R v Hammoud

[2021] NSWDC 734

District Court

New South Wales

Medium Neutral Citation:	R v Hammoud [2021] NSWDC 734
Hearing dates:	23 Nov 2021
Decision date:	26 November 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 3 years with a non parole period of 2 years.
Catchwords:	CRIME - SENTENCE - Police pursuit - not stop - drive dangerously;  Not give particulars to other driver; Resist officer in execution of duty; Possess prohibited drug; Drive motor vehicle while licence suspended - 1st offence;  Drive vehicle under influence of alcohol - 1st offence; Destroy or damage property.
Legislation Cited:	Crimes Act 1900 (NSW), ss: 51B(1), 58, 195(1)(a); Road Rules 2014 (NSW), s287(1); Drug Misuse and Trafficking Act 1985 (NSW), s10(1); Road Transport Act 2013 (NSW), ss: 54(3)(a), 111(1)(a), 112(1)(a).
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571.
Category:	Sentence
Parties:	Regina (Crown) Mohammad Hammoud (Offender)
Representation:	Mr Auld (ODPP Solicitor - Campbelltown) Mr Schaudin (Counsel for the offender)
File Number(s):	2020/341271
Publication restriction:	Nil

JUDGMENT

1. Mohammad Hammoud, you appear for sentence today in relation to the principal offence of contravening s51B(1) of the Crimes Act (sequence 1). This involves driving a motor vehicle whilst you ought reasonably to have known that police officers were in pursuit of that vehicle and that you were required to stop the vehicle but you did not stop it - rather, you drove the vehicle in a manner dangerous to others. The maximum penalty for this offence is imprisonment for 3 years. There is no standard non-parole period. In addition, there is an automatic disqualification from driving for 3 years and a minimum period of disqualification of 12 months.

2. In addition to that principal offence, you have consented to this Court dealing with 10 related offences on a s166 certificate which otherwise would have been dealt with in the Local Court. They are sequences 5, 6, 10, 13, 14, 15, 17, 18, 19, and 20.

3. Also on that certificate was a backup offence of driving a motor vehicle with an illicit drug present in your blood (sequence 16). That matter is withdrawn and dismissed.

4. The facts surrounding sequence 1 and the related sequences are contained in a document entitled “Statement of Agreed Facts” which you signed on 10 August 2021. Recast by me as to style, but not substance, they are as follows.

5. At about 2:20pm, on 1 December 2020, an unmarked police vehicle containing three police officers drove into Celtis Place (a cul-de-sac) in the Sydney suburb of Macquarie Fields.

6. At that time, you were also on that public street. You were sitting in the driver’s seat of a stationary truck. The truck weighed 2.42 tonnes and it had an open rear tray with a large metal toolbox affixed to it. In circumstances not revealed in the evidence, it would seem that you had “borrowed” the truck from its owner. Also not revealed in the evidence is where you had driven that truck from in order to get to Celtis Place.

7. However, what is revealed in the Statement of Agreed Facts is that your P2 driver’s licence was suspended at that time and had been suspended since 29 October 2020; the suspension was due to expire on 28 January 2021.

8. Furthermore, the agreed facts reveal that, at the time you were sitting in the driver’s seat of that truck, your ability to drive was substantially impaired because you were well affected by amphetamine, methylamphetamine and morphine.

9. It is the driving of that truck to Celtis Place whilst intoxicated by those substances which constitutes sequence 14 (drive motor vehicle whilst licence suspended) and drive vehicle under the influence of “other drugs” (sequence 17).

10. The maximum penalty for sequence 14 in the Local Court is imprisonment for 6 months and/or 30 penalty units together with an automatic period of disqualification of 6 months or a minimum period of 3 months. The maximum penalty for sequence 17 in the Local Court is imprisonment for 18 months and/or 30 penalty units.

