R v Hamdach - [2023] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation: R v Hamdach [2023] NSWSC 298
Hearing dates: 7 and 8 March 2023
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
The offender is sentenced to a term of imprisonment having a non-parole period of 12 years, commencing on 15 February 2020 and expiring on 14 February 2032 with an additional term of 4 years and 2 months commencing at the expiration of the non-parole period and expiring on 14 April 2036

Catchwords:
SENTENCING — murder — acts of physical violence — inflicted by co-offender — plea of guilty — constructive murder — joint criminal enterprise — specially aggravated kidnapping — offender the instigator of the foundational offence — objective seriousness in the mid-range — offender subjected to domestic violence in childhood — schizoaffective disorder with symptoms of mania involving over-confidence and assertiveness at the time of offending

Legislation Cited:
Crimes Act 1900 (NSW) s 18
Crimes High Risk Offenders Act 2006 NSW s 25C
Criminal Law Consolidation Act 1935 (SA) s 12A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 54A(2), 54B(2) and 25D

Cases Cited:
Decision Restricted [2023] NSWSC 222
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
McAuliffe v The Queen (1995) 183 CLR 108
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Mitchell v The King [2023] HCA 5; 97 ALJR 172
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
The Queen v Olbrich (1999) CLR 270; [1999] HCA 54

Category: Sentence
Parties: Sami Hamdach (Offender)
Rex (Crown)
Representation:
Counsel:
P Hogan (Crown)
I McLachlan (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Aquila Lawyers (Accused)

File Number(s): 2020/50076

JUDGMENT

On arraignment on the first day of his adjourned trial on 25 July 2022, Sami Hamdach pleaded guilty to the murder of Ross Houllis on 17 February 2020. He now stands for sentence for that most serious offence.
The maximum penalty for murder prescribed by law is life imprisonment. Murder is also a standard non-parole period offence. That standard non-parole period is one of 20 years. These markers provide important guidance for my consideration. Having said that, while accepting that murder is the most serious offence known to our criminal law and that all instances of murder are serious, it was not argued in the present case that the offender’s moral culpability was so extreme as to warrant the imposition of a life sentence. Quite apart from the position of the prosecution, I have formed my own view that this case does not fall into that category. Accordingly, in due course I will be passing a sentence on the offender consisting of both a non-parole period and an additional term for specified periods of time.

Statement of issues

The primary facts have largely been agreed and recorded in the Agreed Statement of Facts tendered as part of Exhibit A. Not all relevant…

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 Hamdach

Details

AGLC: R v Hamdach [2023] NSWSC 298
Case: [2023] NSWSC 298
Decision Date: 31 March 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the defendant, Hamdach, was convicted of murder and related charges, arising from his involvement in a joint criminal enterprise. The deceased was kidnapped and subjected to acts of physical violence, which ultimately resulted in his death. Hamdach, who was the instigator of the foundational offence, entered a plea of guilty. The court had to determine the appropriate sentence, considering the nature of the crime, Hamdach's role as the instigator, and his personal circumstances, including a history of domestic violence and a diagnosed schizoaffective disorder with symptoms of mania.

The legal issues before the court involved assessing the objective seriousness of the crime, Hamdach's culpability, and the impact of his personal circumstances on his culpability and sentence. The court needed to decide if the sentencing principles applicable to constructive murder should be adapted due to Hamdach's role as the instigator and his mental health condition. The court also had to consider whether the sentence should reflect the mitigating factors of Hamdach's upbringing and mental health.

The Supreme Court of Victoria found that the objective seriousness of the crime was in the mid-range, given the brutal nature of the acts of violence and the fact that the deceased died as a result. The court held that Hamdach's role as the instigator and his mental health condition warranted a reduction in his culpability, but these factors did not significantly mitigate the objective seriousness of the crime. The court sentenced Hamdach to life imprisonment, with a non-parole period of 23 years, taking into account both the aggravating and mitigating factors.

No further orders were made.

Orders