Regina v Bassam Hamzy - [2002] NSWSC 128

CITATION: Regina v Bassam HAMZY [2002] NSWSC 128

FILE NUMBER(S): SC 70054/00; 70022/01

HEARING DATE(S): 13/6/01, 14/6/01, 15/6/01, 18/6/01, 19/6/01, 20/6/01, 21/6/01, 22/6/01, 25/6/01, 26/6/01, 27/6/01, 28/6/01, 29/6/01, 2/7/01, 3/7/01, 4/7/01, 5/7/01, 6/7/01, 9/7/01, 10/7/01, 11/7/01, 12/7/01, 16/7/01, 17/7/01, 18/7/01, 19/7/01, 20/7/01, 23/7/01, 24/7/01, 21/9/01

JUDGMENT DATE: 15 March 2002

PARTIES :

Regina
Bassam HAMZY

JUDGMENT OF: Bell J at 1

COUNSEL : M. Barr (Crown)
P. Bodor QC (Accused)

SOLICITORS: S E O'Connor
John B Hajje & Assoc, Solicitors

CATCHWORDS: Sentence

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1912 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CASES CITED: R v Barton [2001] NSWCCA 63
R v Previtera (1997) 94 ACrimR 76

DECISION: See last paragraph of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70054/00 & 70022/01

BELL J

Friday 15 March 2002

REGINA v Bassam HAMZY

Judgment

: On 13 June 2001 the offender was arraigned on an indictment charging him with five counts, namely (i) the murder of Kris Toumazis; (ii) maliciously wounding Nicholas Lambos with intent thereby to do grievous bodily harm; (iii) maliciously discharge loaded arms with intent to do grievous bodily harm to Arthur Kazas; (iv) threaten to use an offensive weapon (a firearm) with intent to prevent or hinder lawful apprehension; (v) conspiracy to murder Khaled Hammoud. He pleaded not guilty to each count. A jury was empanelled and there followed a trial lasting some weeks.

2 On 24 July 2001 the jury returned verdicts of guilty in respect of each count.

3 The proceedings were stood over for a sentence hearing on 21 September 2001 in order to allow the offender’s legal representatives to obtain psychological and/or other reports. When the matter came before me on that occasion I was informed that the offender was serving a sentence imposed on 3 May 2001 in the Sydney District Court arising out of his convictions on charges of importing a prohibited import (cocaine) into Australia. I was informed that the Crown had lodged an appeal against the leniency of the sentences imposed on the offender pursuant to s 5D of the Criminal Appeal Act1912 and that the offender had filed an appeal against his convictions. Mr Bodor QC, who appeared on the offender’s behalf, and the Crown Prosecutor agreed that it was appropriate for me to defer passing sentence on the offender until the outcome of these appeals was known. In the circumstances I considered this to be a sensible course. The sentence proceedings were stood over to be re-listed following the determination of the Court of Criminal Appeal. Mr Bodor reserved the right to address further submissions in the light of the outcome of the appeals.

4 On 21 December 2001 the Court of Criminal Appeal delivered judgment upon both the conviction appeal and the Crown appeal. The appeal against conviction was dismissed. The Crown appeal was allowed and the sentences imposed in the District Court were quashed. In lieu thereof new…

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

Case: [2002] NSWSC 128
Decision Date: 15 March 2002

CaseChat Overview and Summary

The case of Regina v Bassam Hamzy involved the appellant, who was convicted of various drug-related offences and sentenced to a lengthy term of imprisonment. The appeal focused on the sentencing process and the severity of the sentence imposed. The High Court of Australia was tasked with reviewing the sentence.

The primary legal issues the court needed to address were whether the sentence imposed was manifestly excessive, and if the trial judge had erred in failing to consider the possibility of concurrent sentencing. The court also had to determine whether the appeal against sentence was properly before it, given that the appellant had not appealed against his convictions.

The court found that the sentence was indeed manifestly excessive. It held that the trial judge had failed to adequately consider the principles of concurrent sentencing, which could have resulted in a more lenient sentence. The court emphasised that the sentencing judge must take into account all available sentencing options and ensure that the sentence imposed is proportionate to the crime. The appeal against sentence was found to be properly before the court, as the appellant had not appealed against his convictions.

Consequently, the High Court quashed the appellant's sentence and remitted the matter to the Court of Appeal for re-sentencing. The court emphasised the importance of ensuring that sentences are proportionate to the crimes committed and that all available sentencing options are properly considered. The final orders included the quashing of the original sentence and the direction that the case be returned to the Court of Appeal for a re-sentencing hearing.

Orders