Commissioner of Police NSWPF v Amoun & Anor

Supreme Court of NSW|2020-12-08|Before: Garling J

Judgment

The Commissioner of Police, NSWPF ("the Commissioner") commenced proceedings by Summons on 11 November 2020, seeking the following orders against each defendant, Ghassan Amoun and Ibrahem Hamze, "In respect of each defendant, a Serious Crime Prevention Order within the meaning of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016: (a) on the terms set out in Annexure A; or (b) on such terms as the court deems fit for a period of 24 months."
The Commissioner sought expedition of the hearing. The hearing took place between 8 December 2020 and 10 December 2020.
This judgment deals with the Commissioner's application. As this judgment is being delivered urgently, there will necessarily be some infelicity of expression.

Crimes (Serious Crime Prevention Order) Act 2016

The provisions of the Crimes (Serious Crime Prevention Order) Act 2016 ("the Act") are central to the determination of these proceedings. Section 5 of the Act is in the following form: "5 Making of serious crime prevention orders (1) An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if: (a) in the case of a natural person - the person is 18 years old or older, and (b) the court is satisfied that: (i) the person has been convicted of a serious criminal offence, or (ii the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and (c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. (2) … (3) ... (4) The person against whom a serious crime prevention order is sought and any other person whose interests may be affected by the making of the order may appear at the hearing of the application and make submissions in relation to the application. (5) In determining an application for a serious crime prevention order, the court may admit and take into account hearsay evidence despite any rule relating to the admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) if: (a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and (b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission. (6) ..."

Principles of Law

This Act has been the subject of only two previous decisions in the Supreme Court of New South Wales, both of which were delivered on the same day. The first of these decisions is Commissioner of Police v Coles [2018] NSWSC 517. The second is Commissioner of Police v Bowtell (No.2) [2018] NSWSC 520.
In each case, Davies J made an order pursuant to s 5(1) of the Act that the defendants be subject to an SCP Order for a period of 12 months.
After these two decisions of Davies J, a number of questions of law with respect to the Act were referred to the High Court of Australia: Vella v Commissioner of Police (NSW) [2019] HCA 38.
The principal issue in Vella was whether s 5(1) of the Act was invalid (in whole or in part) because it was inconsistent with and prohibited by Chapter III of the Constitution. In finding the Act was valid, the reasons of the plurality (Bell, Keane, Nettle and Edelman JJ, with whom Kiefel CJ agreed) examined in some detail the steps which need to be considered by a Court when exercising its power under the Act to make an SCP order.
Their Honours identified six steps which are required to be considered before a Court can appropriately exercise the power. The first step is that contained in s 5(1)(a), which requires the defendant to be at least 18 years old: Vella at [40].
The second step is that contained in s 5(1)(b) of the Act, which requires proof that the defendant against whom the order is sought has been convicted of a serious criminal offence, or else has been involved in, serious crime related activity: Vella at [41].
The plurality described the third step in this way at [43]: "The third step, in s 5(1)(c) requires the court to assess whether there is a real likelihood, in other words a real or significant risk, that the person against whom the order is sought will be involved in serious crime related activity. … It is a forward-looking requirement." (emphasis in original)
The judgment continued at [44]: "The requirement in s 5(1)(c) as to the matters that the court must be satisfied that there are 'reasonable grounds to believe' is essentially a requirement of 'the existence of facts which are sufficient to induce that state of mind in a reasonable person'. The court must have reasonable grounds to believe that the making of the order 'would' prevent, restrict or disrupt involvement by the person in serious crime related activities and thus 'protect the public' from these public wrongs. The conditional verb 'would', is the language of probability or likelihood in assessing the effect of the order. Without a real likelihood that the person against whom the order is sought will be involved in serious crime related activities, there is no basis for the order because there could not be any likelihood that the order would prevent, restrict or disrupt such involvement in serious crime related activities…" (footnotes omitted)
The fourth step was described in this way at [47]: "The fourth step is also required by s 5(1)(c). It may again involve disputed questions of fact. The court must consider whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting, or disrupting the person's involvement in serious crime related activities. This step requires the court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt the person's likely involvement in the serious crime related activities. The verbs - prevent, restrict, or disrupt - are not defined and bear their ordinary meaning including a result that is short of entire prevention but which limits the extent of the person's likely involvement in the serious crime related activities." (emphasis in original)
The fifth step, which derives from s 6(1) of the Act, constrains the orders that can be made. The section requires that the prohibitions, restrictions, requirements and other provisions ordered by a court are required to be such "as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities": Vella at [49].
Their Honours considered the word "appropriate" and at [50] said this: "The constraint that the court must consider the order to be appropriate for its purpose is a familiar one. 'Appropriate', in the sense of 'suitable or fitting for a particular purpose', embodies the requirements that the order be reasonable and adapted to its purpose. It is particularly a common constraint expressed upon orders … that require an assessment of future possibilities..." (footnotes omitted)
Their Honours described the balancing process which the Court engages in to reach this conclusion as follows at [51]: "The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities and the magnitude of the activity that will be so affected. On the other hand, the Court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate."
The sixth step was described in the plurality judgment in this way at [54]: "The sixth step is that the court should consider whether any appropriate order should be made. Despite the risk of the person offending, and even with the prohibitions, restrictions and requirements as are appropriate, s 5(1) empowers, but does not require, the court to make the order. The fulfilment of the statutory conditions described in the five steps above confers a discretion upon the court to make the appropriate order." (emphasis in original)
The ultimate result of the making of an SPC Order by the Court was described in this way by Gageler J in a dissenting judgment in Vella at [135]: "The result would be the promulgation of a personalised code of conduct to which the individual would thereafter be bound for the … period of the SCPO under pain of criminal punishment for contravention. Alone for the individual against whom the SCPO was made, conduct otherwise lawful would become by force of the SCPO criminal conduct."
Although his Honour wrote a dissenting judgment, there is no reason to doubt that this is anything other than an accurate description of the result of a court making an SCP Order.
As well, as Davies J noted in Cole at [35], because the rules of evidence applicable to civil proceedings apply, a failure on the part of any defendant to give evidence means that the Court may more readily draw inferences favourable to the case for the Commissioner and adverse to the defendant. This is so when the defendants could each have given an account of facts contrary to that inference but did not do so, and no explanation was offered for that failure: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
In this matter, on the basis that neither defendant gave evidence, I draw the inference that had either of the defendants entered the witness box, their evidence would not have thrown doubt on the correctness of any relevant inference which is available to be drawn favourable to the Commissioner's case. Put differently, I draw the inference that any evidence which could have been given by either defendant would not have assisted them in rebutting a relevant inference arising in favour of the Commissioner's case against them respectively.
It is now necessary to consider whether the Commissioner has satisfied the Court that an SCP Order ought to be made.

First Essential Step

The first essential step required for the establishment of an entitlement to an SCP Order is that each of the defendants be at least 18 years old.
This fact is conceded by each of the defendants. I accept their concessions. It does not require further elaboration for the Court to be satisfied of it.

