R v Hamzy

Supreme Court of NSW|2016-08-17|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Galbally Rolfe File Number(s): 2013/336106

Judgment

HIS HONOUR: Mohammed Hamzy ("the offender") was arraigned on 21 June 2016 and pleaded not guilty to the following counts in the indictment: 1. Wound Alex Ali with intent to cause grievous bodily harm on 8 October 2012 at Yagoona. 2. Murder Yeyha Amood on 14 October 2012 at Greenacre. 3. Wound "Mr C" with intent to murder "Mr C" on 14 October 2012 at Greenacre. 4. In the alternative to Count 3, wound "Mr C" with intent to cause grievous bodily harm on 14 October 2012 at Greenacre.
On 8 July 2016 the jury returned verdicts by which they acquitted the offender in respect of Count 1. He was found not guilty of murder but guilty of manslaughter (by excessive self-defence) in respect of Count 2. He was acquitted of Count 3 but found guilty of Count 4.
The crime of manslaughter (ss 18 and 24 of the Crimes Act 1900 (NSW)) is one that carries a maximum penalty of imprisonment for 25 years. That is also the maximum penalty for wounding with intent to cause grievous bodily harm (s 33(1)(a) Crimes Act), which also has a standard non-parole period of 7 years. These are the statutory guideposts that I must bear in mind when assessing the appropriate sentences to be imposed in the light of all of the relevant facts and circumstances.

Facts

The offender and a man who I will refer to as "Mr C" were associated as fellow members of a gang known as Brothers for Life. There was ill-feeling between the pair for reasons which were controversial in the trial.
On Sunday 14 October 2012 they arranged to meet after the following exchange of text messages: 12.31pm C It's [C] call me when u wake up 12.52pm Offender Just got up Gona get a hair cut then I will cal u 12.52pm C I'm your area me and yeah [Accepted to be a reference to Yeyha Amood (T494)] 12.55pm Offender Do u want me to cal u after hair cut 12.56pm C I'll meet u there 1.07pm Offender At my mums leaving here in 15 come here if u want 1.08pm C Ok I'll be there in 5

It is particularly important to note that the offender conveyed to Mr C that he (the offender) was at his mother's place and Mr C, who had told the offender that he was with Yeyha Amood, said he would be there in five minutes.
The offender's mother lived in a complex of townhouses, the entrance to which was on Greenacre Road, Greenacre.
Mr C drove to the location in his Mercedes sedan which had the distinctive registration plates "BFL". Mr Yeyha Amood was in the front passenger seat. Mr C parked his car on Greenacre Road outside the townhouse complex.
The offender was at his own home in Shannon Street, Yagoona with a number of Brothers for Life associates. He asked one of them, a man I will refer to as "Mr G", to "take me to my mum's". Mr G drove the offender there in a Lexus SUV.
Both the offender and Mr C were armed with Glock pistols. The offender had bought his Glock from "a friend" a couple of months before. The offender was asked why he took the gun and he said he had been told that Mr C was going to shoot him and so he thought he would take one along "just in case". He agreed that he was "going armed to meet a man who [he] expected to be armed". He disagreed, however, with the Crown Prosecutor's characterisation of it being "two men going to a gunfight".
If Mr C accepted what the offender had told him via text message that he was "at my mums", the offender's arrival by car would have come as a surprise to him. As the Lexus approached the townhouse complex on Greenacre Road, the offender directed Mr G to pull over beside the parked Mercedes. The offender had his gun ready. It was fully loaded. The Lexus was a little higher than the Mercedes and as it pulled up alongside, the offender, looking down towards the driver, said that he could see that Mr C had a gun. He also said that he saw Yeyha Amood in the car at that time.
In relation to Mr C, the offender said: "I seen his hands - I seen him and the gun in his hands straightaway because I was in a four-wheel drive, so I was pretty high, and I can see in the car, I can see - I was high, so I can see clearly what was in his hands."
He said that Mr C's hands were "close to the steering wheel window area, between there" and he moved his hands "slightly towards my way to the right". He said he was "scared" and that he "reacted". He believed that Mr C might shoot so he fired first.
The offender discharged three rounds, wounding Mr C with the intention of causing him serious harm. A bullet penetrated Mr C's upper right thigh and ended in his abdomen and another penetrated his ankle. However, tragically and unintentionally, the offender also fatally wounded Yeyha Amood with a bullet that passed through his right to left upper chest, through his lungs and heart. He died at the scene.
Mr G proceeded to drive off but the offender continued to fire, eight times, back towards the front of the Mercedes.
There was an issue in the trial about whether the driver's window of the Mercedes was down, up or partially up. The jury obviously accepted that the offender believed that it was necessary to act in self-defence but they were satisfied beyond reasonable doubt that his response was excessive. Before dealing with this issue about the window, which has a bearing upon the excessiveness of the offender's response, it is first appropriate to say something about the credibility of those who gave evidence about it. It is convenient also to say something in this context generally about the rationale for the jury's verdicts.

