State of New South Wales v Hamze (Final)

[2025] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hamze (Final) [2025] NSWSC 280

Hearing dates:

21 March 2025

Date of orders:

31 March 2025

Decision date:

31 March 2025

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an Extended Supervision Order for a period of nine months from the date of this order.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant, for the period of the Extended Supervision Order, comply with the conditions set out in the Schedule to this judgment.

(3)   I order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

Catchwords:

HIGH RISK OFFENDER – final hearing –assessment of unacceptable risk – where the defendant has made some progress in the community – paramount consideration is the safety of the community – when conditions need to strike a balance between mitigating risk and not impeding the progress made by the defendant

Legislation Cited:

Crimes Act 1900 (NSW), ss 33A, 86(3), 98

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5A(1), 5B, 9, 11, 13

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311

State of New South Wales v Hamze [2025] NSWCA 22

State of New South Wales v Hamze (Final) [2025] NSWSC 6

State of New South Wales v Holschier(No 3) [2019] NSWSC 341

State ofNew South Wales v HT(Preliminary) [2023] NSWSC 249

State of New South Wales v Kamm (Final) [2016] NSWSC 1

State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328

State ofNew South Wales v Pacey [2015] NSWSC 1983

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

State ofNew South Wales v Wilson (Preliminary) [2017] NSWSC 1367

State of NSW v Tozer [2017] NSWSC 109

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Wesam Hamze (Defendant) (Self-represented)

Representation:

Counsel:
J Emmett SC (Plaintiff)

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2024/00268777

Publication restriction:

Non-publication and suppression orders apply

JUDGMENT

Procedural history

1. By way of amended summons filed on 29 August 2024, the State of New South Wales (“the plaintiff”) seeks the following orders against Wesam Hamze (“the defendant”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

1. Pursuant to ss 5B and 9(1)(a) of the Act, that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of 12 months from the date of the order; and

2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the Summons.

2. On 17 October 2024 the matter came before me by way of Preliminary Hearing. The defendant was not represented. On that occasion I made an order appointing two qualified psychiatrists or two registered psychologists (or a combination of such persons) to examine the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court. I also imposed an Interim Supervision Order (“ISO”) commencing on 22 October 2024 for a period of 28 days: State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311. The ISO was subsequently extended on 12 November 2024 for a further period of 28 days, expiring on 16 December 2024.

3. The final hearing of the plaintiff’s application for an ESO, was listed before me on 12 December 2024. On that occasion the defendant was represented. An issue arose as to whether the index offence was a “serious violence offence” by virtue of s 5A(1)(b). At the conclusion of the hearing, I made further orders extending the ISO for a further period of 28 days.

4. On 20 January 2025 I made an order dismissing the plaintiff’s amended summons filed on 29 August 2024: State of New South Wales v Hamze (Final) [2025] NSWSC 6. I decided that the index offence was not a “serious violence offence”, as contemplated by s 5A of the Act.

5. The plaintiff appealed my decision to the Court of Appeal. The appeal was heard on 20 February 2025. On 27 February 2025 the Court of Appeal (per Kirk JA, Bell CJ and Stern JA agreeing) allowed the appeal, set aside the orders I made on 12 December 2024 and the proceedings were remitted to the Common Law Division to be redetermined: State of New South Wales v Hamze [2025] NSWCA 22.

6. On 6 March 2025 the matter came back before me for mention and was listed for final hearing. The final hearing took place before me on 21 March 2025. Further oral submissions were made with respect to risk and conditions.

Factual background and relevant criminal history

7. During the preliminary hearing the plaintiff’s Draft Statement of Agreed Facts was provided to the defendant and he was taken through the document. He agreed with the contents of the document. The document was tendered and marked Exhibit A. Some of the factual background is taken from the Draft Statement of Agreed Facts.

8. The defendant described his upbringing to a psychologist in 2009 as “increasingly difficult”. He is the sixth of nine children. His father was arrested and jailed for over three years when he was six years old. His mother experienced significant difficulty raising nine children on her own. The family suffered financial difficulties after his father’s incarceration and the defendant began stealing. The defendant reported a negative adjustment to his education acknowledging behavioural issues which led to his expulsion midway through year 10.

9. The defendant was made to leave the family home at the age of 15 or 16, due to his behaviour. He initially lived with friends, then a sister, before securing his own apartment. The defendant first appeared before the Children’s Court at the age of 16. Thereafter he amassed a considerable criminal history.

10. The relevant criminal history is as follows.

June 2002 firearms offences

11. On 27 June 2002, the defendant was involved in the armed robbery of a service station with three co-offenders. The defendant or one of his co-offenders was armed with a firearm, which was aimed at the head of the shop attendant and later pressed to the back of the shop attendant. The defendant pleaded guilty to robbery armed with a dangerous weapon and the sale of a firearm.

12. A Form 1, dealing with a break, enter and steal (in company) which involved the taking of mobile phones from a shop and a further robbery whilst armed with a dangerous weapon, was taken into account on sentence. In that latter robbery (involving one co-offender), a sawn-off firearm was discharged during the offence.

13. On 2 July 2004, Freeman DCJ sentenced the defendant in relation to the count of robbery with a dangerous weapon (taking into account the matters on the Form 1) to an overall sentence of 6 years and 9 months commencing on 28 June 2002 with a non-parole period of 4 years. In relation to the sale of a firearm, the defendant was sentenced to 5 years imprisonment commencing on 2 July 2005 with a non-parole period of 2 years.

September 2007 firearms offences

14. On 10 September 2007, the defendant was involved in a robbery of an Armaguard van in the company of two co-offenders. One of the co-offenders brandished a shotgun and a second co-offender was holding what appeared to be a pistol. Shots were discharged during the robbery, and one of the guards was hit to the side of the face. He was treated in hospital for minor injuries. $72,241 was also stolen. The defendant had been on parole for just over two months at the time of this offending.

15. On 17 June 2009, Ellis DCJ sentenced the defendant to 6 years and 6 months imprisonment consisting of a non-parole period of 3 years and 3 months for the offence of robbery while armed with a dangerous weapon. One count of larceny of a motor vehicle and one count of use mobile phone in a corrective services facility was taken into account on a Form 1. His Honour found that the defendant had a lesser role in the robbery as the getaway driver.

October 2013 drug supply offences

16. Police executed a search warrant at the defendant's home on 9 October 2013. 636 tablets containing approximately 191 grams of a prohibited drug were located. The defendant pleaded guilty to supply a commercial quantity of a prohibited drug. On 19 May 2017, I sentenced the defendant to 4 years and 6 months imprisonment consisting of a non-parole period of 2 years. The sentence was partially cumulative on the previous sentence and expired on 22 October 2024. The defendant was released to parole in relation to the following drug supply offence on 22 April 2022.

May and June 2013 offences

17. On 12 November 2015, the defendant appeared before me in the District Court, and I sentenced him to an aggregate sentence of 9 years imprisonment for the following offences:

1. Discharge firearm with intent to cause grievous bodily harm, contrary to s 33A of the Crimes Act 1900 (NSW) (“the index offence”).

2. Aggravated detain for advantage contrary to s 86(3) of the Crimes Act.

3. Assault with intent to rob, whilst armed with an offensive weapon and causing grievous bodily harm contrary to s 98 of the Crimes Act.

18. The first two offences took place during the "Smithfield incident". The third offence took place during the "Rydalmere incident". Further offences were taken into account on a Form 1.

19. The facts of the Smithfield incident were that at some point prior to 23 June 2013 the defendant wanted to purchase a gun and was put in contact with the victim. The victim attended the defendant's home and collected $5500. The agreement was that the victim would use the money to buy a firearm and would return shortly afterwards.