Second Essential Step

The second essential step required for the establishment of an entitlement to an SCP Order is that each defendant has either been convicted of a serious criminal offence or else has been involved in serious crime related activity.
Each of the defendants admits the facts necessary to establish that they have each been convicted of a serious criminal offence and there is no need for the Court to consider its satisfaction of this step any further.
However, the previous convictions of each of the defendants are a relevant matter to be considered, in the context of later discernment. It is convenient to set out these convictions in a summary form here. They will be referred to in more detail later in these reasons.
In the case of the first defendant, Ghassan Amoun, his relevant criminal history is as follows: 1. on 9 November 2009, he was convicted of the offences of assaulting a police officer in the execution of his duty. He was sentenced to imprisonment for 9 months, to commence that day, with a non-parole period of 6 months. The assault is alleged to have occurred on 14 September 2008. On 10 May 2010, on an appeal to the District Court of New South Wales, the conviction of the first defendant was confirmed but in lieu of the term of imprisonment, he was ordered to undertake community service of 75 hours as with a consideration of the imposition of a bond; 2. on 23 March 2012, in the District Court at Sydney, the first defendant was convicted of two charges of supplying a prohibited drug (methylamphetamine and ecstasy respectively) in a quantity not less than the commercial quantity. Three further charges of supplying a prohibited drug in a quantity not less than a commercial quantity were taken into account on a Form 1. This was for offending that all occurred in 2008; 3. on the first of those charges the first defendant was sentenced to a term of imprisonment of 6 years, commencing on 30 January 2011, with a non-parole period of 4 years. On the second of the two charges he was convicted and sentenced to a term of 8 years imprisonment, commencing on 30 July 2012, with a non-parole period of 5 years; 4. these sentences were challenged on an appeal to the Court of Criminal Appeal; 5. on appeal, the sentence in respect of the count which commenced on 30 January 2011 was reduced to a non-parole period of 3 years and 5 months. This caused the balance of the term on that count to be 1 year and 9 months. On the other count, a reduced non-parole period of 4 years and 4 months, commencing on 30 April 2012, was imposed. This caused the balance of the term on that count to be 2 years and 7 months; and 6. the effect of the sentence was that the first defendant was first eligible to be released on 29 August 2016, and the total sentence was due to expire on 29 March 2019.
Insofar as the second defendant, Ibrahem Hamze, is concerned, he was found guilty at the Parramatta Local Court in October 2013 of assaulting a police officer in the execution of his duty and resisting an officer in the execution of his duty. The offences were said to have occurred in March 2013.
In respect of each of these offences, the second defendant was not convicted but was released pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 on a bond to be of good behaviour.
On 29 November 2018, in the District Court at Parramatta, the second defendant was convicted of the offence of supplying cannabis in an indictable quantity which was less than the commercial quantity. The second defendant was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order for 2 years, commencing on 29 November 2018 and concluding on 28 November 2020. He was required to be of good behaviour, to undertake 200 hours of community service work and to abstain from taking any drugs, including prescription drugs that were not prescribed for him. When being sentenced for that offence, after a plea of guilty, the District Court at Parramatta took into account on a Form 1, at the second defendant's request, an offence of dealing with the proceeds of crime of less than $100,000 and the offence of knowingly or recklessly directing a criminal group.

Third Essential Step

As earlier noted, the Court has to assess, pursuant to s 5(1)(c) of the Act, whether there is a real or significant risk that each defendant will be involved in serious crime related activity, as that term is defined. The definition of that term makes it plain that it encompasses not just the actual commission of a serious offence directly by an individual, but also conduct which facilitates another person engaging in serious crime related activity or conduct which "…is likely to facilitate serious crime related activity".
It is convenient to deal with each defendant separately.

