R v Hamide

[2018] NSWDC 172

District Court

New South Wales

Medium Neutral Citation:	R v Hamide [2018] NSWDC 172
Hearing dates:	16 February 2018
Date of orders:	16 February 2018
Decision date:	16 February 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment consisting of ahead sentence of 13 years with a non-parole period of 9½ years
Catchwords:	CRIMINAL LAW – Sentence – Wounding with intent to cause grievous bodily harm – Solicit to murder – Assessment of objective gravity of each offence
Category:	Sentence
Parties:	The Crown Omar Hamide
Representation:	Counsel: D Daleo (Crown) T Game SC (Offender) S Howell (Offender)   Solicitors: Director of Public Prosecutions (Crown) Elie Rahme & Associates Pty Ltd (Offender)
File Number(s):	2014/376573

Judgment

1. HIS HONOUR: On 8 November 2013, Mark Ayoub went to visit the offender, Omar Hamide in order to discuss something. A person associated with Mr Ayoub, and a person associated with Mr Hamide had fought. Mr Ayoub was concerned that matters would escalate, so he met with Mr Hamide, who had a number of other young men with him, to try and diffuse the situation.

2. It appears that Mr Hamide was reluctant to have the situation diffused, because after some discussion had taken place, he pulled out a knife and stabbed Mr Ayoub in the back. A jury found him not guilty of wounding Mr Ayoub with intent to murder him, but did find him guilty of wounding Mr Ayoub with intent to cause grievous bodily harm.

3. I suspect the jury's not guilty verdict on the primary count resulted from the circumstance that if Mr Hamide had really wanted to kill Mr Ayoub, there was nothing stopping him from stabbing him a second, third or even fourth time as he lay on the ground. Mr Ayoub was briefly chased by Mr Hamide and some others as he attempted to get away. He suffered a serious stab wound in the initial attack, and some smaller lacerations as he was being chased.

4. When police arrived, Mr Ayoub told them a false story as to who had stabbed him. However, when he was in hospital and visited by his brother-in- law, Mr Elzamtar, he told him what had really happened, and who had really stabbed him. As part of an attempt to ensure that matters did not get even worse, Mr Elzamtar then made an anonymous report to Crimestoppers, nominating Mr Hamide as the person who had stabbed Mr Ayoub.

5. Some time later, the offender and Mr Elzamtar met up. The offender expressed some concern about whether Mr Ayoub was going to tell the police the truth as to who had stabbed him. Despite Mr Elzamtar reassuring him, the offender appears to remain worried. Eventually, he and Mr Elzamtar met up again. At this meeting, the offender offered $50,000 to Mr Elzamtar to murder Mark Ayoub. The jury found the offender guilty of an offence of soliciting Ahmed Elzamtar to murder Mark Ayoub.

6. To say that these offences are serious is something of an understatement. The first offence was bad enough, but the second offence, which involved the soliciting of another in order that his guilt on the stabbing matter could not be discovered is a chilling offence indeed.

7. It is, of course, my task to assess the objective gravity of these offences. As far as count 1 is concerned, I find that that is slightly below the mid-range. I make that finding primarily because of the nature of the injury inflicted upon Mr Ayoub. Although I have described it as serious, it was a single stab wound which appears to have had no lasting physical consequences. It was surgically attended to in the course of Mr Ayoub's three day attendance in hospital.

8. As I have mentioned, this was a pre-arranged meeting where, clearly, the offender had armed himself with a knife beforehand. However, I cannot say that he had formed the intention to stab Mr Ayoub when the meeting was arranged. The evidence seems to suggest that this intention came upon Mr Hamide as the meeting progressed.

9. I find that the objective gravity of the other offence, the solicit to murder offence, is in the mid-range. As the authorities have pointed out, there is a commonality regarding most offences of soliciting to murder. Almost invariably, such an offence is pre-meditated. And an intention to kill is necessary. In this case, the solicitation came after Mr Hamide was clearly worried at the risk that he would be identified as having committed an earlier serious offence. Although the solicitation came about in a single meeting, there were many other meetings leading up to it. Mr Hamide was clearly the principal in the offence, and did not make any attempt to withdraw his offer, and this was far from a spur of the moment decision which was immediately regretted.

