R v Alameddine

[2023] NSWDC 299

District Court

New South Wales

Medium Neutral Citation:

R v Alameddine [2023] NSWDC 299

Hearing dates:

20 July 2023

Decision date:

04 August 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

1. The offender is convicted on both offences.

2. The indicative sentences, each reduced by 25% to acknowledge the timing of the pleas are: Sequence 2, attempt sexual intercourse, taking into account the further offence on the form 1: 3 years and 4 months imprisonment; Sequence 4, forcible abduction: 3 years imprisonment

3. The sentence imposed is an aggregate sentence of 3 years and 6 months imprisonment with a non–parole period of 1 year and 9 months to date from 28 July 2023 to take into account the 7 days presentence custody. This sentence will expire on 27 January 2027. Eligibility for parole arises on 27 April 2025. This variation to the statutory ratio to 50% gives effect to a finding of special circumstances.

Catchwords:

SENTENCING — Penalties — Imprisonment – attempt sexual intercourse without consent - Forcible abduction of a woman with intent to carnally know – relevant factor – delay – remorse – limited risk of reoffending – family hardship – significant impact to children

Legislation Cited:

Ss.61I; 61L, 61P, 89 Crimes Act 1900 (NSW)

Ss.67(1), 67(2) Crimes [Sentencing Procedure] Act 1999 (NSW)

Cases Cited:

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

Category:

Sentence

Parties:

R;
Azam Alameddine

Representation:

Counsel:
Crown: Mr J Sfinas
Defence: Mr S Buchen SC

File Number(s):

2021/303849

Publication restriction:

Non-publication order re complainant’s identity and/or anything that may identify them

JUDGMENT

1. The offender, Azam Alameddine, appears for sentence after entering pleas of guilty to two offences in the Local Court on 20 October 2022. He adhered to the pleas in this Court.

2. The offences for sentence are:

1. Attempt sexual intercourse contrary to ss61I/61P Crimes Act with a maximum penalty of 14 years imprisonment; and

2. Forcible abduction of a woman with intent to carnally know her contrary to s.89 Crimes Act with a maximum penalty of 14 years imprisonment.

3. Both of these offences are related to the one incident. Arising out of the same incident, the offender asks that a further offence of indecent assault be taken into account on a form 1 when I sentence on the attempted sexual intercourse offence. This offence is contrary to s.61L Crimes Act and if prosecuted separately would be informed by a maximum penalty of 5 years. I have considered the provided facts. I determine that this conduct is appropriate to be placed on a form 1 and I will take it into account in accordance with the guideline judgment. It is a separate sexual act committed close in time to the principal offence and to the same victim. The act is limited in seriousness although the circumstances in which the act occurred are serious. It does not warrant an increase to the sentence otherwise to be imposed on the principal offence.

4. I have had regard to the full facts and recite them in summary.

5. The victim was aged 22. On 19 June 1995 from 7.30am she assisted her employer with a fundraiser. The victim consumed alcohol throughout the day and continued when she stopped work and socialised into the evening. At about 11pm she left the premises and sometime later collapsed unconscious on a roadway. She cannot know how long she was unconscious. When she regained consciousness, she was unable to get up. She was aware of cars passing. The offender, who was then aged 21, stopped his car and he physically placed the victim in his car. The facts do not state whether she was placed in the front or rear seat. The victim heard him repeat “Oh my god, there is a girl here unconscious”.

6. The facts reflect this is the commencement of the abduction offence. The offence provision provided for either taking away or detaining. The charge pleaded detain. The Crown submitted the offence was committed when force was used to place her in the car. Counsel for the offender submitted it commenced at a later point, and reliance could not be placed on the agreed facts layout representing it commenced with the placement in the car. This suggests the intention to carnally know her commenced at some point after he placed her in his car. As these are agreed facts, and I am cautious about acting other than in accordance with the agreement entered into between the parties, I determine it commenced after the offender had placed the victim in the car. The precise timing does not greatly inform the seriousness as there is imprecision in the duration. It continued until the cessation of the sexual offending. It was not brief but otherwise of an indeterminate time. She was both mentally and physically vulnerable and unable to protect herself due to her intoxication. Her vulnerability must have been known to the offender given how he located her and his comment that she was unconscious. He did not speak to her whilst he drove. At some point on the drive he formed the intent to sexually offend. This involved taking her from a public location to somewhere else that was sufficiently isolated for him to feel able to sexually offend. He knew her to be vulnerable from the commencement of the offending. Although not a lengthy detention nor was it fleeting. Once the victim realised she was not being rescued, the fact of the detention caused her fear. This is a serious example of the offence.

