Regina v Hamze

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3378 FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1815 CCAP 2004/60278

WOOD CJ at CL McCLELLAN AJA SMART AJ

MONDAY 29 NOVEMBER 2004 REGINA v Iash HAMZE Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of McClellan AJA. I agree with the orders proposed, and with the reasons of his Honour. 2 McCLELLAN AJA: The respondent pleaded guilty to being an accessory before the fact to a charge of malicious wounding in company contrary to s 35(2) and s 346 of the Crimes Act 1900 (NSW). The maximum penalty is a term of imprisonment for ten years. The offence was committed while the respondent was serving a full time sentence of imprisonment of six years with a non-parole period of four years for the offence of detain for advantage contrary to s 86 of the Crimes Act. 3 The sentence for the latter offence was imposed on the respondent in the Campbelltown District Court on 11 December 2001 and was back-dated to commence on 30 October 2001, with a head sentence expiring on 29 October 2007 and the non-parole period expiring on 29 October 2005. 4 For the offence the subject of the present appeal, the respondent was sentenced to a term of imprisonment of two and a half years commencing on 30 October 2005, with a non-parole period of six months. The sentencing judge ordered (as required by s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) that the respondent be released to parole on 29 April 2006.

Facts 5 The offence arose out of a disagreement between the victim, his brother and members of the family of the respondent's partner, Ms Natalie Carter. As a consequence of these difficulties, the victim caused damage to the home of Ms Carter's mother. This included smashing a window at the front of the house. 6 Following this incident the victim, his brother and Ms Carter's sister, Amanda went to the home of the victim and his brother. In the early hours of the morning they were visited by two members of Ms Carter's family (her mother and brother) and another man. The respondent's brother, Riad Hamze, also arrived armed with a baseball bat. There was another argument during which the victim armed himself with a shovel. 7 Following this argument, Amanda and her baby left the home of the victim and his brother and returned, with her mother and brother, to her mother's home. 8 Police attended the mother's house at about 3.50am on 10 November 2002 after receiving a complaint in relation to a domestic dispute. Amanda told them she had been involved in an argument with the victim and that he and his brother had left. She also told the police that she wanted no action taken. 9 At this time the respondent was serving his term of imprisonment at the John Moroney Correctional Centre at Windsor. On 10 November 2002 the respondent made three telephone calls from the prison to his partner, Ms Natalie Carter, who was living at her mother's house. These calls were made at 9.30am, 9.33am and 9.47am and, because they were made from the prison, were recorded. Extracts from the transcript of these calls formed part of the facts tendered at the hearing. 10 In the first call, Ms Carter tells the respondent about the behaviour of the victim and his family and about insulting remarks they had made about the respondent and members of her family. The respondent tells her to tell his brother Riad what has been said. In the second call at 9.33am, the respondent speaks first to his mother-in-law and then to Ms Carter. He insists that Ms Carter give him the address of the victim and his brother, despite her reluctance to do so because she is afraid the baby in the house might get hurt. He tells Ms Carter that the victim and his brother "gotta be taught a lesson." He tells her he is "gonna get some boys too." He instructs her in the following terms: "Okay and then to to Riad [sic] and say to him Iash said fucking get some boys organised and go and fucken sort it out and he means sort it out properly, no fucken little kids shit okay." 11 In the third phone call at 9.47am, Ms Carter is again reluctant to do what the respondent says but the respondent tells Ms Carter "okay okay they're scared of us, we gotta teach them a lesson." He repeats this saying "… we teach them a fucking good lesson, give them a mad hiding." He instructs her to tell his brother Riad to "get some boys organised okay, and sort these two cunts out. If you have to." He also instructs her to tell his brother "to catch them in the street" if he does not go to their house. He then tells her to visit a friend, Errol, and: "Tell him Iash is fucken burning inside he's chomping at the bit, he wants you to shoot these cunts head off, say look, like go over there, just stir it up for me, ya know what I mean, and try to do that today." 12 About two hours after the respondent made these phone calls, five or six men broke into the victim's home and attacked him. He was punched, kicked and hit with a baseball bat and an iron bar. He was dragged from his bedroom by the men, one of whom said "I'm going to fucking kill you." As he was being dragged through the kitchen he was stabbed in the stomach with a large knife, described as being like a silver sword. He managed to struggle free and escaped by diving through a closed glass door. He ran and hid in a neighbour's garage. He was bleeding from his stomach wound. The victim's brother was woken up by pain in his legs and saw a large male armed with a baseball bat standing at the foot of his bed. He did not recognise this man. He later saw one male get into a car and drive off. 13 The victim was taken to Liverpool Hospital and received 15 stitches for the stab wound. His other injuries included a cut to his right hand requiring three stiches, bruising to his stomach and back near his left and right kidneys, extensive scratches to his back and arms and grazes to his knees, one leg and left forearm. 14 On 10 November 2002 the victim and his girlfriend, Summer Sharon, provided statements to the police. The victim identified the respondent's brothers, Riad and Rabih Hamze, as among the people involved in this attack. Ms Sharon identified Riad Hamze. Further telephone calls between the respondent and Ms Carter after this attack confirmed that it had been carried out at the respondent's instigation. In a call on 11 November 2002 at 1.14pm, the respondent says "Well, so you don't want, you done sort it out or what?" When Ms Carter says "Yeah", the respondent replies, "That's good then. They fucking deserve it." 15 Ms Carter then tells the respondent that the police were involved. He instructs her to tell the police if they ask that she knows nothing about the matter. He then says, "Well what kind of fucking dogs are they to go to coppers for?" The respondent asked if the victims were in hospital, and having been told they had been released replied "Yeah, that's good." However, when told shortly after this comment that Ms Carter's sister Amanda had said the victims deserved it, the respondent agreed, saying: "Yeah that's good. What they think they can come over there and do what they did to abuse me, abuse my brother, abuse my mum and just think everything is sweet." 16 The respondent then said to Ms Carter: "You know what it is? They just rang the coppers in shock. But in about a week or two, Steve will tell em listen you're doing the wrong thing pull yourselves up." 17 Shortly after this and in the same telephone conversation, the respondent continues saying: "Well now now you gonna have to fuckin talk to them and say listen why did you call the fuckin coppers for what are you's a bunch of dogs rah, rah, rah." 18 On 24 January 2003 the victims retracted their earlier statements claiming they had been mistaken as to the identity of their attackers. No bill applications were made by each of them and the charges against the respondent's brothers were withdrawn.