20. As the day went on, the defendant became increasingly convinced that the victim had reneged on the deal. He rang the victim at 8:00am and accused him of ripping him off. The defendant began speaking to others to organise retribution against the victim.

21. The victim was shot in his thigh and sustained injuries, including a broken femur. The victim was pushed into his own car and abducted by the offenders. The defendant took $2000 from the victim and told him that he would be shot in the other leg if the balance of the funds was not returned. The victim was dropped off at Auburn Hospital at 10:08pm. The victim's vehicle was set on fire and destroyed shortly afterwards.

22. The defendant was sentenced as the "principal" offender in the criminal activity.

23. The facts of the Rydalmere incident were that in the early hours of 1 May 2013 the victim, who was 53 years of age, left the Arrows nightclub in Rydalmere and walked to the carpark. He found his vehicle blocked by a stolen Hiace van. He returned to the club to seek assistance.

24. When he returned to his car, he was attacked by two masked men. One began firing a gun at him. Seven shots were discharged. Four struck the victim (one in the ankle and three in the torso) and the victim was shoved and kicked as he tried to crawl away. The victim's car was ransacked, and he suffered life threatening injuries, including a ruptured kidney, lacerated liver, sphincter injury and fractured fibula.

25. The offenders fled in another stolen vehicle, a Nissan Pulsar. The day before the shooting the defendant had conducted surveillance with another offender. The defendant’s DNA was found on the vehicle's ignition wiring, and audio from a camera in the Hiace recorded another co-offender using his name.

26. The defendant was sentenced on the basis that it could not be proved that he was the shooter, nor was I satisfied that he was not the shooter. He was sentenced on the basis that he had knowledge of the firearm and had contemplated its possible discharge during the robbery.

June 2022 offences and revocation of parole

27. On 21 June 2022 the defendant was arrested and charged with intimidation and common assault. The defendant believed that the victim owed money to his wife’s business. On 17 June 2022 the defendant passed the victim’s business vehicle in the street. He approached the victim and showed him a financial table on his phone. The victim was dismissive and said, “I’ve got work to do”. The defendant said, “I’ll come to your house and stomp your fucking head in”.

28. The defendant continued to abuse and threaten the victim. He followed the victim and pushed him, saying “If you don’t pay this honest to God it’s going to get worse for you”. The victim said, “who are you?” and walked away.

29. Following his arrest, the defendant’s parole was revoked, and he remained in custody from 21 June 2022 until he was sentenced on 17 January 2023. The defendant received a two-month fixed term of imprisonment, which was backdated to expire on the date he was sentenced. The defendant’s parole revocation was rescinded and on 27 January 2023, he was re-released to parole.

30. Since the defendant’s release to parole on 27 January 2023 he has not been charged with any other offences.

The index offence

31. The index offence that is said to enliven the Court’s jurisdiction to make an ESO is the offence of discharge firearm with intent to cause grievous bodily harm (“the Smithfield offence”), contrary to s 33A of the Crimes Act.

32. Section 33A provides:

33A Discharging firearm etc with intent

(1) Intent to cause grievous bodily harm A person who--

(a) discharges any firearm or other loaded arms, or

(b) attempts to discharge any firearm or other loaded arms,

with intent to cause grievous bodily harm to any person is guilty of an offence.

Maximum penalty--Imprisonment for 25 years.

(2) Intent to resist arrest etc A person who--

(a) discharges any firearm or other loaded arms, or

(b) attempts to discharge any firearm or other loaded arms,

with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence.

Maximum penalty--Imprisonment for 25 years.

33. The elements of an offence contrary to s 33A are:

1. engaging in conduct (discharging or attempting to discharge a firearm) in an attempt to cause grievous bodily harm; and

2. engaging in that conduct with the intention of causing grievous bodily harm.

34. The facts relating to the index offence are set out above at [19]-[22].

Serious violence offence

35. The Court of Appeal (per Kirk JA, Bell CJ and Stern JA agreeing) in the appeal judgment held that the index offence is a serious violence offence at [66]-[77]:

“[66] Applying that approach here, and taking account of the way in which the State has put its case, the issue is whether or not the respondent’s conviction of an offence under s 33A(1) of the Crimes Act necessarily meant that he had attempted to commit an offence which has in substance elements satisfying the requirements of s 5A(1)(a).

[67] The parties accepted that the doctrine of attempt involves the offender (1) intending to do the acts with the relevant state of mind which together would comprise the intended crime and, with that intention, (2) doing some act towards the commission of the crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime: R v Mai (1992) 26 NSWLR 371 at 382 and 384.

[68] Drawing these threads together, in this case (involving an allegation of intending to cause GBH and not death) the question is whether the respondent’s conviction of an offence under s 33A(1) necessarily establishes that he:

(1) intended to engage in conduct causing GBH to another person (as per the requirements of s 5A(1)(a));

(2) with that intention did some act towards the commission of the crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

[69] As noted, the elements of the offence under s 33A(1) are relevantly (1) discharging any firearm or other loaded arms, (2) with intent to cause GBH to any person. Conviction of that offence necessarily establishes that the respondent did an act with intent to cause GBH to another (although, as noted earlier, it does not establish that GBH resulted). Thus the first requirement just identified is satisfied.

[70] The key question is whether discharging a firearm or other loaded arms with that intent necessarily means that the respondent did some act towards the commission of the crime of causing GBH with intent (satisfying the requirements of s 5A(1)(a)) which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime. The respondent submitted that although in some cases ‘the act of discharging a firearm by the accused could constitute an act sufficiently proximate to the substantive offence’ to satisfy this requirement, that would not be so in all cases.

[71] The Court asked senior counsel for the respondent if he could identify some plausible case in which a person convicted under s 33A(1) would not satisfy the requirement. Senior counsel candidly accepted that ‘[i]t’s difficult to think of one’. The only example he proffered was as follows (it was actually expressed in terms of murder, but it is simpler and more relevant to express it in terms of GBH).

An offender forms an intention to break into the house of someone and [inflict GBH on them]. With that intention, he goes to the house and is met by a locked door. He fires the gun in order to force the door to open. Arguably at that time he has an intention to … inflict grievous bodily harm, but in my submission that act would not be regarded as part of an attempted [act causing GBH].

[72] As senior counsel for the State submitted in reply, such conduct would not constitute an offence under s 33A(1).That offence relevantly involves the person discharging the firearm or loaded arms ‘with intent to cause [GBH]’ (emphasis added). That is to say, the action of firing must be done with the intent to achieve that end by that action; the firing is done in order thereby to cause GBH. Discharging the firearm in the example given caused harm to the door and was done with intent to break the lock. No doubt it can be said that the discharge might be a step towards being in a position to be able to inflict the GBH. But such an extended notion of causation would not suffice to make out the offence. Rather, it is the sort of conduct potentially encompassed by the doctrine of attempt, if that was as far as the conduct reached in bringing about GBH. If it was a step to facilitate another person causing GBH then it could constitute being an accessory before the fact in that it is an act doing something to bring about, or rendering more likely, the ultimate commission of the offence: see eg R v Russell [1933] VLR 59 at 67; Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [71].

[73] I note in passing that when her Honour articulated the elements of the s 33A offence in the preliminary judgment she described the conduct element as ‘engaging in conduct (discharging or attempting to discharge a firearm) in an attempt to cause grievous bodily harm’ (PJ [36], emphasis added). That was not an accurate rendering of the elements stated in the text of s 33A but it is an accurate statement of what the offence, at the least, involves in substance.

