New South Wales Court of Criminal Appeal CITATION: Alameddine v Regina [2006] NSWCCA 317 HEARING DATE(S): 25 August 2006 JUDGMENT DATE: 10 October 2006 JUDGMENT OF: Grove J at 1; Kirby J at 34; Hislop J at 35 DECISION: APPEAL ALLOWED; RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENDER ALLOWS HIS PREMISES TO BE USED FOR AMPHETAMINE MANUFACTURE - HIMSELF AN ADDICT - WHEN ARREST IMMINENT OFFENDER ACCIDENTALLY CAUSES LABORATORY TO EXPLODE - SERIOUS INJURIES (BURNS) SUFFERED - LONG TERM CONSEQUENCES - EXTRA CURIAL PUNISHMENT - NO PRINCIPLE DENYING THAT MITIGATION AVAILABLE EVEN IF INJURIES SELF INFLICTED AND CONNECTED WITH OFFENCE - OTHER GROUNDS INVOLVING NO POINT OF PRINCIPLE - EXCESSIVE TOTAL TERM BUT NON PAROLE PERIOD IRREDUCIBLE Power v The Queen 1974 131 CLR 623 R v Allpass 1993 72 A Crim R 561 R v Azar [2004] NSWSC 797 R v Barci 1994 76 A Crim R 103 CASES CITED: R v Daetz & anor 2003 139 A Crim R 398 R v Haddara 1997 95 A Crim R 108 R v Noble 1996 1 Qd R 329 R v Webb [2004] NSWCCA 330 Sharpe v R [2006] NSWCCA 255 PARTIES: Abdel Alameddine v Regina FILE NUMBER(S): CCA 2006/1490 COUNSEL: P. Barrett (Crown) C. Smith (Applicant) SOLICITORS: S. Kavanagh (DPP) S. Etherington (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0118 LOWER COURT JUDICIAL OFFICER: Viney ADCJ LOWER COURT DATE OF DECISION: 12 December 2005 LOWER COURT MEDIUM NEUTRAL CITATION: n/a IN THE COURT OF CRIMINAL APPEAL 2006/1490 GROVE J KIRBY J HISLOP J 10 October 2006 ABDEL HAMID ALAMEDDINE v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Viney A/DCJ at Parramatta District Court on 12 December 2005. The notice of appeal was lodged on 20 June 2006 and the reason for delay has been explained in documentation provided by the Legal Aid Commission and the necessary extension of time for filing the notice of appeal should be granted. 2 The applicant pleaded guilty to counts of knowingly taking part in the manufacture of a prohibited drug, methylamphetamine and possession of a precursor, pseudoephedrine, intended for use in such manufacture. His Honour imposed sentences, on the first count, of imprisonment for a total of four years with a non parole period of eighteen months and on the second count, to a term of imprisonment of eighteen months to be served concurrently with a non parole period on the first count. It will later appear in what circumstances the commencement date of both sentences was fixed as the day of imposition namely 12 December 2005. 3 There was an agreed statement of facts as follows: "1. On Friday 29th November 2002 the Accused was a home detainee residing at his premises at 46 Anthony St Blacktown. The Accused at the time was serving a five months home detention sentence for driving offences, and was supervised by a Probation and Parole officer Patricia BOWDITCH on a regular basis. 2. The Accused had been late in returning home to his address, and another possible breach had been reported to Mrs BOWDITCH. Mrs. BOWDITCH spoke to the accused by telephone and told him that she would be attending his home to discuss the breach, and she directed him to remain at his house. 3. Mrs BOWDITCH arrived at about 5.30 pm and she spoke to the accused and his girlfriend. Mrs BOWDITCH believed that the accused was under the influence of amphetamine and she told him that she had decided to search the premises. This was within her powers as the supervisor of the accused's home detention. 4. Mrs BOWDITCH entered the front bedroom, which is normally occupied by the Accused and began searching the room. There were two camera cases in the room. The first camera case was opened by the Accused upon request by Mrs BOWDITCH. Three clear resealable plastic bags were inside, two bags were full of white powder and the third bag contained about 150 Yellow/White tablets. 5. The accused then opened the second silver camera case, as requested, it contained a larger bag of pale pink powder. Mrs BOWDITCH also located the thermometers and multiple test tubes in this case. 6. Mrs BOWDITCH suspected that these were prohibited substances so she contacted her superiors and asked them to notify police. 7. The Accused then started to dispose of these found items down the toilet. He was warned by Mrs BOWDITCH not to destroy these items and to put the powder substance back in the camera case, which he complied. The Accused then attempted to dispose of the two camera cases to a male person who had attended the front door of the premises but was warned against this by Mrs BOWDITCH. The male person at the front door then left the premises and Mrs BOWDITCH waited outside the premises in her car for police to attend. 8. The Accused walked out of the house to one of the rear portable working shed located at the rear of the Accused's property. 