Subjective circumstances 19 The respondent was born on 24 September 1977 and was the third of nine children. His parents had emigrated from Lebanon. The pre-sentence report described the respondent's family environment as dysfunctional on account of violence inflicted on the family by his father. When the respondent was sixteen, his father began travelling to Lebanon for extended periods of time. He eventually left the family, remarried and had children with his second wife. 20 The respondent has two children with Ms Carter, but is not sure as to the future of that relationship. His period of incarceration between 17 May 2002 and 20 March 2004 resulted in a number of disciplinary charges and punishments, although there were positive as well as negative reports about his behaviour and attitude. He had generally been employed in semi-skilled or unskilled positions since leaving school at 17 and prior to February 2001 had done volunteer work at the Westside Youth Centre. Apart from an earlier history of cannabis use, the respondent does not appear to have a drug or alcohol problem. He has previous convictions for assault, larceny, drug offences and detain for advantage. The pre-sentence report noted little insight by the respondent into his propensity for violence and an unacceptable level of anger and aggression. The respondent was assessed as immature and lacking the motivation and belief that he could change. However, it was noted that he was aware of the need for change and the need to develop an ability to discuss relevant issues, be introspective and allow himself to be challenged.

The Crown appeals against the sentence imposed because of its manifest inadequacy. It is further submitted that the sentencing judge erred in respect of the following particular matters: (a) in discounting the respondent's sentence on account of remorse or alternatively in giving too much weight to this matter; (b) in discounting the respondent's sentence on account of delay or alternatively in giving too much weight to this matter; (c) in finding that the respondent's previous convictions were only relevant to his prospect of rehabilitation and to explain why he was in custody; (d) in the extent of the reduction of the non-parole period on account of special circumstances and in failing to consider whether the non-parole period adequately reflected the criminality of the offence; (e) in failing to give sufficient weight to the gravity of the offence; (f) in failing to give sufficient weight to an aggravating feature of the offence, namely the fact that the respondent committed it while he was in prison.

Relevant principles 21 The correct approach to the consideration of appeals by the Crown has been considered on many occasions. In R v Wall [2002] NSWCCA 42 Wood CJ at CL identified the following five fundamental principles (at [70]): "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and para 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and para 62, and Wong v Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong v Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 22 These principles have been recently confirmed by Wood CJ at CL in R v Bezan [2004] NSWCCA 342 and it is appropriate to apply them when considering the particular matters raised by the Crown in this appeal.