[74] If a person discharges a firearm or other loaded arms with the intent to cause GBH then they have necessarily at the least undertaken an act that is not merely preparatory towards the commission of the crime of engaging in conduct that causes GBH with intent to do so (such as to satisfy the requirements of s 5A(1)(a)), and which cannot reasonably be regarded as having any other purpose. In fact, the person may have actually caused GBH by that action, which would be more than an attempt. But then it would satisfy the requirements of s 5A(1)(a) more directly without reference to the doctrine of attempt. Either way, the conduct necessarily satisfies the requirements of the provision.

[75] The core reasoning of the primary judge on the issue was as follows (at FJ [111]):

[111] Here, while the act of discharging a firearm with an intention to cause grievous bodily harm is conduct from which it could be inferred that there was an attempt to cause grievous bodily harm, such reasoning involves a consideration of the conduct or the circumstances of the offending, as opposed to a focus on the elements of the offence itself. Such an approach would be inconsistent with the accepted principle that the focus is on the elements of the offence, which is said to constitute a ‘serious violence offence’.

[76] The State’s arguments do not depend upon addressing the particular conduct of the offender in question. They are addressed to the very nature of the elements of the offence of which the respondent was convicted under s 33A.

[77] The State has made out its argument that the index offence in this matter does necessarily satisfy the requirements of s 5A(1). It is a serious violence offence.”

36. Accepting, as I must, the conclusion and reasoning of the Court of Appeal, I am satisfied that the index offence is a serious violence offence pursuant to s 5A(1) of the Act.

Unacceptable risk

37. I turn to consider the unacceptable risk test pursuant to s 5B(d) of the Act.

Legislative Framework

38. The meaning of “unacceptable risk” for a high-risk offender, was considered by Beazley P (with whom Gleeson JA agreed) in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”). The principles were summarised in the State of NSW v Tozer [2017] NSWSC 109 at [21] as follows:

“The Court of Appeal considered the meaning of “unacceptable risk” for a high risk violent offender, in Lynn v State of NSW [2016] NSWCA 57. Beazley P (with whom Gleeson JA agreed) expressed the following views at [49] ff:

(a) the meaning of the phrase ‘unacceptable risk’ raises a question of statutory construction;

(b) the determination of the existence of an unacceptable risk is an evaluative task, which requires a normative context in which to be made;

(c) the objects of the legislation may be relevant to the meaning to be given to the provisions of the Act, but those objects cannot control clear statutory language;

(d) the preferable approach is to give the words their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act;

(e) in the context of the Act, the evaluation being made by the Court is ‘… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection’; and

(f) the risk which must be unacceptable is one of the commission of a serious violent offence, if the individual is not kept under supervision.”

39. The determination of whether an offender poses an unacceptable risk of committing a “serious offence” (as defined in s 4 of the Act) if not kept under supervision may require a consideration of various factors and may entail a balancing of factors. For example, where there is a low risk of recidivism but consequences are likely to be drastic if the risk eventuates: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]; State of New South Wales v HT (Preliminary) [2023] NSWSC 249 at [23]; State ofNew South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128]; State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State ofNew South Wales v Pacey [2015] NSWSC 1983 at [43]; State of New South Wales v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [29].

40. The wording of “high degree of probability” in s 5B(d) of the Act indicates something “beyond more probable than not”. The risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. There must be “a firm foundation, rather than a merely reasonable basis, for the conclusion that the risk posed by the offender is unacceptable absent supervision. Reasonable satisfaction is of itself insufficient”: State of New South Wales v Holschier (No 3) [2019] NSWSC 341 at [56]-[57].

Evidence relied upon by the plaintiff

Section 9 relevant considerations

41. The Court’s power to make an ESO is discretionary. Sections 9(2) and (3) of the Act provide for several mandatory considerations to which the Court must have regard in determining whether or not to make an ESO. The following summary is extracted from both the preliminary hearing judgment and final hearing judgment.

The reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination: s 9(3)(b)

42. In compliance with the orders I made on 21 October 2024, the defendant was examined by two Court appointed experts, Dr Carollyne Youssef and Ms Ahu Kocak and the reports were furnished to the Court on 13 November 2024. The contents of those reports are summarised as follows.

43. The defendant was interviewed by Dr Youssef on 4 November 2024. Dr Youssef described the defendant as “friendly and easy to engage with, quickly establishing rapport” and noted that “there was some impression management observed during the interview, especially concerning his ability to manage any current risks, which led him to deny the presence of any potential concerns or issues”.

44. When asked about current self-management, the defendant responded:

“75. …[that] he is no longer on this pathway and is not concerned there will be a lapse for him, saying, ‘there are no risk factors at all, nothing at all, I’ve prepped myself well’. He identified the following as perpetuating factors to his offending behaviour; ‘upbringing, area I grew up in, people I surrounded myself with’. Notably, Mr Hamze showed no indicators of victim empathy when discussing them.”

45. A number of risk assessment tests were administered during the interview. The results of the Hare Psychopathy Checklist – Revised, Second Edition (“PCL-R”) reveal that:

“90. Mr Hamze’s score on Factor 2 items, placing him in the 68th percentile, indicates a moderate-high degree of impulsivity, irresponsibility, and antisocial behaviour. He may engage in risk-taking or criminal activities, showing a clear disregard for social norms and rules. While not necessarily overtly violent or chronic, his behaviour could still involve criminality or violations of societal expectations, often driven by the need for stimulation, excitement, or immediate rewards. Mr Hamze’s impulsivity and tendency to act without considering the long-term consequences may also lead to problems in maintaining stable employment, relationships, or social roles.

91. Overall, Mr Hamze demonstrates a high level of psychopathic traits, by clinical standards, particularly in terms of a high degree of interpersonal traits combined with a moderate-high behavioural manifestation. Intervention and supervision strategies should prioritise addressing Mr Hamze’s manipulative behaviours and reducing the risk of exploitation, while closely monitoring his social interactions to prevent further antisocial conduct and associations. This should be coupled with tailored therapeutic interventions and structured community integration to support positive behavioural change and its maintenance.”

46. The defendant was also assessed using the Violence Risk Appraisal Guide – Revised (“VRAG-R”). His category of risk of violent recidivism places him in the ninth “risk bin” or the highest of nine “risk bins” categories. 76% of those in Mr Hamze’s category are expected to meet the criteria for violent recidivism within five years and 87% within twelve years.

47. Dr Youssef acknowledges the limitations of risk assessment tools. She stated that “it is not scientifically possible to accurately predict whether a specific offender will or will not actually reoffend.”

48. The Historical Clinical Risk Management tool – Version 3 (“HCR-20v3”) was also utilised which combined the relevant historical, clinical and risk management factors relevant to the defendant. In relation to risk management factors, Dr Youssef considered the following to be relevant:

1. Future problems with professional services and plans: The defendant indicated that he was willing to continue to see his psychologist but does not intend to continue engaging with professional services thereafter if no order is imposed. Considering the defendant’s past criminal history, Dr Youssef opined that this is a relevant and present risk factor. The defendant would benefit from the continued “development of more explicit plans and goals for his ongoing professional engagements.”

2. Future problems with the defendant’s living situation: The defendant’s current living situation is “stable” however Dr Youssef is of the view that it is a “highly relevant risk factor” in the event of a relationship breakdown with his wife. This may lead to him relocating back to “problematic suburbs and increasing his risk of engaging with antisocial associates.”

