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147
Court of Criminal Appeal 15 December 2000

R v Hammoud

[2000] NSWCCA 540

Also reported as (2000) 118 A Crim R 66
HomicideDrugsFirearms & weaponsPublic order & justice offences
SEVERAL OFFENCES ACCUMULATION OF SENTENCES CONCURRENT SENTENCES TRANSPARENCY AND TOTALITY

Citation: R v Hammoud [2000] NSWCCA 540
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2000
Judge(s): Mason P, Simpson J, Dowd J

Background

The respondent was convicted of multiple serious offences: possessing an unlicensed firearm, being an accessory after the fact to murder, being an accessory after the fact to wounding with intent to cause grievous bodily harm, conspiracy to supply a commercial quantity of cocaine, and conspiracy to supply a large commercial quantity of heroin. The drug conspiracy offences were committed while the respondent was on bail awaiting finalisation of the accessory charges.

At first instance, District Court Judge Woods QC imposed sentences that included a fifty percent discount on each sentence for substantial assistance given to police in the prosecution of a murder case. The Crown appealed on the ground that the overall sentences were inadequate, taking particular issue with the structure of the concurrent and cumulative arrangements and the extent of the discounts applied.

The Court of Criminal Appeal allowed the appeal and resentenced the respondent across all charges, producing a total non-parole period of six years and an aggregate sentence of eight and a half years.

  • Whether the original sentences were manifestly inadequate, either individually or in their overall structure
  • Whether the sentencing judge erred in making the drug conspiracy sentences wholly or largely concurrent with the accessory sentences, rather than accumulating them
  • How the High Court's decision in Pearce v The Queen (1998) 194 CLR 610 affects the proper method of sentencing for multiple offences
  • Whether a fifty percent sentencing discount for assistance to authorities was appropriate across all offences, including those unrelated to the subject matter of the assistance

Decision

Inadequacy of the original sentences: The Court was unanimous that the Crown appeal should be allowed. Mason P expressed significant unease with the overall sentence, noting that the drug conspiracy offences were extremely serious, involving large commercial quantities of heroin and cocaine, committed by a person on bail with no youthful mitigation. In Mason P's view, the sentences imposed by Judge Woods for those offences were too light to merit even partial accumulation with the earlier sentences. The double jeopardy principle applicable to Crown appeals, however, constrained the Court from going further than the adjustments proposed by Dowd J.

Post-Pearce sentencing structure: Simpson J addressed the significant change wrought by the High Court's decision in Pearce. Before Pearce, sentencing judges commonly used a "lead count" approach or a "uniform sentence" approach to manage multiple offences, relying on totality to produce a just overall result. Following Pearce, a court must first fix an appropriate sentence for each individual offence, reflecting the criminality of that offence in isolation, before considering accumulation, concurrence, or totality. Simpson J observed that this means neither wholly concurrent nor wholly cumulative sentences will always be appropriate where multiple serious offences are involved. The solution, as proposed by Dowd J, is to structure sentences as partly concurrent and partly cumulative.

Concurrence and common features: Simpson J rejected the proposition in Dowd J's draft that a sentencing judge commits a legal error simply by taking into account features common to two conspiracy offences when deciding between concurrence and accumulation. The existence of common features, shared participants, and overlapping time periods are all legitimately relevant considerations pointing towards concurrence. Whether to accumulate or make concurrent remains a discretionary exercise guided by principle, and reasonable judges may differ without either being wrong.

Discount for assistance: The Court confirmed that a sentencing discount for assistance to authorities need not be confined to the offences to which the assistance directly relates. Drawing on R v Gallagher, Simpson J explained that the rationale operates on public policy grounds: encouraging cooperation, recognising possible contrition, and acknowledging that incarceration of known informers is more onerous. These factors apply regardless of whether the assistance concerns the specific offences being sentenced. However, a sentencing judge retains a discretion to apply varying discounts across different offences where the assistance is connected more closely to some than to others.

Orders Made

  • Sentences set aside; convictions confirmed
  • Unlicensed firearm possession: fixed term of 12 months, 19 August 1999 to 18 August 2000
  • Accessory after the fact to murder: fixed term of 3 years, commencing 19 February 2000 (partly concurrent, partly cumulative), concluding 18 February 2003
  • Accessory after the fact to wounding with intent to cause GBH: fixed term of 12 months, concurrent, commencing 19 February 2000, concluding 18 February 2001
  • Conspiracy to supply a commercial quantity of cocaine: fixed term of 4 years, commencing 19 February 2001 (partly concurrent, partly cumulative), concluding 18 February 2005
  • Conspiracy to supply a large commercial quantity of heroin: 5 years imprisonment commencing 19 February 2003, concluding 18 February 2008, with a non-parole period of 2 years and 6 months concluding 18 February 2005
  • Overall result: non-parole period of 6 years, total sentence of 8 and a half years

Key Takeaways

  • Following Pearce v The Queen (1998) 194 CLR 610, a sentencing court must first fix an appropriate sentence for each individual offence before considering accumulation, concurrence, or totality. Pre-Pearce practices such as "lead count" or "uniform sentence" approaches are no longer sufficient.

  • Where wholly concurrent sentences would fail to reflect total criminality, and wholly cumulative sentences would breach the principle of totality, the Court of Criminal Appeal confirmed that a partly concurrent and partly cumulative structure is the appropriate mechanism for resolving the tension.

  • Common features shared by multiple offences, including overlapping time periods and shared participants, are legitimate considerations pointing towards concurrence when a sentencing court exercises its discretion on accumulation. Taking those features into account does not constitute an error of principle.

  • A sentencing discount for substantial assistance to authorities may legitimately apply to all offences being sentenced, not only those to which the assistance directly relates. The rationale, grounded in public policy, operates independently of whether the assistance concerns the offences under sentence.

  • The double jeopardy principle in Crown appeals operates as a real constraint: even where the Court of Criminal Appeal considers original sentences too low, it may be unable to impose sentences as high as it would otherwise regard as appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Baker [2000] NSWCCA 85
- R v Bavadra [2000] NSWCCA 292
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v Liang (Unreported, NSWCCA, 2 June 1995)