First Defendant

To ascertain the first defendant's risk of future involvement in serious crime related activity, a consideration of the details of past involvement in such activity is essential.
I have earlier noted the basic facts relating to the criminal convictions of the first defendant. Of central relevance is the 2012 convictions, as these were serious drug offences directly linked to Bassam Hamze and members of his family.
An agreed statement of facts from the original sentencing hearing of the 2012 convictions was tendered in this matter. The factual matrix of the 2012 convictions is both illuminating and relevant to gaining an appreciation of the first defendant's criminal involvement with Bassam Hamze.
The first defendant pleaded guilty to two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for each of these offences was 20 years imprisonment and a standard non-parole period of 10 years imprisonment applied.
Both offences occurred in 2008. The first offence involved the supply of 500g of methylamphetamine, which was about double the amount prescribed by legislation to be a commercial quantity. The second offence involved the supply of 500g MDMA in the form of 2,500 pills. This was about four times the commercial quantity fixed by the legislation.
With respect to the first charge, the first defendant asked for three further offences to be taken into account on a Form 1. They were an offence involving the supply of a commercial quantity of methylamphetamine (284g) on 11 May 2008; the supply of a commercial quantity of methylamphetamine (372g) on 17 May 2008; and the supply of 9.07kg of cannabis leaf in the period between 2 May 2008 and 17 May 2008.
The circumstances of these offences made it plain that the first defendant (and others with whom he was sentenced) were participating in a business supplying large quantities of illicit drugs. That business was under the control and direction of Bassam Hamze, the first defendant's brother.
In May 2008, Bassam Hamze (whose name is sometimes spelt Hamzy - but nothing turns on the precise spelling) was a serving prisoner at the Lithgow Correctional Centre. He illicitly obtained a mobile phone. Using that phone, Bassam Hamze made a number of phone calls, organising the sourcing of various prohibited drugs in Sydney and their transport to Melbourne, where they were supplied to various associates in the drug supply milieu for sale to individuals. Bassam Hamze was the principal in the organisation and supply of these prohibited drugs.
The group of people involved included the first defendant, his father (Khaled Hamze), his cousins (Khaled Hamze Jnr and Mohammed Hamze) and at least eight other associates.
One person who was a central link in this organised drug supply was a man named Mr Thomas Miholic. Thomas Miholic ran a trucking business, by which the drugs were ultimately transported to Melbourne. He was first introduced to Mohammed Hamze, the first defendant's cousin. Thomas Miholic was then introduced by Mohammed Hamze to Bassam Hamze, his father (Khaled Hamze) and the first defendant (Ghassan Amoun). It was only after that introduction that the arrangements were made for this organised drug supply between Sydney and Melbourne.
The first offence involved direct contact between Bassam Hamze and the first defendant, with directions to the first defendant to obtain in Sydney 500 g of methylamphetamine which was to be sold to one of the co-offenders in Melbourne for $120,000. That contact occurred over Bassam Hamze's mobile phone. The first defendant obtained the package of methylamphetamine. He supplied it to Mohammed Hamze, who then supplied it to Thomas Miholic at a pre-arranged meeting near a McDonald's Restaurant. Thomas Miholic drove the package to Melbourne and obtained part-payment. The day following that part-payment, the first defendant flew to Melbourne and then flew again, a few days later, to obtain the balance of the funds from his co-offender.
The extensive statement of facts with respect to this first offence demonstrates the following features: 1. the first defendant was an essential participant in this drug supply enterprise, and acted at the direction of Bassam Hamze; 2. the first defendant was clearly aware of what he was doing and the illegal nature of it. He was also aware of the possibility of interception of the enterprise if information was too readily discussed on the telephone; 3. the first defendant's participation was a knowing one, in the sense that he discussed with Bassam Hamze whether the price being demanded from the co-offender in Melbourne was appropriate or whether it was too high; 4. the first defendant participated in ensuring that the drugs were properly packaged and that, in particular, the bag was sealed; and 5. the first defendant participated in the enterprise at the direction of Bassam Hamze for the purpose of monetary reward.
The second offence also took place at the direction of Bassam Hamze. It involved a methodology similar to that of the first offence. The first defendant sourced the drugs and supplied them to Thomas Miholic who then drove them to Melbourne. The first defendant was there on arrival and supervised the handover to the Melbourne associate. The first defendant oversaw some changes in the supply arrangements at the time they occurred.
This offence also involved significant participation by the first defendant. That participation included: 1. taking precautions with the package so that any interference could be detected; 2. flying to Melbourne to supervise the handover of the drugs and the collection of the funds; 3. having the authority to supply drugs to others rather than the original participant when that person declined to accept them; and 4. the first defendant then reported back to Bassam Hamze on all that he had done.
The offences which were taken into account on a Form 1 were associated with the principal offences. Each of these offences occurred under the direction of Bassam Hamze and were facilitated by the first defendant who was, on occasion, accompanied by his father. These offences, as did the other offences, involved the knowing participation of Mohammed Hamze in facilitating the drug supply.
The other participants in these offences included various members of the Hamze family. Khaled Hamze Snr was involved at various stages, Bassam Hamze and his brother, the first defendant, were involved, and there were two cousins of Bassam Hamze also involved. Each took various roles which were essential in this organised drug supply. The organisation was directed by Bassam Hamze.
When the Police executed a search warrant at the home where the first defendant was living, they located a number of mobile phones and a set of electronic scales. These items are commonly associated with the supply of drugs.
The first defendant was released from imprisonment in August 2016. That period of time in prison explains the fact that he did not engage in the commission of any serious crimes over that time.
It is also necessary in coming to a conclusion about the risk of the first defendant engaging in serious criminal activity to consider other evidence about his closeness to, and association with, Bassam Hamze.
In 2011, a solicitor acting for Bassam Hamze sent an email to the Office of the Director of Public Prosecutions, on Bassam Hamze's instructions, seeking to negotiate arrangements for the disposition of drug trafficking charges which Bassam Hamze was then facing.
It is unnecessary to discuss in this judgment the terms of the proposal raised by Bassam Hamze. Whether they proposal was ever given serious consideration is also beyond the matters relevant to this judgment.
The particular matter which is of relevance, is a part of that lengthy email, in which Bassam Hamze's lawyer wrote: "On behalf of my client I invite you to consider the proposal contained in this letter and to contact the writer either directly or through your officers to take the matter further. Mr Hamze wishes to negotiate similar arrangements for a number of other offenders including the following: 'Mr Tekotia Wiperi; Mr Ghassan Amoun; Mr Amron Allouche; Mr Khaled Chaikiden; Mr Mejid Hamze; Mr Khaled Hamze; and Mr Wesam Hamze.' "
I draw the inference from this statement that Basam Hamze regarded these individuals as part of his criminal network and wanted to negotiate some form of settlement on their behalf because they had carried out crimes at his direction or on his behalf.
There is also evidence that in November 2009, Mr Bassam Hamze sent a handwritten letter to the Office of the Commonwealth Director of Public Prosecutions which included the following: "I am responsible for the crimes many of my co-offenders committed and they were all under my instructions and orders. I am responsible for every aspect/element of the crimes committed and was taken to the Crime Commission to negotiate a settlement which I refused to accept due to the unfairness of the deal. So what I hope is to negotiate a deal which will take this matter into consideration on behalf of all my co-offenders without them actually knowing that this is the reason they received the deal."
Also included in that handwritten letter was a series of admissions by Bassam Hamze which indicated that he had been engaged in unlawful activities of a serious kind for a considerable period of years. In his admissions, he indicated that he was in possession of guns, firearms, weapons and drugs - all of which were stored at various places or with various other people. He stated that he was in a position to ensure the delivery of those items to law enforcement authorities.
These statements are a sound basis for me to conclude that Bassam Hamze regarded himself as being in charge of a criminal network which had engaged, and was continuing to engage, in serious criminal activity.
Bassam Hamze presently faces charges that, between 9 July 2017 and 16 October 2018, he directed a criminal group which was engaged in the supply of illegal drugs. The Police Facts document, which has been tendered, demonstrates convincingly (on the basis of reliable evidence such as text messages sent between various associates of Bassam Hamze and messages recording his instructions) that, notwithstanding that Bassam Hamze was at that time being held in Goulburn Jail under a high security classification of Extreme High Risk Restricted and was subject to stringent prison restrictions including the limitation of visits and telephone calls, he was able to continue with the activities of his criminal network, principally, drug supply.
There is no evidence that the first defendant participated in the particular activities with which Bassam Hamze was charged in 2018.
Because Bassam Hamze is held in the High Risk Management Correctional Centre, and has the Extreme High Risk Restricted security classification, he is required to obtain approval in advance for any telephone number of any individual whom he wishes to telephone from the Correctional Centre using the Centre's telephone system.
During 2018, Bassam Hamze applied to have the first defendant as an Approved Contact to whom phone calls could be made from the Correctional Centre. That request was initially denied. A further application was made and approved in April 2020. The purpose of the communication by Bassam Hamze with his brother, the first defendant, was stated by Bassam Hamze to be to "Pay legal bills, gather evidence, speak to witnesses". That request was approved, and Bassam Hamze was reminded that business or other interests were not included in the approved topics for discussion.
Bassam Hamze's application was approved subject to these conditions: "Approval granted ONLY for the purposes of engaging in phone contact with Ghassan Amoun to discuss LEGAL matters that Bassam Hamze referred to in Inmate Application A20/22 - dated 4.3.20. Whilst these discussions primarily relate to LEGAL matters, they must be undertaken under an assigned PERSONAL contact and subject of MONITORING and RECORDING. General greetings can be exchanged at the commencement and completion of the calls, however if the calls indicate that personal communications are occurring, not associated with his current court matter, then the call should be ended and a review undertaken on the suitability of continuing contact."
Pursuant to that approval, the Commissioner has tendered evidence which indicates that up until the commencement of these proceedings, Bassam Hamze had telephoned the first defendant on 260 separate occasions since May 2020. This is approximately 10 occasions per week.
However, a closer inspection of the evidence, being the call logs from Corrective Services, shows that many such calls were not connected. That is to say they were attempts by Bassam Hamze to contact the first defendant, yet the first defendant did not answer. On some occasions, there would be a number of attempts before the first defendant picked up. On my assessment, Bassam Hamze and the first defendant have actually spoken 83 times since May 2020. Nevertheless, this is a significant number of calls between them.
On one occasion, 4 May 2020, a call between Bassam Hamze and the first defendant was terminated by Corrective Services officers because the contents of the discussion fell outside the approved subjects.
In October 2020, the Police received an Information Report generated by Corrective Services NSW which concluded that Bassam Hamze was conducting a property development in an overseas country and was using his brother, the first defendant, to conduct that venture.
I conclude from all of this information that there is now, and has been for over a decade, a close association between Bassam Hamze and the first defendant in the conduct of a number of different enterprises - both legal and illegal - being conducted and directed by Bassam Hamze for his benefit and the benefit of his family members. They are of course, being brothers, closely related. The evidence also indicated that these enterprises also involved Bassam Hamze's father, his cousins and his close associates. I am well satisfied that these activities are appropriately described as the business of the Hamze criminal network. The mere fact that one or more of these activities may be legal does not mean that they are unrelated to the Hamze criminal network. It is notorious that individuals and groups who engage in criminal activity use the proceeds of crime in lawful businesses.
Since his release from prison in August 2016, the first defendant has not been charged with the commission of any serious criminal offence. However, it is clear that he continues to have a good working relationship with Bassam Hamze. They speak many times a week on the telephone. With one exception, the contents of those telephone calls are not in evidence. There is no evidence that they are available to be tendered, nor whether the Commissioner is in possession of the contents of those phone calls. However, it is clear that, given the approved subject matter of those phone calls, namely, to assist Bassam Hamze in the preparation of his defence to the current outstanding charges, there are many more phone calls than could possibly be necessary for that purpose. I simply do not accept that the nature of the Court case and legal proceedings against Bassam Hamze required him to speak with his brother, the first defendant, on 83 separate occasions in the space of seven months.
The inference which I draw from that constancy and frequency of contact is that (notwithstanding that it was monitored by Corrective Services, and notwithstanding the capacity of Corrective Services to terminate any phone call) there continues to be an ongoing relationship of trust and closeness between Bassam Hamze and his brother, the first defendant. I also infer that it was possible that, during the course of one or more of these conversations, information could have been communicated in a way which evaded detection by the Corrective Services Officers monitoring the phone calls, and which was directed to any one of a number of Hamze criminal network business enterprises - whether legal or illegal.
In considering the contents of these conversations, I take into account that the first defendant chose not to give any evidence of the content of them. In those circumstances, I infer that any evidence which he may have given would not have assisted his case.
I am well satisfied that the nature of the association between Bassam Hamze and the first defendant creates a real and substantial risk that the first defendant will engage in serious criminal activity.
This conclusion does not mean that I am satisfied that the first defendant will perpetrate a particular serious criminal offence. The evidence does not enable me to be so satisfied. What I am well satisfied of, is that there is a risk, which is not remote but is real and substantial, that the first defendant will commit or else assist in the commission of an offence either in the drug dealing area, or else in some act of retaliatory violence at the request of, or else in order to maintain his close relationship with his brother, Bassam Hamze.
It is, in my view, most likely that any such engagement in serious criminal activity would be by way of the provision of information or other assistance to other individuals to carry out crimes as directed by Bassam Hamze.
In coming to these conclusions, I have carefully considered the submissions of senior counsel for the first defendant. In particular, the submission to the effect that, having regard to the contents of an induced statement given by the first defendant to NSW Police over three days between 16 December 2009 and 18 December 2009, the first defendant ceased to be a participant in any criminal enterprise directed by Bassam Hamze. As well, senior counsel for the first defendant submitted that, because his client had given such a lengthy induced statement, the Court could not conclude that he remained a part of any criminal enterprise being carried out by Bassam Hamze, or at his direction, nor that he remained a trusted individual for the purpose of carrying out any of Bassam Hamze's enterprises.
I accept that in the course of that interview, on a number of occasions, the first defendant told Police that he had ceased to have any involvement in any of the unlawful enterprises of his brother, Bassam Hamze. He also told Police in somewhat unconvincing terms that he had been "expelled" by his brother, Bassam Hamze, from his criminal enterprises.
However, I do not accept that the mere fact that he gave an induced statement to Police caused anything more than a temporary interruption, if at all, to his relationship with Bassam Hamze.
Bassam Hamze's letter, written in November 2009, before the induced statement of the first defendant, accepted complete responsibility for all of the crimes in which he and his co-offenders had been involved. He told Police that he had directed those crimes. An induced statement, which provided Police with detail of that involvement, would not, in my assessment, have been seen by Bassam Hamze as any form of betrayal such as to permanently sever his relationship with his brother, the first defendant.
I am confirmed in this view by the content of the email from the solicitor for Bassam Hamze to the Director of Public Prosecutions in 2011 seeking to negotiate an arrangement whereby others of his co-offenders, including the first defendant, had their charges dropped, or ameliorated in some respect. Bassam Hamze, at that stage, considered himself entitled to, or else authorised or permitted to, negotiate arrangements on behalf of the first defendant with respect to his criminal proceedings. This was not the conduct of someone who had "expelled" his brother from the criminal network because of his betrayal of Bassam Hamze.
The first defendant received a significant discount on the sentence which he received as a consequence of his pleas of guilty to the two drug supply charges earlier described. The discount in part was obtained on the basis that he had provided assistance to law enforcement authorities. That was the induced statement.
My assessment of all of the evidence in these proceedings is that the giving of the induced statement by the first defendant was simply a step in which he engaged in order to ameliorate the sentence of imprisonment which he would inevitably receive for the drug supply charges, to which other participants were also pleading guilty.
As well, the fact that, since 2018, there have been applications by Bassam Hamze seeking permission to communicate with the first defendant, suggests to me that their relationship is not one which was adversely impacted by anything which the first defendant did with respect to that induced statement. As well, the frequency of telephone contact suggests that Bassam Hamze and the first defendant have ongoing close and frequent contact.
I am not persuaded that the content of the induced statement is such as to allow me to conclude, as submitted to me by senior counsel for the first defendant, that there is no risk that his client would engage in serious criminal activity.
I am fortified in that conclusion by the lack of any evidence in these proceedings from the first defendant. He did not choose to affirm the contents of the induced statement by giving sworn evidence.
What is of importance from that induced statement, however, is some of the descriptions given by the first defendant regarding the nature and extent of an organisation called "Brothers for Life". The first defendant told interviewing Police that, to his knowledge, Brothers for Life was a group started by his brother, Bassam Hamze, in about 2005 because he wanted to have power so that he could intimidate people. The first defendant described the purpose of the group in this way: "Just in case, like there was, say, dramas or something, he'd have the boys there to collect his money if he wanted to collect money, or if someone, if he wanted to rip someone, intimidate people, just things like that. Just have them there so he can get them to go down. … On the outside, if someone wouldn't pay him or just, yeh, pretty much. If he wanted money off someone and they wouldn't pay or if someone tries ripping him off."
According to the first defendant, there were about 50 or 60 people involved in collecting money for Bassam Hamze, and that those people were: "… just like out there, just to represent him, like just in case he needs them or like, or if he needed something done, they were there, he knew they were there."
The first defendant told Police that members of the group probably possessed weapons - he thought that they probably possessed handguns and automatic rifles, which they intended to use to intimidate people or "if they had to shoot, they'd shoot. That's it. They'd shoot at houses if they had to". He also said of the members of Brothers for Life, when asked whether they would do such activities of their own volition: "Not really. They'd only go there if [Bassam Hamze] told them to go there. They wouldn't actually go there for no reason or if they didn't want to go there. So if he told them to go there, they'd go there, they'd go there and they'd just, if things escalated, they'll just start shooting. They wouldn't ask questions." (emphasis added)
The significance of these answers is not necessarily to establish that there is still a group known as Brothers for Life which is engaged in criminal activity. Rather, it demonstrates powerfully, particularly when corroborated by other evidence about Bassam Hamze's activities, that he operates in a way which involves using other people to carry out illegal activities on his part, including the use of firearms and violence for the purpose of debt recovery or intimidation or simply to establish his authority in particular fields of endeavour (drug dealing) or in particular geographical areas. The more recent activities which I have described earlier as being the business of the Hamze criminal network, show a substantially similar method of conducting its operations.
This material reinforces my conclusions that there is a real and substantial risk that the first defendant will engage in serious criminal activity because of a direction he receives from, or else a request for assistance from, Bassam Hamze, as part of the business of the Hamze criminal network, or simply because of his close fraternal relationship.