9. A short time later Mrs BOWDITCH heard an explosion and saw the rear left hand shed alight. The Accused emerged from the shed badly burnt and bleeding. Mrs BOWDITCH informed the fire brigade and ambulance. 10. Upon police attendance the shed was well alight, and was eventually destroyed by fire. The Accused was conveyed to Royal North Shore Hospital burns unit. The Accused had burns to over 50% of his body. 11. Upon close inspection of the shed remnants of an amphetamine laboratory were located. Chemical Operations unit as well as a forensic chemist were contacted and attended the scene. 12. Within the burnt shed was located items containing liquid condensers for chemical processors and laboratory. There were plastic containers containing off white and pale brown substances. There appeared to be small white powder in the next door premises subject to the explosion. 13. The crime scene was established and thoroughly examined by the chemical operators and the forensic unit. Samples were taken and forwarded to the Australian Government Analytical Laboratories for testing. Analysis resulted in various substances being identified including 125.8 grams Pseudoephedrine (59.5% purity) and 29.6 grams of methylamphetamine (0.4% purity). The contents of Item B1 included a white sludge, which weighed 2729.9 grams (Total weight of contents of this item was 3786.4 grams). 14. Based on his observations and the analysis results obtained by Analyst A HEAGNEY, MURTAGH formed the opinion that Item B1 was residue after the removal of PSE from therapeutic tablets of the type called "Sudafed Congestion and Sinus Pain Relief". Each of those tablets weighs about 475 mg, of which 30 mg is PSE. By the following calculation he estimated how much PSE had been removed. 15. Weight of sludge = 2729.9 grams. Dried weight = 74% of 2729.9 grams, equal to about 2020 grams. Number of tablets = 4540, since each tablet gives 445 mg of residue. The PSE content of 4540 tablets = 136.1 grams as the hydrochloride salt, which is 111.5 grams of pure PSE. 16. PSE can be chemically converted to methylamphetamine. The yield cannot be any higher than the theoretical yield: 111.5 grams of pure PSE converts to 125.3 grams of methylamphetamine as its pure hydrochloride salt. The practical yield is lower. Using a conservative estimate of 60%, MURTAGH calculated the practical yield as about 75 grams of methylamphetamine as its pure hydrochloride salt. Dilution ("cutting") would give an increased weight. 17. From HEAGNEY's certificate, Item E6B contains 74.8 grams of pure PSE. In theory this can be converted into 83.7 grams of methylamphetamine as its pure hydrochloride salt. Using a conservative estimate of 60%, the practical yield is about 50 grams of methylamphetamine as its pure hydrochloride salt. However, the contents of Item E6B may be part of the PSE removed from the residue in Item B1. So this yield of 50 grams may be part of the methylamphetamine yield given in paragraph 16 (75 grams). 18. A number of items were seized and examined for fingerprints. Fingerprints belonging to the accused were found on a number of items believed to have been used in the manufacturing process. There were no fingerprints belonging to other persons that were identified by police. 19. At 10am on Monday 2nd February 2004 the Accused was arrested and questioned. The Accused upon initial questioning stated that the powder he was caught in possession of by his Probation and Parole officer was speed. He also acknowledged that the shed was used as lab to make amphetamine. He said the explosion in the shed was started by him smoking drugs (Cannabis). Following legal advice the accused refused to comment further. The Accused confirmed his refusal on ERISP." 4 The applicant gave evidence at the sentence hearing and it is plain, as counsel in the appeal agreed, that the reference in the final paragraph of the statement of facts to smoking cannabis is incorrect. The applicant detailed using a butane gas bottle to produce a flame to burn "crystal meth" which is apparently a necessary procedure before the substance goes into a bong. He knew Mrs Bowditch was calling the police and he said that he wanted to "use as much" (amphetamine) as he could before, as he anticipated, he was returned to gaol. He had a longstanding amphetamine addiction. 5 The applicant's record for driving offences, including the sentence being served by way of home detention when the current offences were committed was not unconnected with this addiction. In his testimony, when asked about a further sentence which he was serving as at 12 December 2005, he said: "Every time I use that stuff (amphetamine) I just go and drive, you know". 