Citation: Regina v Bassam Hamzy [2002] NSWSC 128
Court: Supreme Court of New South Wales (Criminal Division)
Date: 15 March 2002
Judge(s): Bell J
Background
The offender was tried on five counts arising from two separate episodes of serious criminal conduct. The first four counts related to an incident in the early hours of 30 May 1998 outside a nightclub in Oxford Street, Paddington. Following a confrontation between two groups, the offender crossed to the opposite side of the street and opened fire with a handgun, killing an eighteen-year-old bystander, wounding another man, discharging the firearm toward a third, and threatening a police officer with the weapon to avoid arrest.
The fifth count arose from a separate and later episode: a conspiracy to murder a named individual, alleged to have taken place when the offender was aged twenty-one. The offender pleaded not guilty to all five counts. After a trial lasting several weeks, the jury returned guilty verdicts on each count on 24 July 2001.
Sentencing was deferred pending the outcome of related appeals in the Court of Criminal Appeal concerning separate convictions for importing cocaine. Those appeals were resolved in December 2001 and the court proceeded to sentence the offender in March 2002.
Legal Issues
- What sentences were appropriate for each of the five offences, having regard to their objective gravity and the offender's personal circumstances?
- How should the sentences for the current offences interact with sentences already imposed for separate drug importation offences?
- What weight, if any, should be given to mitigating factors such as the offender's youth and difficult background?
- Whether the gravity of the offences outweighed considerations ordinarily favouring rehabilitation in the case of youthful offenders?
Decision
Bell J found that the murder count was the gravest of the offences. The offender had fired into a public street, shot the deceased twice (including a second shot fired downward at close range after the victim had fallen), wounded another man, discharged the firearm toward a third, and then aimed the weapon at a police officer attempting to effect an arrest. The court treated three of the remaining offences as additional matters taken into account on sentence for the murder pursuant to section 33 of the Crimes (Sentencing Procedure) Act 1999.
The conspiracy to murder count was treated as a separate and serious matter warranting a distinct, cumulative term of imprisonment. The court structured the sentences so that the conspiracy term commenced upon expiry of the non-parole period for the murder, producing a lengthy overall effective sentence.
The court acknowledged limited mitigating factors. The offender's age of nineteen at the time of the murder and his unsatisfactory home life during his early teenage years were taken into account. Bell J accepted that rehabilitation is frequently a paramount consideration for youthful offenders, but concluded that the exceptional gravity of these offences did not permit that consideration to carry its usual weight.
The court also had regard to the sentences imposed by the Court of Criminal Appeal in the cocaine importation matter and structured the current sentences to operate in part concurrently or consecutively with those, as appropriate to reflect the totality principle while not diminishing the seriousness of the conduct.
Orders Made
- Murder of Kris Toumazis (with three further offences taken into account): 21 years imprisonment from 15 March 2002, expiring 14 March 2023; non-parole period of 15 years and 9 months, expiring 14 December 2017.
- Malicious infliction of grievous bodily harm on Nicholas Lambos with intent: Fixed term of 5 years from 15 March 2002, expiring 14 March 2007.
- Malicious discharge of loaded arms with intent to do grievous bodily harm to Arthur Kazas: 3 years imprisonment from 15 March 2002, expiring 14 March 2005.
- Threatening use of a firearm with intent to prevent lawful apprehension: 3 years imprisonment from 15 March 2002, expiring 14 March 2005.
- Conspiracy to murder Khaled Hammoud: 12 years imprisonment commencing 15 December 2017, expiring 14 December 2029; non-parole period of 6 years from 15 December 2017, with first eligibility for parole on 14 December 2023.
Key Takeaways
- The sentencing court found that the objective gravity of these offences, including a street shooting resulting in death followed by a further shot fired at close range at the fallen victim, placed them at the most serious end of the relevant spectrum.
- Under section 33 of the Crimes (Sentencing Procedure) Act 1999, a court may take additional offences into account when passing sentence on a principal count, a mechanism used here to deal with three of the five counts in conjunction with the murder sentence.
- Where an offender is already serving sentences imposed elsewhere, the sentencing court must structure any new sentences to reflect the totality principle, ensuring the combined effect is just and proportionate rather than crushing.
- Youth and a difficult upbringing may reduce the weight of deterrence and retribution in sentencing, but the Supreme Court held that principle carries diminished force where the offences are of exceptional gravity.
- The Court of Criminal Appeal's intervention in the related drug importation proceedings, which quashed the District Court's original sentences and substituted new ones, directly informed the structure of the sentences imposed in this matter.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes Act 1912 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW)
Cases:
- R v Barton [2001] NSWCCA 63
- R v Previtera (1997) 94 A Crim R 76