R v Dandan

Events of 22 December 2015

1. At 5.39pm police intercepted a telephone call from Alameddine to Dandan in which they discussed going fishing. Alameddine told Dandan he would pick him up at 9pm. At 9:32pm police intercepted a telephone call in which Alameddine agreed to pick up Dandan in half an hour.
2. At 10.04pm police observed Alameddine drive his vehicle from his residence to McArthur's residence in Granville. Police observed McArthur leave his house and enter Alameddine's vehicle.
3. At 10.22pm police intercepted a telephone call indicating that Alameddine picked up Dandan from his residence in Lidcombe. Alameddine then drove to Moorebank to Omar's residence.
4. At 11.46pm the offenders left Omar's residence and travelled in convoy with a Toyota Landcruiser to the BP Service Station at Chipping Norton, where Omar purchased cigarettes. The vehicles then travelled in convoy to Meadowbank, with the vehicles stopping frequently and the parties engaging in discussions. The movements of Alameddine's vehicle were tracked by police. The offenders were engaged in reconnaissance of the Shopping Centre.

Events of 23 December 2015

1. At 1.46am Alameddine dropped off Dandan 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.
3. At 10.17pm McArthur arrived at Alameddine's residence. At 10.33pm police observed Alameddine leave his residence with two other occupants in his vehicle.
4. At 10:37pm police intercepted a phone call between Alameddine and Dandan, in which Alameddine agreed to pick up Dandan in 15 minutes. At 11.08pm Alameddine travelled to Dandan's residence at Lidcombe and picked him up. Alameddine, McArthur and Dandan travelled in Alameddine's vehicle to West Ryde, where they met Omar who was driving a Toyota Landcruiser and had a discussion. The vehicles then travelled to Walker Street, Rhodes, where a Mitsubishi Pajero 4WD was stolen.
5. Alameddine's vehicle and the stolen Pajero stayed in Meadowbank while the Toyota Landcruiser was driven to Dickson Avenue, Ryde where a Toyota Hiace was stolen.
6. The stolen Hiace and the stolen Pajero were driven to Meadowbank where they travelled around, often stopping to allow the occupants to have discussions.
7. At 3.08am on 24 December 2015 the stolen Hiace and the stolen Pajero travelled in convoy to the Shopping Centre at high speed. They travelled up a pedestrian walkway where the Pajero was driven over a steel bollard and into the façade of the Shopping Centre and rammed into a free standing ANZ Bank ATM, knocking it off its mountings.
8. At this time Dandan remained in the Toyota Corolla and acted as a lookout in the vicinity of the Shopping Centre.
9. The offenders were unable to steal the ATM because one of its mountings was still fixed to the floor. Immediately after the offence, police followed the Toyota Landcruiser to Omar's residential address, where it stopped for a few minutes before travelling to Riverwood in convoy with a vehicle owned by Omar's wife.
10. The stolen Pajero left at Meadowbank Village Plaza was forensically examined by police. A DNA profile obtained from the steering wheel matched the DNA profile of Omar. On 30 March 2016 Dandan was arrested on Grevillea Crescent, Lidcombe. Located in Dandan's pocket was a white iPhone, which he declared belonged to him. He also confirmed the number for the phone, which matched the number he was identified using on the intercepted service of Alameddine.
11. Dandan participated in an interview with police, in which he admitted knowing Alameddine since they were children. When asked about his movements with Alameddine on 22 December 2015, Dandan stated that they went fishing somewhere, but he could not recall where. When asked about Alameddine arranging to pick him up on 23 December 2015, Dandan stated "I never got in the vehicle." When asked why the Corolla returned to his residence after the Meadowbank events, he stated "I know nothing about it".