6 The offences for which the applicant was appearing for sentence before Viney A/DCJ had been committed on 29 November 2002. In his evidence the applicant related that he had been hospitalized for three months as a result of the burns suffered in the explosion, had been required to wear a "burns suit for a further two years and required to attend for dressings and treatment at hospital some months beyond that". 7 It is not necessary to recapitulate in full the applicant's record, in particular his offences against traffic laws but it is not an overstatement to describe it in those regards as appalling. As at 29 November 2002 he was serving sentences by way of home detention for driving whilst disqualified and breaches of periodic detention and parole orders which were themselves imposed as a result of driving misconduct. 8 In 2004 the applicant served a sentence comprising a non parole period of twelve months commencing on 27 January 2004 for offences including, again, driving whilst disqualified, which order had been made at Blacktown Local Court. 9 When he appeared at Parramatta District Court on 12 December 2005 he was serving a fixed term of nine months imprisonment commencing on 2 June 2005 imposed at Fairfield Local Court, once again, for driving whilst disqualified. 10 In a written submission on behalf of the Crown, it was calculated that the period of sentence exclusively referrable to the matters before Viney A/DCJ, once account was given to the concurrency of other sentences and that imposed by his Honour, was effectively something less than a total of three years nine months with a non parole period of one year three months. The applicant's counsel accepted that that calculation, on its face, was valid. 11 The single ground of appeal asserted that the sentence was manifestly excessive and argument was succinctly presented in relation to four identified contentions and it is convenient to deal with the ground accordingly. 12 First, attention was directed to the limited role of the applicant. The learned sentencing judge accepted that the criminality of the applicant was to be gauged against his permitting premises owned by him to be used for the manufacture of drugs. The evidence was that, whilst in custody in respect of other matters, the appellant could not maintain his mortgage payments and that also during his absence, the dwelling had been "trashed". Photographs confirmed the latter circumstance. The suggestion that he could make his premises available for the illicit manufacture emanated from another prisoner. The applicant took up the offer to this effect. 13 It is important to bear in mind that the evidence, and the appropriate charge therefore, supported an allegation of manufacture of less than the commercial quantity. This is unusual when contrasted with the majority of cases which come before the Court which, where manufacture is involved, almost invariably comprise large scale activity. It might be suspected that the operators who were permitted to use the applicant's premises may have had more extensive goals but it must be borne steadily in mind that the applicant was to be sentenced for no more than the offences charged. His role was relatively limited and the quantity involved in the charge was also relatively modest. 14 The second aspect essentially sought to found a submission that, by reason of intellectual deficit the applicant was an unsuitable vehicle for the reflection of general deterrence. Counsel for the applicant joined issue with the Crown submissions which were, in part, premised upon an invitation to assess demonstrated capacity of the applicant to "handle" himself particularly in the situation when he was questioned by police. At the end of the interview by investigating police, in their absence and in accordance with the appropriate procedure, an officer not connected with the investigation (Detective Sergeant Dale) sought confirmation that the answers given to investigators were freely and voluntarily given etc. The exchange with Detective Sergeant Dale extended to about thirty five questions and answers and it can be observed that the applicant's responses and enquiries were indeed germane to the procedure and demonstrated an acute appreciation of his situation. 15 His Honour referred to the evidence tendered by way of reports from psychologists, Dr Lenning and Mr Cox and, in particular, he quoted the former's conclusion on intelligence testing that the applicant was in the bottom of the border line mentally retarded region. 