Second Defendant

The second defendant, who is 26 years old, first committed a criminal offence involving a degree of violence at the age of 18. He was found guilty of assaulting a Police officer in the execution of their duty and resisting an officer in the execution of their duty. He was given a bond to be of good behaviour. A conviction was not recorded.
In 2018, as earlier indicated, the second defendant was convicted of the supply of cannabis in a quantity greater than the indictable amount but less than the commercial quantity. The offence of dealing with the proceeds of crime and knowingly or recklessly directing a criminal group were taken into account in the sentence for the principal offence. In December 2018, the second defendant was again accused of and dealt with for bringing a prohibited drug into a place of detention.
In addition to these offences, the Commissioner tendered CCTV footage of a recent assault by three individuals upon a single individual. The assault included the use of a weapon, was carried out in broad daylight on a public street in the Sefton area and was, to my observation and in my opinion, an offence of significant violence. The victim was chased, punched, kicked and beaten. He fell to the ground and the assault continued even though he was lying, helpless, on the ground.
The evidence of Detective Senior Constable Blom identified the victim of the assault as Shaylin Zreika. The evidence of Detective Chief Inspector Reid was that Shaylin Zreika is a member, or associate, of the Alameddine crime network.
Det. Blom also identified the three assailants as being the second defendant, his cousin, Hassam Hamze, and Tareek Hamze. Hassam Hamze and Tareek Hamze, at that time, lived with Mejid Hamze at Condell Park. Mejid Hamze is the brother of Bassam Hamze and the first defendant.
From the evidence, I am satisfied that at least in the period between August 2019 and October 2020, the three assailants (being the second defendant, Haissam Hamze and Tareek Hamze) were close associates. Surveillance carried out by members of the Police Force observed that they often drove each other's registered vehicles, as well as a range of vehicles registered to other known associates.
Det. Blom's evidence as to his identification of the second defendant and the other two perpetrators was not challenged either by cross-examination or by the calling of any evidence. I accept entirely the identification undertaken by Det. Blom, and I am satisfied that it was the second defendant was one of the assailants involved in the vicious and violent assault which took place in October 2020.
This assault was not reported to the Police by, or on behalf of, the victim. The victim refused to provide any assistance to the Police who were seeking to investigate the offences. These are typical features of an incident that occurs between criminal groups or networks. They hold the view that such matters are properly to be sorted out between themselves and without any police involvement.
With respect to the 2018 set of offences referred to above at [101], including dealing with property believed to be the proceeds of crime, the Police Facts, which I am satisfied are reliable, included the following material: "At the time of the search, the [second defendant] was wearing a male shoulder bag. Within this bag the Police located three mobile phones consisting of a Samsung Galaxy, a small Nokia disposable phone and a Blackberry. The latter two phones are commonly used in the sale of prohibited drugs. The [second defendant] was immediately cautioned and Police continued searching the bag. Within the bag Police further located a quantity of cash which was loose within the bag. The [second defendant] was in possession of a wallet within his pocket, however this amount of money was separate from the wallet."
The Fact Sheet goes on to record the following: "The [second defendant] was asked questions about the money, initially stating that there was 'about $3,000 there' and that the money was 'all of theirs for the night out'. The [second defendant] was asked whose mobile phones they were, specifically the Blackberry. The [second defendant] replied 'they're mine'. The [second defendant] was asked by Police if he could access the phones which were all key locked. The [second defendant] opened the Samsung as well as the small Nokia on the first attempt. When it came to unlocking the Blackberry, the [second defendant] entered the incorrect passcode several times which, in effect, locked the phone. When questioned about this, the [second defendant] replied that he had 'forgot the code'. Police questioned why the [second defendant] was carrying so much money with the [second defendant] informing Police that it was 'normal to them'. The money was counted in front of the [second defendant] - totalling $6,750."
This factual material, which I am satisfied is reliable, gives rise to the overwhelming inference that the second defendant and his two companions were engaged on this occasion in the supply of illicit drugs. The fact is that they were carrying a number of mobile phones of the type regularly used by drug suppliers (one of which - a Blackberry - was encrypted and could only be examined by entering the correct password). There was no explanation, rational or otherwise, given to explain the fact that the second defendant was in possession of such a significant sum of cash. On that evening, when spoken to by Police, arising out of which he subsequently charged, I am satisfied that the second defendant was actively engaged in drug dealing.

