Citation: Regina v Bazzi [1999] NSWCCA 346
Court: Court of Criminal Appeal, New South Wales
Date: 27 October 1999
Judges: Smart AJ, Simpson J
Background
The appellant was caught shoplifting video cassettes from a Woolworths store in Riverwood on 26 January 1998. While being escorted back to the manager's office, he broke the needle off a syringe and drew blood and water into it from his mouth. When staff attempted to stop him from fleeing, he brandished the blood-filled syringe, threatened to inject those nearby, and used the threat to escape the store.
After fleeing, the appellant entered a stationary vehicle occupied by a woman sitting in the driver's seat. The woman, seeing him brandishing an object at his pursuers, became very frightened and fled the car on foot. The syringe did not appear to have been directly used against her.
The appellant pleaded guilty in the District Court and was sentenced by Moore DCJ to concurrent terms on two counts: using an offensive weapon to prevent lawful detention, and assault. He sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the sentence for using an offensive weapon (a blood-filled syringe) to prevent lawful detention was manifestly excessive
- Whether the sentence imposed on the assault charge was lawful, given that it exceeded the statutory maximum penalty for that offence
Decision
The appeal against the sentence for using an offensive weapon to prevent lawful detention was dismissed. The Court accepted that this offence is extremely serious, noting the legislature's intention when enacting the relevant provision was to protect police and others who lawfully detain suspects. The appellant not only wielded the syringe but made explicit threats while doing so, and the Court found the sentence of a minimum term of one year ten months and an additional term of two years was appropriate when pre-sentence custody was taken into account.
On the assault charge, however, a clear sentencing error emerged. The judge had sentenced the appellant as though the maximum penalty for assault was five years, based on incorrect information provided by Crown counsel with no correction from the defence. The actual statutory maximum under the relevant provision was two years. The sentence imposed, comprising a minimum term of one year ten months and an additional term of two years, far exceeded that cap. The Court of Criminal Appeal was therefore required to re-sentence on the assault count.
In re-sentencing, the Court considered the appellant's substantial criminal history dating from the Children's Court, his longstanding drug dependency, his genuine remorse, and his emerging efforts toward rehabilitation. Special circumstances were found, supporting a longer additional term on the primary offence. The Court substituted a fixed term of fifteen months on the assault count, to be served concurrently with the offensive weapon sentence.
Orders Made
- Leave to appeal granted
- Appeal against the sentence for using an offensive weapon to prevent lawful detention dismissed
- Appeal against the sentence for assault allowed
- Fixed term of fifteen months substituted for the assault count, commencing 16 October 1998, to be served concurrently with the offensive weapon sentence
Key Takeaways
- Using a blood-filled syringe as a threat to escape lawful detention is treated as an extremely serious offence, carrying a maximum penalty of twelve years under the relevant Crimes Act provision, and the Court of Criminal Appeal confirmed this gravity warrants substantial sentences.
- A sentencing court that imposes a sentence exceeding the statutory maximum for an offence commits a legal error requiring correction on appeal, regardless of whether incorrect information came from the prosecution.
- Where an assault sentence was based on an erroneous maximum of five years rather than the correct two-year cap, the Court of Criminal Appeal was required to re-sentence entirely and impose a term within the lawful range.
- Rehabilitation prospects, genuine remorse, and a history of substance dependency can constitute special circumstances justifying a longer additional term relative to the minimum term in the New South Wales sentencing structure.
- Concurrency of sentences meant the corrected assault sentence carried no additional term, as the operative sentence on the more serious count already governed the overall custodial period.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B (using an offensive weapon to prevent lawful detention, maximum 12 years)
- Crimes Act 1900 (NSW), s 61 (common assault, maximum 2 years)
Cases:
- R v Hamilton (1993) 66 A Crim R 575
- R v King [1999] NSWCCA 16