3. Future problems with personal support: The defendant reported to Dr Youssef that his primary support was his wife and some family members. He reported that he “tends to deal with his problems himself and is unlikely to involve others or to seek assistance/support.” Dr Youssef noted that there are no current plans in place to expand the defendant’s support network. She has also expressed concerns about his ongoing associations with his co-offenders. In particular his intention to hire his brother when he is released from custody, who was one of the co-offenders in the Smithfield offence.

4. Future problems with treatment or supervision response: The defendant is of the view that he does not require any further treatment or services. There have been consistent reports that reveal that the defendant “impression manages”, especially in relation to his progress since his release to parole. Dr Youssef has noted that “this can present challenges for supervision, particularly if there are ongoing issues that Mr Hamze is not being forthcoming about, as has been the case during previous parole releases. While compliance may not be a concern, his responsiveness to intervention could be.”

5. Future problems with stress or coping: Dr Youssef observed that the defendant “has a history of poor coping and problem-solving skills and may default to unhelpful coping strategies, or resort to criminal, aggressive and violent behaviour, if he is unable to utilise adaptive coping skills.” She identified that although the defendant’s current situation is “ideal” his limited coping strategies “… [would leave] him vulnerable to challenges when faced with common life stressors in the future.” He reported that one of his coping strategies is “walking away” during stressful situations.

49. Dr Youssef administered the Structured Assessment of Protective Factors for Violence Risk (“SAPROF”). Protective factors include the defendant’s present employment and his primary support which is his wife. Dr Youssef opined that the defendant “requires a further period to practise coping skills especially when faced with stressful situations.”

50. Dr Youssef is of the view that the defendant poses a risk of committing a further serious violence offence without a further period of supervision.

51. The stability of the defendant’s marriage and the increased risk that he would pose in the event his marriage deteriorated, assumed some significance during the final hearing of this matter. The defendant’s wife Larissa Ala was cross-examined by Mr Emmett SC on 12 December 2024. She gave evidence that she was introduced to the defendant through a mutual friend about 12 months before he was released to parole. She was put in touch with the defendant as she was seeking advice about Islamic divorce. She denied being in touch with the defendant to help her resolve a debt and denied that he had assisted her with a debt that was owed to her and her company while he was in custody. After about six months the defendant and Ms Ala began discussing the possibility of a romantic relationship between the two.

52. Ms Ala was cross-examined in relation to the defendant’s priorities, particularly in relation to having more children. Much of her evidence on this topic is of a highly personal nature and it is unnecessary to set out in detail. She acknowledged that it was extremely important to both her and the defendant that they have children together. Ms Ala gave detailed evidence about the unsuccessful attempts, to date, to have children. She was questioned about the ramifications on the marriage, in the event that she could not have a child:

“Q. And have you had any discussions about what might happen, if that doesn’t happen?

A. Yes, we have.

Q. Can you help the Court understand what those discussions are?

A. If that doesn’t happen then that’s God’s plan and we accept that, but we are going to try to do everything that we can while we are still at the right age to make that eventuate.

Q. Have you had any discussions about the possibility of the relationship breaking down?

A. We haven’t needed to discuss that because our relationship is strong and healthy. I don’t think that is something that people discuss until they’re actually in crisis mode that’s from my past experience with a divorce.”

53. Another area of significance is the defendant’s financial situation and the increased risk that may present in the event that he no longer had a legitimate means of making money. The defendant and his wife run a business, Strata Remedial Group Pty Ltd (“Strata Remedial Group”) with Mr Gabriel Pike. Strata Remedial Group has been trading since 2019. The business operates across residential and commercial building sites. It focuses on residential renovations, residential restoration works, building maintenance services and some commercial building work.

54. Ms Ala gave evidence in relation to the defendant’s financial interest in the business:

“Q. Can I ask you about the shareholding in the business, am I right he has 20 shares in the business?

A. That’s right.

Q. And you have 25?

A. No.

Q. Sixty‑five?

A. No. So, I have 40 shares, Gabriel Pike has 40 shares, and Calhoun has 20 shares. So Gabriel and I both used to be 50% shareholders, we decreased our shares by 10% each, so that we could give 20% to Calhoun, which was well deserved based on the revenue that he brought in and the customers.”

55. Ms Ala gave evidence that if the marriage ended, the company would not be dissolved, suggesting that the defendant would continue to have a financial interest in the business:

“Q. And have you had any discussions with Calhoun about what would happen in the business, if the relationship broke down, your relationship?

A. When Calhoun and I got married ‑ any agreements that ‑ or any discussions we had about the end of the marriage happened at the time of the marriage, we do that with the sheikh, who is the religious person who marries us. So we’ve had conversations about how that situation plays out and it hasn’t really involved the business as such. However, it wouldn’t make any sense to dissolve a company because a marriage isn’t working out; business is business and marriage is marriage.”

56. Ms Ala was an impressive witness. She understood the triggers that were identified as potential risk factors. Ms Ala maintained that her marriage is strong but, in the event that there was a breakdown in the relationship, the defendant would continue to have a financial interest in the business.

Ms Kocak

57. The defendant was interviewed by Ms Ahu Kocak on 6 November 2024. The results of that report are summarised as follows.

58. The defendant acknowledged that his “problematic antisocial behaviours and propensity to use violence has been long outstanding.” Engaging in such behaviours provided him with money, power and status amongst others. He admitted that he had a long-standing history of engaging in illicit activity to fund his lifestyle or “perpetuate his sense of belonging and status amongst other antisocial peers.”

59. The defendant’s difficulty in regulating and controlling his behaviour is reflected in his early behavioural issues, his criminal offending and lifestyle before entering custody. Ms Kocak identified that the defendant is “able to intellectually show remorse and empathy for both his victims and those that he feels responsible for” however, he struggles in emotional regulation and being able to manage his anger.

60. Since his release from custody, the defendant has a number of prosocial supports in the community including his partner and her family. He reported that this is something “he had never had before”. He is residing in the city which is considered a highly protective factor that deters him from associating with past associates and influences in the western suburbs.

61. The defendant is trying to have a child with Ms Ala. He is committed to staying out of gaol to provide his children with the support and guidance he never had growing up. The defendant also has the support of Imams in the community. Ms Kocak stated that the defendant appears to be “indifferent” to the imposition of an ESO and does not think it is necessary in regulating his behaviour or managing risk.

62. The defendant reported to Ms Kocak that even in the event of a relationship breakdown he would still “accrue a financial income”. This was recounted as follows:

“Mr Hamze discussed his progress since his release in vigour. He stated that he commenced working at the Strata management company that his now partner owns, and that he now is a 20% shareholder. He made a point to state that if his relationship broke down, he would still accrue a financial income from the joint venture which he felt secure about. He detailed that he had grown the company to connect with his networks in hospitality and building, and that the turnover in the last eight months was ‘$920,000.’ He stated that he had never earned money legitimately and felt positive about his future.”

63. Mr Hamze was administered the Minnesota Multiphasic Personality Inventory-3 (“MMPI-3”) which indicated that “although he responded in a consistent and deliberate manner”, his scores revealed concerns “about the possible impact of under-reporting”.

64. Ms Kocak noted the limitations of risk assessment tools as follows:

“The prediction of violence and aggression is challenging due to the diversity of clinical presentation and the inability of a single broad predictive (assessment) tool is both validated and reliable in all circumstances where violence and aggression needs to be predicted.”