Rationale for verdicts

Count 1, the shooting of Alex Ali at Yagoona on 8 October 2012, involved a dispute that the offender was the shooter. The Crown case depended upon the jury's acceptance beyond reasonable doubt of the evidence of a witness, "Mr O" whose credibility was seriously questioned. His evidence was that the offender had admitted to him that he had shot Alex Ali. The jury's doubt as to that evidence is, in my respectful view, understandable.
In respect of Count 2, there was no contest that the offender had shot at, and thereby wounded, Mr C and that he thereby intended to cause him grievous bodily harm. Whilst the shots were directed at Mr C, the accused was criminally responsible for one of the shots having fatally wounded Mr Yeyha Amood. As I have mentioned, the jury accepted that it was a reasonable possibility that the accused believed it was necessary to do what he did but were satisfied beyond reasonable doubt that his response was excessive.
The Crown conceded that there should be a verdict of not guilty in respect of Count 3. This was because it had the essential element that the offender intended to kill Mr C but the Crown Prosecutor put quite squarely to the offender in cross-examination that he had only intended to inflict grievous bodily harm. It was on this basis that the jury acquitted the offender of Count 3 but found him guilty of Count 4. Consistently with the jury's verdict on Count 2, it was on the basis that the accused's response was excessive that the Crown eliminated self-defence in respect of Count 4.

Motive/credibility

The Crown alleged that the motive for the shootings on both 8 and 14 October 2012 was that the offender had heard from Ms Salwa Adel, Mr C's estranged wife, that Alex Ali and Mr C had been referring to the offender's wife as a "slut" and a "gold digger". This evidence was based upon the evidence of Mr O who claimed to have overheard a conversation between Ms Adel and the offender shortly before 8 October 2012. An issue in the trial was whether, as the Crown contended, certain text messages between Ms Adel and the offender were consistent with the offender being concerned about the supposed disparaging remarks being made about his wife.
The defence case was that Mr C had become concerned that the offender was having an affair with Ms Adel. Accordingly the defence contention was that the text messages were consistent with Mr C being out to get the offender and that the relevant text messages involved concern being expressed by Ms Adel and the offender about that prospect.
Given the jury's acquittal of the offender on Count 1 and thereby the implicit rejection of the evidence of Mr O, it would be appropriate to have a doubt about his evidence of having overheard the conversation between Ms Adel and the offender. For myself, I would have had reasonable doubt about Mr O's evidence as well. The manner in which he gave his evidence was not impressive but more significantly, his background, the circumstances in which he came to make his statement, and other matters (see summing up under "unreliable evidence") mean that it would be very difficult to be satisfied of his reliability and truthfulness beyond reasonable doubt.
The principal issue in relation to Counts 2 and 4 was whether the offender believed it was necessary to act in self-defence. The Crown had available to it many good arguments to counter that proposition but obviously the jury did not accept them, at least to the extent that they were persuaded beyond reasonable doubt that the Crown had disproved the subjective element of self-defence.
I have heard and read submissions about the factual basis upon which I should assess the offences. I accept that matters adverse to the offender must be established beyond reasonable doubt and that matters favourable to him only need to be established on the balance of probabilities. Moreover, I must make findings of fact that are not inconsistent with the verdicts of the jury. That, of course, does not entail an attempt to divine the jury's reasoning; simply that I must make findings consistent with the jury's obvious acceptance of there being a reasonable possibility that the offender did believe that it was necessary to do what he did and their acceptance beyond reasonable doubt that his response was excessive.
The submissions by counsel for the offender depend, to a large extent, upon my acceptance of evidence given by Mr C, Mr G, and the offender himself. I indicated during the course of the sentence hearing that I had serious misgivings about the credibility of each of them. The manner in which they gave their evidence was not impressive. Their explanations for significantly inconsistent prior statements were unsatisfactory. I gained the distinct impression that they were all doing their best to provide an exculpatory self-defence version no matter what they had said in the past.
At one point in Mr G's evidence when he was challenged by the Crown Prosecutor on a matter of detail he protested, "It happened three years ago". But then, when pressed about an inconsistent statement he made on 23 July 2014, he claimed a number of times that his memory had improved since then. He sought to disavow evidence he gave at the committal hearing in March 2015 to the effect that when they were about 100 metres away from the offender's mother's home the offender brought out his gun and lowered the passenger-side window. He explained that his memory had improved since then as well. At one point he said that his memory now was "excellent".
Mr C conceded that he was a man who was involved in serious criminal activity. He said he was a person who always carried a gun because he had a lot of enemies because of "rivalry" over "turf". He claimed that the gun he had was one he had had for some time and he had used it before. He disavowed a statement he had made in October 2013 to the effect that he did not have a gun and that as the Lexus came alongside the Mercedes the offender stuck his arm out the window and started shooting. He blamed the content of the statement on leading questions asked by a detective to which he simply agreed.
I am not prepared to act on the evidence of either of these men except where it is necessary to do so in order to maintain consistency with the jury's verdicts. In part this means that I am not prepared to accept either of the competing reasons advanced by the parties for the animosity that was clearly felt between the offender and Mr C.

