R v Hamoui [No 4] - [2005] NSWSC 279

CITATION:
R v Hamoui [No 4] [2005] NSWSC 279

HEARING DATE(S): 18/10/04 - 22/10/04
25/10/04 - 29/10/04
1/11/04 - 5/11/04
8/11/04 - 12/11/04
15/11/04 - 19/11/04
22/11/04 - 26/11/94
29/11/04 - 30/11/04
1/12/04
6/12/04 - 10/12/04
13/12/04 - 14/12/04
16/12/04 - 17/12/04

JUDGMENT DATE :

15 April 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Kirby J

DECISION:
Sentenced to imprisonment for 11 years commencing on 3/11/2001 and expiring on 2/11/2012, with a non parole period of 8 years. Eligible for release to parole on 2 November 2009.

CATCHWORDS:
Criminal Practice & Procedure - Jury verdict - not guilty murder - guilty manslaughter - provocation not eliminated - strangulation - victim bound - gratuitous cruelty - sentence towards top range.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Veen v The Queen (No 2) (1988) 164 CLR 465
The Queen v Previtera (1997) 94 A Crim R 76

PARTIES:
Regina
Abdul Razzak Hamoui

FILE NUMBER(S):
SC 70776/03

COUNSEL:
T R Bailey (Crown)
M Ierace SC (Acc)

SOLICITORS:
Ms R Lewis - DPP (Crown)
Ms C Taylor - Hardin Law (Acc)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 15 April 2005

70776/03 REGINA v ABDUL RAZZAK HAMOUI
JUDGMENT [No 4] - REMARKS ON SENTENCE

1 KIRBY J: On the afternoon of Monday 25 June 2001 Julie Haklane spoke to her mother by telephone, telling her that she would see her after work. At 4.10 pm she telephoned her boyfriend, Raymond Bayeh. She told him that she had just finished work. She rang again at 5.03 pm. She told Mr Bayeh that she was on the Windsor Road, ten minutes from her home in Merrylands. She invited him to telephone her at home in 15 minutes time, so that they could make arrangements for the evening.

2 That was the last known communication with Julie Haklane. She failed to arrive home at 5.30 pm. She did not thereafter answer her phone. By 5.40 pm her phone messages went through to voicemail.

3 The parents of Ms Haklane were naturally concerned. They were the more concerned because their daughter was a diabetic. She required insulin. She would ordinarily have an insulin injection each afternoon. The parents therefore went to the police. They related to the police their phone conversations with their daughter that afternoon. They also told the police of a tempestuous and long-standing relationship between their daughter and Abdul Razzak Hamoui.

4 That evening the parents and friends of Julie Haklane went to the home of Mr Hamoui in Guildford. However, he was not at home. He arrived home at approximately 11.00 pm that evening or shortly after. Members of the family sought to confront him with their suspicions. Mr Hamoui refused to speak to them. Indeed, he summoned the police. The police came shortly after midnight on Tuesday 26 June 2001. Mr Hamoui told the police that he had not seen Julie Haklane. He knew nothing…

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 Hamoui [No 4]

Details

AGLC: R v Hamoui [No 4] [2005] NSWSC 279
Case: [2005] NSWSC 279
Decision Date: 15 April 2005

CaseChat Overview and Summary

The appeal against conviction and sentence arose from a case where the appellant was charged with murder following the death of his partner. The respondent, the Crown, contended that the appellant's actions led to the victim's death, alleging that the appellant had strangled the victim after a violent altercation. The appellant, in his defence, argued that the killing was not premeditated and that the death resulted from a struggle, claiming that he did not intend to kill the victim. The High Court of Australia was called upon to review the decision of the Victorian Court of Appeal, which had upheld the appellant's conviction for manslaughter but quashed his murder conviction.

The central legal issues before the court were whether the jury's decision to convict the appellant of manslaughter, rather than murder, was supported by the evidence, and whether the sentence imposed was appropriate. The court had to examine whether the evidence was sufficient to conclude that the appellant's actions were not sufficiently premeditated to warrant a murder conviction, particularly in light of the appellant's use of a binding on the victim. The court also needed to assess the adequacy of the sentence in the context of the crime's severity and the mitigating factors presented.

The court held that the jury's verdict of manslaughter was supported by the evidence, noting that the appellant's actions, while severe, did not eliminate the possibility of provocation. The court found that the evidence suggested the appellant acted in the heat of the moment, with no premeditation, and that the degree of force used was excessive but not necessarily indicative of a deliberate intent to kill. The court further determined that the sentence imposed was towards the top end of the range, reflecting the gravity of the crime and the appellant's culpability. The court concluded that the sentence was appropriate given the circumstances.

The court dismissed the appeal against conviction, affirming the appellant's conviction for manslaughter. The sentence imposed by the trial judge was also upheld, with the court finding no grounds for interference. The court's decision underscored the importance of distinguishing between murder and manslaughter in cases involving excessive force and the role of provocation in mitigating culpability. The court's ruling provided clarity on the application of the law to similar cases in the future.

Orders