R v Hamzy - [2016] NSWSC 1512

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hamzy [2016] NSWSC 1512
Hearing dates: 17 August 2016; 28 October 2016
Decision date: 28 October 2016
Before: R A Hulme J
Decision:
Imprisonment for 11 years 6 months with a non-parole period of 8 years 6 months

Catchwords: CRIMINAL LAW – sentence – manslaughter by excessive self-defence – wound with intent to cause grievous bodily harm – where the offender believed he needed to shoot in self-defence because the victim of the wounding offence was armed with a firearm – where the offender’s reaction was excessive – manslaughter of considerable objective seriousness and wounding offence of moderate seriousness – subjective circumstances do not warrant mitigation – significant criminal record – offences committed while on a bond – denunciation; general and personal deterrence particularly important – delay in proceedings taken into account – discount afforded for offers to plead guilty which were rejected by the DPP – finding of special circumstances confined to the need for accumulation of sentence
Legislation Cited: Crimes Act 1900 (NSW) ss 18, 24, 33(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
Cases Cited: R v Hamzy (No 2) [2016] NSWSC 1514
R v Johnson [2003] NSWCCA 129
Category: Sentence
Parties: Regina
Mohammed Hamzy
Representation:
Counsel:
Ms M Cunneen SC (Crown)
Mr M Johnston SC with Ms G Lewer (Offender)
Solicitors:
Solicitor for Public Prosecutions
Galbally Rolfe

File Number(s): 2013/336106

Judgment

HIS HONOUR: Mohammed Hamzy ("the offender") was arraigned on 21 June 2016 and pleaded not guilty to the following counts in the indictment:

1.   Wound Alex Ali with intent to cause grievous bodily harm on 8 October 2012 at Yagoona.
2.   Murder Yeyha Amood on 14 October 2012 at Greenacre.
3.   Wound "Mr C" with intent to murder "Mr C" on 14 October 2012 at Greenacre.
4.   In the alternative to Count 3, wound "Mr C" with intent to cause grievous bodily harm on 14 October 2012 at Greenacre.

On 8 July 2016 the jury returned verdicts by which they acquitted the offender in respect of Count 1. He was found not guilty of murder but guilty of manslaughter (by excessive self-defence) in respect of Count 2. He was acquitted of Count 3 but found guilty of Count 4.
The crime of manslaughter (ss 18 and 24 of the Crimes Act 1900 (NSW)) is one that carries a maximum penalty of imprisonment for 25 years. That is also the maximum penalty for wounding with intent to cause grievous bodily harm (s 33(1)(a) Crimes Act), which also has a standard non-parole period of 7 years. These are the statutory guideposts that I must bear in mind when assessing the appropriate sentences to be imposed in the light of all of the relevant facts and circumstances.
This judgment on its own has no value as a comparator. It should be read along with R v Hamzy (No 2) [2016] NSWSC 1514.

Facts

The offender and a man who I will refer to…

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 Hamzy

Details

AGLC: R v Hamzy [2016] NSWSC 1512
Case: [2016] NSWSC 1512
Decision Date: 28 October 2016

CaseChat Overview and Summary

The matter of R v Hamzy involved the respondent, Hamzy, who was charged with the manslaughter of his partner and a wounding offence involving another man, both of which occurred during a dispute. The case was heard in the Court of Appeal, where Hamzy appealed against his sentence. The primary legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive, and if the special circumstances justifying a departure from the non-parole period were correctly identified.

The court examined the nature and seriousness of the offences, considering the respondent's belief that he needed to act in self-defence due to the presence of a firearm. While acknowledging the respondent's belief, the court held that his reaction was excessive and constituted manslaughter of considerable objective seriousness, with the wounding offence being of moderate seriousness. The court also noted that the respondent's subjective circumstances did not warrant mitigation, and his significant criminal history, including offences committed while on a bond, was a relevant factor. The court emphasised the importance of denunciation and deterrence, particularly given the delay in the proceedings. Although the delay was accounted for in the sentencing, the offers to plead guilty were rejected by the Director of Public Prosecutions, which led to a discount in the sentence. The court concluded that the special circumstances justifying the accumulation of sentence were correctly identified and that the trial judge's sentence was not manifestly excessive.

In conclusion, the appeal was dismissed, and the sentence imposed by the trial judge was upheld. The court recognised the importance of denunciation and deterrence in this case, while also taking into account the delay in proceedings and the rejected offers to plead guilty. The special circumstances justifying the accumulation of sentence were confined to the need for accumulation, and no other special circumstances were identified.

Orders