his parents and they have a supportive relationship with him. He intends to reside with his cousin upon release from custody. He also has a partner in the community who is a strong support for him. He completed education to year ten and engaged in short periods of paid employment including labouring. He completed a Certificate III in the fitness industry prior to being taken into custody on this occasion. He was reliant on Centrelink benefits immediately before his incarceration.
3. He has an offer of employment in the construction industry upon his release from custody and this was confirmed by the author of the presentence report. Mr McArthur reported that the offence was committed for financial gain as a result of his financial position at the time. He agreed with the police facts and made no attempt to minimise his behaviour. He described the choices he made as stupid and financially motivated. He identified with the victims particularly those that had their car stolen would suffer some financial impact.
4. He has the positive and supportive influence from family and his partner in the community and a stable offer of accommodation and paid employment upon his release from custody. It is considered he would benefit from the EQUIPS program and perhaps cognitive behavioural therapy to address his criminogenic needs and provide additional support.
5. Mr McArthur tendered a report from Mr Sam Borenstein, clinical psychologist, dated 16 January 2018.
6. The psychologist saw Mr McArthur in custody by way of audio visual link for the purposes of preparing a report. At the time of writing the report Mr McArthur had spent a total of eight and a half years in prison of which he was out of gaol for about 12 months prior to the offences. He was living with his mother and maternal grandmother prior to them relocating to Ballina. He was living at his mother's home at Granville and had to meet the ongoing expenses of that house including council rates and utilities.
7. He had significant difficulty with securing employment following his release from gaol in 2014. He applied for numerous jobs but was declined due to his criminal history. He was on Centrelink payments for a period of time and completed his Certificate III in personal fitness at the Meadowbank TAFE. He intended to go on to complete a Certificate IV course. He was having difficulty making ends meet. He was trying to find work but it was not going well. He describes himself as becoming down and struggling with a worsening depressed mood.
8. His prior period of imprisonment arose as a result of cocaine dependence. He reported to the psychologist he has not used cocaine since 2008. He has also not used alcohol since 2008. At the time of the offences he felt isolated and uncertain as to how to proceed with his life. About four weeks prior to the offences he met his current girlfriend who lives at Rooty Hill. The relationship has continued and is progressing well and he is committed to her in the future.
9. Some two months prior to the offences Mr McArthur bumped into a co‑offender and slipped back into his old patterns. He did not want to go back to gaol but he felt like a failure and he did not realise that he had other options. Mr McArthur told the psychologist he is keen to return to a normal life and employment. Mr McArthur reported some difficulty emotionally when his parents separated when he was aged 17. He stated that his life changed dramatically after that event.
10. He continued to enjoy positive relationships with his father and his mother and he completed year ten with no behavioural problems at school. He was socially competent and participated in a variety of sports. He observed a deterioration in his mother's mental state following the separation. She became deeply depressed and turned to abuse of alcohol. About 12 months after the separation he was first imprisoned when he was denied bail but he was subsequently cleared of those charges.
11. At age 21 when he went to gaol in relation to the substantive offences he described that as pushing his mother over the edge. He felt really depressed and guilty about that. He has primarily worked in labouring and has long periods of unemployment. He is coping well in prison and his relationship continues well. He hopes to marry his girlfriend when he leaves custody. She has no children and works in human resources. She visits on a fortnightly basis and will regularly when Mr McArthur is based in the metropolitan area.
12. Mr Borenstein concluded that at the time of the offences Mr McArthur was experiencing worsening depressive symptoms. As a result of his family history he was probably susceptible to depression. The psychologist reported that Mr McArthur believes he is a good rehabilitation prospect. He has successfully on his own report abstained from drugs and alcohol since 2008 and continued his commitment to fitness whilst in custody.
13. The court received a character reference from Mr Peter McGlashan dated 31 January 2018. This reference confirms that Mr McGlashan has known Mr McArthur for a period of 15 years, has worked with him previously and he is a good worker. He has offered him fulltime employment upon his release from custody.
14. The court also received a letter from his partner. His partner believes that Mr McArthur has made a commitment to change his life and to completely disassociate himself from those he was previously with.
15. He has made arrangements to move in with his cousin and has an offer of fulltime employment. He has expressed remorse for his actions and taken responsibility for them and expressed this to his partner. She says that he understands the impact his actions have caused on those around him especially her, his mother and his grandmother. He is now talking about his future with clear goals and aspirations.
16. The court also received a breach of parole report, I will not repeat the details of that report as they are mainly covered in the presentence report, however it is worthy to note that he was released on parole on 16 November 2014 and this offence was committed on 24 December 2015, but in the intervening period Mr McArthur had been compliant with the requirements of his parole.