16 It is not necessary to engage in the analysis offered by the Crown submission. It is clear that his Honour paid heed to the applicant's intellectual difficulties. It is true that no express mention of it being reflected by a reduction in the contributing element to general deterrence in sentence assessment was made, but it can be noted that his Honour's remarks were delivered ex tempore after considering the matter over a luncheon adjournment and the quantum of his impositions does not convey any implication of a high element reflecting general deterrence. 17 The third contention was that his Honour inadequately took into account the extra curial punishment which the applicant suffered by reason of the burns and the extensive regime of treatment which I have above only shortly described. It is obvious that his injuries were severe and his suffering would have been intense. 18 The authorities concerning mitigation of punishment by reason of the offender having suffered non judicial punishment have generally dealt with situations where it was caused by external forces rather than by being triggered by the offender's own actions. In R v Allpass 1993 72 A Crim R 561 the offender was subjected to a campaign of abuse and harassment following publication of a sentence for a sexual crime against a young girl by an elderly man. In R v Daetz & Anor 2003 139 A Crim R 398, following a commission of a robbery in company, the offender was assailed by a group exercising what might be described as vigilantism and, as a result, sustained a skull fracture with consequent brain involvement. In the judgment in that case James J (Tobias JA and Hulme J agreeing) said: "….while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case." 19 In R v Noble 1996 1 Qd R 329, the Queensland Court of Appeal was dealing with two offenders attempting an armed robbery of a shop who themselves were shot by the proprietor, one of the offenders suffering serious injury. The Court (Davies and Pincus JJA, Williams J) observed @ 330-331: "We were referred to no authority on the question whether an offender who was injured in the course of committing an offence should have that taken into account in his favour. The point is discussed in a note in (1980) 4 Crim L.J. by Mr F. Rinaldi at pp 244-246. The writer discusses a decision of the Victorian Court of Criminal Appeal in a robbery case in which one of the robbers suffered serious injury when his gun discharged during the robbery. The court took the view that the injury should be taken into account on sentence. We would not accept, however, that any injury suffered in the course of committing an offence is necessarily a factor in sentencing." 20 In R v Barci 1994 76 A Crim R 103, an armed robber was shot by police and he was severely and permanently disabled. The Court (Southwell, Hampel and Hansen JJ) observed: "It is, we think, and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself. The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality." 21 Closer to the present facts was R v Haddara 1997 95 A Crim R 108 where the Victorian Court of Appeal (Brooking and Callaway JJA, Vincent AJA) held that it had not been shown that a sentencing judge had failed to give sufficient weight to the fact that an arsonist had himself suffered physical and psychological injuries in the fire which he lit. However, Brooking JA referred to Barci, Fletcher and Noble and then observed at page 109: "The present is not the occasion on which to discuss these authorities. It is enough for me to say that in my opinion the judge was right in this case in treating the injuries as going in mitigation." 22 The Crown Prosecutor stated in a written submission "the Crown does not accept that this case falls within the limited category of extra-curial punishment" and submitted that it would be inappropriate to offer a discount for injuries sustained by self inflicted illegal activity. It was said that to recognize such would "create an undesirable public policy". 23 As the cases to which I have referred reveal there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender. The Crown Prosecutor pointed to no authority in support of his contention concerning public policy. 24 In the present case Viney A/DCJ adverted to a submission by counsel that although the applicant was "the author of his own misfortune nonetheless he has suffered extra-curial punishment" and it appears that his Honour accepted that submission. It is not clear however, as the Crown submitted, that the applicant's health including the burns was taken into account when dealing with special circumstances. 