DECISION: 1. Appeal allowed; 2. Re-sentenced on each charge.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
MASON P SIMPSON J DOWD J
15 December 2000
N60171/00
R v Nedhal HAMMOUD JUDGMENT
MASON P: I have had the benefit of reading the judgment of Dowd J with which Simpson J agrees, subject to two general qualifications.
I agree with the qualifications enunciated by Simpson J.
Subject to what follows, I otherwise agree with the orders proposed by Dowd J and with his reasons.
I have a real sense of unease with the totality of the sentences. The drug conspiracy charges were very serious, involving criminality of a high order relating to a large commercial quantity of heroin and a commercial quantity of cocaine, conducted by a person entitled to no discount for youthfulness and at a time when he was on bail pending finalisation of murder and wounding accessory charges. The sentences imposed by Judge Woods QC for those drug conspiracy offences were very light and did not, in my view, merit even partial accumulation with the earlier sentences. Had it not been for the so-called double jeopardy principle attending Crown appeals, I would have imposed higher sentences for the drug offences, with the consequence of a more appropriate total sentence than that achieved by the adjustments proposed by Dowd J’s orders.
I agree with the orders proposed by Dowd J.
SIMPSON J: I have read in draft the judgment of Dowd J, and, subject to the two matters to which I am about to refer, I am in general agreement with his Honour’s approach. The two matters on which I wish to comment concern questions of concurrence or accumulation, and the discount on sentence afforded to the respondent by reason of his assistance to the authorities on the principles stated in R v Cartwright(1989) 17 NSWLR 243.
Concurrence or Accumulation
I wish to make it plain at the outset that I agree with the approach taken by Dowd J in the restructured sentences he proposes. My difficulty lies in the proposition expressed by his Honour in paragraph 69 of the draft. I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether…
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.
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Details
AGLC
R v Hammoud [2000] NSWCCA 540
Case
[2000] NSWCCA 540
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed by the Supreme Court of New South Wales on the respondent, who had been found guilty of multiple drug-related and firearms offences. The respondent was part of a group involved in the supply of heroin and was also charged with accessory after the fact to the murder of Nicholas Lambos, and the wounding of Kris Toumazis and Lambos during an altercation outside a nightclub in Paddington. The appeal centred on the inadequacy of the sentence imposed by the Supreme Court, and whether the sentences imposed for the multiple offences were appropriately cumulative or should have been concurrent.
The legal issues before the court involved the principles of sentencing for multiple offences, the transparency and totality of the sentence, and whether the sentence was inadequate in light of the severity of the crimes. Specifically, the court had to determine whether the sentences for the various offences should have been cumulative, reflecting the seriousness and number of the offences, or concurrent, taking into account the overlap in the periods of offending and the overall culpability of the respondent.
The court found that the sentence imposed by the Supreme Court was inadequate and failed to appropriately reflect the totality of the respondent's offending. It was determined that the sentences for the accessory after the fact to murder and the wounding charges should have been cumulative, as these offences occurred in a single transaction and involved multiple victims. The court also found that the conspiracy and unlicensed firearm offences warranted a cumulative sentence, given their separate and distinct nature from the accessory and wounding offences. The court emphasised the importance of transparency and totality in sentencing, ensuring that the sentence reflects the overall culpability of the offender and the seriousness of the crimes committed.
The appeal was allowed, and the case was remitted to the Supreme Court for re-sentencing. The court directed that the sentences for the various offences be reconsidered with a focus on achieving an appropriate cumulative effect that reflects the totality of the respondent’s offending.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The respondent was arrested on the drug offences on 19 August 1999. Bail was refused and he has remained in continuous custody since that date.Facts Concerning the Accessory Offences A group of five males, including a Kris Toumazis and a Nicholas Lambos were drinking at a night club in Paddington at about 3am on 30 May 1998. An altercation arose between these men and the respondent over comments made to a female in the respondent’s company. The altercation continued outside the night club, where the respondent was joined by Bassam Hamzy and Kader Chakaik. As the five men left in a motor vehicle, Chakaik kicked the vehicle a number of times. The driver of the vehicle, together with Toumazis and Lambos, left the car and chased Chakaik, Hamzy and the respondent in an area near Oxford and West Street, Paddington. Hamzy produced a pistol and discharged seven shots, wounding Toumazis in the chest, causing him to fall to the ground. He was shot again in the hip by Hamzy. Toumazis later died in hospital. Lambos received a wound in the chest and shoulder region. He was later found by police and taken to hospital. Chakaik, Hamzy and the respondent ran along West Street, and were called upon to stop by police, one of whom fired at the three men, after the police contend that Hamzy raised his pistol in the direction of the police. The respondent escaped by taxi and met Hamzy and Chakaik in Parramatta. At Hamzy’s suggestion, they proceeded to the Liberty Plains Motor Inn at Lidcombe, where they discussed what had happened. At the motel, Hamzy told the respondent that all of them “were in it together”, and that they had to get out of it together, and that everything that had happened was because of the respondent. Both at Parramatta and at the motel, Hamzy had a gun, the gun being tucked into his trouser belt. Hamzy told the respondent that he had used the gun. The two men agreed to go to Melbourne, Hamzy telling the respondent that he was going overseas; that he blamed the respondent for what had happened, and that the respondent was to see things through or “we’ll end it right now”. The respondent understood Hamzy to be threatening him, and as a result, the respondent decided to go along with him. The two men obtained their passports and flew from Melbourne to Lebanon, Chakaik having flown to Lebanon on 31 May 1998. In Lebanon, there was a falling out between the respondent and Hamzy, and the respondent was threatened by Hamzy. The respondent travelled to Romania for a few weeks. The respondent’s brother later visited Lebanon and persuaded the respondent to return with him, which happened on 29 September 1998, resulting in the respondent contacting a solicitor and then the police. The respondent was granted bail, but whilst on bail, committed the conspiracy and unlicensed firearm offences.Conspiracy to Supply a Large Commercial Quantity of Heroin Lengthy investigations were carried out by the police internal affairs unit in relation to the supply of prohibited drugs by a serving police officer, Yaghi, and his associates from May 1999. The respondent, through various telephone intercept devices, was identified as one of those associates.