R v Hamied - [2007] NSWCCA 151

New South Wales
Court of Criminal Appeal

CITATION: R v Mohamad Issam HAMIED [2007] NSWCCA 151

HEARING DATE(S): 30 May 2007

JUDGMENT DATE:
8 June 2007

JUDGMENT OF: Tobias JA at 1; Latham J at 1; Fullerton J at 1

DECISION: Crown Appeal Dismissed

CATCHWORDS: Sentence - Crown Appeal - Henry guideline - lenient sentence, not manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry & Ors. (1999) 46 NSWLR 346
R v SDM [2001] NSWCCA 158
R v Griggs [2000] NSWCCA 33
R v Fidow [2004] NSWCCA 172
R v Simpson (2001) 53 NSWLR 704 ; 126 A Crim R 525
R v Wall [2002] NSWCCA 42

PARTIES: Regina - Crown Applicant
Respondent - Mohamad Issam Hamied

FILE NUMBER(S): CCA 2007/1036

COUNSEL: Crown Applicant - B Dawe QC
Respondent: A Francis

SOLICITORS: Crown Applicant - S Kavanagh
Respondent - Forsters

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0686

LOWER COURT JUDICIAL OFFICER: Murrell SC DCJ

LOWER COURT DATE OF DECISION: 20 April 2007

2007/1036

TOBIAS JA
LATHAM J
FULLERTON J
8 JUNE 2007

REGINA v MOHAMAD ISSAM HAMIED

Judgment

1 THE COURT : On 30 May 2007, this Court dismissed a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent by her Honour Judge Murrell SC on 20 April 2007. The following constitute the Court’s reasons for that dismissal.

2 The respondent pleaded guilty on 28 November 2006, shortly before the jury was to be empanelled for the respondent’s trial, to a charge of assault with intent to rob whilst armed with a dangerous weapon, pursuant to s 97(2) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment. The respondent was sentenced to 18 months imprisonment, commencing on 16 February 2006, with a balance of term of 18 months, expiring 15 February 2009.

3 Her Honour’s summary of the facts was taken from a statement of agreed facts, to which no issue has been taken for present purposes. The relevant portions of her Honour’s remarks on sentence are as follows :-

During the afternoon of Thursday 16 February 2006, telephone calls were made between members of a group which included the offender. Other members of the group of telephone communicants were Michael Maglis, who was the receiver or instigator of many calls, and the co-offenders, David Fepuleai and Michael Tarazi. The offender was first involved in telephone communication with members of the group at approximately 3 p.m. in the afternoon.

At about 8 p.m. that evening, the offender met Mr Tarazi, Mr Fepuleai and two unidentified men at Punchbowl. The offender drove the four men to Botany in his vehicle. Sometime between about 8 p.m. and about 11 p.m. the offender parked his car near the Sir Joseph Banks hotel in Botany. The four other men exited the car. They were disguised. They had cloth wrapped around their faces. Three of the four men were armed. Mr Fepuleai…

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 Hamied

Details

AGLC: Regina v Mohamad Issam Hamied [2007] NSWCCA 151
Case: [2007] NSWCCA 151
Decision Date: 8 June 2007

CaseChat Overview and Summary

In the case of R v Hamied, the appellant, Hamied, was convicted for drug trafficking and sentenced to a term of imprisonment. The Crown appealed the sentence as being too lenient, arguing it did not reflect the seriousness of the offence. The matter was brought before the court to review the appropriateness of the sentence imposed.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, warranting an appeal and a subsequent increase in the term of imprisonment. This required an examination of the principles governing sentencing in cases of this nature, particularly the considerations set out in the guidelines established by the High Court in R v Henry.

The court considered the principles established by the High Court in R v Henry, which outline the factors to be considered when determining the appropriate sentence for drug trafficking offences. The court assessed the circumstances of the case, including the nature and extent of the offence, the role of the appellant in the crime, and the need for the sentence to deter similar offences. The court concluded that the trial judge had appropriately considered these factors and that the sentence, while lenient, was not manifestly inadequate. The appeal was therefore dismissed.

The court ordered that the original sentence imposed by the trial judge remain in place, with no increase in the term of imprisonment.

Orders