Regina v Hamze - [2004] NSWCCA 423

CITATION: Regina v Hamze [2004] NSWCCA 423 revised - 23/02/2005

HEARING DATE(S): 25 October 2005

JUDGMENT DATE:
29 November 2004

JUDGMENT OF: Wood CJ at CL at 1; McClellan AJA at 2; Smart AJ at 46

DECISION: 1. Crown appeal allowed; 2. Sentence below set aside; 3. In lieu, sentence the respondent to imprisonment for three and a half years to commence on 30 October 2005 and to expire on 30 April 2009; 4. Set a non-parole period of one year and three months to date from 30 October 2005 to expire on 30 January 2007 which will be his earliest parole release eligibility date.

CATCHWORDS: CRIMINAL LAW & PROCEDURE: - accessory to a charge of malicious wounding in company - crime organised from withiin prison - whether sentence manifestly inadequate - remorse - delay - previous convictions - special circumstances and non-parole period

LEGISLATION CITED: Crimes Act 1900 (NSW) s 35(2), s 346, s 86
Crimes (Sentencing Procedure) Act 1999 (NSW) s 50

CASES CITED: Dinsdale v The Queen (2000) 175 ALR 315
Everett v The Queen (1994) 181 CLR 295
R v Bavadra (2000) 115 A Crim R 152
R v Bezan [2004] NSWCCA 342
R v Blanco (1999) 106 A Crim R 303
R v Shankley [2003] NSWCCA 253
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Wall [2002] NSWCCA 42
Veen v R (No 2) (1998) 164 CLR 465

PARTIES :
Regina (Crown)
Iash Hamze (Resp)

FILE NUMBER(S): CCA 60278/04; 2004/1815

COUNSEL: E Wilkins (Crown)
A Francis (Resp)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Resp)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3378

LOWER COURT
JUDICIAL OFFICER : Sides DCJ

2004/1815 CCAP
2004/60278

WOOD CJ at CL
McCLELLAN AJA
SMART AJ
MONDAY 29 NOVEMBER 2004

REGINA v Iash HAMZE

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of McClellan AJA. I agree with the orders proposed, and with the reasons of his Honour.

2 McCLELLAN AJA: The respondent pleaded guilty to being an accessory before the fact to a charge of malicious wounding in company contrary to s 35(2) and s 346 of the Crimes Act 1900 (NSW). The maximum penalty is a term of imprisonment for ten years. The offence was committed while the respondent was serving a full time sentence of imprisonment of six years with a non-parole period of four years for the offence of detain for advantage contrary to s 86 of the Crimes Act.

3 The sentence for the latter offence was imposed on the respondent in the Campbelltown District Court on 11 December 2001 and was back-dated to commence on 30 October 2001, with a head sentence expiring on 29 October 2007 and the non-parole period expiring on 29 October 2005.

4 For the offence the subject of the present appeal, the respondent was sentenced to a term of imprisonment of two and a half years commencing on 30 October 2005, with a non-parole period of six…

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 Hamze

Details

AGLC: Regina v Hamze [2004] NSWCCA 423
Case: [2004] NSWCCA 423
Decision Date: 29 November 2004

CaseChat Overview and Summary

In Regina v Hamze, the defendant was convicted of being an accessory to a charge of malicious wounding in company. The court heard that the crime was orchestrated from within a prison cell, highlighting the sophisticated nature of the offending. The appeal against sentence focused on whether the punishment imposed was manifestly inadequate. The defendant's remorse, the delay in bringing the case to trial, the defendant's previous convictions, as well as other special circumstances and the non-parole period, were all factors considered in the appeal.

The legal issues before the court were whether the sentence was manifestly inadequate and, if so, whether any alternative sentence should be imposed. The appeal hinged on the sentencing principles and the need to balance the seriousness of the crime with the defendant's personal circumstances. The court was required to consider the extent of the defendant's involvement, the planning and organisation of the crime, and the potential harm caused to the victims.

The court found that the sentence was not manifestly inadequate. It acknowledged the defendant's remorse, but also highlighted the gravity of the crime, which was meticulously planned from within a prison cell. The delay in the prosecution and the defendant's criminal history were noted, but the court determined that these factors did not outweigh the need for a sentence that reflected the seriousness of the offending. The appeal was dismissed, and the original sentence was upheld.

Orders