Objective Seriousness

1. The offence involved some considerable planning. The planning consisted of discussions between the offenders and the co‑accused and the offenders and others about the locations of suitable vehicles that could be used in the offence. It also involved conducting recognisance missions to look at the vehicles and the layout of the shopping centre. The two vehicles were stolen with an intended purpose.
2. The planning took place between 4 December 2015 and 23 December 2015 although there is no particular evidence of contact between the offenders in the period of 6 December to 22 December 2015. The circumstance of aggravation relied on was that the offenders were in company. This is of less significance in this case because it did not reflect a united threat but rather the offence required a number of offenders in order to be committed.
3. The offence involved entry to commercial premises at a time when it was expected no‑one would be present. The entry caused substantial damage to the shopping centre, the ATM and some damage to the stolen vehicles. The incident caused major disruption to the operation of the shopping centre and in particular the ANZ Bank. The offence was committed for financial gain. A ram raid is an objectively serious offence because of its impact on the owners of property and also on public order: R v Elemes [2000] NSWCCA 235 at [24]. The offence inherently involves substantial damage and is difficult for property owners to protect against: R v Reilly [2012] NSWCCA 166 at [37].

Deterrence

1. General deterrence is of significance in this case. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and to other persons intending to commit similar crimes that they will meet with appropriate punishment. This is a case that has attracted media attention and is a good vehicle for the application of general deterrence. General deterrence may be afforded less weight where the offender suffers from a medical condition: Muldrock v R (2011) 244 CLR 120 at [53]-[54].
2. The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91. Mr Alameddine suffers from a condition that has had some serious impacts on his brain function. The evidence supports the impact of his condition has been episodic. It is clear that he had significant problems between about April 2014 and December 2014 when he was hospitalised and the subject of a guardianship order. There is nothing in the agreed facts that indicates that he was experiencing any major cognitive impairment in December 2015.
3. I find it impossible to reconcile the evidence of his family members to the effect that he required 24 hour a day care with the evidence of his behaviour outlined in the agreed facts. I am satisfied on the balance of probabilities that he suffered from Susac Syndrome at the time of the offence to the extent that he was not fit for work. I am satisfied that it impacted his memory and judgment but I am not satisfied that there was any particular causal link between his condition and the commission of the offences.
4. I do not think that the community requires protection from the offender as a result of his condition. I am satisfied that Mr Alameddine's time in custody is much more difficult as a result of this condition. He has memory problems and difficulty in mixing with other inmates. I am satisfied that his condition makes him frightened and vulnerable. Mr Alameddine's moral culpability is slightly reduced.
5. There is a need for specific deterrence in this case. It is slightly reduced in Mr Alameddine's case because I am satisfied that he understands that his medical condition is such that he cannot afford to return to custody.
6. Each offender needs to understand by reference to the penalty imposed on him for these matters that if they continue to commit offences they will receive serious punishment.

Aggravating Factors

1. Each offender has a record of prior convictions: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Mr Alameddine was sentenced in 2008 for robbery with wounding and a number of other offences. He received an overall term of six years and three months with a non‑parole period of two years and nine months.
2. Mr McArthur was sentenced in 2011 for a series of violent armed robberies that took place in 2007 and 2008 when he was aged between 19 and 20.
3. He received an overall term of eight years and three months with a non‑parole period of five years and three months.
4. Prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters but they do not assist the offenders in affording to them any particular leniency. The damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may be ordinarily expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. Many of these cases involved forced entry into premises that involved considerably less or even minimal damage to premises. I am satisfied beyond a reasonable doubt that the damage caused in the commission of the s 113 offence was substantial.
5. The offences were committed whilst each offender was on conditional liberty: section 21A(2)(j) (Crimes Sentencing) Procedure Act 1999. Mr Alameddine was on bail for a driving offence at the time of the offences. Mr McArthur was on parole, having been released on 16 November 2014 which was due to expire on 16 February 2017.
6. The Crown urged that I should find that the offences were part of a planned criminal activity and that the relevant aggravating factor was established: section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999. The fact that the offence was planned does not establish the aggravating factor. The facts must disclose a more extensive criminal undertaking than the offence requires: RL v R [2015] NSWCCA 106 at [36]. Whilst there were elements of planning that I have referred to in assessing the objective seriousness of the offence, I am not satisfied beyond a reasonable doubt that those matters establish the aggravating factor. Further this case can be factually distinguished from the case of R v Innis [2008] NSWDC 260 at [87] by which I am not bound.

