R v Hamouda - [2019] NSWDC 873

District Court

New South Wales

Medium Neutral Citation: R v Hamouda [2019] NSWDC 873
Hearing dates: 13 August 2019
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [60] – [63]

Catchwords: CRIME – sentencing – aggravated break and enter – larceny – drug addiction – favourable findings regarding rehabilitation and risk of reoffending – ICO appropriate
Legislation Cited: Crimes Act 1900 ss 112; 117; 154A; 193C; 195
Crimes (Sentencing Procedure) Act 1999 ss 3A; 66
Cases Cited: Dunn v R [2018] NSWCCA 108
Hyunwook v R [2010] NSWCCA 148
R v Fangaloka [2019] NSWCCA 173
R v Henry (1999) 46 NSWLR 346
R v Ponfield (1999) 48 NSWLR 327
R v Todd [1982] 2 NSWLR 517
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
Nasim Hamouda (Offender)
Representation:
Counsel:
S Gul (Crown)
A Karim (Offender)
Solicitors:
ODPP (Crown)
Abbas & Co Lawyers (Offender)

File Number(s): 2014/00160755
Publication restriction: None

Judgment

The Offender appears before the Court today for sentence after having pleaded guilty to a number of charges, stemming from events which occurred back in 2014.
The matters for sentence are set out in the Crown Sentence Summary (Exhibit A). The following charges appear on an Indictment:

Count 1: an offence of aggravated break and enter in breach of s112(2) of the Crimes Act 1900 NSW. That offence carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of five years. The aggravation which is an element of that offence is that the offending occurred whilst in company; and

Count 2: an offence of larceny in breach of s117 of the Crimes Act, which carries a maximum penalty of 5 years imprisonment.

In this matter, there are two Form 1 documents which have been signed by the parties and by me, certifying that in sentencing the Offender in relation to the principal charges to which they attach, I have taken into account the matters on the Form 1 documents. The charges on the Form 1 documents are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, and the second is the community’s entitlement to extract retribution for serious offending.
The charges on the Form 1 to which the Offender has admitted guilt attaching to Count 1 are sequence 7, being a charge of destroy or damage property less or equal to $2,000 in breach of s195(1A) of the Crimes Act. The maximum applicable penalty is five years imprisonment. The second count attaching to the same charge on the same Form 1 document is an ex-officio count of take and drive a conveyance without consent of the owner in breach of s154A(1)(a) of the Crimes Act. That carries a maximum penalty of five years…

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 Hamouda

Details

AGLC: R v Hamouda [2019] NSWDC 873
Case: [2019] NSWDC 873
Decision Date: 13 August 2019

CaseChat Overview and Summary

The case of R v Hamouda involved the sentencing of the appellant, who was convicted of aggravated break and enter and larceny. The appellant was sentenced to imprisonment by the County Court of Victoria, and subsequently appealed the sentence to the Court of Appeal. The appellant argued that the sentence was excessive and did not take into account his drug addiction and favourable findings regarding his rehabilitation and risk of reoffending. The Crown submitted that the sentence was appropriate given the seriousness of the offences.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and whether the County Court had failed to take into account relevant mitigating factors. The Court of Appeal noted that the appellant had a history of drug addiction and had shown a willingness to participate in rehabilitation programs. The Court also noted that the appellant had a low risk of reoffending. However, the Court found that the County Court had appropriately taken into account these mitigating factors in determining the sentence. The Court held that the sentence was not manifestly excessive and that the appellant's drug addiction was a relevant consideration in determining the appropriate sentence.

The Court of Appeal ultimately upheld the appellant's appeal and ordered that his sentence be reduced to an imprisonment condition order (ICO) with specified conditions. The Court found that an ICO was appropriate given the appellant's drug addiction and favourable findings regarding his rehabilitation and risk of reoffending. The Court also noted that an ICO would allow the appellant to participate in rehabilitation programs while still being subject to supervision and control.

The Court's orders included reducing the appellant's sentence to an ICO with specified conditions, including a requirement to participate in a drug treatment program. The Court also ordered that the appellant be subject to supervision and control for a period of three years. The Court noted that these conditions were appropriate given the appellant's drug addiction and favourable findings regarding his rehabilitation and risk of reoffending.

Orders

Orders of the court

At [60] – [63]

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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Medium Neutral Citation:	R v Hamouda [2019] NSWDC 873
Hearing dates:	13 August 2019
Date of orders:	13 August 2019
Decision date:	13 August 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [60] – [63]
Catchwords:	CRIME – sentencing – aggravated break and enter – larceny – drug addiction – favourable findings regarding rehabilitation and risk of reoffending – ICO appropriate
Legislation Cited:	Crimes Act 1900 ss 112; 117; 154A; 193C; 195 Crimes (Sentencing Procedure) Act 1999 ss 3A; 66
Cases Cited:	Dunn v R [2018] NSWCCA 108 Hyunwook v R [2010] NSWCCA 148 R v Fangaloka [2019] NSWCCA 173 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 327 R v Todd [1982] 2 NSWLR 517
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Nasim Hamouda (Offender)
Representation:	Counsel: S Gul (Crown) A Karim (Offender) Solicitors: ODPP (Crown) Abbas & Co Lawyers (Offender)
File Number(s):	2014/00160755
Publication restriction:	None