R v Hamze

[2005] NSWSC 136

CITATION:	Regina v Hamze [2005] NSWSC 136
HEARING DATE(S):	17/02/2005
JUDGMENT DATE :	3 March 2005
JUDGMENT OF:	Howie J at 1
DECISION:	See paras 34 and 35.

CATCHWORDS:	Criminal Law - Sentencing for Hinder investigation and Possess prohibited firearm
LEGISLATION CITED:	Crimes Act 1900 - s 315 Firearms Act 1996 - s 7 Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act - 1999 - s 24
CASES CITED:	R v Cromarty (2004) 144 A Crim R 515 R v Nias (NSWCCA, unreported 16 November 1988) R v Webster and Jones (NSWCCA, unreported, 3 August 1992)
PARTIES:	Regina v Radwan Hamze
FILE NUMBER(S):	SC 2004/2350
COUNSEL:	W. Dawe QC - Crown R. Button - Offender
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Offender

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

THURSDAY 3 MARCH 2005

2004/2350 REGINA v RADWAN HAMZE

REMARKS ON SENTENCE

1 His Honour: The offender, Radwan Hamze, was committed for trial to this Court on a charge of hindering the discovery of evidence concerning a serious indictable offence. This is an offence contrary to s 315 of the Crimes Act for which a maximum penalty of imprisonment for 7 years is prescribed. On 1 October 2004 he was arraigned before Barr J on an indictment containing two counts, the first being for the committal offence and the second being for an offence of being in possession of a prohibited firearm. The second offence was one contrary to s 7 of the Firearms Act for which the maximum penalty where the offence is dealt with on indictment is imprisonment for 14 years. The offender pleaded guilty to both offences.

2 It is necessary to say something shortly about the history of the matter. The offender was originally charged by police with affray arising from an incident on 10 June 2002 during which shots were fired killing one man and wounding another. Later he was charged with murder and being an accessory after the fact arising from an incident on 10 June 2002 during which shots were fired killing one man and wounding another arising from the same incident. At the conclusion of committal proceedings the magistrate discharged the offender on these charges but committed him for trial on the offence of hindering police. That committal charge arose from a concession made by Mr Button to both the prosecutor and the Magistrate that the offender was guilty of that offence but not guilty of the offences for which he had originally been charged. In fact an offer was made to the effect that the offender would plead guilty before the Magistrate to the hinder charge, if the other charges were withdrawn. However, the prosecutor refused the offer. Shortly after the offender was committed for trial on the hinder charge he indicated his willingness to plead guilty to that offence and he did so on his first arraignment in this Court.

3 There is also before me a Form 1 document in accordance with the provisions of the Criminal Procedure Act that contains three offences under the Firearms Act. I am asked to take those matters into account in sentencing for the second count on the indictment.

4 I have been asked to sentence the offender on the basis of an agreed statement of facts. Little other evidentiary material was placed before me but the agreed facts are sufficient to determine the appropriate sentence that the offender should serve for both offences to which he has pleaded guilty. It is unnecessary to set out the facts in full and they can be sufficiently summarised as follows. On 9 June 2002 a disagreement arose between a bouncer employed at a nightclub and some patrons. As a result one of the patrons was punched to the face by the bouncer and suffered a broken jaw. The bouncer happened to be the brother-in-law of the offender.

5 As a consequence of this incident a degree of bad feeling arose between certain members of the Lebanese community in the Greenacre area. In particular it resulted in considerable friction between persons who worked at two businesses operating in the area: one “Automobile Wreckers” was owned by the offender’s sister and the other “Just Vans” was owned by the person who was struck by the bouncer.

6 The escalating friction between these two groups came to a head in the afternoon of 11 June 2002 when there was a public confrontation between persons who had affiliations with one or other of the two groups. This involved persons yelling abuse and trading insults. There were also minor scuffles between the participants. The offender was present at the scene of this confrontation because of his allegiance to the employees of Automobile Wreckers.

7 At some stage in this hostile environment shots were fired wounding two men, one fatally. The offender was present at the time of the shooting. The deceased was considered to be the head of the family that was associated with the Just Vans business. After the shooting a number of unidentified persons present attacked the deceased while he lay mortally wounded on the ground.