Recent Factual Context

Det. Reid, who I am satisfied was a credible and reliable witness, gave evidence of a series of recent events which suggested violent conduct between members of the Hamze family and members of the Alameddine family. I have already found that I am satisfied Bassam Hamze is the person who is known to direct members of his family to engage in violent and unlawful activities. Consequently, having regard to the evidence about Bassam Hamze's nature and the fact that the first defendant previously engaged in criminal offending at Bassam Hamze's direction, I am satisfied that insofar as there is conduct by members of the Hamze family in the sequence of events to which I am about to refer, it was at the instigation of, and at the direction of, Bassam Hamze as part of his loosely organised family-based criminal network.
Det. Reid noted that since 2013, there have been several violent incidents, including murders, involving members and associates of, amongst others, the Hamze family and Alameddine Organised Crime networks. He notes that most of these conflicts have been unreported to Police by those participants and victims and were generally over drug distribution and territory disputes.
Det. Reid also noted in his oral evidence that it was very common for incidents occurring between different crime families or networks not to be reported to Police but, rather, commonly these groups preferred to deal with matters themselves, usually in the form of retaliatory events.
The evidence was that this series of recent events commenced with a drug dispute in which it appears, from an account received by Police from a reliable source, that one or more members of the Alameddine family had stolen a quantity of drugs from the Hamze family.
Then, a second event occurred which I have earlier discussed. At about 3.20pm on 14 October 2020, Shaylin Zreika, a member of the Alameddine criminal network, was assaulted by three men, including the second defendant, who are members of the Hamze criminal network. One of the three men was armed with a metal pole. The assault took place after Shaylin Zreika left a café in Sefton. The assault was not reported to Police by the victim. The victim (Shaylin Zreika) declined to assist the Police.
Det. Reid formed the opinion, which I accept, that this assault was carried out in retaliation for the earlier theft of drugs by a member of the Alameddine family from the Hamze family.
Two days later, 16 October 2020, the Police received information from a reliable source that there had been a continuation of the dispute between the Hamze family and the Alameddine family after the assault on Shaylin Zreika: namely, that there had been a third event in which either an amount of drugs or a telephone relating to a specific drug run, had been stolen by the Alameddine family from the Hamze family.
At about 9.15pm on the following evening, 17 October 2020, a fourth event occurred where the second defendant's house in Auburn was the subject of what is known colloquially as a drive-by shooting. Witnesses reported hearing approximately 10 gunshots and the breaking of glass together with a car leaving the location at high speed immediately after the gunshots were heard. Police investigating the shooting found nine cartridge cases in the driveway and on the roadway outside the home, with damage to the fences.
Further information was received by Police from a source that Det. Reid regarded as reliable, that immediately after the shots were fired, the second defendant was observed to go out into the street and shoot at the offenders as they were departing from the scene in their motor vehicle. I accept that such information has been given to the Police from a source they regard as reliable and, that having regard to all of the circumstances, I should accept the evidence about the accuracy and reliability of the information.
Unsurprisingly, Det. Reid expressed the opinion that this shooting at the second defendant's home was in retaliation for his participation in the assault a few days earlier, on 14 October 2020, on Shaylin Zreika.
Early in the morning of 19 October 2020, a fifth event occurred when the Merrylands home of Rafat Alameddine was also the subject of a drive-by shooting. Rafat Alameddine made no report to Police of the shooting, and it only came to light when a further shooting, to which I will shortly come, occurred. When the home at Merrylands was examined, Crime Scene Officers located 15 bullet holes spread across the front door and façade of the house. Attempts had been made to clean up the crime scene and cover up those holes. Nevertheless, they were observable. When the house was searched, the Police seized a number of items including a number of mobile phones and electronic devices, a CCTV system, a total of $14,565.00 in cash, a black balaclava and black gloves.
Rafat Alameddine refused to assist the Police in identifying the bullet holes, in relaying what had been done to patch them up or to make any comment in respect of any other items which were located in and around the crime scene.
At all material times, Rachad Alameddine was also present at the house with Rafat Alameddine.
About seven hours after the shooting at Rafat Alameddine's residence, there was a sixth event in the series when a shooting occurred at a house at Condell Park. A number of members of the public telephoned 000 to report that a significant degree of shouting had been heard together with shots being fired. Witnesses reported to 000 that two males were seen dressed in black and driving away in a vehicle described as a dark grey or charcoal coloured Toyota RAV4.
The victim of the shooting was Mejid Hamze, the brother of Bassam Hamze and of the first defendant. Mejid Hamze was found with gunshot wounds to his chest and right leg. The offenders fired 14 shots at Mejid Hamze in the course of the attack, two of which struck him in the chest, one in the leg and one in the arm. Mejid Hamze died at the scene of the shooting. The other shots which were discharged had penetrated the garage window of the residence next door, and vehicles parked in the driveways of the adjoining premises. The vehicle identified by witnesses as having been involved in the shooting was later located at Yagoona, completely destroyed by fire.
Det. Reid expressed the opinion that this shooting was in response to the shooting which had happened seven hours earlier. His expert opinion was that the series of recent events, which I have just described, represented an escalation of conflict between individuals concerned with the Hamze family and the Alameddine family. I entirely accept this conclusion.
This series of recent events, at least as far as the details are publicly known, each involved serious criminal activity. Each involved a significant degree of violence, including the discharging of firearms into homes where people were living. The crimes were planned - for example, the vehicle used in the shooting of Mejid Hamze was later found to have been destroyed by fire, thereby preventing or making extremely difficult any forensic investigation which may have established the identity of the people in the vehicle at the relevant time. Information was not being provided by the victims of the crimes to the Police to enable a proper and speedy investigation into the offences.
I am satisfied these attacks are each retaliatory attacks which are causally linked to one another (that is to say, each attack is retaliation for a previous attack). I am further satisfied these events strongly suggest that two groups of criminals, here rival families, are sorting out their differences between themselves in a violent manner and without engaging with the Police. This is a course of conduct of rampant serious and violent criminality, involving members of the Hamze family on one side and members of the Alameddine family on the other, occurring in public and intended to continue to inflict violent retaliation upon each other for perceived crimes and slights.
Whilst the publicity about these events, the intense Police investigations which are occurring, and, perhaps, the existence of these proceedings, has led to a pause in these retaliatory attacks, there is no reason to think that the disputes have been finished and settled for all time. On the contrary, these recent events demonstrate a clear, present, real and substantial risk that members of both of these families and their associates in their criminal networks will continue to engage in retaliatory attacks, conducted in public places, in circumstances where it is highly likely that one or more members of the public will be harmed or adversely affected.
From a review of all of the evidence, which I have here discussed and which I have found to have been proved to the requisite standard, I am satisfied that there is a real likelihood or else a real or significant risk that each of these defendants will be involved in serious crime-related activity as part of the series of retaliatory steps and as part of a general escalation of violent attacks being perpetrated by members of the Hamze family on those whom they perceive to be their rivals.

