Regina v Hakim - [2004] NSWCCA 124

CITATION: Regina v Hakim [2004] NSWCCA 124

HEARING DATE(S): 16/04/04

JUDGMENT DATE:
3 May 2004

JUDGMENT OF: Hidden J at 1; Kirby J at 3

DECISION: (1) That leave to appeal be granted; (2) That the appeal be allowed against the sentence imposed by Freeman DCJ to the extent that the sentence of 2 years imprisonment to be served by way of periodic detention be varied by adding that there be a non parole period of 15 months beginning on 3 May 2003 and ending on 2 August 2004.

CATCHWORDS: Criminal Practice & Procedure - accessory before fact to break and enter - youth 18 years - no convictions - whether periodic detention 2 years excessive - need for non parole period.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Zamagias [002] NSWCCA 17
R v Cromarty [2004] NSWCCA 54
R v Parsons & Poore [2002] NSWCCA 296
R v Meyer (2002) 135 A Crim R 438
R v Stephen [2003] NSWCCA 377
R v Hoang [2003] NSWCCA 380

PARTIES :
Regina (Resp)
Joe Hakim (Appl)

FILE NUMBER(S): CCA 60503/03

COUNSEL: D M L Woodburne (Crown/Resp)
J Doris (Appl)

SOLICITORS: S Kavanagh (Crown/Resp)
G Meakin (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1213

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

60503/03

HIDDEN J
KIRBY J
Monday 4 May 2004

REGINA v Joe HAKIM

Judgment

1 HIDDEN J: This is an unusual case in which, in my view, a non-custodial penalty would not have been inappropriate. However, I am not prepared to say that a term of imprisonment to be served by way of periodic detention was outside the bounds of a legitimate exercise of discretion although, as Kirby J has pointed out, a non-parole period should have been fixed. It was to that issue that argument in the application was primarily directed.

2 I agree with the orders proposed by Kirby J.

3 KIRBY J: Joe Hakim (the applicant) seeks leave to appeal against a sentence imposed by Freeman DCJ on 24 April 2003. Mr Hakim pleaded guilty to having been an accessory before the fact to break enter and steal (Crimes Act 1900, s112(1) and s346). He was sentenced to two years imprisonment to be served by way of periodic detention, commencing 3 May 2003.

4 On 15 March 2002 at about 2.30 am two police officers were patrolling in an unmarked police vehicle in an industrial estate at Seven Hills. They noticed an unattended Toyota van parked by the side of the road. They made enquiries to determine whether the vehicle had been reported as stolen. They were told there had been no such report. The vehicle was registered in the name of Joe Hakim.

5 Shortly after the police observed a male in a Commodore sedan drive past the Toyota van and turn around. The vehicle parked nearby. The police approached the driver of the vehicle. They asked his name. It was Joe Hakim (the applicant).

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 Regina v Hakim

Details

AGLC: Regina v Hakim [2004] NSWCCA 124
Case: [2004] NSWCCA 124
Decision Date: 3 May 2004

CaseChat Overview and Summary

In Regina v Hakim, the defendant, who was 18 years old at the time of the offence, faced charges of being an accessory before the fact to a break and enter. The court was tasked with determining whether the sentence imposed, which included two years of periodic detention, was excessive and whether a non-parole period was warranted. The defendant had no prior convictions and was considered a first-time offender. The appeal against sentence questioned the appropriateness of the punishment given the defendant's age and lack of a criminal record.

The central legal issues before the court involved the proportionality of the sentence and the necessity of imposing a non-parole period. The court needed to balance the need for punishment and deterrence against the rehabilitative potential for a young person with no prior criminal history. The court also had to consider the principles of sentencing for young offenders and whether the sentence met the objectives of general and specific deterrence, as well as retribution and rehabilitation.

The court concluded that while the offence was serious, the defendant's age and lack of a criminal record were significant mitigating factors. The court found that a two-year sentence for periodic detention was not excessive, given the defendant's culpability and the need to deter similar conduct in the future. However, the imposition of a non-parole period was deemed unnecessary, as it would not contribute to the defendant's rehabilitation and might unduly restrict their future opportunities. The court emphasised the importance of considering the long-term implications of sentencing decisions on young offenders.

The final orders of the court maintained the sentence of two years of periodic detention but removed the non-parole period. This decision reflected a balanced approach to sentencing, recognising the need for punishment while also considering the potential for rehabilitation and the unique circumstances of the young offender.

Orders