65. The defendant was assessed using the Violence Risk Scale – Version 2 (“VRS-2”) which places him in the category of Risk Level III, which is a middle band comprising the largest proportion of correctional cases. Ms Kocak also administered the Historical Clinical Risk Management tool – Version 3 (“HCR-20v3”) to the defendant. The results revealed that the defendant’s “historical and future risk factors place him in the Moderate range of potential violence.” Ms Kocak outlined the results in relation to the historical and clinical scale as follows:

“59. The HCR-20 v3 was applied on 9 November 2024. As per the author’s recommendations, the presence or absence of clinical scale items was evaluated within the past six months. The assessment placed Mr Hamze’s historical scale in the high range, due to a history of problems with violence as an adolescent and adult (high relevance), other antisocial behaviour as an adolescent and adult (high relevance), non-intimate relationships (high relevance), employment (high relevance), substance use (low relevance), antisocial personality (high relevance), adverse childrearing experiences (moderate relevance), violent attitudes (high relevance), and treatment or supervision response (Moderate relevance).

60. The clinical scale is assessed at being in the Low range, with the partial presence of problems with insight into violence risk (high relevance) however, no recent problems with violent ideation or intent, symptoms of major mental disorder, instability, or treatment and supervision response. The Risk Management scale is assessed at being in the moderate range with the possible presence of future problems in relation to living situation (high relevance), personal support (moderate relevance), treatment responsiveness (high relevance) and stress or coping (moderate relevance).”

66. Based on the risk assessment findings, Ms Kocak summarised the following risk scenarios that may apply to the defendant:

1. The defendant may commit an act of violence against a person to “right a wrong.” If there is a perceived threat to himself or his family, he may feel the need to reach out to past criminal associates and attempt to access firearms for retribution.

2. Past criminal associates may reach out to him seeking his assistance in resolving problems which may involve engaging in criminal behaviour or through the use of weapons.

67. Ms Kocak observed that:

“65. Overall, the potential for a serious act of violence specific to Mr Hamze, would require that the risk factors play three functional roles with respect to his decision to engage in violence. These roles can motivate, disinhibit or destabilise his decisions. For violence to be an attractive choice, Mr Hamze would need to be motivated by the rewards of the conduct he chooses to engage in such as financial or social status. He would need to be less likely to be influenced by restraints, prohibitions or prescriptions against violence, regardless of whether these are intrinsic or extrinsic in nature. For example, his level of remorselessness or empathy towards the victim would have to lessen as would his desire to remain in the community for his family and children. The presence of destabilising factors such as losing his income, access to his children, his social supports and potentially returning to his old neighbourhood may increase stressors that disturb his ability to monitor and control decision making.”

68. Ms Kocak concluded that although the defendant “is assessed at being a moderate risk of future violence” he remains committed and motivated to live a crime free life, stating:

“69. Mr Hamze’s current risk factors are primarily driven by his long standing history and inability to be deterred by previous community supervision as well as becoming involved with others who continue to be tangled in criminal activities, including close family. However, Mr Hamze has demonstrated an ability to regulate his interactions with these individuals whilst under supervision. These scenarios have not yet been tested whilst in the absence of supervision or conditions, however Mr Hamze’s intrinsic motivation to remain an offence and violent free lifestyle appears to be increasing.”

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment: s 9(3)(c)

69. The Risk Assessment Report (“RAR”) dated 31 May 2024, was prepared by Dr Richard Parker, who interviewed the defendant on 28 May 2024. Dr Parker described the defendant as both “polite and cooperative with the interview”.

70. In the Executive Summary to the RAR, Dr Parker describes the defendant as a man “who was raised in a family where criminality was common.” He observed that “his serious violence has all been committed for financial purposes, within the context of a criminal lifestyle”.

71. After the defendant’s release from prison in April 2022 he commenced working for his wife’s business. The defendant indicated that his involvement in this business, and his current location in Sydney, has assisted him in avoiding antisocial associates.

72. Dr Parker challenged the defendant in relation to his desire to employ his nephews and his brother, who have criminal histories. The defendant identified that he “wished someone had sat him down 20 years ago and explained how his life would turn out if he made certain choices, and he wants to give them that opportunity”.

73. The defendant “expressed great satisfaction with his current lifestyle and pride in the success he has had in business.” The defendant noted that this was the longest period he has lasted out of custody. Recent Offender Integrated Management System (“OIMS”) notes are consistent with the defendant continuing to have a stable relationship with his present partner and continuing to conduct his business activities.

74. There is no evidence that the defendant has abused substances since a psychological report was prepared in 2009 by Dr Emma Collins. Indeed, before me it appears that the defendant has not used prohibited drugs since 2002. Dr Parker also noted that there are no records of the defendant experiencing any psychotic disorder, and that he denied having experienced mental illness.

75. Dr Parker identified the following criminogenic needs to be most relevant for the defendant:

1. Antisocial associates: Dr Parker observed that many of the defendant’s offences have been committed in company. The defendant reported to Dr Parker that his antisocial associates were the “single most important factor” behind his serious offending.

2. Self-regulation/impulsivity: Dr Parker identified that while the defendant may wish to reform from crime and violence, “at times of heightened emotions and/or difficulties, automatic thought patterns may override this pre-existing plan”.

3. Antisocial attitudes: Dr Parker identified that the key relevant antisocial attitudes for the defendant are the “normalisation of violence” and the idea of “beat or be beaten”. He observed that the defendant does “not appear to engage in violence for violence’s sake but appears to regard it as an (acceptable) means to an end”. Dr Parker identified that the defendant’s use of violence is likely to be connected to a criminal lifestyle. Similarly, he described most of the defendant’s violence as being “instrumental in nature, to obtain money he believes he must have”. At present, Dr Parker identified that the defendant was meeting his desire for material success through legitimate means (his business).

4. Cooperation with supervision: Dr Parker identified that the defendant has generally complied with supervision but “this has often been accompanied by a quick return to offending, suggesting that his interactions with Community Corrections have been superficial, rather than meaningful.”

76. Dr Parker further opined:

“70. The primary drivers of his offending appear to be his antisocial attitudes, antisocial personality pattern, and antisocial associates (Andrews & Bonta, 2010). Within this context, his violence appears to have been mostly instrumental – what is ‘necessary’ to obtain what he wanted, rather than expressive violence.

71. He has, on several occasions, appeared to have lived in the community without resorting to crime, for a period, but quickly relapsed into serious criminal behaviour. His last offence, was more reactive than planned, and involved only threats of violence, rather than actual violence. More importantly, the period, since that offence, marks the longest he has been in the community without being arrested for further offending – albeit a relatively short period by most measures.

72. Within this context, he is married and has custody of his two children, and has built a successful niche within his wife’s business. Consequently, he has more to lose by reoffending than at any previous time of his life. He reports satisfaction with his current life and a determination to avoid a return to his old ways. Time will tell if he is able to achieve this.

73. He scores high on static risk factors for violence – a reflection of his unenviable history, but in the average range on an instrument dominated by dynamic risk factors. This reflects the stability (albeit fairly recent) of his current lifestyle, compared to his history. If he can maintain this lifestyle over a longer period, his risk rating would, no doubt, reduce.”

77. In relation to risk scenarios, Dr Parker identified that the risk of future violence from the defendant is “almost inextricably linked to his desistance from/return to further criminal activity”. Dr Parker went on to say:

“…If he can refrain from criminal activity, then his risk of serious violence will be fairly low. This is underpinned by a stable marriage and a financial rewarding work life. These factors are linked by the reality that he is working for his wife’s business – a breakdown in the marriage would likely lead to a loss of work, causing financial strain.

If such a breakdown were to occur, [the defendant] may relocate to his old neighbourhood, where he would undoubtably come across old associates. Such interactions, combined with financial stress, may incite him to search for ‘easy money’, with the strong likelihood of serious violence.”

