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Supreme Court 3 March 2005

Regina v Hamze

[2005] NSWSC 136

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW

Citation: Regina v Hamze [2005] NSWSC 136
Court: Supreme Court of New South Wales
Date: 3 March 2005
Judge(s): Howie J

Background

The offender pleaded guilty to two offences arising from a fatal shooting incident in Greenacre on 11 June 2002. The violence grew out of a community dispute involving two groups with connections to businesses in the area. The offender was present when shots were fired, killing one man and wounding another.

As he fled the scene, the offender picked up a pistol from the ground and concealed it in his clothing. He disposed of the weapon in bushland, where it remained for approximately six months before he retrieved it and had it conveyed to police through his solicitor. That conduct gave rise to the charge of hindering a police investigation contrary to s 315 of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment.

The second count on the indictment related to a pump-action shotgun found at his home when police executed a search warrant on the evening of the incident. Two additional firearms and ammunition found at the same premises were dealt with by way of a Form 1 document (offences taken into account at sentencing without a separate conviction being recorded). The offender, then 28, had no prior criminal record and had otherwise maintained stable employment and family life in the period between the offence and sentencing.

  • What sentence was appropriate for hindering a police investigation under s 315 of the Crimes Act 1900, having regard to the seriousness of the conduct and the offender's personal circumstances?
  • What sentence was appropriate for possessing a prohibited firearm under s 7 of the Firearms Act 1996, together with the three related firearms offences on the Form 1?
  • Whether the sentences, though custodial, could be served by way of periodic detention rather than full-time imprisonment.

Decision

Howie J accepted that both offences were sufficiently serious to warrant custodial sentences, notwithstanding the offender's prior good character. The removal of the pistol from the scene had materially hampered the police investigation into the shooting, and the weapon could have provided evidence identifying who brought it there. The court treated general deterrence as a significant sentencing consideration for offences of this kind.

At the same time, the court found several mitigating factors. The offender acted on impulse, motivated by loyalty to his family group rather than by premeditation. He eventually retrieved and surrendered the weapon. He had remained offence-free during the lengthy period between the incident and sentencing, had two young children, and letters from his employer attested to his good character. A pre-sentence report was also before the court.

For the firearms possession count (including the Form 1 matters), the court imposed a fixed term of six months periodic detention. For the hindering investigation count, the court imposed two years and three months periodic detention, with a non-parole period of 18 months. The sentences were ordered to run cumulatively.

The court considered that returning the offender to full-time custody was not necessary in the circumstances. Howie J found that the fact a person of good standing and no prior convictions was nonetheless required to serve a sentence of imprisonment was sufficient to reflect general deterrence, without the additional step of full-time custody.

Orders Made

  • The offender was sentenced to a fixed term of six months imprisonment for the second count (possessing a prohibited firearm), taking into account the Form 1 matters, to be served by way of periodic detention commencing 11 March 2005 and expiring 10 September 2005.
  • The offender was sentenced to two years and three months imprisonment for the first count (hindering a police investigation), commencing 11 September 2005, to be served by way of periodic detention.
  • A non-parole period of 18 months was set for the first count, running from 11 September 2005 to 10 March 2007, being the earliest date of eligibility for release on parole.
  • The firearm in police possession was ordered to be destroyed.

Key Takeaways

  • General deterrence carries significant weight in sentencing for offences that obstruct the investigation of serious violence, even where the individual offender has strong mitigating features.
  • A prior good character and stable community ties do not, of themselves, preclude a custodial sentence for offences of this gravity, but they may support a finding that the punitive and deterrent purposes of sentencing can be met without full-time imprisonment.
  • Where two sentences are ordered to run cumulatively, the court may adjust the non-parole period to reflect the cumulative burden on the offender.
  • Howie J treated the offender's eventual retrieval and surrender of the weapon as a relevant, if partial, attempt to undo the harm caused, weighed alongside his plea of guilty at the first available opportunity.
  • Under s 315 of the Crimes Act 1900, hindering the discovery of evidence concerning a serious indictable offence carries a maximum of seven years imprisonment; under s 7 of the Firearms Act 1996, possessing a prohibited firearm tried on indictment carries a maximum of fourteen years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 315 (hindering discovery of evidence)
- Firearms Act 1996 (NSW), s 7 (possession of prohibited firearm)
- Criminal Procedure Act 1986 (NSW) (Form 1 procedure)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24

Cases:
- R v Cromarty (2004) 144 A Crim R 515
- R v Nias (NSWCCA, unreported, 16 November 1988)
- R v Webster and Jones (NSWCCA, unreported, 3 August 1992)