7. The facts refer to the victim sustaining soreness to her shoulders from being placed in the car. I do not take this into account as there is no indication that he intended to offend at that time. It was an incidental minor injury.

8. The offender drove the car without conversing with the victim. She was under the impression he was involved to assist her. She must have fallen asleep as the facts disclose she woke up in a dark area as the offender removed her from the car. This is a disputed fact. The offender’s ‘case’ is that all conduct occurred in the car and the victim was at no stage removed from the car. This version advanced by the offender is not advanced in any material tendered to the court. It only appears in the facts. Although both versions are advanced, I am not asked to determine the disputed fact. I am to proceed on the basis the sexual activity occurred without reference to where. It is not that it requires resolution in favour of the offender.

9. It is at this point that the offence on the form 1, the indecent assault occurred. The victim claims she was placed on the grass and the offender kissed her on the neck. She sustained suction bruising and a scratch to her neck. The offender accepts this conduct occurred although he advances it occurred in the car. Again, I cannot proceed on an acceptance she was placed on the grass or that it occurred in the car; merely that it occurred.

10. The facts do not disclose the duration of this incident. There is no suggestion it was other than relatively brief.

11. The victim indicates she was scared and commenced shaking. She said there was no conversation. She tried to move away.

12. She held her legs together however the offender pulled her jeans down to her knees. He attempted to remove her underwear and pull her legs apart. The victim resisted and told him to stop. She was crying. She kept her eyes closed.

13. The offender attempted to place his penis in her mouth. The victim moved her head and kept her lips held tightly closed. The offender pushed his penis against her lips. In assessing the attempt, I observe this was as close to an act of penetration as possible. The victim by this time had resisted other sexual contact, had started to both shake and cry and voiced for the offender to stop. He persisted through all the indications that this was unwanted activity and causing obvious distress. He must have actually known of the lack of consent and discounted it.

14. The offender acted with actual knowledge and took advantage of the complainant’s vulnerability. His sexual offending occurred in the context that he had detained her for the purpose of knowing her carnally. His attempt was a serious example of an attempt. I have taken into account the nature of the sexual act and appreciate there is no general hierarchy based on the type of penetrative act attempted. In all the circumstances this is a serious offence.

15. There were further injuries sustained although it is not discernible at which point of her resistance. The victim sustained bruising to both legs.

16. The extent of the struggle is supported by there being tears to both the victim’s bra and underpants.

17. The offences reflect opportunistic offending in that the offender took advantage of the victim and the situation as presented.

18. After encountering the described resistance the offender voluntarily desisted. This is to his credit. Although the victim resisted to the extent she could given her vulnerable state, the victim was physically unable to resist; her resistance could have been overcome had the offender taken further advantage of his strength and her inability to protect herself. The Crown submitted this to not be relevant as if he had persisted he would have faced more serious charges. Although this statement is true, it does not deprive the offender of the benefit of an appreciation of the context and circumstances of his offending.

19. At about 12.35am on 20 June 1995 the offender drove the victim to a police station. She was seated in the front seat. This unusual aspect is suggestive of the offender appreciating the foolishness of his impulsive actions.

20. The offender provided an account of being a good Samaritan. He indicated he had observed the victim to walk and collapse in the middle of the road requiring him to take evasive action and to then convey her to the police station. The offender provided a detailed version in a recorded interview. He repeated his version provided earlier including he picked her up at a time that was about 5 minutes before he attended the police station.

21. The victim woke up and made immediate complaint of inappropriate conduct by the offender. She was hysterical. Later that morning the victim underwent a sexual examination at the hospital. She then attended the police station and made a statement.

22. Seven days later the offender was interviewed again. In this interview he advanced he told the victim he was taking her to the police station, and in fact it was what he did. He claimed the only act he was responsible for was helping her.

23. It is commendable that the offender voluntarily stopped offending and that he took the victim to a police station rather than leave her where he had sexually offended. He delivered her to a place of safety. However, he provided a false account at the time and maintained that false account a week later. He most likely relied on the victim’s intoxication undermining her ability to recall or complain. That there were no charges at the time despite immediate complaint suggests the approach was successful although I do not act on this inference. Other factors may have informed the outcome.

