R v Hamouda

Count 1 - Aggravated Break, Enter and Steal

1. In the early hours of 26 May 2014, a security guard who was doing his patrol around Lansvale heard an alarm go off at the industrial complex at 62 Hume Highway. Upon arriving at the complex, the security guard saw a silver Holden Commodore, which conducted a U-turn and drove away from him. The security guard followed the vehicle along the Hume Highway but the vehicle sped away and the security guard lost sight of the Commodore.
2. Upon returning to the scene, the security guard saw a white van parked facing towards the shop that had been broken into. The roller door of the shop had been damaged as if the van had been used to ram the door. The engine of the van was still running. The security guard contacted Police.
3. Police arrived and contacted the owner of the premises. Cameras and hard drives were stolen from the premises, with a combined value of $5,150. The shop owner obtained CCTV footage from the premises and recognised the two males as the same males who had previously entered her store on 7 May 2014, being the co-Offender and Raed Hanna.
4. Upon being granted a search warrant, Police seized the co-Offender's mobile phone and silver V8 Holden Commodore. Inside the vehicle Police located bolt cutters, a number of gloves, a black Lonsdale jumper, black trackpants and a number of documents in the name of the Offender. At Mr Hamouda's residence, Police found more clothing and CCTV cameras and equipment that were stolen from the premises.

Count 2 - Larceny

1. On the morning of 15 May 2014, a CCTV camera was stolen from Wong Seng Co, which is in the same industrial complex as High Tech Digital CCTV. The same camera model that was stolen at these premises was located during a search warrant at the Offender's premises. CCTV footage of the offence revealed three males involved in the theft.

Form 1 (Count 1) - Destroy/Damage Property and Take Drive Conveyance

1. In the early hours of 26 May 2014, a CCTV camera and window were damaged outside the industrial complex. Another CCTV camera and white van with registration WIH982 were taken from the same building. CCTV footage shows three males arriving at the industrial complex in a Holden Commodore. One of the males who exits the vehicle has a stature similar to that of Mr Pehar.
2. The footage then shows the two males who exited the vehicle approach a white van which was parked and secured outside the same building. The two males forced access to the driver's side door of the van before driving away the vehicle. The males used the van to commit Count 1.