25 In any event, the submission on appeal was that his Honour failed to give adequate weight to the factor of extra-curial punishment not that he had failed to advert to it at all. I consider that it was an available factor to be weighed in favour of the applicant in sentence assessment along the lines contemplated in Barci and the other dicta to which I have made reference, and in the present case the issue of adequacy can be determined against the question of the sentence ultimately assessed. 26 Mention of the possibility of mitigation of sentence by reason of extra-curial punishment was recently made in Sharpe v R [2006] NSWCCA 255 where the offender was shot in the leg during commission of the offence although the consequences of the injury were described as a passing physical injury and the need for particular reflection by way of sentence reduction was rejected. However, it was obviously accepted that, in a case where the injury was of consequence, principle did not operate to prevent mitigation on account of extra-curial punishment in such circumstances. Availability of such mitigation has not been denied in other instances in this State: R v Webb [2004] NSWCCA 330; R v Azar [2004] NSWSC 797. 27 To the extent that the Crown submitted that there was a boundary created by injury sustained by self inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation. 28 The fourth matter raised focussed upon published sentencing statistics by the Judicial Commission. From October 1998 to September 2005 there are figures in relation to only eighteen cases which would seem to confirm the earlier observation about the comparative infrequency of this offence involving less than a commercial quantity. Only two of those cases attracted a total term of four years as did the applicant. All of the other cases attracted total terms of between twelve months and three years six months. 29 The maximum penalties prescribed in terms of imprisonment were fifteen years in the case of count 1 and ten years in the case of count 2 and whilst that prescription rather than the highest past imposition is the upper end of range, the statistical figures give a strong indication that the present sentences should be critically examined because they lie at the top of the statistical survey. 30 The effective terms exclusively referrable to the current matter have been earlier indicated. The separate offences obviously derive from the single course of conduct and concurrency was appropriate. The non parole period specified in relation to count 1 was proportionately 37.5 percent of head sentence. Accepting his Honour's finding of special circumstances, that proportion is such that in the absence of express reason for such disparity, it invites particular scrutiny of the total term. 31 Having regard to the role of the applicant, the extra-curial punishment and the equivalence of the total sentence to the longest term revealed in the statistics, I am of opinion that the challenge by the applicant in terms of attack upon the total sentence has been made good. However, in assessing resentence, and making every allowance for mitigating factors and giving significant weight to the serious consequences of the injuries acknowledged to have been self inflicted, I consider that no less a minimum detention than the approximate fifteen months referrable to these offences is called for: Power v The Queen 1974 131 CLR 623. 32 Whilst the orders which I propose do not involve in any practical sense an alteration to the minimum term, there is an advantage to the applicant in the sense that the total sentence will be reduced to the equivalent of three years thus entitling the applicant to an order for release to parole on expiry of the non parole period rather than having to await a determination by the Parole Board. 33 I propose the following orders: 1. Application for extension of time and for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. Sentence imposed in the District Court quashed and in lieu thereof the applicant sentenced as follows: (a) On count 1 – to imprisonment consisting of a non parole period of eighteen months to commence on 12 December 2005 and to expire on 11 June 2007 with a balance term of eighteen months to commence on 12 June 2007; (b) On count 2 – to imprisonment for a fixed term of eighteen months to commence on 12 December 2005 and to expire on 11 June 2007. 4. That the applicant be ordered released to parole on 11 June 2007. 5. That it be noted that special circumstances coordinate with those found by the sentencing judge have been applied in setting the non parole period and that no non parole period has been set in relation to count 2 as it will be fully subsumed within the service concurrently of the non parole period on count 1. 34 KIRBY J: I agree with Grove J 35 HISLOP J: I agree with Grove J. ********** 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.