8 Some of the participants, including the offender fled from the scene. As he did so, the offender bent down, picked up a pistol from the ground and placed it down the front of his trousers. He then entered the driver’s seat of a motor vehicle and drove away from the area.

9 Police later attended the scene of the incident and recovered 5 spent .38 cartridges and four unspent .44 cartridges. One of the .44 cartridges bore a firing pin strike mark. No firearms were located.

10 At 5 pm that evening police executed a search warrant on the premises where the applicant was residing. They located three firearms: a .22 self-loading rifle with an attached magazine containing a number of rounds; a 44.4 calibre lever action rifle without ammunition; and a 12 gauge pump-action shotgun without ammunition. Several boxes of .22 ammunition were found in a bag on top of a cupboard. Two of the rifles were discovered in unlocked cupboards and one was located leaning up against a buffet in the spare bedroom. The pump action rifle is the subject of the second count in the indictment. The other two weapons and the ammunition give rise to two of the three matters on the form 1. The third offence on that document refers to the pistol that is the subject of the hinder police charge.

11 The offender was arrested following the search and declined to make a statement to police. He was charged with affray and refused bail. He remained in custody until 2 July 2002 when he was released to bail.

12 On 16 December 2002, about six months after the shooting incident, the offender recovered the .44 pistol from where he had placed it shortly after he had taken it into his possession. The weapon was conveyed to the police through the agency of the offender’s solicitor. Shortly thereafter the offender participated in an interview with police in which he admitted taking the weapon from the scene. He said that he found it in an open condition and empty of any rounds. He admitted disposing of the weapon in bushland.

13 A ballistics examination of the weapon and the .44 rounds located at the scene of the shooting revealed that the weapon had been used to make the pin strike mark located on one of the unfired rounds. There is no evidence that the weapon was used to fire any rounds during the incident in Greenacre. It was not the weapon used to shoot the deceased.

14 The police investigation of the shooting incident was hampered by the reluctance of witnesses to assist. Clearly the weapon located by the offender and removed from the scene was an important piece of evidence in determining what had happened and might have provided evidence as to the identity of the person who took it to the scene. Its removal hindered the police investigation and it was taken with that purpose in mind.

15 In relation to the weapons found in his premises the offender told police in January 2003 that the firearms belonged to a friend who had gone overseas. The offender said he was given the weapons because he liked to go hunting.

16 The offender is aged 28 years with no prior criminal record. The relevant background material is contained in a pre-sentence report. He was born in Lebanon where his parents were farmers. He is the eldest of three sons in a family of eight children. He came to Australia in 1997 leaving his mother and some of his family in Lebanon. He has two siblings in Australia. He has been married twice and he has two children from his present marriage. They are aged three years and 15 months. The offender and his family live in a rented flat and he works as a mechanic in a garage. There are two letters before the court testifying to his general good character and his value as an employee in his present position.

17 Mr Button conceded that the offences before the Court are sufficiently serious to warrant a custodial sentence notwithstanding the offender’s prior good character. The submission was, however, that the Court could deal appropriately with the offender by ordering that any sentence be served by way of periodic detention. The Crown argued that the appropriate sentence was one of full-time custody. After hearing submissions I adjourned the matter and continued the offender’s bail but made it clear to him that he would be sentenced to a term of imprisonment and the only question was what that term should be and whether, if it were less than three years, I could make the order sought by his counsel.

18 Although the pleas of guilty were not made until arraignment in this Court, they should be treated as having been made at the first reasonable opportunity. I do not believe that the Crown submitted otherwise. It was not realistic for the offender to plead guilty to the hinder police offence before his counsel made the offer during committal proceedings. The offer was not accepted but yet the offender was discharged from the more serious offences he faced. He was never really given the opportunity to plead guilty to the hinder charge before the magistrate but a plea to that offence was organised as soon as reasonably possible thereafter. The firearms offences were clearly always going to await the determination of the murder charge. The discount should be 25 per cent for both offences.

19 Mr Button submitted that I should take into account that both offences for which the offender is to be sentenced could have been disposed of in the Local Court. Technically that is so, but I do not believe that it would have been appropriate for the hinder police matter to be dealt with summarily. In my view the objective seriousness is too great. The Crown Prosecutor confirmed that the Crown would never have agreed to it being dealt with by a magistrate.

