R v Abdul-Hamid - [2023] NSWDC 641

District Court

New South Wales

Medium Neutral Citation: R v Abdul-Hamid [2023] NSWDC 641
Hearing dates: 3 October 2023
Date of orders: 3 October 2023
Decision date: 03 October 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 7 years 3 months with a non-parole period of 5 years

Catchwords:
CRIME — Drug offences — Possess prohibited drug for the purpose of supply — Greater than the commercial quantity — Direct criminal group — Proceeds of crime
CRIME — Violent offences — Assault police officer in the execution of duty
TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to stop, police pursuit — Speed limits
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — Deterrence — Form 1 offences — Objective seriousness — Purposes of sentencing — Multiple offences — Aggregate sentences
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Long term drug addiction — Mental health disorders — Harsh discipline during childhood — Childhood sexual abuse not proven

Legislation Cited:
Crimes Act1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Road Rules 2014 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Abbdul-Hamid v R [2016] NSWCCA 118
Attorney General's Application No 2 of 2002 [2002] NSWCCA 515
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
R v Abbas [2023] NSWDC 281
R v Ristevska [2022] NSWDC 577
R v Tuki (No 4) [2013] NSWSC 1864
Trevana v R (District Court (NSW), 16 November 2022, unrep)

Texts Cited:
W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

Category: Sentence
Parties: Feras Abdul-Hamid (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
F Awada at Awada Legal (for the offender)
A Hughes solicitor advocate for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/391482; 2021/204833; 2021/246414

JUDGMENT – ex tempore revised

Feras Abdul-Hamid is for sentence today for multiple criminal offences. They relate to three separate police interventions.

The first police intervention

The first group of offences relate to a police strike force looking into the supply of illicit drugs in the Illawarra. Pleas of guilty were entered after the offender, having been committed to this Court, was rearraigned. He is for sentence for three matters in relation to this group:

Knowingly direct the activities of a criminal group involved in drug supply between May and July 2021: Crimes…

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 R v Abdul-Hamid

Details

AGLC: R v Abdul-Hamid [2023] NSWDC 641
Case: [2023] NSWDC 641
Decision Date: 03 October 2023

CaseChat Overview and Summary

The appellant, Abdul-Hamid, faced the Court of Appeal following his conviction and sentencing for a series of serious criminal offences. These included possession of a prohibited drug with intent to supply in a quantity exceeding the commercial threshold, assaulting a police officer, and breaches of traffic laws, including failure to stop and excessive speeding during a police pursuit. The trial court sentenced Abdul-Hamid to an aggregate term of imprisonment of seven years and three months, with a non-parole period of five years.

The primary legal issues revolved around the application of sentencing principles and guidelines, particularly in relation to the aggregation of sentences for multiple offences. The appellant contested the severity of the sentence, arguing that it failed to adequately account for mitigating factors such as his plea of guilty, his long-term drug addiction, and his troubled upbringing. Conversely, the prosecution highlighted aggravating factors including his history of previous convictions, his breach of conditional liberty, and the objective seriousness of the offences committed. The court also considered the principles of parity and deterrence, as well as the purposes of sentencing, in determining the appropriate term of imprisonment.

The Court of Appeal found that while the trial judge had considered many of the mitigating factors, the sentence was not manifestly excessive. The court emphasised the importance of the instinctive synthesis approach in sentencing, where the judge holistically considers all relevant factors to arrive at a just outcome. The court noted that the offences were of significant gravity, particularly given the appellant's role in a direct criminal group and the involvement of prohibited drugs in quantities exceeding commercial levels. Despite the appellant's personal circumstances, the court held that the sentence reflected the appropriate balance between punishment, deterrence, and the need to protect the community.

The appeal was ultimately dismissed, and the original sentence was upheld. The court reaffirmed the importance of adhering to sentencing guidelines and principles, while also recognising the necessity for judicial discretion in individual cases. The aggregate sentence of imprisonment of seven years and three months, with a non-parole period of five years, remained in place.

Orders

Orders of the court

Aggregate sentence of imprisonment of 7 years 3 months with a non-parole period of 5 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Abdul-Hamid [2023] NSWDC 641
Hearing dates:	3 October 2023
Date of orders:	3 October 2023
Decision date:	03 October 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 7 years 3 months with a non-parole period of 5 years
Catchwords:	CRIME — Drug offences — Possess prohibited drug for the purpose of supply — Greater than the commercial quantity — Direct criminal group — Proceeds of crime CRIME — Violent offences — Assault police officer in the execution of duty TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to stop, police pursuit — Speed limits SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity — Deterrence — Form 1 offences — Objective seriousness — Purposes of sentencing — Multiple offences — Aggregate sentences SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Long term drug addiction — Mental health disorders — Harsh discipline during childhood — Childhood sexual abuse not proven
Legislation Cited:	Crimes Act1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Road Rules 2014 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Abbdul-Hamid v R [2016] NSWCCA 118 Attorney General's Application No 2 of 2002 [2002] NSWCCA 515 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 R v Abbas [2023] NSWDC 281 R v Ristevska [2022] NSWDC 577 R v Tuki (No 4) [2013] NSWSC 1864 Trevana v R (District Court (NSW), 16 November 2022, unrep)
Texts Cited:	W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1
Category:	Sentence
Parties:	Feras Abdul-Hamid (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: F Awada at Awada Legal (for the offender) A Hughes solicitor advocate for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/391482; 2021/204833; 2021/246414