Form 1 (Count 2) - Larceny x3 and Take Drive Conveyance

1. On 6 May 2014, two CCTV cameras were stolen from outside of the store, with a combined value of $700.00. Footage shows a vehicle with similar features to a Holden Commodore arrive at the location. The male who exited the driver's seat and removed a ladder from the vehicle resembles the physical stature of Mr Pehar, who struck the CCTV camera a number of times before the image disconnects.
2. At about 3:17am on 15 May 2014, two further CCTV cameras were stolen from Boonma Enterprises, again within the same industrial complex. These two cameras had a combined value of $1600. One of the cameras stolen had the same model number as a camera found at the co-Offender's premises. CCTV footage shows three persons involved in the theft, with one of the males having a physical stature similar to that of Mr Pehar.
3. At around the same time, two CCTV cameras were also stolen from Bethel Shop Fitting World within the industrial complex. Additionally, two CCTV cameras and a truck with the registration BF54EO were stolen from Petra Equipment. The truck was later found on Woodville Road. CCTV footage of the incident revealed three males involved in the theft, including one male figure whose physical stature was consistent with that of Mr Pehar.
4. Counsel for the Offender tendered a bundle of some ten documents on the last occasion, comprising the Offender's subjective case. At the front of the bundle was a letter from the Offender which stated that the past year had been a big wake up call for him. He stated that he is trying to right what he did wrong in order to never let his children down again. He further said that completing the Traffic Offenders' course and a drug rehabilitation program has shown him the consequences of poor behaviour. I further note that in the letter of 5 June 2019 the Offender stated that he no longer associates with harmful friends, instead associating only with family members and those who truly love and want the best for him.
5. The second letter is from the wife of the Offender, who noted that since leaving prison, the Offender has gone back to working hard and living healthily, with his appearance changing remarkably. In fact, photographs were tendered on the last occasion which demonstrated the physical change in the appearance of the Offender, the first taken at the time when he was using illicit drugs and the second taken after he had ceased using drugs. Mrs Hamouda said that the Offender is now the father their children had always dreamed of having and that the time spent in prison was needed as he formerly was on a path of destruction.
6. The third letter was from Mustafa Kattar, the Offender's brother-in-law. Mr Kattar said that he has known the Offender for 18 years and upon meeting him, the Offender was a hard worker and great family man. Mr Kattar stated that the Offender started hanging around with the wrong crowd and that the person that he became was disgusting. Mr Kattar said the best thing that happened to the Offender was going to gaol, as he did for offences unrelated to the present and which were committed after the current offending, and that the Offender is now a better person than when they first met 18 years ago.
7. The fourth letter to which I have had regard is by Simon Nader, the Offender's employer. He has worked there for the past 18 years and Mr Nader has witnessed the Offender's spiral from being one of his best workers to one of his worst. He stated that since the Offender has returned to work, he has not missed a day and he has been a great asset to the business.
8. In a further update letter provided to the Court today, Mr Nader refers to his previous testimonial and stated that the Offender continues to show a clear dedication to his work. His work ethic and behaviour have continued at an excellent standard. He has continually been punctual at work. Mr Nader stated that he has had no issues with the Offender since his return to employment with him, and that the Offender strives for excellence within the workplace, having learned new skills which allowed the company to promote him to the front desk team. Mr Nader stated that he can see a bright future for the Offender and that he observes the Offender's wife picking him up on a daily basis with the children after work. He described the Offender as becoming a family orientated, hard working person, which he once was before. Further, he is described as a great asset to the business. Mr Nader also stated that he would be at a loss if the Offender were to be taken into custody.
9. I have also had regard to a report by a psychologist, Ann-Marie De Santa Brigida, who assessed the Offender on 8 June 2019. The Offender stated to her that the offences occurred in the context of his addiction to ice. The Offender noted that he was shocked at the extent to which his life spiralled out of control due to the abuse of ice. The Offender recalled a family history of growing up in Carramar with two hard working parents and three loving siblings. The Offender reported that, because his parents were always working, there was often no-one to supervise him at home. This is where he started socialising with a negative peer group and engaging in anti-social behaviour.
10. The Offender stated that he had a long history of drug abuse including cannabis, cocaine and methylamphetamine. He reported that he had been clean for 11 months and was undergoing regular urinalysis, both with Community Corrections and through his general practitioner's practice. The Offender has been told by his wife that this is his last chance and that if he relapses, she will leave him and take the children.
11. It was the opinion of Ms De Santa Brigida that the Offender is maturing out of his drug addiction. She declined from making any psychological or psychiatric diagnoses but did note that the Offender had a long history of illicit substance abuse and was highly motivated to remain drug-free.
12. I have also observed the certificate issued by Odyssey House, confirming that the Offender has completed Stage 2 of the alcohol and other drugs recovery group, as well as obtaining a certificate in the Traffic Offenders' rehabilitation program (which perhaps is not so pertinent to this offending but to the subsequent offending previously referred to).
13. I have also read a letter from Tammy Shiva, an assessment officer at Odyssey House Community Services dated 14 January 2019. Ms Shiva noted the Offender was assessed on 22 November 2018 and attended the non-residential treatment programme on 23 November 2018, 30 November 2018, 7 December 2018, 14 December 2018, 21 December 2018 and 11 January 2019.
14. The next bundle of documents tendered on behalf of the Offender is the various urinalysis documents, which have been further supplemented by additional test results. In respect of the additional testing period from 24 June 2019 through to 6 August 2019, negative results have been consistently confirmed. Overall, the documents demonstrate that the Offender has not tested positive for illicit substances since he was released in November 2018.