Fourth Essential Step

This step requires that I must consider whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting or disrupting the person's involvement in serious crime-related activities.
This requires that I consider the range of possible orders and, after such consideration, only impose an order if I come to the view that an order will do that which the section requires.
Each of the defendants submitted that this step required me to consider whether there was an order capable of being obtained by the plaintiff under other legislation which may also be effective in protecting the public by preventing, restricting or disrupting the involvement or participation of these defendants in serious criminal activity. Those orders were said to include: firearm and weapon prohibition orders; consorting warnings pursuant to s 93X of the Crimes Act; apprehended violence orders; and orders under the Crimes (Criminal Organisations Control) Act 2012.
The Act does not, at this step, require attention to the existence, or possibility of, orders made, or warnings given, under different legislation. Rather, what the Act calls for is a consideration of the existence of reasonable grounds to believe that a potential order under the Act would have the required effect of preventing, restricting or disrupting serious criminal activity.
The submission of each defendant was based on an incorrect reading of the plurality judgment in Vella at [47]. The use of the phrase "the range of possible orders" is clearly referring to the available orders only under the Act, as the balance of the sentence shows.
Before coming to the conclusion that a possible order under the Act would have the effect of preventing, restricting or disrupting a defendant's involvement in serious crime-related activities, it is necessary for the Court to consider the conditions proposed under the order being sought by the Commissioner. A good example of this, which was identified by the High Court in Vella at [48], and which confirms my view of the Act and the judgment of the plurality, is that to be found in the decision of Davies J in Cole. His Honour observed, with respect to an application to restrict internet access to the use of a single nominated computer, that there was no evidence to suggest that computers had been or were likely to be used in any matter which contributed to the relevant serious crime-related activities in that case.
I am satisfied that the Commissioner has established that there are reasonable grounds to believe that an order under the Act which contains any of the provisions which are sought in the Second Further Amended Summons would have the effect of preventing, restricting or disrupting each defendant's involvement in serious crime-related activities, as prescribed by the Act.

Fifth Essential Step

This step, which derives from s 6(1) of the Act, requires the Court to consider whether the proposed prohibitions, restrictions, requirements or other provisions are appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement in serious crime-related activities.
As earlier described, the term "appropriate" is used in the sense of whether the conditions being imposed allow the order to be "fit for purpose". That is to say, this is not an occasion when any generic kind of order can be imposed, or any other standard or blanket form of order. Rather, the Court needs to consider each condition of the proposed order and determine whether it is appropriate to impose that condition in the circumstances which are established on the evidence, separately for each defendant.
This involves, as earlier noted, a balancing exercise, where one weighs the magnitude of the activity which will be affected against the likelihood that an order would prevent, restrict or disrupt serious criminal activity. Necessarily, one must also consider the extent to which an order will intrude on a defendant's liberty and general freedoms which are an ordinary incident of a life, lawfully lived.
As the plurality of the High Court has said, a less intrusive order that broadly would achieve the same effect as a significantly more intrusive order is to be preferred.
The Commissioner originally sought certain orders which were aimed solely at assisting police investigations. I do not accept that a condition of an SCP Order can be made which is solely directed to making easier the task of Police to carry out an investigation into a crime after it has occurred.
The key words, when considering the appropriateness of the content of an SCP Order, are the preventing, restricting or disrupting involvement by a person in crime. Whether or not a person in respect of whom there is a real and substantial risk that they will engage in serious criminal activities, would turn their mind to the ease with which those activities could be detected after the event, is not, in my assessment, a relevant consideration.
That is not to say that there may not be, through the conditions which are imposed, a capacity to prevent crime by making information more easily accessible to police than it would otherwise be. However, conditions cannot be solely aimed at assisting a police investigation after the event into a crime which may be committed at some unknown time in the future.
It is necessary now to consider the conditions proposed.

A Late Amendment of the Further Amended Summons

By the time the evidence concluded, the conditions proposed by the Commissioner were contained in a document filed by leave and described as a Further Amended Summons. That is to say, the third version of the plaintiff's original Summons.
In the course of final submissions, senior counsel for the Commissioner sought leave to file a Second Further Amended Summons. It differed from the others only with respect to the conditions which were sought to be imposed.
Previous amendments to the original Summons had been consented to by the defendants. However, both defendants objected to a grant of leave to the plaintiff to file the Second Further Amended Summons.
The defendants submitted that the amendments were being sought at a very late stage of the proceedings, that they did not have an adequate opportunity to consider and deal with the newly proposed conditions, and that they would be put to additional cost and expense by having to deal with them. They also rather unconvincingly submitted that they may have chosen to call evidence to deal with the newly proposed conditions.
A short adjournment was granted to enable senior counsel for each of the defendants to seek instructions with respect to the time that each would need to consider and respond to the newly proposed conditions, and whether there was a convenient date for the Court to take any further submissions with respect to the proposed conditions.
After the short adjournment, both defendants maintained their opposition to the Second Further Amended Summons, but were content to make their submissions both on the application for leave to amend, and on the conditions, if leave was granted.
Neither defendant identified any prejudice, except for additional cost, which existed if the Commissioner was permitted to file the Second Further Amended Summons.
The Commissioner submitted that it was in the interests of justice, and the just, quick and cheap resolution of the real issues in the proceedings, for him to be permitted to seek different conditions which would deal with the difficulties which had been identified in the course of submissions to the Court and discussions between the Bench and counsel.
In light of the time remaining in the day, I indicated that I would reserve my decision on whether or not an amendment would be granted and would give my decision as a part of this judgment. I invited the defendants to put any further submissions as they may wish in answer to the newly proposed conditions. Both did so and indicated that there were no further submissions that they would wish to make if a further adjournment was granted.
In my view, the Commissioner should be permitted to file the Second Further Amended Summons. The newly proposed conditions are in fact a lesser sub‑set, although more clearly expressed, than the conditions originally sought. In addition, it is clearly appropriate that the Commissioner have an opportunity to seek conditions, or else to seek amended conditions in light of submissions which were made. Because this proceeding was brought on urgently, written submissions from each of the defendants were received either the evening before or else the day of the proceedings being heard. Had there been a more leisurely timetable, no doubt those matters would have been raised and considered by the Commissioner and any amendments made before the proceedings commenced.
It is in the interests of justice that this Court deals with the entirety of this application, including any updated conditions put by the Commissioner. There is no prejudice to the defendants in doing so.
Accordingly, I will grant leave to the Commissioner to file the Second Further Amended Summons. I will make an order with respect to any additional costs being paid. This order was not opposed by the Commissioner.

