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Hamze v R

Hamze v R

Case [2006] NSWCCA 36 6 March 2006

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CITATION: Hamze v Regina [2006] NSWCCA 36

HEARING DATE(S): 3 February 2006

JUDGMENT DATE:
6 March 2006

JUDGMENT OF: Giles JA at 1; Grove J at 62; Hoeben J at 63

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Appeal against sentence - whether elements of offence taken into account as aggravating factors - s21A of Crimes (Sentencing Procedure) Act 1999 - robbery - actual or threatened use of violence as elements of offence - threatened or actual use of violence as elements of offence - commission in company as element of offewnce - whether facts justified aggravating factor of disregard for public safety - whether offences in Form 1 could be taken into account as aggravating factor of series of offences - error found in some respects - but no less severe sentence warranted in law.

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146;
R v Baxter [2005]NSWCCA 234;
R v Blair [2005] NSWCCA 78;
R v Farrer (1983) 78 FLR 10;
R v Foster (1995) 78 A Crim R 517;
R v Ibrahimi [2005] NSWCCA 153;
R v Kelly [2005] NSWCCA 280;
R v Janceski [2005] NSWCCA 288;
R v Johnson [2004] NSWCCA 76;
R v Salieb [2005] NSWCCA 85;
R v Smith and Desmond (1965) AC 960;
R v Street [2005] NSWCCA 139;
R v Suaali [2005] NSWCA 206;
R v Tadrosse [2005] NSWCCA 145;
R v Way [2004] NSWLR 168;
R v Wickham [2004] NSWCCA 193.

PARTIES: Wesam Hamze v Regina

FILE NUMBER(S): CCA 2005/18/44

COUNSEL: B Rigg - Appellant
W Dawe QC - Crown

SOLICITORS: S O'Connor - Appellant
S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/11/1053

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

CCA 2005/18/44
DC 03/11/1053

GILES JA
GROVE J
HOEBEN J
Monday 6 March 2006

Wesam HAMZE v REGINA

Judgment

1 GILES JA: The applicant pleaded guilty to charges on indictment of robbery armed with a dangerous weapon and in company (count 1) and knowingly taking part in the unauthorised sale of a firearm (count 2). Three offences on a Form 1 were taken into account in relation to the robbery offence, being break enter and steal, robbery armed with a dangerous weapon and in company, and being carried in a conveyance without the consent of the owner. For the robbery offence the applicant was sentenced, taking into account the three Form 1 offences, to imprisonment for six years and nine months to commence on 28 June 2002 and expire on 27 March 2009 with a non-parole period of four years to expire on 27 June 2006. For the firearms offence he was sentenced to imprisonment for five years to commence on 2 July 2005 and expire on 1 July 2010 with a non-parole period of 2 years to expire on 1 July 2007. The effective…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hamze v R

Details

AGLC: Hamze v R [2006] NSWCCA 36
Case: [2006] NSWCCA 36
Decision Date: 6 March 2006

CaseChat Overview and Summary

The appellant, Hamze, appealed against the sentence imposed by the District Court of New South Wales for robbery. The District Court had convicted the appellant of robbing a 7-Eleven store while armed with a knife, and in the company of others. The appellant sought to appeal the severity of the sentence, arguing that certain elements of the offence were improperly taken into account as aggravating factors under the Sentencing Procedure Act. The High Court of Australia heard the appeal, reviewing the legal issues related to the application of section 21A of the Sentencing Procedure Act.

The central legal issue before the court was whether the trial judge had correctly applied the statutory provisions when considering aggravating factors in sentencing. Specifically, the court needed to determine if the elements of the offence, such as the use or threat of violence and the commission of the offence in company, could properly be considered as aggravating factors. Additionally, the court examined whether the finding of a disregard for public safety as an aggravating factor was justified, and if the trial court was correct in considering the appellant's previous offences as part of a series of offences.

The court found that while there were errors in the trial judge's application of the law, these errors did not warrant a reduction in the severity of the sentence. The court held that the trial judge had correctly identified some elements of the offence as aggravating factors, despite a misapplication of the law in other respects. The court reasoned that the appellant's conduct demonstrated a significant disregard for public safety, and that the commission of the offence in company, along with the use of a knife, justified the trial judge's consideration of these elements as aggravating factors. Furthermore, the court found that the appellant's previous convictions, listed in Form 1, could be considered as part of a series of offences, reinforcing the trial judge's decision to impose a stringent sentence.

The High Court dismissed the appeal, upholding the original sentence imposed by the District Court. The court's decision confirmed that despite some legal errors in the trial judge's reasoning, the sentence was appropriate given the nature and circumstances of the offence, and the appellant's criminal history.

Orders