15. The Offender's brother, Robbie Hamouda, provided the Court with some further insight into his brother. He stated that it was a blessing in disguise that the Offender went into custody. He said that he witnessed the Offender assisting neighbours by mowing lawns and taking out rubbish at night, as well as attending all of his children's sports games and involving himself in social meetings. The final documents in the Offender's bundle are the two photographs to which reference has already been made.
16. The submissions on behalf of the Crown were very helpful and set out the general principles of sentencing relating to Count 1 in particular, being the aggravated break, enter and steal. The Crown submitted that general deterrence is particularly important when considering the objective seriousness. I accept that submission. The guideline judgment of R v Ponfield (1999) 48 NSWLR 327 was referenced, with the factors of vandalism and repeat incursions as noted in that judgment, as being present in the current matter. It was submitted that the offending did not appear to be sophisticated but there is evidence of planning, with the Offenders having attended the premises of Hi-Tech Digital CCTV, undertaking a reconnaissance of the premises. When considering the impact of each of the offences, the Crown submitted that both offences, the primary offences, fall within the mid-range of objective seriousness.
17. In terms of aggravating factors, the Crown submitted that for Count 2, the aggravating factor of committing the offence in company is present. Additionally, it is submitted that the aggravating factor of planning is present, but it was for the Court to determine the extent to which that would have an impact upon sentence. In my opinion, the planning involved in this offending is of a type which is inherent in offending of this type and does not operate so as to aggravate the offending.
18. The Crown also drew the Court's attention to the decision of the matter of R v Todd [1982] 2 NSWLR 517 and the issue of delay, stating it may be relevant in assessing the prospects of the Offender's rehabilitation. Although it has been some five years since the offending took place, for which the Offender is to be sentenced today, he has during that period engaged in other criminal conduct which has been dealt with by the courts. He has however also demonstrated more recently that he is actively rehabilitating himself, engaging in courses previously referred to.
19. In terms of a discount on sentence, it was submitted on behalf of the Crown that the Offender was entitled to some discount, but noted that the plea was very late and entered on the fifth trial listing. The Crown submitted that the s5 threshold was crossed and did not make any concession with regards the suitability of an intensive corrections order.
20. On behalf of the Offender, it was submitted the offences are below the mid-range of objective seriousness. It was submitted that this was because the sections encompassed more serious offending and that the offences were motivated to feed a drug habit. The Court was directed to the decision of Wood CJ at CL in the matter of R v Henry (1999) 46 NSWLR 346, where there was a statement made about the effect of drug addiction in sentence. This decision affirmed that while addiction does not mitigate the sentence, it does shed light on to the state of mind of the Offender. Further, it was submitted on behalf of the Offender that he should be sentenced on the basis that he was a principal but in the second degree and there was no evidence that he was involved in planning the method adopted to commit the substantive offences.
21. Counsel for the Offender referred the Court to Hyunwook v R [2010] NSWCCA 148 where it was stated that actions speak louder than words. That submission has been repeated again orally today. Counsel submitted that the evidence before the Court demonstrates that the Offender has strong prospects of successful rehabilitation and is unlikely to re-offend. It was submitted that there ought be a discount of 15% for the Offender's guilty plea, despite the fact that it came some two years after he was committed to trial.
22. Counsel for the Offender conceded that the s5 threshold was crossed, however has urged the Court to impose a sentence which would see his client serve any sentence in the community by way of an intensive corrections order.
23. In terms of any statutory aggravating factors, with regards to Count 2, I find that the statutory aggravating factor of commission of the offence in company is made out. Whilst the offences were planned, I do not find that the planning is such as to enliven the statutory aggravating factor pertaining to same. Based on the subjective material before the Court, I find that the Offender's prospects of rehabilitation are good. Additionally, I find that he is remorseful for his conduct. In that regard, in particular, I have carefully read Exhibit 3, being a handwritten letter by the Offender dated 24 June 2019, in which contrition is plainly admitted.
24. In terms of the objective gravity for the offences, considering the nature of the offences, what was stolen, the wilful destruction of property and the impact that each of the offences had on innocent small business owners, I find the objective seriousness for each offence to be at or just below the mid-range. In determining the discount for the guilty plea, I consider that a discount of 10% is appropriate and reflects the value of the guilty plea, given the timing at which it occurred.
25. The subjective evidence before the Court shows that the Offender was addicted to ice at the time of the offending. This is not a case where the Offender was predisposed to drug addiction whilst a young child, and perhaps at an age where he could not make a choice. His drug taking and subsequent addiction occurred through his own decision, as did the offending. It is commendable, however, that the Offender has taken active steps now to rehabilitate himself, both in the community and in custody, with the support of his family. Therefore, based upon the subjective material, I find that the chances of successful rehabilitation are good and the risk of re-offending is low.
26. As for prior good character, at the time of this offending, the Offender had a reasonably limited criminal record. It seems to have worsened since this offending, with a number of serious driving matters now existing on his record. I decline to find prior good character, and instead find that by reason of the historical criminal matters, that is those that pre-date the subject offending, he is disentitled to a finding of good character and any leniency which might otherwise follow.
27. In sentencing the Offender, I am mindful of the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act, being to ensure adequate punishment and to prevent crime by deterring the Offender and others from committing similar offences. In that regard, I consider general deterrence to be more significant and important in this case than specific deterrence, as the Offender has displayed a commitment to rehabilitation and turning his life around. Nevertheless, general deterrence must also be considered as a purpose for sentencing for offending of this type.