Sentencing Assessment Report

1. The Court received a Sentencing Assessment Report dated 18 October 2018 that can be summarised as follows.
2. The offender has been engaged in full time employment as a spray painter since 2016. At the time of the commission of the offences he was unemployed, having lost his employment due to his illicit substance use. His prior offences are predominantly related to driving whilst disqualified.
3. He acknowledged being in the company of the co-offenders for part of the evening on which the offences were committed, but denied any prior knowledge or involvement in the preparation or commission of the offences.
4. The offender has complied with his bail conditions to date, and reported no desire to continue to associate with any of the co-offenders.
5. At the time of the offences, the offender was using multiple illicit substances and prescription medications including Endone, Cocaine, Heroin, Cannabis and Valium. His use was unknowingly financially supported by his father. He claimed that his substance use impacted his ability to make decisions, and affected his awareness of his actions. He has since reported abstinence for a period of two years.
6. The offender is currently employed on a full time basis, and has expressed his willingness to engage in further intervention to support his current stability. He has consented to participate in community service work, and satisfactorily completed a 200 hour community service order in 2013.
7. The offender has been assessed at a Low-Medium risk of re-offending. Community Corrections has assessed him as suitable to undertake community service work.

The Offender's Case on Sentence

1. The offender was called to give evidence and was cross-examined.
2. He is currently employed as a panel beater. He left school at age 16 and began his apprenticeship. He obtained his qualification in 2002. He has previously been employed on a full time basis by his father and now works with his uncle.
3. The offender's parents are separated. He lives at home with his mother and 17 year old sister. He has one other sister and one brother, who are both married.
4. The offender gave evidence that his family were very unhappy with his drug habit. He gave evidence that the matters set out in his letter to the Court, which I will come to, are true. The offender got into drugs through hanging around the wrong people about 12 to 18 months prior to the offence. The people he was associating with were also taking drugs.
5. The offender is now in a relationship that has lasted for about one year. He has not had any previous significant relationship. He has always lived at home.
6. The offender gave evidence that he understands that he needs intervention to prevent relapse into taking drugs and he is prepared to undertake that type of treatment. He ceased using drugs after been charged with the offence before the Court about 2 ½ year ago and has not been tempted since.
7. After he was charged he was given bail on the basis of a curfew between the hours of 8pm to 6am the following day. He has also been required to report to police twice per week. He has been spoken to once in relation to breaching the curfew condition in that period.
8. He offender's best friend is a truck driver with a family. He no longer associates with drug-taking or criminal friends.
9. The offender has found that since given up drugs his health has been a lot better.
10. In cross-examination the offender gave evidence that he was intoxicated on 22 and 23 December 2015 when he was in the company of the other offenders. At the time he was abusing prescription medication Endone as well as smoking cannabis. The offender that his remorse was for everything that had happened and for everything that he had put other people through. This included the damage caused by hanging with the co-offenders and to the damage that had been caused to the Shopping Centre.
11. The offender tendered a letter to the Court dated 18 October 2018. The offender expressed an apology and an understanding for the damage that had been caused in the course of the offence. The offender described himself as "extremely disappointed" for the part he played in the offence and expressed true regret. The offender stated that he took responsibility for his actions and understands what he has done. The offender expressed that he was going through a difficult period in his life which he did not cope with well. He was struggling with drug use but has turned away from drugs and committed himself to his employment.
12. The offender tendered a character reference from his brother, Mohammed. Mohammed describes the expressions of remorse made by the offender to him and outlined the family support available to the offender. Mohammed confirms that the offender has been employed since the offence, is committed to that work and appears to have turned his life around.
13. The offender also tendered a character reference from his employer, Khaled Dandan, who is his uncle. His uncle describes the offender has a valued worker who is polite, professional and courteous when dealing with customers. His uncle confirms that the offender has been abstinent from drugs since the offences.

Objective Seriousness of the Offences

1. The offence involved some considerable planning. The planning consisted of discussions between the offenders and others about the location of suitable vehicles that could be used in the offence. It also involved conducting reconnaissance missions to look at the vehicles and the layout of the Shopping Centre. The two vehicles were stolen with an intended purpose. 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 6 December to 22 December 2015.
2. There is an important distinction to be made with respect to the offender. There is no evidence that he was involved in the joint criminal enterprise before 22 December 2015. His involvement consisted of the recognisance of the Shopping Centre on 22 December 2015 and the events of 23 December 2015.
3. The circumstance of aggravation relied on is that the offender was in company. This is of less significance in this case, because it did not reflect a united threat but rather that the offence required a number of offenders to be committed.
4. The offence involved entry to commercial premises at a time when it was expected that 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.
5. The offence was committed for financial gain.
6. A ram raid is an objectively serious offence because of its impact on the owners of the property and also on public order: R v Elemes [2000] NSWCCA 235 at [24]. The offence inherently involves substantial damage and it 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 other persons intending to commit similar crimes that they will meet with appropriate punishment. This is a case that has attracted media attention and it is a good vehicle for the application of general deterrence.
2. There is a reduced need for specific deterrence in this case. The offender has a criminal history that is mostly limited to driving matters. He has one break, enter and steal matter that was relatively minor and dealt with by the Local Court accordingly. The offender has resumed full-time employment and has good support from his family. He has ceased using drugs and has good prospects of rehabilitation.