24. In 2021 the offender’s DNA was located on the victim’s clothing and he was charged.

25. I specifically disregard the version advanced by the offender in the Sentencing Assessment Report under the heading ‘attitudes’. The offender did not seek to traverse his plea. There is no evidence in the facts that the victim indicated she wanted to engage in sexual behaviour. It is contrary to the content of the facts. I have determined the acts were actually known by the offender to be non-consensual. The conduct of the victim in no way invited the actions of the offender.

26. I described the seriousness of the offending. The Crown submitted both offences fall above mid-range and on behalf of the offender it is submitted both fall below the mid-range of objective seriousness. This terminology is not necessary. However, as there are specific submissions I determine each to fall within the mid-range; with the abduction towards the lower end within that range.

27. Submissions were advanced on the offender’s moral culpability. The focus was on age and consequent immaturity and the role of impulsivity. These inform moral culpability and serve to inform the sentence. I factored a number of other matters into the assessment of the objective seriousness. I included that the offending was impulsive and unplanned. I further recognise that the offender was generally prone to impulsivity at the time.

28. It is important that sentences passed for sexual assault crimes recognise the harm done to the victim of the crime. I had the opportunity to be assisted by a victim impact statement. The provision of a victim impact statement provides an opportunity for a victim to express to an offender the harm that they perceive occurred. That voice in the court proceedings is an important legislative provision. The victim was provided an opportunity to reflect on the harm occasioned from the offender’s conduct 28 years ago. The impact of such offending upon victims is well understood and accepted even without supportive material. However, there is harm occasioned that is specific to the individual. The delay resulted in the victim not being able to experience closure. Even after so many years, the deleterious impact of the events is discernible. The victim eloquently indicated the ongoing trauma. I do not determine that it was of such degree as to be an aggravating feature.

29. I acknowledge that whilst listening to the statement being read the offender appeared to respond to and comprehend the harm he had occasioned. This reflects an appropriate emotional response.

30. The offender chose to plead guilty. This assisted the victim to the extent she was not required to give evidence in court and publicly recite the events. He is entitled to a reduction of 25% to sentence to reflect the timing of his pleas.

31. A plea of guilty does not necessarily convey remorse. The offender presented a false account to police on the night both initially and in a formal interview and then again in a formal interview 7 days later.

32. The offender provided an account to the author of the Sentencing Assessment Report. There is an impression the offender was traversing his pleas as he denied both abduction and sexual offending; albeit he referred to sexual intercourse and sexual violence rather than the specific sexual offences. Counsel for the offender submitted the expressions were not to be understood to be traversing the pleas and the offender maintained his pleas of guilty. I accept this position. However, the account sits amongst an account of the offender apportioning blame upon the victim and representing the victim had indicated she wanted to engage in sexual behaviour. That is not contained in the facts and as it is contrary to the balance of the facts I expressly rejected this account. These statements temper to some extent the repeated expressions of regret and shame. He has some impoverishment to his insight into the offending.

33. The offender wrote to the court of the impact of the offences. He indicated his recurrent thoughts of his conduct. He expressed shame and regret. Others supported the offender conveying such sentiments to them. In this case, the pleas entered a year after charging together with his direct and hearsay representations of remorse support a determination of remorse.

34. The offender was aged 21 at the time of offending and he is now aged 50. I accept that the offending presents as being an act of immaturity. The offender described himself to the author of the Sentencing Assessment Report as being ‘young and stupid’ and of being prompted by excitement. As expressed earlier, the offending was not planned but opportunistic. It reflects a significant lack of judgement. It is the type of rash and foolish, although serious, action committed by a person who had still not developed emotionally or reached maturity. Had the offender been sentenced at the time he would have availed himself of the benefit of the increased significance of rehabilitation.

35. I propose to take into account to moderate the sentence the onerous conditions on bail. He was required to report to police daily and was subject to a curfew between 9pm and 6am. Even though he was likely to be at home during these hours given he was the primary carer of two young children, it is still restrictive.