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence: s 9(3)(d)

78. The defendant was assessed using the Violence Risk Scale (“VRS”) assessment tool, which places him in the category of Risk Level III (average risk). Dr Parker also administered the Violence Risk Appraisal Guide – Revised (“VRAG-R”) to the defendant. The defendant’s score was equal to, or higher than, the score of 93% of the construction sample, and places him in the ninth of nine “bins”. 76% of violent offenders with a similar score reoffended violently within five years, and 87% within twelve years.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

79. A Risk Management Report (“RMR”) has been prepared by Jason Saad of the Metropolitan Extended Supervision Order Team, dated 19 June 2024. The RMR identifies the following priorities in relation to the defendant’s supervision:

“The primary focus of [the defendant’s] community supervision will be to ensure he is engaged in offence specific intervention, primarily facilitated through the VOTP Maintenance Program, and that his associations in the community are closely monitored.

[The defendant’s] supervision plan will continue to focus on ensuring he is seeking out a pro-social lifestyle, and that he is engaging in activities and associating with people who will continue to assist in his community reintegration in a positive manner.”

80. The RMR confirms that if the defendant becomes subject to an ESO, he will be seen by a Community Corrections Officer on a weekly basis. Further third-party contact will also include contact with his allocated psychologist and contact with the ESO Investigations Team (“ESOIT”) attached to the New South Wales Police Force.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs: s 9(3)(e)

81. The defendant completed the Violent Offenders Therapeutic Program (“VOTP”) between 5 January 2011 and 6 June 2011.The VOTP Discharge Report identified that the defendant “displayed conscientiousness and diligence while participating in the programme and he made a number of treatment gains. He made a concerted effort in identifying and acknowledging violent and offence supportive cognitions, in addition to developing appropriate countering challenges”.

82. However, the defendant’s completion of the VOTP occurred before the Smithfield and Rydalmere offences were committed. As such, while the defendant’s participation in rehabilitation programs might ordinarily suggest a diminished risk, in the present case, it did not prevent the defendant from returning to a pattern of violent behaviour.

83. The defendant has, however, subsequently engaged consistently with a psychologist allocated through the VOTP. He continues to engage with the Violent Offenders Maintenance Program. In April 2019, the defendant completed the EQUIPS Aggression Program and in July 2020 he completed the EQUIPS Foundation program.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

84. Dr Parker identified in the RAR that an ESO would mean that the defendant would receive “intensive supervision and case management”. Dr Parker opined that the conditions sought as part of the ESO would be targeted to reduce the likelihood of the defendant re-offending by assisting in consolidating the pro-social developments in the defendant’s life. If an ESO is not imposed, this would mean that the defendant will be unsupervised in the community, as his parole expired on 22 October 2024.

Compliance with obligations, including while on parole: ss 9(3)(e2), (f) and (g)

85. The defendant’s compliance with obligations historically has been very poor. His parole has been revoked, following breaches of the conditions of his parole on 11 October 2007, 11 September 2008 (a review of the revocation determined the revocation should stand), 13 September 2012, 11 October 2013, and 6 July 2022 (though the revocation of parole in July 2022 was rescinded on 27 January 2023).

86. A Breach of Parole Report dated 23 June 2022 revealed that the defendant “engaged well” during supervision but reoffended after only two months in the community. Dr Parker expressed the view that “[t]his echoes his pattern during previous periods of supervision, where he has maintained attendance and not resisted supervision, but reoffended, nevertheless”. However, Dr Parker went on to observe that since his most recent release to parole he has been in the community without incident for (at the time of 2024 RAR) one year and four months. That is the longest period he has been in the community since he was 18 years old.

87. The defendant has now been in the community since his release on parole on 27 January 2023 without reoffending. He is in a supportive relationship with his wife and is gainfully employed. That employment relates to his involvement in the business, Strata Remedial Group.

88. The evidence raises some uncertainty about the defendant’s official status in that business. It is unclear as to whether the defendant has been given a 20% interest in the business, or 20/150 shares. The defendant and his wife gave evidence that their understanding, and Ms Ala’s intention, is that the defendant have 20% interest in the business. That intention is not reflected in the company record. It may simply be an error by the accountant, as indicated by Ms Ala. I accept that there is no evidence from the third shareholder, Mr Pike, as to his understanding of intention. There appears to be no written shareholders agreement.

89. I proceed on the basis that the defendant’s belief is that he has 20% interest in the business which has partially contributed to his enthusiasm and determination to grow the business. I am satisfied that it is the intention of his wife, that the defendant have a 20% interest in the business. While I do not have any evidence from Mr Pike of his understanding, there is no evidence that he would resist formalisation of the defendant’s interest in the business.

90. Importantly, on the evidence before me, the defendant has been closely connected to the running of the business and is personally invested in ensuring that the business continues to thrive. He has taken that interest primarily, but not solely, for financial gain. In addition to the financial advantages that may flow from growing the business, I am satisfied that he derives a degree of pride and satisfaction from being involved in a successful business.

91. The corollary to that, as relied upon by the plaintiff, is the risk factor that may arise if the defendant is no longer able to participate in and profit from the business.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

92. The defendant has a long history of violent offending, commencing as a juvenile which has been set out above. He has been involved in several robberies which have involved the presence or discharge of firearms. The victim of the Smithfield offence was shot in the thigh and suffered serious injuries. The victim of the Rydalmere offence also suffered life threatening injuries. He was shot four times and shoved and kicked as he tried to crawl away.

93. The defendant’s risk of offending is diminished when he is gainfully employed, not engaging with antisocial associates and is financially secure. The defendant has not abused prohibited drugs since 2002 and last associated with antisocial criminal associates in 2013.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

94. On 12 November 2015, I sentenced the defendant in relation to the index offence, where I said:

“Where a firearm is used to inflict grievous bodily harm the sentence imposed should involve a substantial component to reflect general deterrence… The courts must give a clear message to persons who are minded to use firearms to resolve disputes that they will be dealt with severely… An offence that involves pointing a loaded firearm at anyone is particularly serious when done in circumstances of aggression or as an exercise of domination…

This offence was committed in company and in a public place where members of the public might be expected to be present. I am satisfied that the offender was the principal in this criminal activity. He organised his associates to lure the victim to the location where he would be intimidated, assaulted and shot. The offender’s motivation was to teach the victim a lesson for what he perceived to be a “rip off” by the victim. I am satisfied that this offence also falls above the middle of the range of objective seriousness. Both incidents call for significant weight to be given to general and specific deterrence and denunciation. A clear message needs to be conveyed that the courts will not tolerate serious violence involving the use of firearms. It behoves the court to discourage any tendency for firearms to become tools of the trade for those whose activities are outside the law. Considerations of general deterrence and retribution require that any sentence for such violent conduct involving firearms require a substantial sentence to be imposed.”

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

95. The defendant’s behaviour in custody included 12 institutional charges between October 2013 and July 2021. These include charges of possession of contraband, an assault in 2015 and one of which involved intimidation in 2018. It cannot be established that any of those charges were related to the use of prohibited drugs. OIMS notes reveal that the defendant was generally polite to staff and his misconduct was directed to other inmates.

Submissions

Plaintiff submissions

96. The plaintiff submitted that the Court would be satisfied to the requisite high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is unsupervised in the community: s 5B(d) of the Act.

97. The plaintiff relies on the reports of both court-appointed experts and the 2024 RAR which reveal that relevant risk factors include the defendant offending against a male, in company, likely as a result of connection with antisocial associations and/or financial pressure. It is noted that some of the defendant’s violent offending in the past involved the presence or use of firearms.