Excessive self-defence

I return to the issue about the driver's side window of Mr C's Mercedes at the time the Lexus in which the offender was a passenger pulled alongside. There is no doubt that one of the shots fired by the offender pierced the window and shattered it because glass fragments from it were later found in the front and rear interior of the car. The position adopted by each of Mr C, Mr G and the offender was that the window was down. This obviously made more plausible their attempt to convey that Mr C was about to shoot at the offender. Mr C and the offender both struggled when confronted with the proposition that the window could not have been completely down. When asked a leading question in cross-examination, Mr C claimed to be uncertain how far open the window was. The offender suggested at one point that the window might have been "just a little bit up". On the other hand, Mr G insisted that it was down.
To maintain consistency with the jury's verdict it is necessary to accept that Mr C was armed with a gun and that the offender saw it. But given my acceptance that the driver's window of the Mercedes was either fully or partially closed, I do not accept that Mr C was about to fire at the offender. If he had been, it is remarkable that he did not discharge a single round to defend himself. I must accept that the offender believed it was necessary to fire his gun in self-defence, but on an objective assessment his actions in discharging his gun multiple times in these circumstances was a complete overreaction.

Seriousness of the offences

It is necessary to restate some of the salient aspects of the facts to put in context my assessment of the objective seriousness of the offences. The offender took a loaded handgun to a planned meeting with Mr C with foresight that there could be a confrontation and he may have to use it. When he saw that Mr C was also armed with a handgun, the offender made a pre-emptive strike and fired 11 rounds in an excessive response to the threat he perceived. There is no dispute that he intended to cause really serious bodily harm when firing in the direction of Mr C. He knew Yeyha Amood was sitting next to him. It must be remembered as well that this occurred in a residential street on a Sunday afternoon. The offender's actions were utterly reckless and inherently dangerous.
The fact that the offender believed that it was necessary to do what he did in order to defend himself reduces his crime from murder to manslaughter. It does not operate to further reduce the seriousness of that manslaughter.
There is another aspect that should be mentioned although not strictly relevant to the objective seriousness of the offences. The offender said in his evidence: "[H]e was pointing it towards me, a hundred per cent. I wouldn't have - I'm pretty sure anyone in my situation, at that time I really thought my life's in danger, so I let off the shots. And I think anyone in my situation that had that state of mind would do the same thing."
The offender's reference to "anyone in my situation" is concerning; the fact is that law-abiding people would never be in his "situation". That the offender was in that "situation" and that he felt it necessary to "let off the shots", 11 of them, was largely of his own making. The offender's self-righteous justification for his actions demonstrates a complete lack of insight into the gravity and criminality of his conduct.
Manslaughter is an offence which can arise in an extremely wide range of circumstances and so speaking about where a particular case falls within the range is problematic. This case must, however, be regarded as one of considerable seriousness.
The wounding of Mr C with intent offence is of moderate seriousness for an offence of its type. The injuries sustained were far from being as serious as they could have been; it seems that Mr C made an uneventful recovery. It is the fact that the offence occurred by way of a shooting with a handgun and the manner and circumstances in which it occurred that elevates its seriousness.