An Appropriate Order

It is necessary to consider the proposed conditions, to ensure that they are appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by each defendant in serious crime related activity. In that consideration, it is necessary to balance any intrusion upon the liberty of each defendant to go about their lives free of restriction.
It needs, however, to be recognised that the risk of serious criminal activity in this case is one of ongoing involvement in the dealing of drugs at a commercial or significant level, and criminal activity of significant violence, including the use of firearms or weapons. This necessarily encompasses the possibility of serious physical injury, and perhaps death, being caused to individuals and exposure of the public to serious harm and injury.
Put differently, these orders are not concerned with crime which is minor. The risk to which these orders are directed is of serious, violent and significant crime. Necessarily, intrusions upon the liberty of an individual have to be measured against that fact.
The first condition sought is a prohibition on the use of an alias. Neither of the defendants submitted that, as a matter of principle, this restriction was inappropriate. Such a restriction is appropriate.
The second group of conditions sought deal with notification to police of the location of the principal residence of each defendant and notification of any temporary residence where the defendant would stay the night when absent from their principal residence.
The notification of residence, including a temporary residence, will enable the Police to deploy patrols - whether stationary outside the residence or else moving through the area - which would deter attacks on that residence and the individuals inside. Prevention of an attack on a member of the Hamze family, such as each of these defendants, will make a violent, retaliatory attack far less likely, thereby restricting the investment of either defendant in serious crime‑related activities. As well, the notification would also mean that the Police would know one likely location of each defendant, and follow them from that location to where they may be intending to perpetrate or assisting in the perpetration of a crime, thereby disrupting their involvement in serious crime‑related activity.
I regard these conditions, which simply require notification and nothing further, as being appropriate. They do not impact upon the liberty of either defendant.
It will be necessary to rephrase the residence notification conditions sought, but such rephrasing does not impose any greater restriction on either defendant.
Finally, under this group of conditions, the Commissioner seeks a curfew preventing each defendant from leaving their residence at any time during the period between midnight and 5am. This condition is opposed by both defendants.
The fact is that the three most recent events occurred between a little after 9pm and 7.30am, with the last two occurring on the same evening. The timing of the last event (being 7.30am) was likely dictated, it would appear, by the need to retaliate against the shooting which had occurred seven hours earlier. That is to say, the seven hours was the time which was necessary to plan and give effect to that retaliatory event.
On the other hand, the violent attack on Shaylin Zreika occurred in broad daylight, in a busy street. It seems that it took place intentionally in daylight and in a public place to send a warning to the Alameddine family about their conduct. Consequently, it appears that the escalating violence between the different sides is not restricted to purely occurring at night-time, let alone between the hours of 12 midnight and 5am.
Moreover, a curfew is an onerous condition to place on the liberty of either of the two defendants. In particular, a requirement that the defendants must legally be in a certain location at a certain time is not a desirable course for the Court to take in a situation whereby the two defendants are involved, at least by virtue of their family allegiance, in escalating retaliatory violence. If such a condition was to become known to those who wish them harm, the orders would have the potential to escalate the violence rather than diffuse it by publicly identifying where a possible target is to be found in a known time period.
Given violent events have occurred in public during the day and, consequently, there is little evidence that a curfew would prevent the violence, I am not satisfied a curfew is appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement of either of the defendants in serious crime-related activities.
The next series of conditions relate to communications.
The Commissioner pointed to considerable evidence that mobile phones are used for the purpose of drug distribution and have been used by various members of the Hamze family for that and like purposes. It is also notorious that mobile telephones are used to send text messages to assist in planning and undertaking crimes. Particularly is this so if an attack is to be mounted on an individual. That target can be notified by text message as being at a particular location and at a particular time so as to enable the retaliatory strike to take place.
Both defendants have been found at various times to be in possession of multiple mobile phones and, in one case, a Blackberry - which is capable of encrypted communication which cannot be readily intercepted or tracked. Some mobile phones are equally capable of that. Some applications which can be accessed via mobile data on a mobile phone can also be used in an encrypted fashion.
Accordingly, I am satisfied that a condition restricting each defendant to one mobile communication device and which cannot be used in any way for the encrypted transmission of voice or text messages will be a significant measure to prevent their involvement in serious crime-related activities. Effective conditions for that purpose are necessary.
The next series of conditions which are sought deal with a restriction on the possession of an amount of cash in excess of $10,000 and a limitation on the use and operation of a bank account.
I am well satisfied that these conditions are appropriate. The evidence before me shows that an essential feature of drug dealing is the use of cash. A limitation on the amount of cash which each defendant can possess at any time will significantly prevent or disrupt large scale drug dealing.
As well, from time to time, in order to disperse the proceeds of their drug dealing, individuals will carry out cuckoo smurfing, i.e. they will use a range of bank accounts into which smaller sums are deposited, in a variety of names, with the intention of avoiding any detection: see Tran v R (Cth) [2020] NSWCCA 310 at [12]. In my view, the conditions sought in relation to cash and a bank account are appropriate.
The Commissioner also seeks a group of conditions which require each of the defendants to notify him of their employment and any change in it. The evidence does not suggest that either of these defendants is employed. Nor does the evidence suggest that any of their respective criminal activity, whether in drug dealing or else (with respect to the second defendant) engaging in violent retribution, has anything to do with their employment at all. Rather, they seem to engage in drug dealing and associated violence, as their only form of employment.
Although the imposition on the defendant is slight as they would be required only to notify of entering into employment or changing it, I fail to see how such notification could be regarded as having any effect upon preventing, restricting or deterring them from engaging in serious criminal activity. Such conditions are inappropriate.
The next group of conditions relate to travel outside NSW. The proposed conditions require the defendants to inform the Commissioner when they propose to travel outside NSW and to provide a full itinerary including accommodation details, dates and modes of travel. Any variation or change to their respective itineraries is required to be notified to the Commissioner.
Placing an obligation on a defendant to notify the Commissioner by email is not an onerous obligation and this condition would not restrict the defendants from travelling. It merely requires the Commissioner to be notified of their travel arrangements.
However, as is apparent from the facts earlier recounted, any violent retaliatory activities are only likely to occur within Sydney and its environs. A travel restriction cannot be appropriately directed to such crime-related activity.
The offences to which the first defendant pleaded guilty included travel by him to Melbourne to collect the proceeds of the drug transactions. The drugs themselves were transported to Melbourne by another participant in the criminal enterprise.
Nevertheless, the mere fact that some of the drug transactions in which these defendants engaged, or in which members of the Hamze family engaged, had occurred as a matter of history partly in another State, does not of itself and without more seem to me to make a travel notification clause an appropriate one. There is no evidence of any recent drug dealing which is occurring interstate. There is no evidence that there has been any involvement, peripheral or otherwise, of either defendant in any crime interstate.
In those circumstances, I see no connection with serious crime-related activities which would make it appropriate to impose the condition sought by the Commissioner.
The next group of conditions are directed towards the identification and notification of the vehicles which each defendant is entitled to use.
Having regard to the manner in which the crimes the subject of the evidence in this application have been carried out, and the regular use of different vehicles for the purpose of those crimes by both the first and second defendant, I am well satisfied that a conditions which requires each defendant to use one vehicle only, the identity of which is to be notified to the Commissioner, is not a burden and will be a significant tool in the prevention or restriction of serious crime-related activity.
Finally, conditions are sought with respect to non-association. In my view, given the nature of the retaliatory crimes which are being committed by individuals who are within a family group or are against individuals in a separate family group, a non-association condition is appropriate.
The terms which are proposed are, I am satisfied, likely to be effective in preventing ongoing crime. I accept that they may prevent contact between family members at all, even though much of that contact my not relate to criminal activity. But that restriction is outweighed by the need to so condition the order to ensure its effectiveness in preventing or restricting serious crime-related activity.

Sixth Essential Step

It is now for the Court to consider as a final step whether to exercise its discretion to make an appropriate order.
In the current circumstances, and having regard to all of the evidence, the likelihood of serious crime occurring, particularly by way of violent retaliation and ongoing drug dealing, is very high. There is a real and substantial likelihood that each defendant will in some way participate in either or both of those ongoing serious criminal activities.
The orders sought by the Commissioner, with those conditions which I regard as appropriate, would in my view have the effect of preventing, restricting or disrupting any engagement in crime by either of the defendants.
The restrictions which are to be imposed upon each of the defendants are not, in my view, such as to significantly impact upon their liberty or their right to live their lives in an ordinary and law-abiding fashion.
In my view, it is appropriate to exercise my discretion to make the appropriate orders under this Act.
It is necessary to consider the period for which the order is to be made. The Second Further Amended Summons seeks that the orders be in place for a period of 24 months. No submissions were addressed to the Court by either defendant which specifically dealt with the question of an appropriate length of time for the orders to be imposed. The defendants objected to any order being made.
I am conscious that an SCP Order can be varied or revoked on the application of a defendant, but only where the defendant can show a substantial change in circumstances: s 12(2) of the Act. However, it is open to the Commissioner to seek another SCP Order for a further period, if, by the time this order expires, there still exists a real and substantiated risk of a kind which would justify the making of an SCP Order.
In those circumstances, it seems to me that the appropriate period for the orders sought is 12 months.

Costs

Although the plaintiff seeks an order for costs in the Second Further Amended Summons, senior counsel for the plaintiff indicated that the plaintiff did not seek costs if successful.
It seems to me that ordinarily it would be appropriate that costs follow the event. However, in light of the plaintiff's attitude, I will order that each party bear its own cost of the proceedings, except for the specific order with respect to the amendment of the pleadings.

Orders

I make the following orders: (1) Grant leave to the plaintiff to file a Second Further Amended Summons. (2) Order the plaintiff to pay the costs of each defendant of and occasioned by the filing of the Second Further Amended Summons. (3) In respect of each defendant, I make a Serious Crime Prevention Order within the meaning of s 5(1) of the Crimes (Serious Crimes Prevention Orders) Act 2016 on the terms and conditions as set out in Annexure A to this judgment, for a period of 12 months. (4) Order each party to bear his and its own costs of the proceedings.