11. As the police drove into Celtis Place, they noticed that another man got out of the passenger side of the truck and walked into a nearby residence. Who that man was – and why you had driven him in that truck (whilst your licence was suspended, and whilst you were under the influence of the three drugs I have referred to) – is also not revealed in the Statement of Agreed Facts. The driver of the police vehicle continued to the end of the cul-de-sac and turned around, at which point he saw that the truck (being driven by you) quickly accelerated away from the location before turning onto another public road, Melaleuca Drive.

12. The police vehicle then followed your vehicle. You were driving in excess of the 50km speed limit and, for a time, you were driving on the wrong side of the road.

13. The police, having noticed this manner of driving, activated the police vehicle’s lights and sirens with the intent of conducting a random breath test on you.

14. You were aware that the police were requiring you to stop; however, you continued to drive. Your conduct caused the driver of the police vehicle to announce over the police radio that he was in pursuit of the vehicle you were driving.

15. You drove along Rosewood Drive towards the T-intersection that that roadway had with Harold Street. The intersection was controlled by traffic lights. Two vehicles were stopped side by side in separate lanes at those lights (which, for those vehicles, were red).

16. Instead of coming to a stop in order to comply with the red light, you drove the truck between those two vehicles at speed – colliding with, and causing damage to, each of them.

17. One of those vehicles was being driven by Mr Saini. Mr Saini’s wife and four year old daughter were also in the car. As you drove between those two vehicles, you collided with the left side mirror of Mr Saini’s vehicle and, as a result, that mirror required repairs. Fortunately, none of the occupants of Mr Saini’s vehicle were actually physically injured.

18. The other vehicle was being driven by Mr Mapa. His sister was also in that motor vehicle with him. As you drove between the two vehicles, you collided with the rear of Mr Mapa’s vehicle causing significant damage to that vehicle. Again, fortunately, neither of the occupants of that vehicle sustained any physical injuries.

19. It is the collision with each of these vehicles which is respectively sequence 18 and sequence 19 (both sequences being damaging property). Each of these sequences involves a contravention of s195(1)(a) of the Crimes Act. The maximum penalty for each offence in the Local Court is 2 years imprisonment and/or 20 penalty units.

20. After you collided with these two vehicles, you did not stop. But rather, you drove through the red light. You were required, in relation to each vehicle, to stop and provide particulars as to your name, address, registration and owner details. Your failure to stop and provide those details constitutes respectively sequences 5 and 6. Each of these sequences involves a contravention of s287(1) of the Road Rules. The maximum penalty for each offence in the Local Court is a fine of 20 penalty units.

21. The police vehicle continued to follow the truck you were driving along Harold Street, and you were observed to drive on the incorrect side of the road and towards other vehicles. The driver of the police vehicle believed (and it is not challenged in the Statement of Agreed Facts) that you were deliberately attempting to run into those vehicles.

22. Given the obvious dangerousness of the situation, the driver of the police vehicle terminated the police pursuit which was announced over the police radio.

23. Shortly thereafter, another police vehicle, this one being a fully marked NSW police vehicle, was driving along Parliament Road towards the intersection with Harold Street. At about that time, you turned right onto Parliament Road and travelled west in the direction of this second police vehicle. As you came within 20 meters of that vehicle, you abruptly swerved onto the wrong side of the road and drove the truck directly toward the fully marked police vehicle. To avoid a head-on collision, the driver of that police vehicle quickly swerved to the left and drove up the gutter and onto the nature strip where that vehicle came to a stop. You continued to drive along Parliament Road.

24. You then drove along various public roads in that vicinity. You drove around a “circuit” described in the Statement of Agreed Facts, which you repeated on a number of occasions, during which the driver of the second police motor vehicle saw you to be driving on the incorrect side of the road and, on several occasions, towards a number of passing vehicles.

25. The driver of the second police vehicle sought permission to re-engage in the police pursuit as he was very concerned at the risk that you posed by your erratic driving.