36. The offender has a limited criminal history with no other sexual offences. His offences are primarily for offences of dishonesty or driving. The most serious are for offences directed at police and being armed with intent. He has received various sentencing outcomes including fines, periodic detention, a suspended sentence and a prior ICO. There has been no further offending subsequent to receiving the ICO in 2017. The author of the Sentencing Assessment Report reported he responded well to the order. He experienced gaol when he spent periods on remand, with 4 months in 2005 and 2 ½ months in 2016. At the time of the commission of the index offending he had been sentenced on two separate occasions for offences of dishonesty. I accept he is entitled to draw on the absence of any other sexual offences or detention offences. This sexual offending presents as an aberration. The nature of the record does not deprive the offender of an entitlement to some leniency.

37. Reports and documents were tendered on behalf of the offender. He cares for his nephew who has psychological issues. There are psychological reports addressing the offender and the children.

38. The offender now suffers from depression and anxiety and is medicated. Mr Watson-Munro advanced a severe and recurring Depressive Disorder now bordering on extreme. He did not have these issues at the time of offending although he was a binge drinker. His mental health issues are significant enough to warrant his eligibility for a disability pension.

39. The offender is now pro-social and caring for two children. He is regarded to be a religious man by those in his community. He maintains a work ethic and is self-employed despite being eligible for and receiving a disability pension for both mental health issues and physical limitations. His disability does not prevent him being entrusted to care for the children. I am assisted by differing assessments on the risk of reoffending. Given the absence of similar antecedents, which I consider particularly informative, I consider the risk of re-offending for similar offences to be limited. This determination, and in appreciation of the other unrelated offences, suggest that rehabilitation has occurred. It follows that personal deterrence has little to no role to play.

40. The proven conduct was a significant but momentary lapse.

41. General deterrence and denunciation are principles of sentencing which are relevant to cases involving sexual abuse. Sexual offending requires appropriate sentences to provide for general deterrence to serve a meaningful role. The same principle applies to a detention offence committed with a sexual intent. Delay in this case does not ameliorate this requirement.

42. Delay is otherwise relevant. The offender was not arrested for 26 years after his offending. He no doubt considered he had escaped justice after denying the offending in 1995 and there being no further consequences. After arrest he informed family and friends of his conduct. He ultimately accepted responsibility. Delay does not have a universal impact and each case turns on its own facts. On occasion it can call for leniency. The delay results in not an immature man being sentenced close in time to the offending but a middle-aged man being sentenced for his immature acts 28 years later. It is true as the Crown submitted that the delay enabled him to form relationships and have children and a career. His best years were lived in the community without concern. As was discussed in R v Todd [1982] 2 NSWLR 517, being sentenced for an offence long after commission, in that case due to interstate sentences, even when not in a state of suspense, calls for a considerable measure of understanding and flexibility of approach. In Jackson v R [2023] NSWCCA 121 the Court considered the Todd principle in the context of an offender being sentenced 21 years after offending. Delay is a relevant factor and is to be considered in determining sentence.

3. Considerable persuasive evidence is before the Court addressing the probable impact upon the children cared for by the offender. I choose not to name them. Mr Watson-Munro met both children with the offender and assessed their relationship. He wrote of the negative impact to both if the offender was removed as the primary carer. His ex-wife, Obayda Harrouk, and sister, Olla Alameddine, being the mothers of the children supported the important role performed by the offender as the primary carer. His ex-wife did not attend court apparently due to complying with the wishes of her husband. I accepted her affidavit over objection and consonant with submissions limited the weight given to her evidence. However, her account was contained in the psychological report which was not objected to and the offender’s sister confirmed aspects. The offender tends to the physical and emotional needs of the children and provides financial support. The children are aged 11 and 10. The offender’s daughter prefers to reside with her father rather than her mother. She does not feel comfortable with her step-father. His nephew has some behavioural issues, not formally diagnosed, and is reliant on the offender. His mother preferred to move in with her new husband and leave her son to reside with the offender to ensure stability. The children and the offender have formed a family unit and it is evident from the personal and medical evidence that the children would be disadvantaged by a change to the dynamic. There have been no meaningful steps since the pleas were entered 10 months ago by any adult to inform either child that the situation may change and how it may change. I acknowledge Ms Harrouk’s evidence at [34] of her affidavit. These are parenting decisions. I observe steps could have been taken over this period to include each child more in their respective mother’s home life in the event that the offender entered custody. This would have provided for the possible contingency. It may have increased an easier transition if it were to be required. Neither mother is in employed work and both are available to assume primary carer roles. Submissions were advanced that the loss of income may limit the daughter’s private schooling. She is in year 6 and it is expected given that school term has commenced that her fees are paid for almost all if not all this year. There are public school options when she transitions to high school if her private fees are not sustainable.