Aggravating factors

1. 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 reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. Many of these cases involve forced entry into premises that involves considerably less damage to the premises than was sustained in this case. I am satisfied beyond reasonable doubt that the damage caused in the commission of the section 113 offence was substantial.
2. The offender was on conditional liberty at the time of the offence: section 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. On 25 November 2014 the offender had been placed on a 3 year good behaviour bond for an offence of break, enter and steal at the Burwood Local Court.

Mitigating factors

1. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has ceased illicit drug use and has been gainfully employed since being charged with the offence before the Court. The offender has sought and received support from his family. The offender is now in a stable relationship. The offender is prepared to undertake drug treatment to assist him with the possibility of relapse. I am satisfied on the balance of probabilities that he has good prospects of rehabilitation.
2. The offender has expressed remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. In his evidence, his letter to the Court and to his character referees, the offender has accepted responsibility for his actions and expressed remorse. I am satisfied on the balance of probabilities that the offender has expressed genuine contrition and remorse.
3. The offender entered pleas of guilty in the District Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The plea also indicates remorse. The appropriate discount for the plea of guilty is 10%.

Other Matters

1. I have considered the issue of parity. There are good reasons for imposing a lesser sentence on the offender than the sentences imposed on the co-offenders for the section 113 offence. The co-offenders, Alameddine and McArthur had extensive criminal histories which had seen each of them imprisoned on a number of occasions before. In contrast, the offender has a relatively minor history for mainly driving offences particularly the offence of drive whilst disqualified, including two suspended sentences for that offence. Further, the co-offenders were much more actively involved in the joint criminal enterprise over a much longer period of time. The evidence suggests that the offender was only involved in the joint criminal enterprise for a little over 24 hours prior to the offence taking place. The offender acted as a look-out, but was actively aware of what was going to occur. The offender has good prospect of rehabilitation. The offender has recognised the part that his illicit drug use played in his offending conduct and has taken steps to eliminate that drug use and concentrate on full time employment. This serious offence seems to be an aberration on the offender's record. I am satisfied that the offender became involved in this matter by association and his illicit drug use affected his ability to remove himself from the circumstances leading up to the offence.
2. I have taken into account that the offender has been the subject to a 10 hour curfew since he was charged on 30 March 2016 to date. This has involved a significant curtailment of his liberty.

Penalty

1. I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other alternatives, that no penalty other than imprisonment is appropriate.
2. I have considered section 66 of the Crimes (Sentencing Procedure) Act 1999 noting that the safety of the community is the paramount consideration. In my view, in all the circumstances of this case, it is appropriate to deal with the offender by way of an Intensive Correction Order.
3. The offender is convicted.
4. The Form 1 matters have been taken into consideration. The offender is sentenced to a term of imprisonment for a period of 2 years.
5. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 the sentence imposed on the offender is to be served by way of an Intensive Correction Order. The sentence will commence on 26 October 2018 and expire on 25 October 2020.
6. The offender must report to the Community Corrections Office at Parramatta on or before 4pm on Friday 2 November 2018.
7. The standard conditions of the order apply: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a Community Corrections Officer.
8. The following additional conditions apply: 1. a community service work condition requiring the performance of community service for a period of 300 hours; 2. an abstention condition requiring the abstention from all illicit and prescription drugs, unless prescribed by a medical practitioner; 3. a non-association condition prohibiting association with Ahmad Alameddine, Lee McArthur and Ezzeddine Omar.
9. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order.
10. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.
11. The offender is directed to attend the Court Registry where a copy of this order will be given to him and explained to him.

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: 30 October 2018