26. Shortly after that, whilst the second police vehicle was parked on Parliament Road, you drove on the incorrect side of the road and directly towards that second police motor vehicle. You came within 5 meters of that vehicle before swerving to avoid hitting it.

27. Your erratic and dangerous driving continued for several minutes as the police in that vicinity waited for permission to re-engage the police pursuit.

28. The driver of the second police vehicle again requested permission to do so, which was given. That second police vehicle then assumed the position of primary pursuit vehicle, and you were followed by it as your drove along Parliament Road.

29. At about 2:31pm, the police air service (POLAIR) was engaged and commenced a video recording of the truck you were driving and continued to do so for the next 13 minutes when the pursuit came to an end. At least 12 police vehicles were involved in pursuing you during that 13 minute period.

30. Although you were aware that numerous police vehicles were pursuing you, you kept driving. You drove in an extremely dangerous manner and many road users were put at serious risk. 

31. In addition to what I have already described, further elements of your dangerous driving included:

1. driving through red lights;

2. driving on the wrong side of the road, including for extended periods;

3. driving directly towards oncoming vehicles, causing many to pullover or swerve out of the way – there were many narrowly avoided collisions;

4. driving the wrong way through roundabouts;

5. driving at generally high speeds;

6. driving at high speeds over speed humps and through roundabouts; and

7. driving at high speeds through three active school zones at which flashing lights were operating (those school zones including Zahra Grammar School; Campbelltown East Public School; and St Patrick’s College Campbelltown).

32. Because POLAIR was following you and as you continued to drive in an erratic manner, the police, in their motor vehicles, from time to time, disengaged the pursuit and instead followed you on the road at a distance. You were followed in this manner through public streets in Minto, Leumeah and Bradbury.

33. At 2:44pm, you were driving along Hoddle Avenue, Bradbury where the truck slowed down and you opened the driver’s door and jumped out. By this time, the police had been in pursuit of you for approximately 24 minutes and a distance of 20km had been covered.

34. After you jumped out of the truck, it continued in motion, veering towards residential premises in Hoddle Street. The vehicle crashed through the front fence of those premises and into the tree in the front yard.

35. It is the damage to that residential property which is sequence 20 (damage property). I have already referred to the relevant provision of the Crimes Act and the relevant penalty for that offence in the Local Court.

36. This concludes the narrative of the facts which constitute the offence of police pursuit.

37. After you jumped from the truck, you ran from the area and into the backyard of residential premises on Hoddle Street and climbed into a small space under the house.

38. Before long, police were in the area.

39. One of the officers was Senior Constable Cook. He had been told of your whereabouts by the POLAIR officers. Senior Constable Cook had a police dog with him. When confronted by police, the dog latched onto your leg and you struggled. Senior Constable Cook called for assistance.

40. In response to that call for assistance, Senior Constables Martin and McKenzie arrived at the scene and tried to enter the small space that you were in. You were wedged in tightly and you were thrashing about with your arms and your legs.

41. Senior Constable Martin told you to stop resisting and tried to grab your legs; however, your right leg broke free and you kicked Senior Constable Martin, once in the stomach and once in the chest.

42. After you had struck Senior Constable Martin in the fashion I have described, Senior Constable McKenzie moved in to take hold of you. You kicked him several times in the left knee and stomach and you continued to thrash about.

43. After several attempts, you were handcuffed, placed in a caged police vehicle, and taken to Campbelltown Police Station.

44. It is this conduct involving Senior Constables Cook, Martin and McKenzie which is sequence 10 (resist officer in the execution of duty). This involves a contravention of s58 of the Crimes Act. The maximum penalty for that offence in the Local Court is imprisonment for 2 years and/or 50 penalty units.

45. When you were taken back to the Campbelltown Police Station, you were searched and two satchels containing powder were found in your jacket. You told the police those packets contained cocaine. However, subsequent expert analysis revealed that they each contained heroin, totalling 0.94 grams. The purity of that heroin has not been revealed to the Court.