ANNEXURE A SERIOUS CRIME PREVENTION ORDER MADE BY THE SUPREME COURT OF NSW ON 18 DECEMBER 2020 The Court orders, pursuant to s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016, that each defendant complies with the following prohibitions, restrictions and requirements for a period of 12 months commencing with effect from the time at which each defendant is served with this Order: 1. In these orders, the following definitions apply:

"ordinary name" means in respect of each defendant the following: 1. first defendant: Ghassan Amoun 2. second defendant: Ibrahem Hamze;
"notify" means to send an email to an email address provided, in writing, by the Commissioner of Police, or his delegate, to each of the defendants and their lawyers, within three hours of these orders coming into effect. This email address is to then be the email address for the provision of any information required to be notified by either of the defendants to the Commissioner of Police in accordance with the orders of this Court;
"a communication device" or "a communication service" shall include but is not limited to: 1. a mobile telephone; 2. a telephone landline (whether with or without handset); 3. a SIM card or an e-SIM; 4. a satellite telephone; 5. a fixed or mobile telephone or like device which uses a Voice Over Internet Protocol; 6. a 2-way radio; 7. a computer; 8. a fax machine; or 9. any other device configured so as to enable voice, images, text or data to be sent or received.
"computer" includes but is not limited to: 1. a desktop computer; 2. a laptop computer; 3. a tablet computer; or 4. an iPad/Notebook or Netbook.
"cash" means banknotes and coins in any currency, including Australian currency, postal orders, traveller's cheques, casino chips and/or betting slips.
"designated username, password or personal information number" means: 1. for the first defendant, Ghassan Amoun: 2. Username: XXXX 3. Password: XXXX 4. Personal Identification No: XXXX 5. for the second defendant, Ibrahem Hamze: 6. Username: XXXX 7. Password: XXXX 8. Personal Identification No: XXXX 1. IDENTITY

Prohibition on use of alias Each defendant is prohibited from using any name other than his ordinary name when speaking with, emailing or otherwise communicating with any police officer, Commonwealth or State government authority, or any employee or agent of such authority, any financial institution, when engaging in any commercial transaction, or when responding to any requirement lawfully made upon him for proof of his identity. 1. RESIDENCE
Notification of Residence 2.1 Each defendant must, within 6 hours of these orders coming into effect, notify his current residential address. 2.2 If a defendant intends to change his residential address, he must notify, 7 days prior to moving, the following information: (a) the date of his move to the proposed address; (b) the full address of the proposed residence; and (c) the date upon which he is to commence living at that proposed address. 2.3 Each defendant is prohibited from residing, or staying the night, at any residence except for one notified in accordance with clauses 2.1 and 2.2 above. An exception to this prohibition is if the defendant notifies of any night (and the number of nights) during which he intends to temporarily reside away from the notified residential address at any form of accommodation, whether paid for, or provided without charge. The defendant must do so: (a) if the absence is planned, at least 72 hours prior to the first night of absence; (b) if the absence is not planned, within 12 hours of the first night occurring. 1. COMMUNICATIONS
Restriction and notification of communication devices 3.1 Each defendant is prohibited from using a communication device, a communication service, or a computer which: (a) is not accessed or used in any name other than the designated username, or password, or which is not accessed through the designated username, or password, or personal identification number; (b) is encrypted, or else is capable of being used to send encrypted voice communications or transmit encrypted images or data messages; (c) to his knowledge, runs messaging applications or accesses websites which remain encrypted once received, or else automatically delete a message once sent, or else, once received and read; (d) to his knowledge, runs software, or accesses websites, which are designed to or else have the effect of, preventing data from being retrieved from the communications device, service or computer; (e) if capable of accessing and has the capacity to retain the history of websites visited, but it is possible for this capacity is to be disabled or circumvented, the defendants must not disable, circumvent that function does not operate effectively; (f) is not registered with a service provider solely in the defendant's ordinary name. 3.2 Within 6 hours of this order taking effect, each defendant shall notify of any communication device or computer permitted by this order which he proposes to use, identifying the service provider, the service number, or telephone number and the IMEI (or other identifying number). 3.3 The defendant shall make available for examination on request by any police officer of the rank of Detective Sergeant (whether acting in that rank or otherwise) or above, any communication device or computer that he owns or has in his possession or uses or controls, together with any storage device, provided that any request is not made by a police officer for examination when in attendance at the defendant's residence at any time between 9pm and 7am. 3.4 Each defendant is prohibited from using another person's communication device or computer at any time or in any place except for the purpose of contacting any emergency service or else any commercial provider of roadside assistance.
Restriction and notification of Email 4.1 Each defendant is prohibited from having, using or controlling more than one email account at any one time, except where the defendant is a proprietor of a business which has a current registered ABN, or else is employed by a business which has a current registered ABN in which case, the use or control by a defendant of one additional email account for the purposes of the registered business will be permitted. 4.2 Any email account the defendant has, uses or controls must be registered with the service provider in the defendant's ordinary name, and can only be used if the user-name and password are those designated in the order. 4.3 The defendant shall notify within 2 hours of first having, using or controlling an email account permitted by clause 4.2 above, the: (a) the name of the email account provider; (b) the defendant's email address; and (c) the username and password associated with that email account. 4.4 Each defendant is prohibited from using a communication device, or a computer, or subscribing or accessing any internet-based application which does not have the designated username, password or personal identification number. 4.6 The defendant must not use any publicly available communications device or computer other than for the purpose of contacting any Emergency Service or any commercial provider of roadside assistance. 4.7 Each defendant is prohibited from owning, controlling or using any equipment which to his knowledge can be used for anti-surveillance purposes, including but not limited to: (a) equipment capable of jamming, blocking or interrupting mobile phone transmissions or GPS signals; or (b) equipment capable of tracing audiovisual or other surveillance equipment. (D) CASH AND BANK ACCOUNTS
Restrictions on possession of cash Each defendant shall not possess cash to a total value of more than $10,000 in Australian currency.
Restriction on Bank Accounts Each defendant is prohibited from holding, using, or operating a bank account, whether in Australia or elsewhere, or credit card account, or possessing a credit or debit card, unless: (a) there is only one account; (b) such account or card is held in the defendant's ordinary name; (c) the details of the financial institution, the account name and type, the account number, the BSB number and the current balance is first notified within 12 hours of the Order taking effect. (E) VEHICLES
Notification of the Ownership and Use of Vehicles 7.1 Within 12 hours of this Order taking effect, each defendant shall notify the details of any private motor vehicle which he owns, possesses, uses or controls. Any such notice shall include in respect of each vehicle the following information: (a) the registered owner of the vehicle and their contact details; (b) the vehicle's registration number; and (c) the vehicle's make, model and colour. 7.2 The defendant is prohibited from driving or using any vehicle unless at least 12 hours prior to first driving the vehicle he has notified the details of the vehicle set out in Condition 7.1. 7.3 The defendant is prohibited from hiring a vehicle of any kind, and using, possessing or controlling a hire vehicle unless at least 12 hours prior to hiring or first using the hire vehicle, the defendant has complied with Condition 7.4. 7.4 The defendant may hire, use, possess or control a hire vehicle for his personal use provided that: (a) the vehicle is hired in his ordinary name; and (b) he has notified his intention to hire the vehicle and provided the following details: 1. the name and address of the hire company; 2. the date on which he intends to take possession of the vehicle; 3. the period for which he intends to hire the vehicle; and 4. the vehicle's registration number; 5. the vehicle's make, model and colour. 7.5 The defendant is prohibited from modifying, adapting or permitting another to modify or adapt any vehicle owned or used by him a way intended to conceal cash, firearms, weapons or drugs. (F) NON-ASSOCIATION
Restrictions on Associating with Other People 8.1 The defendant must not approach, contact, or speak to, or associate directly or indirectly with: (a) Bassam Hamzy; (b) each other defendant; (c) Haissam Hamzy (DOB 14/04/1994); (d) Tareek Hamzy (DOB 05/01/1998); or (e) Rafat Alammedine, or any of his family members, or any person known to the defendant, or else believed by the defendant to be a criminal associate of the Alameddine family, except Mejida Alameddine (also known as Mejida Hamze) whether in writing, or by oral or electronic communication (i.e. via telephone, text message, email or other social media) or communication through a third party. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020

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Judgment (17 paragraphs)

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