Regina v Hussein Hammoud
[2002] NSWCCA 254
•21 June 2002
CITATION: Regina v Hussein Hammoud [2002] NSWCCA 254 FILE NUMBER(S): CCA 60843/01 HEARING DATE(S): 21 June 2002 JUDGMENT DATE:
21 June 2002PARTIES :
Regina v Hussein HammoudJUDGMENT OF: Greg James J at 1, 28; Smart AJ at 2
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/11/1135; 01/11/0459 LOWER COURT JUDICIAL
OFFICER :Downs ADCJ
COUNSEL : (A) M C Ramage QC
(C) L M B LamprattiSOLICITORS: (A) Neil J O'Connor & Associates
(C) S E O'ConnorCATCHWORDS: Sentencing - robbery in company - totality - no question of principle LEGISLATION CITED: Nil CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION: See paraa 26-27
IN THE COURT OF
CRIMINAL APPEAL
60843/01
GREG JAMES J
SMART AJ
JUDGMENTREGINA v HUSSEIN HAMMOUD
1. GREG JAMES J: The court is in a position to deliver judgment now. I would ask Justice Smart to deliver the first judgment.
2. SMART AJ: Hussein (Sam) Hammoud seeks leave to appeal against the asserted severity of a sentence of imprisonment of a fixed term of two years commencing 4 May 2001 for supplying a prohibited drug, cocaine, and taking into account two further offences of supply cocaine in an amount not less than the indictable quantity, and a sentence of imprisonment for eight years commencing 24 January 2003 with a non-parole period of four years for robbery in company.
3. The dates of commencement reflect presentence custody. The sentences overlap by some three months, 10 days. The overall sentence runs from 4 May 2001 until 23 January 2011, a total of nine years, eight months 19 days with an effective non-parole period of five years eight months 19 days.
4. The applicant pleaded guilty to all offences.
5. Drug Offences
About 9 May 1999 the applicant supplied an ounce (28.35-grams) of cocaine being an amount sufficient to create 160 caps which would then be sold on the streets of Kings Cross by runners to drug users, each cap selling for around $60 to $70. This supply was made apparently to an established organisation supplying drugs on the streets of Kings Cross. There were two further instances of supply by the applicant between 9 May and 1 June 1999, one at Leichhardt and one at Summer Hill involving 28.3-grams for $4,200 and 26.35-grams for about $4,000 respectively.
6. The judge found that the applicant had "agreed to continue supplying the syndicate on a daily basis." It seems that the applicant was one of the organisation's suppliers.
The judge said:
"The offender gave evidence before me and he stated that he obtained loans of money from the drug suppliers and he used these monies to continue his drug use. He said he owed them something in the order of $3,000 to $4,000. It was the existence of this debt and the failure to be able to repay it that had caused him to offend."
The applicant was a user/dealer of cocaine. He was seeking to make enough out of his dealing to cover the cost of his own drug use and to repay his debts for drug supplies.
7. Robbery in company.
About 2:50 pm on Friday 27 April 2001 three males, including the applicant, entered the branch of the Westpac Bank at 49 to 51 Belmore Road, Randwick. Once inside the bank they ordered the customers to lie on the floor. One of the males jumped over the counter at teller windows number seven and eight. That male rifled through a number of teller boxes while ordering the staff to lie on the floor. He said "Give me the money, open up your drawer." He took money out of the various boxes of the tellers. Once the robber had removed cash from the various boxes and drawers he joined the other two males and they all ran out of the bank to a lane adjoining the rear carpark. The men scaled a fence by jumping on the bonnet of a parked car and escaped. The right palm print of the applicant was found on the black countertop near the inside edge on the teller's side of the counter, at teller number eight.
8. On 14 October 1999 the applicant was arrested on the drug offences. He remained in custody until 27 April 2000, a period of 195 days. In January 2001 the applicant absconded, having entered a plea of guilty to the drug offence on 20 November 2000. On 7 August 2001 the applicant was arrested and charged with robbery in company. Bail was refused. On 18 October 2001 the applicant pleaded guilty to the offence of robbery in company.
9. The applicant was born on 22 January 1977. His record commenced on 5 May 1994. Since then he has been convicted and dealt with for a drug offence, dishonesty offences and failures to appear. He has been placed on bonds, fined and sentenced to imprisonment for one month. The offences were at the lower end of the criminal scale.
10. The applicant completed his School Certificate. He stated that at school he was bullied and found it difficult to fit in. This difficulty, he asserted, contributed to his commencing to use drugs.
11. Since leaving school he has had sporadic employment, primarily in the family take-away business. At the time of the offences he was unemployed and not receiving unemployment benefits.