20 I am willing to assume that the firearm’s offences standing alone may have been appropriately dealt with in the Local Court although I am not altogether convinced that this is so. They were serious offences because of the nature of the weapons, because there was ammunition found in the offender’s possession that fitted one of the weapons and because they were found in unsecured places in a suburban dwelling. It is not a matter of mitigation that there is no evidence that the offender was going to use them for any unlawful purpose. The policy behind firearms offences is to control the use of weapons in the community generally and not simply to disarm the criminally minded. The Court of Criminal Appeal has emphasised the seriousness with which these types of offences must be treated: R v Cromarty (2004) 144 A Crim R 515.

21 However, there is little doubt that the first offence on the indictment is the more serious notwithstanding that the matters on the Form 1 are to be taken into account on the second offence on the indictment. The offender is to be sentenced on the basis that he knew he was removing evidence from the place where a serious criminal offence had taken place and he did so intending to make it more difficult for police to investigate the shooting and apprehend the person or persons responsible. He knew that a shooting had occurred, that persons had been injured and that he was removing a firearm. I do not sentence him on the basis that he knew or believed that the weapon had been discharged. But clearly he knew that the weapon was evidence capable of identifying some person as being present with a firearm and this is why he took the weapon.

22 The Pre-sentence report contains an account of the offender’s involvement in the incident and the taking of the weapon. I am not prepared to accept that account in the absence of evidence from the offender. In particular, I am not prepared to find as a fact that the offender was present at the place where the shooting occurred because he intended to intervene in an attempt to stop the confrontation becoming violent. Nor do I accept the account that he picked up the weapon because he panicked.

23 The following statement is found in that part of the report headed “Summary and Sentencing options”.

His confusion and anxiety at the scene of the crime appear to [have] over-ruled his commonsense but in the final analysis, his action may have preserved for the police evidence which otherwise could have been destroyed .

With respect I do not believe that there is the slightest basis for the comment that I have underlined and it is no function of an officer of the Probation and Parole Service to make such a gratuitous remark calculated to reflect upon the assessment of the criminality of the offender.

24 I accept that the offence was not planned in that it was not his assigned role to hinder police by disposing of evidence and that the offence was unpremeditated. But notwithstanding those findings, the offence was still a serious one of its kind when measured against the type of conduct that falls within the scope of the offence. I note, however, that so far as the maximum penalty for the offence reflects Parliament’s assessment of the seriousness of the conduct giving rise to the offence, a maximum penalty of seven years is a relatively modest one.

25 Mr Button asked me to take into account that the offender has served a period in custody arising from his involvement in the incident on the 11 June 2002. Although he was not in custody in respect of the offence for which he was being sentenced, that is a matter of chance. Had he been charged with the offence initially he would have been remanded in custody on all charges and I would have been required to take that period into account: s 24 of the Crimes (Sentencing Procedure) Act. It was because the police suspected him of a more serious involvement in the incident that he was in custody at all. I accept that as a matter of general principle a court cannot take into account a period in custody unrelated to the offence for which sentence is being passed: R v Nias (NSWCCA, unreported, 16 November 1988) and R v Webster and Jones (NSWCCA, unreported, 3 August 1992). But that general principle cannot apply to the present situation where the period in custody is referable to an allegation of criminal conduct arising from the very same incident that gives rise to the offence for which the offender is being sentenced.

26 I am also asked to take into account the anxiety and uncertainty that would have been felt by the offender over the period during which the offender was facing a murder charge arising from the incident on 11 July. I accept that I should take into account that there has been an extended period of uncertainty leading up to the pronouncement of sentence arising from the fact that the offender was charged with offences more serious than those for which he finally pleaded guilty. However, I have considerable difficulty with the submission that I should give extra weight to this matter because the uncertainty for most of that period related to the fact that he was facing a charge of murder rather than some less serious offence.

