R v Hamdan (No 3) - [2022] ACTSC 326

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hamdan (No 3)
Citation:	[2022] ACTSC 326
Hearing Date:	28 November 2022
DecisionDate:	28 November 2022
Before:	Elkaim J
Decision:	(i) For the offence of negligent driving causing death the offender is sentenced to 18 months’ (reduced from 20 months’) imprisonment to commence today and end on 27 May 2024. (ii) For the offence of negligent driving causing grievous bodily harm the offender is sentenced to seven months’ imprisonment (reduced from eight months’) to commence on 28 April 2024 and end on 27 November 2024. (iii) The above sentences of imprisonment are to be served by way of an intensive corrections order on core conditions. (iv) For the offence of contravening conditions of a driver licence, the offender is fined $2,500. (v) I note that there will be an automatic disqualification of the offender’s licence.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – negligent driving causing death – negligent driving causing grievous bodily harm – where offender from supportive family and has physical and psychological injuries – where offence killed a bright and caring young woman from loving family – where legislature dictates maximum penalty for negligent driving causing death is two years’ imprisonment
Legislation Cited:	Road Transport (Driver Licensing) Regulation 2000 (ACT) ss 31, 60 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6
Cases Cited:	R v Chancellor [2019] ACTSC 191 R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, 28 October 2010) The Police v Hutchinson (Unreported, Magistrates Court, 4 August 2022)
Parties:	The Queen (Crown) Ameen Hamdan (Offender)
Representation:	Counsel M Howe (Crown) J Purnell SC (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) JDR Law (Offender)
File Numbers:	SCC 5 of 2022 SCC 6 of 2022

Elkaim J:

The offender came to trial on 5 September 2022 facing two charges of culpable driving, arising from the same collision. Under the first charge the culpable driving was alleged to have caused the death of Ms Alexis Saaghy. The second charge related to the same culpable driving, but causing grievous bodily harm to Mr Zayd Dandash.

On 12 September 2022 the jury found the offender not guilty of the two offences of culpable driving but found him guilty of the alternate charges of negligent driving respectively causing the death of Ms Saaghy and grievous bodily harm to Mr Dandash.

The maximum penalty for negligent driving causing death is two years’ imprisonment: see s 6(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Road Transport Act). The maximum penalty for negligent driving occasioning grievous bodily harm is one year imprisonment: see s 6(1)(b) of the Road Transport Act.

A number of issues dominated the trial. The issue most relevantly going to the question of culpable driving related to the speed at which the offender’s vehicle was travelling before the collision.

The Crown relied on a police expert, Officer McCue, who…

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 Hamdan (No 3)

Details

AGLC: R v Hamdan (No 3) [2022] ACTSC 326
Case: [2022] ACTSC 326
Decision Date: 28 November 2022

CaseChat Overview and Summary

The case of R v Hamdan (No 3) involved the sentencing of the defendant, Mr Hamdan, for various driving-related offences, including negligent driving causing death and grievous bodily harm. The court was required to determine the appropriate penalties for these offences, taking into account the circumstances of the case and the relevant statutory maximum penalties. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were the appropriate sentences for each offence, considering the legislative maximum penalties and the specific facts of the case. In particular, the court needed to balance the circumstances of the offender, who came from a supportive family and had physical and psychological injuries, against the loss suffered by the victim’s family, who had lost a bright and caring young woman from a loving family. The court also had to consider the maximum penalty for negligent driving causing death, which was set at two years’ imprisonment.

The court considered the mitigating factors presented by the offender, including his background and injuries, as well as the aggravating factors, such as the loss to the victim’s family. The court concluded that a sentence of 18 months’ imprisonment for the offence of negligent driving causing death was appropriate, reduced from 20 months’, and a sentence of seven months’ imprisonment for the offence of negligent driving causing grievous bodily harm, reduced from eight months’. The court also imposed a fine for the offence of contravening the conditions of a driver licence. The sentences were to be served by way of an intensive corrections order on core conditions, and the offender’s licence would be automatically disqualified.

The final orders of the court included the imposition of a sentence of 18 months’ imprisonment for the offence of negligent driving causing death, to commence immediately and end on 27 May 2024, and a sentence of seven months’ imprisonment for the offence of negligent driving causing grievous bodily harm, to commence on 28 April 2024 and end on 27 November 2024. The offender was also fined $2,500 for the offence of contravening the conditions of a driver licence. The court noted that there would be an automatic disqualification of the offender’s licence.

Orders

Orders of the court

(i) For the offence of negligent driving causing death the offender is sentenced to 18 months’ (reduced from 20 months’) imprisonment to commence today and end on 27 May 2024.

(ii) For the offence of negligent driving causing grievous bodily harm the offender is sentenced to seven months’ imprisonment (reduced from eight months’) to commence on 28 April 2024 and end on 27 November 2024.

(iii) The above sentences of imprisonment are to be served by way of an intensive corrections order on core conditions.

(iv) For the offence of contravening conditions of a driver licence, the offender is fined $2,500.

(v) I note that there will be an automatic disqualification of the offender’s licence.

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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