12. He commenced using marijuana at the age of 13 and when 16 he was introduced to cocaine. His use of cocaine continued until he went into custody on 7 August 2001. He was supplementing his use of cocaine with heroin to combat the cocaine withdrawal process. He alleged that his drug habit exceeded in cost $4,000 per day.
13. He attempted to cease his addiction a number of times with the support and encouragement of his family. These attempts included trips to Lebanon to remove him from his lifestyle and a brief stay at the William Booth Institute in 1996 and self detoxification, in an attempt to cure himself of his drug intoxication.
14. He said when he was in custody in 2000 he was drug free. The applicant's eldest brother said that in all the applicant remained drug free for about eight months.
15. The applicant stayed with his brother on his release from custody in August 2000. His brother has tried to help the applicant abandon drugs. The applicant said he had always returned to his drug addiction to cope with the stresses of life.
16. About two weeks before his arrest in October 1999 the applicant was shot, with the bullet striking a glancing blow. When in custody he received threats if he gave evidence involving the head supplier of drugs. He said that he failed to attend court in January 2001 when he was to be sentenced for the drug offences because he was scared of returning to gaol. The applicant said that the Corrective Services officers knew all about the threats.
17. The applicant did not assist the police to identify the co-offenders in the robbery. The applicant's elder brother has tried to persuade the applicant to cease using drugs. There have been heated discussions between them over this. The eldest brother has visited the applicant many times in custody and, for the first time, believes that of more recent times the applicant is evidencing genuine remorse. The elder brother confirmed that the family intended to continue to support the applicant upon his release and to continue to support his girlfriend and child. The eldest brother also intended to employ the applicant as a builder's labourer. However, his support and the family's support of the applicant was conditional on the applicant not reoffending.
18. The judge determined to make the sentences cumulative because they were different in nature and separate in time. However, their genesis was the same. The judge said:
"It was the use of drugs which led the offender to the commission of both crimes and therefore the penalty I will impose for the offence of robbery in company will be less than it would have been if it had only been one offence that was before me."
19. The judge correctly found that special circumstances existed and they included that the applicant was still a young man aged 24 who came from an reputable family who were prepared to care for him and support him, his girlfriend and child and employ him provided he did not reoffend. I would add the accumulation of the sentences.
20. The sentence which the judge imposed on the drug supply offence, taking into account the two other offences of supplying cocaine, was very lenient and is not open to challenge by the applicant. A lesser sentence could not have been imposed. Indeed, counsel for the applicant did not challenge the sentence for the drug offence although he did challenge some of the judge's observations.
21. The applicant submitted that the passage earlier quoted from the sentencing remarks shows that the judge assessed that the robbery in company offence warranted a sentence in excess of eight years and that this was erroneous. There is considerable substance in that submission. The applicant emphasised that no weapons of any kind were used in this robbery and that no threats of physical harm were made. Nevertheless, this robbery in company must have been an intimidating and terrifying experience for the staff and customers, many of whom were women. They did not know what the three males were going to do next.
22. The offence of robbery in company represents the applicant's first venture into major crime. A similar comment can be made in relation to the drug offence.
23. In the applicant's written submissions it was submitted:
1. His Honour erred in assessing the appropriate overall sentence,
2. His Honour erred in assessing the appropriate penalty on the robbery in company count,
4. His Honour did not attach sufficient weight to the applicant's relative youth, domestic circumstances and prospects for rehabilitation.3. His Honour did not give adequate allowance for an early plea on the robbery count,
All of these grounds have been made good.
24. The sentence for the drug offence must be taken as being within permissible limits, it has not been formally challenged. The sentence for the offence of robbery in company is manifestly excessive. Our attention was drawn to the decision of this Court in R v Henry (1999) 46 NSWLR 346.
25. I am of the opinion that in the circumstances of the present case, bearing in mind the principle of totality, the appropriate sentence for the robbery in company offence was one of four years six months. Having regard to the special circumstances, the non-parole period should be two years. That will mean that the overall non-parole period, including in that 2 years fixed period for the drug offence will be one of 4 years.
26. I propose the following orders;
1. Leave to appeal granted, appeal allowed in part,
2. Dismiss the appeal against the sentence of two years imprisonment for supplying a prohibited drug,
4. In lieu thereof, impose a sentence of 4 years 6 months for the offence of robbery in company to commence on 24 January 2003 with a non-parole period of two years commencing that day and expiring on 23 January 2005.3. Quash the sentence of eight years imprisonment with a non-parole period of four years for the offence of robbery in company,
27. It is recommended that there be supervised parole and that the parole authorities consider on the release on parole of the applicantwhether he should be required to undertake a residential rehabilitationprogramme as a condition of his parole.
: I agree. Therefore the orders will be as proposed by Justice Smart.
3
2
1