27 With respect, this submission seems to me to call for too much exactitude in undertaking the synthesis that results in the formulation of an appropriate sentence. It seems to require that the process be akin to determining the amount of damages to be awarded in a personal injury claim. I do not believe that a sentencing court can realistically undertake, or should attempt to undertake, such a fine calculation, as an acceptance of this submission would require. But I do take into account the fact that the applicant’s life and that of his family has necessarily been disrupted by the anxiety attending the resolution of the charges arising from his criminal conduct on 11 June 2002 and that this period may have been shortened considerably had the accused been charged and dealt with shortly after December 2002 when he produced the weapon and admitted his criminal conduct in removing it from the scene.

28 There does not appear to me to be any of the aggravating factors listed in s 21A(2) present. I have already indicated a number of mitigating factors listed in s 21A(3) and I add that he also can have taken into account that he appears remorseful, he is unlikely to re-offend, subject to his ability to avoid similar internecine strife in the future. He also appears to be rehabilitated. The probation officer was of the opinion that there were no issues that could be addressed by the Service.

29 I have been handed statistical information as to the sentences imposed for the offences for which the offender is before the Court. These statistics relate both to sentences imposed in the District and Supreme Court and those imposed in the Local Court. I have already indicated that I do not believe that the hinder charge was one appropriate for disposal in the Local Court. The statistics for that offence are not such that one could draw any range that might be helpful in deciding the sentence to impose upon the offender when regard is had to the statistics of the higher courts. The statistics for the firearms offences indicate that only half the persons dealt with for such an offence received a gaol sentence and of those who did the majority received sentences between 12 months and three years. Of 711 cases dealt with in the Local Court only 49 received gaol sentences and of them the overwhelming majority received sentence between 6 months and 12months. I am prepared to act on the basis that the offender would have been sentenced for the firearms offences in the Local Court had there been no other offences charged against him.

30 I am of the opinion that no sentence other than a term of imprisonment is appropriate for the purposes of punishing either offence.

31 The appropriate sentence for the firearms offence and taking into account the matters on the form one after discount for the plea of guilty and taking into account the period spent in custody is imprisonment for 6 months. The appropriate sentence for the hinder police offence after discount is 27 months. The sentences should be cumulative. This gives a total sentence of 2 years 9 months to be served.

32 There are no special circumstances despite the fact that the offender has no prior convictions and is still a relatively young man. There is no present need for supervision and I doubt that he will require supervision when released from custody. There is nothing that I can see in the material that warrants me decreasing the otherwise appropriate non-parole period or increasing the period on parole from that which would result in an application of the usual proportion between the head sentence and non-parole period. He is in effect rehabilitated and if the period he spent in custody and the anxiety and stress related to his involvement in the criminal justice system has not deterred him from future criminal conduct arising from family loyalties then nothing will. However I do take into account that the two sentences are to be served cumulatively and I have adjusted the non-parole period in order to reflect that fact.

33 The question then arises whether I should order that the sentence be served by way of periodic detention. I accept that he is contrite and remorseful for what he did. I also accept that the offence was a spur of the moment one and he was moved by loyalty to the group with whom he had family ties. There has been a lengthy period between the commission of the offence and sentencing through no fault of the offender and during which he has served a short period in custody and then resumed his life without further incident. A child has been born to the marriage during that period. He did eventually retrieve the weapon and to the degree that he was able attempted to undo the harm he did by taking the weapon from the scene. General deterrence is a very significant matter in sentencing the offender but the fact that a person of no prior convictions and of otherwise good standing in the community is to serve a sentence of imprisonment is sufficient in the circumstances of this case to reflect that matter without requiring that the offender be returned to full-time custody. I do not believe that as serious as the offence is, that it is such that I cannot avoid a full-time custodial sentence.

34 In respect of the second offence in the indictment and taking into account the matters on the form 1 you are sentenced to a fixed term of imprisonment for 6 months. I order that the sentence be served by way of periodic detention. The sentence is to commence on Friday 11 March 2005 and to expire on 10 September 2005.

35 In respect of the first offence on the indictment you are sentenced to imprisonment for 2 years and 3 months that sentence is to commence on 11 September 2005. There is to be a non-parole period of 18 months from 11 September 2005 and to expire on 10 March 2007 the date upon which you are eligible to be released to parole. I order that the sentence be served by way of periodic detention.

36 The firearm in the possession of the police is to be destroyed.

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