Personal circumstances of the offender

The offender was born in 1985 so he was aged 27 at the time of the offences.

Criminal record

He has a significant criminal record that disentitles him to the leniency that could otherwise be extended to someone with no record. It is also a matter that increases the weight that should be given to personal deterrence in the assessment of sentence.
I will not refer to every entry in the record but I note that it commenced in the Children's Court in 2002 with five offences of assault that occurred when the offender was aged 16. For those offences he was placed on a bond with a condition that he not associate with his adult co-offenders.
Six weeks after being placed on that bond and at the age of 17 he committed offences of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm, assault occasioning actual bodily harm, and assault. He was sentenced in the District Court when he was aged 19 and received a total sentence of imprisonment for 5 years with a non-parole period of 3 years. Although the non-parole period expired on 28 December 2005, he was not released on parole until 28 December 2006. Possibly his poor gaol disciplinary record had something to do with that.
The offender breached his parole in some unknown way and returned to custody to serve a period of 7 weeks before he was re-released on parole at the end of August 2007.
At the age of 18 he committed three offences of stalking a law officer for which in March 2005, just before his 20th birthday, he was imprisoned for 6 months. This sentence was subsumed within the non-parole period for the above matter.
The offender was dealt with for some driving offences and having custody of a knife in a public place in August 2009. He was fined and disqualified from driving. In April 2010 he committed an offence of possess/use prohibited weapon without a permit (a flick knife) for which he received a substantial fine.
In April 2011 the offender committed an offence of driving whilst disqualified and in August of that year he was fined, disqualified and placed on a three year good behaviour bond. He was subject to that bond at the time of the index offences which is a significant aggravating factor. While awaiting the resolution of that matter, in July 2011 he committed offences of possessing a prohibited weapon without a permit (a ballistic vest) and possession, or attempting to possess, steroids. In October 2011 he was ordered to pay fines.
In July 2012 the offender committed offences of possessing (.40 calibre) ammunition without holding a permit etcetera and possessing or attempting to possess a prescribed restricted substance. In March 2013 he received a substantial fine for the ammunition offence and was imprisoned for 3 months for the other offence. About a fortnight later on appeal, that sentence was reduced to a period of 57 days (31 January to 28 March 2013).
Eleven days after the shooting of the deceased and Mr C, the offender was in possession of an unauthorised pistol. It was not the same gun as he had used on 14 October 2012 which was a Glock. This particular gun was a Smith & Wesson semi-automatic pistol that had an obliterated serial number and a magazine loaded with 11 rounds of ammunition. He was charged with that matter on 31 January 2013 and held in custody until released on bail on 12 April 2013. He pleaded guilty in the District Court and was sentenced on 13 February 2015 to imprisonment for 3 years with a non-parole period of 1 year 6 months. The sentence was back-dated to commence on 26 August 2013. The non-parole period expired on 25 February 2015 but he remained in custody because he had been refused bail in respect of the current matter.
The offender was charged with the October 2012 shootings on 7 November 2013 and has been in custody since. Ordinarily that would mean that the sentences to be imposed would be back-dated until then. However, within that period he served the majority of the 18 month non-parole period for the pistol possession offence of 25 October 2012. I have discretion as to when to commence the sentence I impose: it could be from the date of arrest; or from the date of expiry of that other non-parole period; or somewhere in between. The principle of totality guides such an assessment. Given the serious nature of the pistol possession offence and that it is entirely separate from the present matter it is appropriate that there be some partial accumulation. I propose to back-date the sentence to 26 August 2014.

Other subjective matters

I do not have any reports about the offender's background. I was told via the written submissions of counsel that the offender is one of seven children. His father passed away through illness in 2010. His mother and siblings live in the south-western suburbs of Sydney. He is married to Ms Meltam Yarer. They do not have any children. That is all I know about him.