98. It was conceded by the plaintiff that the defendant is making some progress in the community. This includes having a stable relationship and his employment. However, both experts identified a level of “impression management" by the defendant. The observations of both experts reveal that the defendant lacks insight into some of his risk factors and has limited coping strategies for stress. Potential triggers may result from problems in his relationship, difficulties in his business or re-engaging with antisocial associates.

96. Dr Youssef opined that the defendant has a history of poor coping and problem-solving skills”. Therefore, an ESO would maximise the prospects of the defendant developing appropriate strategies to deal with the various stressors or tensions that could arise and consolidate the progress he has made since his release from custody.

97. In oral submissions made on 12 December 2024 and the supplementary written submissions dated 19 March 2025, the plaintiff submitted that the evidence demonstrates that the defendant is a poor historian. In support of that contention, the plaintiff outlined several inconsistencies between the history given by Ms Ala and the defendant, as reported to Dr Youssef, in relation to their relationship. For instance, Ms Ala’s evidence was that she was introduced to the defendant because she was seeking advice about Islamic divorce, whereas the defendant reported that he was introduced to Ms Ala because an associate asked him to assist her with resolving a debt owed to her.

98. Other inconsistencies relied upon relate to the statement that there was a short period of time when the defendant was married to both Tara and Ms Ala and inconsistencies about the profits made by the business in the past eight months.

99. The plaintiff points to these inconsistencies in support of the contention that the defendant is a poor historian whose evidence must be treated with some caution. In addition, the plaintiff relies upon several matters in the relationship between the defendant and his wife which would readily be a source of material stress including, but not limited to, whether Ms Ala will be able to conceive.

100. The plaintiff submitted that a period of supervision would assist the defendant in developing appropriate coping strategies to deal with any stressors or tensions that could arise in connection with the defendant’s marriage and financial situation.

Defendant submissions

104. The defendant contended that when considering the factors in s 3 and 9 of the Act, the defendant presents a risk, however, the Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an ESO.

105. Dr Youssef identified two main areas going to the questions of risk:

1. The defendant’s previous violence and potential risk of violence connected to his “challenging personality traits”.

2. The defendant’s connections. She identified one of the “significant risk factors” as social and peer pressure, including the sense of value that the defendant has previously derived from his involvement in antisocial groups. Further she identified “actual or perceived financial pressure” to play a crucial role in his risk factors.

106. The defendant argues that there are several factors in his present circumstances which are relevant in mitigating the risks identified above:

1. He is gainfully employed.

2. He has stable accommodation.

3. He is in a stable relationship which has been described as “pro-social”.

4. He has been actively engaged in his children’s lives.

5. He is subject to a Firearms Prohibitions Order (“FPO”) and Weapons Prohibition Order (“WPO”) since 2021. Such orders allow for a significant level of oversight directly addressing the risk factors present in the defendant’s case.

6. He has moved away from the area where there were significant criminal associations.

7. He has maintained contact with a psychologist since 2013 and has expressed his engagement positively.

107. In oral submissions, made on 12 December 2024, it was conceded that the defendant will always pose a risk because of his background and criminal history. However, this risk is adequately protected by the FPO and the WPO which are in place and will continue to be in place. The defendant urged the Court to treat the diagnosis of psychopathy made by Dr Youssef, with some caution, because there is no other diagnosis to that effect, either currently or in the past. Furthermore, it was suggested that Dr Youssef had ignored the positive statements in the OIMS notes, which reflect insight on the part of the defendant.

108. The defendant submitted that although Ms Kocak placed the defendant in the moderate category of potential violence, the defendant’s protective factors outlined above will ensure risk is adequately mitigated.

109. In relation to the criminogenic factors outlined by Ms Kocak in her report, it is submitted that the defendant presents as being primarily in the preparation or action stage of change for these domains, which indicates that he shows recognition of problems, some relevant or demonstrated behavioural change and use of the necessary skills to mitigate his risk of violence.

Consideration

110. I have considered all the evidence, including the material referred to in the “supplementary reasons”. I acknowledge that the defendant has generally sought to turn his life around. I accept that he wants to be a law abiding member of the community. In large part this change has been brought about because he is in a stable and loving relationship and is gainfully participating not only as an employee but as someone who has an interest in the business, Strata Remedial Group.

111. There have been several occasions where the defendant has been unrepresented and has had to speak on his own behalf. In his interactions during the proceedings, he has displayed a level of reasonableness and restraint that supports the view that he is genuinely attempting to make a positive change in his life.

112. The plaintiff’s counsel has, on more than one occasion, fairly acknowledged that some credit is due to the defendant, given the progress he is making in the community.

113. That said, I am satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. I have come to that conclusion for the following reasons.

114. First, although the defendant is genuine in his efforts to rehabilitate and is making progress in the community, the period since his last release from custody has only been two years. Admittedly, the offences for which he was last imprisoned were not as serious as other offences on his criminal record. However, the period that the defendant has been in the community, absent criminal charges, is limited to just over two years.

115. Second, the defendant’s background and criminal history reveals historical offending of a very serious nature, involving firearms, violence and drug supply.

116. Third, the index offence itself was a serious offence involving the discharge of a firearm with an intention to cause grievous bodily harm.

117. Fourth, Ms Kocak concluded that the defendant’s current risk factors are primarily driven by his long-standing history and inability to be deterred by previous community supervision as well as becoming involved with others who continue to be tangled in criminal activities, including close family members. Although it is noted that the defendant has demonstrated an ability to regulate his interactions with these individuals whilst under supervision, these scenarios have not yet been tested in the absence of supervision or conditions. It is noted that the report of Ms Kocak was prepared before the most recent period where the defendant has not been subject to supervision.

118. While the defendant has not been subject to supervision or conditions since January 2025, that period is very limited and is not a sufficient reason to dissuade me from a finding that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

119. Fifth, Ms Kocak stated that there is some difficulty in ascertaining whether the defendant is currently experiencing any vulnerabilities or cognitive distortions that may perpetuate his propensity for anger or violence.

120. Sixth, although I approach the diagnosis of psychopathy with caution, Dr Youssef concluded that the defendant poses a risk of committing a further serious violence offence without a further period of supervision. Dr Youssef identified several relevant factors to risk management and opined that the defendant requires a further period of supervision to practise coping skills especially when faced with stressful situations.

121. Dr Youssef’s evidence was not the subject of challenge.

122. Seventh, I have had regard to the paramount consideration, namely the protection of the community: s 3.

123. The evidence is finely balanced. However, notwithstanding the defendant’s progress, the evidence of the court-appointed experts, the defendant’s record of historical offences, the nature of the index offence, and the fact that any period in the community without supervision has been extremely limited to date, I am satisfied to the requisite standard that the defendant poses an unacceptable risk and that an ESO for a period of nine months should be imposed. The period of nine months is sufficient in my view to consolidate the progress made by the defendant and for him to continue to develop appropriate coping strategies in the event of future stressors.

Conditions

124. Section 11(1) of the Act provides that an ISO/ESO “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”.

125. Regard must be had to the primary objects set out in s 3 of the Act. Important principles to be considered in relation to the imposition of conditions were set out by Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]:

“Important principles to be considered in relation to the imposition of conditions are:

(i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];

(ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];

(iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

(v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38].

(vi) conditions must not be unjustifiably onerous or punitive, “nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855.

(vii) conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) at [36].

(viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131]).”

126. The plaintiff submitted that the appropriate conditions attaching to the ESO are those contained in Annexure B to the Plaintiff’s submissions on the final hearing dated 15 November 2024. I do not agree.