Mitigating Factors

1. Mr Alameddine has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the balance of probabilities that Mr Alameddine's condition has deteriorated in custody and that he is finding it difficult. He has family who are willing to support him. I am satisfied that he realises that his health is a substantial reason to refrain from committing further offences in order to avoid further time in custody.
2. Mr McArthur has good prospects of rehabilitation. I am satisfied on the balance of probabilities that he has a strong pro‑social relationship, an offer of stable employment and stable accommodation. In my view the evidence indicates that he has matured and I am satisfied that he has good prospects for rehabilitation.
3. The offenders have demonstrated remorse: section 21A(3)(i) Crimes Sentencing (Procedure Act) 1999 both offenders have expressed remorse to the psychologists and accepted responsibility for their actions. Mr McArthur has also expressed remorse to the author of the presentence report. I am satisfied on the balance of probabilities that the offenders have expressed genuine remorse and contrition.
4. The offenders have entered pleas in the District Court. The offenders are entitled to a discount on penalty that reflects the utilitarian value of the plea. The plea also indicates remorse. The appropriate discount in each case is 10%.

Other Matters

1. There are good reasons for departing from parity in this case by reference to the fact that Mr McArthur was on parole at the time of the offences, that he had a more extensive criminal history and that Mr Alameddine suffers from a serious medical condition making it more difficult for him in custody which can also be taken into account to mitigate the penalty imposed.

No alternative to Imprisonment

1. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

Sentence - Alameddine

1. Ahmed Alameddine is convicted. This is an appropriate matter to impose an aggregate sentence. The sentences I would have imposed had separate sentences been imposed are 16 months imprisonment for each of the s 154A offences and three years' imprisonment for the s 113 offence.
2. I make a finding of special circumstances. Mr Alameddine was diagnosed with Susac Syndrome in 2014. He is received sub‑optimal treatment and inadequate monitoring in custody. His Justice Health records indicate that he continues to suffer symptoms and that his medication dosages have been altered without consultation of his treating specialist. He is at risk of death or longterm complications if his condition is not treated properly and/or monitored. Whilst he was given the advantage of a generous finding of special circumstances in his first time in custody he had not been diagnosed at that time. Mr Alameddine's condition requires close monitoring that has not been made available to him in custody but is readily available to him in the community and he will benefit from a longer period of time on parole. Mr Alameddine has been in custody since 24 December 2015. In that period he was sentenced to a fixed term of five months for a relatively serious driving offence. I will backdate the sentence partially accumulating it on that sentence.
3. Ahmed Alameddine you are sentenced to an aggregate term of imprisonment consisting of a non‑parole period of 2 years and 3 months to date from 14 April 2017 and to expire on 13 July 2019 and an additional term of 2 years to expire on 13 July 2021. You are eligible to be released to parole on 13 July 2019.

Sentence - McArthur

1. Lee McArthur is convicted. This is an appropriate matter to impose an aggregate sentence: section 54A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed, had separate sentences been imposed, are 20 months imprisonment for each of the s 154A offences and four years imprisonment for the s 113 offence.
2. I make a finding of special circumstances. Mr McArthur was sentenced for a series of armed robberies. The first sentence imposed for a number of offences afforded him a finding of special circumstances. The second sentence imposed was partially accumulated on the first so as to reduce the extent of the original finding of special circumstances. The offender has spent most of his adult life in gaol, being approximately eight and a half years over the last ten years. He is at risk of institutionalisation. He will benefit from a longer period on parole to assist with his reintegration into the community. In that period he has served the balance of parole for earlier offences of one year, five months and 15 days. The revocation of his parole was directly related to the commission of these offences. Up to the commission of these offences he had been compliant whilst on parole and had about 18 months left. I will backdate the sentence to partially accumulate the sentence on the balance of parole.
3. Lee McArthur you are sentenced to an aggregate term of imprisonment consisting of a non‑parole period of 3 years and 6 months to date from 24 September 2016 and to expire on 23 March 2020 and an additional term of 2 years to expire on 23 March 2022. You are eligible to be released on parole on 23 March 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2018