Offer to plead guilty

I was told that in February 2015 the offender offered to plead guilty to the manslaughter of Mr Amood with the offence of shooting Mr C with intent to cause grievous bodily harm being taken into account. The Director of Public Prosecutions rejected that offer. In November 2015 the offender repeated the offer to plead guilty to manslaughter on the basis of excessive self-defence with an offence of reckless wounding of Mr C being taken into account but it was rejected as well. The offender then ran a case at trial in which he contended that he was not guilty outright on the basis that he acted in self-defence and that his response was not excessive. As it turned out, he was found guilty of the type of homicide that he had previously offered to plead guilty to. He was also found guilty of the offence which he had originally asked to be taken into account.
Counsel for the offender submitted that he was "entitled to receive the maximum discount for the utilitarian benefit of his offer to plead guilty". Authority was cited in support of that submission which I have considered. (The discussion by Bell J in R v Johnson [2003] NSWCCA 129 at [36]-[44] is particularly helpful.)
On account of the offender's offer to plead guilty to manslaughter I will reduce the sentence for that offence by 25 per cent, given the offer was first made when proceedings were pending in the Local Court.
There was no offer to plead guilty to the other offence but there was an offer to have it taken into account. It seems reasonable that the sentence for that offence should be reduced by 20 per cent.

Delay

It was submitted that delay was a factor I should take into account in the offender's favour. I have mentioned that he was arrested and refused bail on 7 November 2013. Until 25 February 2015 he was serving the non-parole period for an unrelated offence. He has been in custody solely in relation to this matter for the past 20 months. His offers to plead guilty that I have mentioned are relevant to this subject as well. A trial was supposed to take place in October 2015 but had to be vacated because of the late disclosure of material by the Crown.
It was submitted that the delay has been significant and that "the offender has been in uncertainty as to his fate and for much of that time facing a charge of murder". There is no evidence of precisely how the delay has impacted upon him but I am prepared to accept that he must have been in a state of uncertainty as to what the outcome of the proceedings might be, particularly when facing a charge of murder. The delay, in all of the circumstances, is not as substantial as is sometimes seen but it is a relevant matter and I have taken it into account.

Other matters relevant to the assessment of sentence

It was not submitted that the offender has good prospects of rehabilitation and is unlikely to reoffend. I can well understand that given the nature of the offending and the offender's previous history. To the contrary, the sentence I impose must for those reasons have a significant element of personal deterrence.
I accept that the offender regrets the death of Yeyha Amood and I accept that he is remorseful in relation to it. But there is no suggestion that he is otherwise remorseful for taking a loaded handgun to what he appreciated was a potentially violent confrontation and using it in his perceived need to defend himself without thought as to the tragic consequences that might occur. I have earlier referred to his evidence about "anyone in his situation doing what he did". There is no indication that he appreciates that he should never have been in that situation and there is nothing to indicate that he realises he never should be in the future. His lack of morality in this respect further confirms the need for a strong element of personal deterrence.
The offender must be sentenced for the manslaughter of Mr Amood on the basis that he intended to cause grievous bodily harm, not to kill. The sentence will nevertheless reflect the fact that this was a serious example of such an offence. A man's life was feloniously taken in circumstances where he was not the intended victim and where it only occurred because of the offender's decision to take a loaded handgun to what he perceived could be a confrontation in which it may be necessary to use it. The offender bears a high level of moral culpability. It is a crime that warrants strong denunciation. General deterrence is also a significant consideration in a case where criminals have resort to handguns which end up being used with lethal consequences. There is also a need to recognise the substantial harm done to the victim and the community.
It is necessary to also bear in mind that the offences were committed whilst the offender was on conditional liberty; a bond to be of "good behaviour".
The two offences for which sentence must be imposed have much in common but it is necessary to reflect the fact that there were two victims. The sentence for one offence cannot comprehend the totality of criminality for both so there must be a degree of partial accumulation.
Mr Johnston SC submitted that there should be a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act but confined the basis of it to the potential partial accumulation of the two sentences I have to impose and also in respect of the sentence imposed in the District Court on 13 February 2015. I accept that submission.

Sentence

For the manslaughter of Mr Yeyha Amood (Count 2) and the wounding of Mr C with intent to cause grievous bodily harm (Count 4) the offender is convicted.
Count 4: sentenced to imprisonment comprising a non-parole period of 4 years 3 months and a balance of the term of the sentence of 1 year 5 months. The total sentence is 5 years 8 months which will date from 26 August 2014.
Count 2: sentenced to imprisonment comprising a non-parole period of 7 years 6 months and a balance of the term of the sentence of 3 years. That is a total sentence of 10 years 6 months which will date from 26 August 2015. The non-parole period will expire on 25 February 2023 when the offender will become eligible for release on parole.
That is an overall sentence of 11 years 6 months with a non-parole period of 8 years 6 months.

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 October 2016

Crimes Act 1900(NSW)ss 18, 24, 33(1)(a)

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