127. During the preliminary hearing, in making the ISO I determined that not all those conditions were appropriate or necessary: see State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311 at [84]-[97]. The defendant agreed to the imposition of many of the conditions that were contained in a schedule of conditions proposed by the plaintiff. He opposed the imposition of other conditions. For the same reasons outlined in the preliminary hearing judgment, I am not persuaded that the full suite of conditions contended for by the plaintiff are either appropriate or necessary.

128. The defendant is at a pivotal time in his life where the positive steps towards rehabilitation must be encouraged. Importantly, the conditions imposed, while they must mitigate risk, cannot be the cause of deterioration of the progress achieved thus far. For example, conditions should not be imposed that curb or unreasonably interfere with the defendant’s ability to fulfil his employment. It is for this reason that I have decided to vary condition 12.

129. An issue was raised by the defendant in arguing against the making of an ESO. Section 11(2) of the Act provides that an extended supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services. The problem identified by the defendant is that such a condition would interfere with his ability to fulfil his business responsibilities and duties interstate.

130. The parties were given an opportunity to provide further evidence in relation to this issue. The defendant read the affidavit of William Kostopoulos, dated 24 March 2025.

131. On 27 March 2025, the plaintiff read the affidavit of Stephanie Breen, dated 26 March 2025 and the affidavit of Erica Mulligan, dated 26 March 2025. Further written submissions were filed by the plaintiff, observing that the defendant has not filed the contracts in support of the assertions made by Mr Kostopoulos and has provided insufficient evidence to support the contention that even as lead contractor, the defendant, as opposed to another employee of Strata Remedial Group, is required to travel interstate to conduct the work required under the contract.

132. The plaintiff was given an opportunity to object to the affidavit of Mr Kostopoulos or apply to have him cross-examined. Those options were not taken up. The plaintiff’s representative was informed that in the absence of challenge to the affidavit evidence, the Court would proceed on the basis of that evidence.

133. Mr Kostopoulos has known the defendant for some 20 years. He is the majority shareholder of All Tech Logistics Pty Ltd (“All Tech Logistics”). All Tech Logistics is an Australian nationwide organisation servicing different and difficult locations using various types of vehicles with access to cranes, forklifts and labour.

134. In 2024, that company entered into a service agreement with Tomra for the upgrade of the Earn and Return Shelters across New South Wales (regional and metro areas). In July 2024, All Tech Logistics entered into an agreement with Strata Remedial Group to sub-contract their trade services for the purpose of the “Earn and Return Upgrade Project”.

135. The agreement required Strata Remedial Group to nominate a lead project contractor who would lead the project. The defendant was nominated by Strata Remedial Group to be the lead project contractor. He was required to attend project specific training in August 2024. The defendant concluded that training and has received further project related training material in his capacity as lead project contractor.

136. In that capacity the defendant must be available to travel to regional New South Wales and stay overnight for multiple nights at different locations to fulfil the contractual obligations. The schedule for sites requiring attendance is sometimes received with only a few days’ notice. I am satisfied that this evidence justifies a variation to condition 12.

137. In respect of the requirement that the defendant travel interstate, and the asserted difficulty with a condition prohibiting the defendant from leaving New South Wales without the approval of the Commissioner of Corrective Services, the evidence is uncertain. There appears to be no current need for the defendant to travel interstate to fulfil his obligations.

138. Mr Kostopoulos deposes that All Tech Logistics and Tomra are currently in discussions about potentially extending the New South Wales agreement to roll out the interstate upgrade of the earn and return shelters to Queensland, Victoria and Western Australia. In the event that the agreement was so extended, the lead project contractor (the defendant) would be required to travel interstate. However, I note that the negotiations, although apparently in train, are not concluded and are speculative at this stage.

139. Further, s 9(4) of the Act provides that in determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).

140. In addition, the assessment of risk does not take into account consequences of the finding of unacceptable risk, being consequences flowing to the offender as a result of the imposition of conditions: see Lynn at [127]-[129].

141. Even if I were not prohibited from having regard to the defendant’s intention to travel interstate for work, I am not of the view that a condition prohibiting the defendant from leaving New South Wales without the approval of the Commissioner of Corrective Services, would operate in such a way as to prevent the defendant from fulfilling his responsibilities and duties under the existing arrangement between All Tech Logistics, Tomra and Strata Remedial Group.

142. I also note that pursuant to s 13 of the Act, the Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender.

Orders

143. Accordingly, I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an Extended Supervision Order for a period of nine months from the date of this order.

2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant, for the period of the Extended Supervision Order, comply with the conditions set out in the Schedule to this judgment.

3. I order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

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SCHEDULE OF CONDITIONS

In these conditions:

“Commissioner” means Commissioner for Corrective Services.

“CSNSW” means Corrective Services New South Wales.

“DSO” means Departmental Supervising Officer.

“NSWPF” means New South Wales Police Force.

PART A: REPORTING AND MONITORING OBLIGATIONS

1. You must accept the supervision and guidance of a DSO.

2. Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. You must truthfully answer questions from a DSO, or any other person supervising you, about:

1. where you are or have been;

2. where you are going;

3. who you are with or have been with;

4. what you are doing or have been doing; and

5. the nature of your associations.

4. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

ELECTRONIC MONITORING

5. If directed by a DSO, you must wear electronic monitoring equipment as directed and must not tamper with or remove the equipment. A DSO may not direct you to wear electronic monitoring equipment unless you have been charged with an offence of breaching an ESO or an indictable offence.

SCHEDULE OF MOVEMENTS

6. Condition not imposed.

7. Condition not imposed.

8. Condition not imposed.

PART B: ACCOMODATION

9. You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements.

9. Condition not imposed.

10. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address.

11. You must notify your DSO if you intend to spend the night anywhere other than your approved address and provide the DSO with details of the address and persons understood to be present there.

12. Condition not imposed.

PART C: PLACE AND TRAVEL RESTRICTIONS

14. You must surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

15. You must not leave New South Wales without the approval of the Commissioner.

16. You must not go to any place specified by a DSO.

PART D: FINANCE

17. You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.

PART E: DRUGS

18. Condition not imposed.

19. Condition not imposed.

PART F: NON-ASSOCIATION

20. You must not associate with any person specified by a DSO.

21. Without limiting Condition 20, you must not without prior approval of a DSO associate with any person whom you know to be:

1. consuming or under the influence of illegal drugs; or

2. held in custody.

22. You must obtain written approval from a DSO prior to joining or affiliating with any club or organisation.

PART G: WEAPONS

23. You must not possess or use any of the following:

1. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996 (NSW); or

2. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 (NSW).

24. Without limiting or altering Condition 23, you must not possess or use any of the following, without a DSO’s prior approval:

1. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

2. any other implement made or adapted for use for causing injury to a person; or

3. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

NOTE: Condition 24 does not apply to knives for ordinary domestic use.

PART H: ACCESS TO THE INTERNET AND OTHER ELECTRONIC COMMUNICATION

25. Condition not imposed.

PART I: SEARCH AND SEIZURE

26. Condition not imposed.

27. Condition not imposed.

PART J: PERSONAL DETAILS AND APPEARANCE

28. You must not change your name from ‘Wesam Hamze’ or use any other name without notifying a DSO.

29. You must not significantly change your appearance without the approval of a DSO.

30. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.

31. If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

PART K: INTERVENTION AND TREATMENT

32. You must participate in the Violent Offender Therapeutic Program Maintenance program as directed by a DSO.

33. You must agree to your Violent Offender Therapeutic Program Maintenance program treatment and service providers sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO.

34. You must agree to any information obtained under Condition 33 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Decision last updated: 03 April 2025