10. I mentioned before, the injury suffered by Mr Ayoub and that he spent three days in hospital. He provided a victim impact statement to the Court. It appears that he has suffered no lasting physical effects, but has had some consequences of a more psychological nature. He experiences anxiety and fear. These sorts of effects are entirely foreseeable and understandable, when a person has been stabbed in the back, as Mr Ayoub has been.

11. The offences both carry maximum penalties of 25 years imprisonment, but they have different standard non parole periods. The wound with intent to cause grievous bodily harm has a standard non parole period of 7 years; the solicit to murder has a standard non parole period of 10 years. I have taken into account both the standard non parole periods and maximum penalties when deciding what sentences to impose upon the offender. My reasons for not imposing the standard non parole period appear in these remarks on sentence.

12. Mr Hamide is a man with a relatively minor criminal history. He has never been to prison before and has not committed any offence of a violent nature in the past. He is the middle of five surviving children, who grew up in Australia. His parents are from Lebanon. He attended high school, where he did well, especially at sports.

13. From the age of 13, he worked with his father as a tiler. He has worked in other aspects of construction as well, installing and selling solar panels, and also in managing a property development matter. He is married. He and his wife have two children; a son aged nearly 5, and a daughter aged about 1. He retains the support of his wife, who visits him in prison.

14. I mentioned that Mr Hamide is the middle of five surviving children. He and his family suffered a significant tragedy when Mr Hamide's brother died suddenly during a soccer match. This, it is not surprising to learn, affected Mr Hamide deeply. It is a significant factor in the offender having become depressed, at times significantly so. He was seen by Dr Neilson, who has provided a report for the purposes of assisting me today. As the Crown points out, to a significant extent, Dr Neilson's diagnoses are based on what Mr Hamide told him although, without objection from the Crown, Mr Game SC, who appears with Mr Howell for the offender today, tendered a statement from Mr Hamide's wife, which confirms aspects of what Mr Hamide told Dr Neilson. Mr Game indicated that he relied on Dr Neilson's findings insofar as Dr Neilson diagnoses Mr Hamide with an anxiety disorder. Mr Hamide's wife, in her statement, speaks about panic attacks, on one occasion, even requiring Mr Hamide to be admitted to hospital. Mr Game concedes that the other diagnoses made by Dr Neilson are more speculative. I will sentence Mr Hamide on the basis that he has suffered from anxiety for some time. No doubt, his anxiety is contributed to by the stress of these proceedings. Indeed, his wife makes reference to that in her statement.

15. Mr Hamide clearly has a good work ethic, and retains the support of his family. There is nothing in his background which would explain his serious offending, for which I must sentence him today. Mr Hamide's wife refers to the hardship that she and her children will suffer. Mr Game did not suggest that such hardship was exceptional, but no doubt, it is a significant matter that the offender will feel keenly, knowing that his offending has resulted in his wife and children suffering.

16. Mr Game made a submission that I would find special circumstances in this case. They related to this being the first time that Mr Hamide will spend any time in prison, although, Mr Game fairly conceded that that would not, of itself, be enough to justify special circumstances. Mr Game therefore referred to the fact that his client suffers from anxiety, and that his wife and children will suffer from incarceration. I am not satisfied that, even together, these amount to special circumstances.

17. Even if they did, I am satisfied that the non parole period I will shortly announce is the minimum time that the offender should spend in custody. There is a slight adjustment from the statutory ratio, but this is only due to a rounding down of the non parole period.

18. I will impose an aggregate sentence. Were I not to have done so, I would have imposed sentences as follows. For the offence of wounding with intention to cause grievous bodily harm, a non parole period of 4 years, with a head sentence of 6 years. For the offence of soliciting murder, a non parole period of 7 years, with a head sentence of 10 years.

19. The aggregate sentence I will impose is a head sentence of 13 years, with a non parole period of 9 and a half years. They are all to have dated from 2 November 2017, so the offender is eligible to be released to parole on 1 May 2027.

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Decision last updated: 27 June 2018