Remorse 23 The sentencing judge said that the respondent was entitled to have his guilty plea taken into account in mitigation of penalty on the basis of its utilitarian value "and to reflect contrition": "There is evidence that he has expressed remorse to the Probation Officer. I note that shortly after the offence, in a telephone conversation with his wife, although he said that the victim deserved it, nonetheless he commented, when he was told that the victim was out of hospital: 'that's good'. The plea of guilty has also relieved the victim of anxiety of awaiting a trial and giving evidence in it. It may well be that a trial might have led to a flare up in hostility between the Offender's family and the victim's family. The fact that he has pleaded guilty has avoided that possibility. These matters, in my view, do reflect contrition and that has been reflected by a further reduction of the sentence that I will impose." 24 The role of remorse in the sentencing of an offender has been considered on many occasions. In R v Thompson; R v Houlton (2000) 49 NSWLR 383 at 412, Spigelman CJ identified the fact that genuine remorse in an offender may have the consequence that personal deterrence may be of less significance in a particular case and may also indicate that there are good prospects of rehabilitation. If present, genuine remorse may be reflected in a lesser sentence. 25 However, the Chief Justice was careful to identify the fact that although a guilty plea has been entered, it may not reflect genuine remorse. His Honour said (at 412): "The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuinely and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse." 26 In the present case, the Crown submits that when considering remorse the sentencing judge erroneously interpreted the respondent's apparent expression of regret as evidence of his contrition. The evidence relied upon was found in the pre-sentence report of which the relevant section was: "Mr Hamze appeared to justify his actions. On the other hand, he indicated what appeared to be genuine regret in acting as he did. Mr Hamze indicated the problems caused to his relationship, he noted missing the birth of one of his children and not being at home with them. He indicated his regret at not being able to be a suitable father and husband. Mr Hamze's remorse appeared to relate to the consequences of his actions on his own circumstances." 27 In my opinion, the Crown submission in relation to this aspect of the matter should be accepted. Although the respondent expressed remorse, the Probation Officer's conclusion that it was related to the consequences of his actions or his own circumstances does not appear to have been appreciated by his Honour. The conclusion expressed by the officer appears soundly based having regard to the conversation which is reported. To my mind, the respondent should be understood as believing his criminal activity was justified in order to protect his family, although he regrets its adverse personal consequences for himself. 28 With respect to the comment "that's good" which the respondent made to Ms Carter, the Crown submits that the comment needs to be understood in its context. It is suggested that rather than expressing empathy with the victims the respondent was merely using a figure of speech which he commonly used when receiving information. The relevant conversation was: "Respondent: And where are these blokes? Are they in hospital or what? Carter: Yes. Respondent: Are they? Carter: They got out yesterday. Respondent: Yeah that's good. And how what's, how you Amanda, what's you mum and Amanda saying? [sic] Carter: Amanda's says they deserve it. That's it. Respondent: Yeah that's good. What they think they can come over there and do what they did, abuse me, abuse my brother, abuse my mum and just think everything is sweet. Carter: Yeah. Respondent: You know what it is? They just rang the coppers in shock. But in about a week or two, Steve will tell em listen you're doing the wrong thing pull yourselves up." 29 In my opinion the Crown submission in relation to this aspect of the matter should also be accepted. I can detect no genuine remorse in the respondent's remarks to Ms Carter. Although the respondent said "that's good", his use of the same response in relation to the next matter - "Amanda says they deserve it" - indicates that he used the expression without empathy for the victim. Of course, if it was otherwise, the respondent's statement "Yeah that's good" to the suggestion apparently made by Amanda that "they deserve it", is the very opposite of an expression of contrition. 30 The sentencing judge also identified the fact of the plea as evidence of contrition and concluded that it had the benefit of avoiding anxiety for the victims and the possibility of aggravating the dispute between the families at a contested hearing. However, as the Crown submits, the respondent would have had other reasons to avoid a trial. In particular, as the telephone conversations reveal, the respondent took steps to avoid charges being brought against those who carried out the assault and a contested hearing may have brought difficulties for those persons. In any event, his plea effectively recognised the inevitable having regard to the strength of the evidence available from the recorded telephone conversations. 31 In my opinion, the finding made by the sentencing judge that the respondent's sentence should be reduced because of his contrition was not justified.