46. Whilst at the police station, you were unable to speak coherently. When you did speak, you spoke quickly. You had bloodshot eyes with small pupils and you were sweating profusely.

47. You were therefore taken to Campbelltown Hospital where a blood sample was taken from you. Subsequent analysis of that sample revealed the presence of amphetamine, methylamphetamine and morphine.

48. When you returned to the police station after receiving medical treatment at the hospital, and as you were walking towards the police custody room, a small package fell from your underwear. This was subsequently examined and was found to contain 2.22 grams of buprenorphine. 

49. It is the possession of that heroin which constitutes sequence 13 (possess prohibited drug) and the possession of the buprenorphine which constitutes sequence 15 (also possess prohibited drug). Each of these sequences constitutes an offence under s10(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence in the Local Court is imprisonment for 2 years and/or 20 penalty units.

50. It is necessary for the Court to make a finding of the objective seriousness of the various sequences for offences of their kind. The Crown assisted the Court by making specific submissions on this topic. Your counsel was invited to do so but declined.

51. Sequences 1 and 17 are well above the mid-range and towards the high end of the range. Sequences 5, 6, 10, 14, 18 and 19 are mid-range offences. Sequences 13, 15 and 20 are towards, but not at, the bottom of the range.

52. Each sequence is additionally aggravated because, at the time you committed that relevant offence, you were subject to both a Community Corrections Order imposed by the Liverpool Local Court on 29 July 2020 and on parole in respect of a sentence imposed by this Court on 7 April 2020. It should not be necessary for me to say this, but apparently it is. The use of the word “additionally” indicates that those considerations were not taken into account in assessing the objective seriousness of any sequence.  

53. At the of time these various offences, you were 26 years and 6 months of age. When you appeared at the sentence hearing in this Court on 23 November 2021, you were 27 years and 7 months of age.

54. Your subjective circumstances have mainly come before the Court through the report of Dr Pusey, dated 20 November 2021. You gave sworn evidence as to the accuracy of the history given to Dr Pusey. You were not challenged in cross-examination as to the accuracy of that history, although there are some aspects of your evidence with which the Crown does take specific issue, for example, whether you are, in fact, genuinely remorseful for your offending.

55. I am satisfied, on the balance of probabilities, however, that your childhood and early life was a profoundly dysfunctional one flowing mainly from the significant domestic violence which was present in your house; and by the fact that your mother effectively abandoned you, your father and siblings when you were young and very impressionable. I am satisfied that that was a dysfunctional upbringing within the meaning of Bugmy, and that, accordingly, your moral culpability is to be reduced in the manner directed by the High Court.

56. You commenced using illegal drugs at the age of 13 (cannabis) and, before you were 20, you had also abused Xanax, ice, and heroin. Your drug abuse continued to the date of the offences for which you are to be sentenced today. You have, however, not used illegal drugs in the time you have been in custody following your arrest for those offences.

57. In addition to, and relatedly, you have not only a substance use disorder, but also major depressive disorder, Post-Traumatic Stress Disorder, and an adjustment disorder with mixed anxiety and depressed mood. Because of these disorders and your dysfunctional upbringing, general deterrence is of reduced significance – but it still has relevance.

58. Unsurprisingly, with this unfortunate background, you have an extensive criminal history which has included periods of imprisonment.

59. You are, accordingly, not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. However, I do not consider your criminal history to be an additional aggravating factor. It does, however, mean that specific deterrence is fully engaged, as is the need to protect the community. And it will need to be taken into account in assessing your prospects of rehabilitation.

60. You left school after Year 9, but you then completed Year 10 and obtained the School Certificate through TAFE.

61. Although you have some very useful work skills (bricklaying and forklift licences and the first stage of a concreting licence), your recent work history has been sporadic at best.