28. The next purpose is to protect the community from the Offender. Considering the material in the Offender's subjective case, I am not of the view that the Offender presents any danger to the community. Next is to promote rehabilitation. The sentence which I intend to impose will achieve the promotion of rehabilitation. Next is to make the Offender accountable for his actions. Next is to denounce the conduct of the Offender and, finally, to recognise the harm done to the victims of the offending.
29. It was submitted on behalf of the Crown that the s5 threshold had been crossed and a term of imprisonment is warranted. I accept that submission and find that after having considered all sentencing options, that no sentence other than imprisonment is appropriate.
30. Having determined that matter, it now falls upon me to consider whether or not the circumstances and the term of any such sentence would permit the sentence to be served in the community, as submitted on behalf of the Offender by his counsel.
31. I am mindful of the recent decision in the Court of Criminal Appeal of R v Fangaloka [2019] NSWCCA 173, pertaining to the interpretation of s66 of the Crimes (Sentencing Procedure) Act, by first assessing the Offender's risk of re-offending and what type of sentence best addresses that. I found that the Offender's risk of re-offending is low. It is commendable that he has continued on a path of rehabilitation since being released from custody. It is also apparent from the various references that he is well supported by both his immediate and extended family.
32. In considering the matters in s66, I am mindful of the fact that community safety is of paramount consideration when considering whether to make an intensive corrections order. I am obliged to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the Offender's risk of offending.
33. Having considered the matters referred to in s66 and the purposes for sentencing generally, I have formed the opinion that the risk of re-offending is best addressed by the Offender serving his sentence in the community rather than in full-time custody.
34. I should first, before I provide indicative sentences leading to an aggregate sentence, make some observations about parity. As I previously observed, yesterday I sentenced the co-Offender Mr Pehar for ten counts to which he pleaded not guilty. Some of those counts are shared with the present Offender, whilst others are placed on a Form 1. I am mindful of the fact that pursuant to the decision in Dunn v R [2018] NSWCCA 108, the parity principle does not apply where the Offender was sentenced for an offence but a co-Offender had the same offence taken into account on a Form 1. Additionally, I am mindful the fact that the Court must differentiate the culpability between co-Offenders by reference to their conduct in the joint enterprise. Finally, I should have regard to the subjective cases of both Offenders.
35. In respect of their individual culpabilities, Mr Pehar committed the offences himself as part of a joint criminal enterprise. Mr Hamouda, on the other hand, has pleaded guilty to offending as principal in the second degree and the agreed facts make plain that he was not involved in the actual offending. Strict parity cannot apply in this case because the offences that each of the two Offenders face are different. What I have done is attempted to achieve parity in relation to providing similar indicative sentences for the two counts, which they share.
36. The following are the indicative sentences, that is, the sentences which I would have imposed were it not for the fact that I intend to impose an aggregate sentence.
37. In respect of Count 1, namely aggravated break and enter with the Form 1 matters attaching, that is the break and enter and theft of CCTV cameras on 26 May 2014, which carries a maximum term of imprisonment of 20 years and a standard non-parole period of five years, were it not for the aggregate sentence, I would have sentenced the Offender to a period of imprisonment of two years and six months. After a 10% discount, this equates to two years and three months, with an indicative non-parole period of one year and six months. A departure from the standard non-parole period in this case is warranted by reason of the offending falling at or below the mid-range, and also by reason of the fact the Offender has pleaded guilty to the charge.
38. In respect of Count 2, that is larceny, with the take and drive conveyance offence and the three offences of larceny attaching on the Form 1, were it not for the fact I intend to impose an aggregate sentence, I would have imposed a sentence for that offence, taking into account the Form 1 matters, of 15 months. After a discount of 10%, this equates to an indicative sentence of 13 months.
39. The third indicative sentence required relates to the matter on the s166 certificate, being sequence 3, namely deal with the property suspected to be the proceeds of crime, which carries a maximum term of imprisonment of two years and/or a fine of 50 penalty units. Were it not for the fact that I am to impose an aggregate sentence, I would have sentenced the Offender to a period of imprisonment of ten months, discounted by reason of guilty plea to a period of nine months.
40. In applying an aggregate sentence, the Court must have regard to the principles of totality and ensure that the aggregate sentence reflects the overall criminality of the offending behaviour and does not result in what would otherwise be an excessive sentence. This requires the Court to stand back from the indicative sentences and determine an appropriate aggregate sentence, having regard to criminality and any applicable subjective matters.
41. Please stand, sir. Mr Hamouda, you are convicted of Count 1, namely aggravated break, enter and steal in breach of s112(2) of the Crimes Act. You are further convicted of Count 2, being larceny in breach of s117 of the Crimes Act. You are also convicted of the related offence on the s166 certificate, being a charge of deal with property suspected of being proceeds of crime, in breach of s193C(1) of the Crimes Act.
42. In respect of those convictions, I impose an aggregate sentence of three years, to be served in the community by way of Intensive Corrections Order. The sentence will commence today, 13 August 2019 and expire on 12 August 2022.
43. The standard conditions which are applicable are as follows: 1. during that period of three years you must not commit any offence; and 2. you must submit to supervision by a Community Corrections officer and to that end, I direct that you are to report to Fairfield Community Corrections within seven days of today.
44. In addition to those standard conditions I impose the following additional conditions: 1. you must abstain from taking any illicit drugs; 2. you must participate in any rehabilitation or treatment program as recommended to you by Community Corrections; 3. you must subject yourself to random drug testing at any time, either by Community Corrections or your general practitioner; and 4. you are to complete, in that three year period, 150 hours of community service work.

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: 28 April 2020