4. The respective mothers could readily assume the role as primary carer even if it occasioned some inconvenience to each. The children, if provided emotional and professional support, would adapt. Publicly funded mental health care could be sought. The nephew’s issues have not resolved despite the care of the offender. He evidently requires professional assistance and intervention. It appears his bed-wetting has not been professionally addressed. If not residing with the offender they would reside with close family with whom they retain regular contact and not strangers. I do not determine any hardship flows to adults. They would be assuming their expected parental roles. I accept there would be real hardship occasioned to the children and this should be recognised to ameliorate sentence. Consistent with the evidence of his sister, the Alameddine family are a close and supportive family. The extended family would be able to assist if required. I propose to take this significant impact to the children into account when considering sentence.

5. It is accepted that the s.5 threshold is passed and that custodial sentences are required. There is contention about the manner of serving such a sentence and whether an ICO is available.

6. I am mindful of the requirement to comply with the principle of totality in ensuring that appropriate individual sentences are imposed but also that the overall sentence is appropriate. That the offences occurred close in time and within the ongoing course of conduct supports significant concurrency. However, some degree of accumulation is necessary to address the separate components of the serious offending upon the same victim during that same course of conduct. Despite there being only two offences, I consider it appropriate to impose an aggregate sentence.

7. I am required to determine if the imposition of an ICO is available. This of course only arises if I were to determine a sentence of 3 years or less overall to be appropriate. Counsel for the offender submitted both that a sentence of this length was appropriate and that an ICO was available. The Crown submitted to the contrary on both. The pertinent matters that inform the determination of the availability of an ICO are:

1. The offences were committed in 1995;

2. At that time there was no Part 3 Division 10 or 10A to the Crimes Act. These provisions were introduced in 2000 and 2001 respectively;

3. An ICO is not to be made in respect of a sentence of imprisonment for a prescribed sexual offence: s.67[1] Crimes [Sentencing Procedure] Act;

4. The version of s.67[2] Crimes [Sentencing Procedure] Act that applied to these offences provided, as relevant, that a prescribed sexual offence meant-

(a) an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900, being—

(i) an offence the victim of which is a person under the age of 16 years, or

(ii) an offence the victim of which is a person of any age and the elements of which include sexual intercourse (as defined by section 61H of that Act), or

….

(g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.

5. It was accepted that on 18 October 2022 this sub-section was amended to fix a ‘lacuna’ by adding-

(h) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(g).

6. It was accepted that this amendment did not apply to the proceedings as it only had application to proceedings commenced after the commencement date: cl 95 of Schedule 2 to the Act. Had it had application it undoubtedly would have embraced these offences.

48. The submissions turned upon whether s.67[2][g] of the Act encapsulated these offences. Counsel for the offender suggested as a matter of principle and consistency, unless I decided decisions to be plainly wrong, I should follow R v KH [2022] NSWDC 706 and R v Heyward [2020] NSWDC 248.

49. I consider s.67[2][g] of the Act has work to do with offences that were under the relevant division but were subsequently repealed. I do not accept that it operates to encapsulate offences that were not within either division and therefore at the time of commission not “prescribed sexual offences within the meaning of [the] definition”.

50. I determine, should the term of the sentence allow, the imposition of an ICO is available to be considered.

51. I am cognisant that there were 7 days of pre-sentence custody.

52. Based on the necessity to accumulate indicative sentences, the delay and family hardship issues, I make a finding of special circumstances. This will result in a considerable variation to the statutory ratio.

53. The offender is convicted on both offences.

54. The indicative sentences, each reduced by 25% to acknowledge the timing of the pleas are:

Sequence 2, attempt sexual intercourse, taking into account the further offence on the form 1: 3 years and 4 months imprisonment

Sequence 4, forcible abduction: 3 years imprisonment

55. The sentence imposed is an aggregate sentence of 3 years and 6 months imprisonment with a non–parole period of 1 year and 9 months to date from 28 July 2023 to take into account the 7 days pre-sentence custody. This sentence will expire on 27 January 2027. Eligibility for parole arises on 27 April 2025. This variation to the statutory ratio to 50% gives effect to my finding of special circumstances.

56. No lesser term or non-parole period would address the seriousness of the offending.

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Decision last updated: 07 August 2023