62. You have had a son with a now ex-partner. That young child is presently in the care of your sister and supervised by Family and Community Services. Your desire to re-engage with your son is a positive factor in your prospects for rehabilitation – and provides a powerful incentive for you to finally make meaningful efforts to address your drug and mental health issues.

63. You have expressed (both to Dr Pusey and in your sworn oral evidence) a desire to address both your long-term drug issues and mental health issues. The Crown has pointed to the occasions when you have previously said the same thing in other sentencing proceedings. But the Court is aware that the road to successful recovery from such problems is rarely smooth and frequently has setbacks before, in many cases, ultimate success.

64. Whilst I am satisfied, on the balance of probabilities, that you are currently motivated to address both your drug and mental health issues, your response to supervision in the past has not been good. I do note, however, that, in your current period of incarceration, you have successfully completed the Positive Lifestyles Program and that, but for the COVID pandemic, you would have undertaken the EQUIPS Program.

65. Whilst you have spoken at length to Dr Pusey about your wish “to change”, I am not persuaded, on the balance of probabilities, that you do have genuine insight and remorse for the offending for which you are to be sentenced today – as opposed to feeling sorry for the position in which you now find yourself.

32. Ultimately, I have concluded that your prospects for rehabilitation are guarded – but not pessimistically so. I am not persuaded, however, that they would be enhanced by a longer period on parole.

33. In relation to sequences 5, 6, and 15, pursuant to s10A of the Crimes Sentencing and Procedure Act, you are convicted but the Court disposes of those matters without imposing any other penalty.

34. However, for sequences 1, 10, 13, 14, 17, 18, 19 and 20 no sentence other than a period of full-time imprisonment is appropriate.

35. In relation to those periods of imprisonment, I am going to impose an aggregate sentence. You pleaded guilty in relation to all of these matters at an early opportunity and, therefore, you will receive a 25 per cent discount for the indicative sentences which underpin the ultimate aggregate sentence.

36. The indicative sentences are as follows.

37. For Sequence 1, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 2 years 3 months; after the discount, the indicative sentence is 1 year 8 months.

38. For Sequences 10, 13, 14 and 20, in each case, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 months; after the discount, the indicative sentence is in each case imprisonment for 3 months.

39. For Sequence 17, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 16 months; after the discount, the indicative sentence is imprisonment for 1 year.

40. For Sequences 18 and 19, in each case, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 8 months; after the discount, the indicative sentence is imprisonment for 6 months.

41. Mohammad Hammoud, in respect of sequences 1, 10, 13, 14, 17, 18, 19, and 20, you are sentenced to an aggregate term of imprisonment for 3 years.

42. The question is, what is going to be the start date for that sentence?

43. You have been in custody continuously since your arrest since 1 December 2020. However, not all of that period is solely referrable to the present matters: first, you served a balance of parole from 1 December 2020 to 11 March 2021; and secondly, fixed terms of imprisonment imposed by the Local Court on 2 March 2021 for the period 2 December 2020 to 1 June 2021.

44. But for one consideration, the start date of the sentence would have been 12 March 2021. But because of COVID-19 pandemic and the harsher conditions it has resulted in for offenders, the start date will be the date of your arrest, 1 December 2020.

45. I make a (slight) finding of special circumstances to take into account the more onerous conditions in which you have served the period of custody to date - also because of the future possible implications of the COVID pandemic.

46. I fix a non-parole period of 2 years imprisonment to date from 1 December 2020 and which will expire on 30 November 2022.

47. I fix a balance of 1 year to date from 1 December 2022 and which will expire on 30 November 2023.

48. Furthermore, in relation to sequence 1, you are disqualified from driving for a period of 3 years and in relation to sequence 14, you are disqualified from drive for a period of 6 months – each disqualification period is date from 1 December 2022.

49. I order that Exhibit 1 go with the sentence warrant.

Decision last updated: 15 February 2022