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78
Court of Criminal Appeal 20 September 2006

R v Hamid

[2006] NSWCCA 302

Also reported as (2006) 164 A Crim R 179
Assault & violenceDomestic & family violence
SENTENCING CROWN APPEAL DOMESTIC VIOLENCE OFFENCES YEAR PERIOD RELEVANCE OF MENTAL ILLNESS WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Hamid [2006] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 20 September 2006
Judges: Hunt AJA, Johnson J, Latham J

Background

The respondent pleaded guilty in the Sydney District Court to nine serious domestic violence offences committed against three separate victims over an eight-year period. The offences ranged from common assault through to assault occasioning actual bodily harm, malicious wounding, and unlawful detention. A further 14 offences were taken into account on a Form 1 document at sentence.

Judge Charteris SC imposed a total effective sentence with a non-parole period of two years and six months, commencing from June 2004, and a total term expiring in December 2008. The sentencing judge also made 10-year apprehended violence orders in favour of each victim.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate given the nature, number, and duration of the offending, the respondent's prior record for violence, and the need for both specific and general deterrence.

  • Whether the sentences imposed in the District Court were manifestly inadequate
  • What principles apply when sentencing a repeat domestic violence offender with a relevant prior record
  • The weight to be given to specific and general deterrence in the context of sustained domestic violence offending
  • The relevance, if any, of the offender's mental illness to the sentencing exercise
  • Whether the overall structure of the sentences appropriately reflected the totality and seriousness of the criminality

Decision

The Court of Criminal Appeal allowed the Crown appeal and quashed all sentences, imposing significantly increased terms in their place. Johnson J (with Hunt AJA and Latham J agreeing) found that the original sentences failed to reflect the gravity of the offending, particularly the sustained, repeated, and escalating nature of the violence inflicted on three separate intimate partners over eight years.

The Court emphasised that specific and general deterrence carry particular weight in cases involving repeat domestic violence offenders. Where an offender has a prior record for violent offences and continues to commit domestic violence against successive victims, sentencing courts must give those considerations prominent weight. The Court found that the original sentences were so inadequate as to constitute error.

On the question of mental illness, the Court accepted that it could be a relevant factor at sentence, but found that it did not operate so as to substantially reduce the sentences appropriate for offending of this character and duration. The respondent's mental health history did not displace the need for significant punitive and deterrent sentences.

The restructured sentences substantially increased the terms for the most serious counts, particularly Count 4 (unlawful detention with intent to avoid detection), which was increased from two years and nine months to six years with a non-parole period of three years and nine months.

Orders Made

  • Crown appeal allowed; all sentences imposed by Judge Charteris SC on 5 May 2006 quashed
  • New sentences imposed across all nine counts, with substantially increased terms, including:
  • Count 4 (unlawful detention): six years' imprisonment, non-parole period of three years and nine months
  • Count 6 (malicious wounding): non-parole period of 15 months, balance of term of six months
  • Counts 3, 5, and 9 each received non-parole periods of 12 months with balance terms of six months
  • The 10-year apprehended violence orders made under section 562BE of the Crimes Act 1900 confirmed
  • Earliest parole eligibility date specified as 24 September 2008 pursuant to section 48(1)(b) of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • Repeat domestic violence offending committed against multiple victims over an extended period warrants substantial custodial sentences, with courts required to give prominent weight to specific and general deterrence.
  • The Court of Criminal Appeal confirmed that a sentencing court must look at the full pattern of an offender's conduct, including prior convictions for violence, when assessing the appropriate sentence for ongoing domestic violence offending.
  • Mental illness may be relevant to sentencing, but does not necessarily reduce the sentence to a level that would otherwise be manifestly inadequate for serious and sustained violent offending.
  • Where sentences fail to reflect the cumulative gravity of repeated domestic violence across multiple victims, a Crown appeal for manifest inadequacy will succeed.
  • In restructuring the sentences, the Court more than doubled the effective non-parole period, underscoring that the original sentences fell well outside the range appropriate for offending of this character.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 35, 59, 61, 86, 562BE
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48
- Bail Act 1998 (NSW)

Key Cases
- Attorney-General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Hernando (2002) 136 A Crim 451
- R v Israil [2002] NSWCCA 255
- R v McNaughton [2006] NSWCCA 242
- R v Wall [2002] NSWCCA 42
- R v Weldon (2002) 136 A Crim R 55
- Osland v The Queen (1998) 197 CLR 316
- Apps v R [2006] NSWCCA 290
- Itaoui v R [2006] NSWCCA 273