Delay 32 The sentencing judge reduced the respondent's sentence on account of what he found to be a twelve month delay in getting the prosecution brief together in the Local Court and the consequent stress on the respondent of being in gaol and not knowing the outcome of the proceedings. The offence was committed on 10 November 2002 and the respondent was arrested and charged on 28 January 2003. After receiving the prosecution brief and other supporting documents, the respondent pleaded guilty and was committed for sentence on 17 December 2003. The matter was delayed in the District Court while a pre-sentence report was obtained. The report was ordered on 5 February 2004, the respondent being sentenced on 14 May 2004. 33 This sequence of events make it apparent that some delay has occurred. I accept that the respondent may have suffered some stress from a lack of knowledge of the likely outcome. However, the stress would be less than might be experienced by someone who did not know whether they would suffer a custodial sentence. 34 In R v Blanco (1999) 106 A Crim R 303 at 306, Wood CJ at CL said of delay: "The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach … " 35 In the present case there is no indication that the respondent has progressed in his rehabilitation or that the crime is in any way stale. Any reduction in the respondent's sentence by reason of delay should be minimal.

The respondent's prior convictions 36 The respondent has convictions in the Children's Court in 1995 in relation to offences of violence, dishonesty and drug offences. As I have related, he was serving a sentence for detain for advantage at the time of commission of the present offence. 37 When sentencing, his Honour said: "That the offender has a record of previous convictions, the Crown says, should be treated as an aggravating feature. He is not to be punished again for offences committed in the past where punishment has been imposed. He is only to be punished in connection with this offence. His prior record is relevant in the circumstances of this case to consider the context in which he found himself in custody and to consider his prospects of rehabilitation." 38 The manner in which an offender's criminal history is to be taken into account on sentence was explained by the High Court in Veen v R (No 2) (1998) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ in the following passage: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties." 39 To similar effect is the statement by Howie J in R v Shankley [2003] NSWCCA 253 at [31]: "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted.' " 40 Although, as the sentencing judge indicates, the respondent's criminal history is relevant to his prospects of rehabilitation, there was a particular need in the present case to consider matters of "retribution, deterrence and protection of society." The criminal history of the respondent makes plain that rather than the offence being an uncharacteristic aberration, it is further evidence of a person prepared to ignore society's constraints on his behaviour and seek to impose his will on others by means of physical violence. His Honour's remarks on sentence do not reflect consideration of these matters, which indicates to my mind that the sentencing discretion has miscarried.

Special circumstances, the gravity of the offence and failure to take into account the aggravating factor of an offence committed in custody 41 The Crown does not dispute that totality principles permit an adjustment of the head sentence and/or a finding of special circumstances in order to ensure that the resulting overall sentence is appropriate. However, having regard to the grave nature of the offence and the fact that it was committed in custody, the Crown submits that the sentence was manifestly inadequate. 42 In my opinion, the offence committed by the respondent carries a high degree of criminality. The respondent was already serving a sentence for a serious criminal offence and the commission of this further offence demonstrates a serious inability to accept that it is necessary for him to conform to the law in the conduct of his affairs. The organisation of a group of men to carry out a serious assault, which could have had grave consequences for the victims, warrants a sentence which marks the serious breach of the law committed by the respondent.

Conclusion 43 Having regard to these matters, I am of the opinion that the discretion of the sentencing judge has miscarried and I am satisfied that it is appropriate for this Court to intervene: Everett v The Queen (1994) 181 CLR 295 at 299. In my opinion, the sentence and non-parole period imposed were both manifestly inadequate and should be quashed and the respondent re-sentenced by this Court: Dinsdale v The Queen (2000) 175 ALR 315. 44 In relation to the decision as to whether or not to intervene and in relation to the sentence to be substituted, I have had regard to the matters to which I have referred. It is of course necessary to impose the least possible sentence which could possibly be imposed being mindful of the fact that this is the second time the respondent's freedom has been put in jeopardy: R v Bavadra (2000) 115 A Crim R 152; Everett v The Queen. However, the sentence must recognise the gravity of the offence, having regard to the previous convictions of the respondent, and the fact that the offence was committed when the respondent was in custody. The sentence must also adequately reflect the need for retribution, deterrence and the protection of society. I am satisfied that the respondent will require a lengthy period of supervision when released from custody and, accordingly, it is appropriate to find special circumstances. 45 I am of the opinion that the following orders should be made:

1. Crown appeal allowed. 2. Sentence below be set aside. 3. In lieu, sentence the respondent to imprisonment for three and a half years to commence on 30 October 2005 and to expire on 30 April 2009. 4. Set a non-parole period of one year and three months to date from 30 October 2005 to expire on 30 January 2007, which will be his earliest parole release eligibility date. 46 SMART AJ: I agree with McClellan AJA. **********

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