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9
Court of Criminal Appeal 6 March 2006

Hamze v Regina

[2006] NSWCCA 36

Assault & violenceTheft & propertyFirearms & weapons
APPEAL AGAINST SENTENCE ROBBERY ERROR FOUND IN SOME RESPECTS

Citation: Hamze v Regina [2006] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 6 March 2006
Judge(s): Giles JA; Grove J; Hoeben J

Background

The appellant pleaded guilty in the District Court to two offences: robbery armed with a dangerous weapon and in company, and knowingly taking part in the unauthorised sale of a firearm. Three further offences were listed on a Form 1 (a procedure allowing a court to take additional offences into account when sentencing without recording separate convictions), including a second armed robbery at a different service station days before the index offence, a break-enter-and-steal, and a "taken and driven" vehicle offence.

The index robbery involved four masked men entering a Granville service station late at night. At least one was armed with a sawn-off shotgun or rifle. The men threatened two people present, forced them to the floor, and stole cash, cigarettes and phone cards. The appellant and his associates arrived and departed in a stolen vehicle.

Freeman DCJ sentenced the appellant to six years and nine months imprisonment for the robbery (with a four-year non-parole period) and five years for the firearms offence, producing a total effective sentence of just over eight years with a non-parole period of just over five years. The appellant sought leave to appeal against sentence on six grounds.

  • Whether the sentencing judge erred by treating the threatened or actual use of violence as an aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, when that element was already inherent in the offence of armed robbery
  • Whether the same error applied to the use of a weapon as an aggravating factor under s 21A(2)(c), given "armed with a dangerous weapon" formed part of the offence charged
  • Whether commission of the offence "in company" could be an aggravating factor under s 21A(2)(e), given "in company" was an element of the offence charged
  • Whether the facts supported the aggravating factor of "disregard for public safety" under s 21A(2)(i)
  • Whether the Form 1 offences could be treated as evidence of "a series of criminal acts" constituting an aggravating factor under s 21A(2)
  • Whether the judge failed to give sufficient weight to the appellant's assistance to authorities in relation to the firearms count

Decision

The Court of Criminal Appeal found error in several of the sentencing judge's approaches to the aggravating factors under s 21A(2). On grounds 1 to 3, the court confirmed the established principle that a sentencing court must not treat as an aggravating factor something that is already an element of the offence for which the offender is being sentenced. Because the charge expressly included being "armed with a dangerous weapon" and "in company," neither the use of a weapon nor commission in company could properly be elevated as separate aggravating features under s 21A(2).

On ground 4, the court considered whether discharging a firearm inside the service station (which occurred in the Form 1 robbery, not the index offence) justified finding a "disregard for public safety." The court found the facts did not clearly support this aggravating factor in relation to the count on the indictment, at least without more careful analysis, and some error was identified in the approach taken below.

On ground 5, the court addressed whether Form 1 offences could constitute a "series of criminal acts" for the purposes of the aggravating factor in s 21A(2). Some error was found in the characterisation. However, the court emphasised that Form 1 offences were properly taken into account in a different way: by increasing the weight given to personal deterrence and the community's entitlement to retribution for serious offences that have not otherwise been separately punished, consistent with the approach in Attorney General's Application No 1 of 2002.

Despite identifying errors in how specific aggravating factors were applied, the court was not satisfied that a less severe sentence was warranted in law. The offences were objectively serious, the appellant had an extensive criminal record despite being only 18 at the time, there was no demonstrated remorse, and the Form 1 matters, particularly the second armed robbery committed just days before the index offence, materially increased the appropriate sentence. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not treat as an aggravating factor any matter that is already an element of the offence charged; doing so constitutes legal error.
  • Where an offence is charged as "robbery armed with a dangerous weapon and in company," neither the use of a weapon nor the commission in company can separately aggravate the sentence under s 21A(2)(c) and (e).
  • Form 1 offences are not automatically available as evidence of "a series of criminal acts" constituting an aggravating factor, but they remain relevant to sentencing by increasing the weight given to personal deterrence and retribution.
  • Error in applying specific aggravating factors does not automatically result in a reduced sentence; the Court of Criminal Appeal will dismiss the appeal if it is not satisfied a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • The "disregard for public safety" aggravating factor under s 21A(2)(i) requires factual support referable to the actual offence being sentenced, not simply imported from related matters.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Baxter [2005] NSWCCA 234
- R v Blair [2005] NSWCCA 78
- R v Farrer (1983) 78 FLR 10
- R v Foster (1995) 78 A Crim R 517
- R v Ibrahimi [2005] NSWCCA 153
- R v Kelly [2005] NSWCCA 280
- R v Janceski [2005] NSWCCA 288
- R v Johnson [2004] NSWCCA 76
- R v Salieb [2005] NSWCCA 85
- R v Smith and Desmond (1965) AC 960
- R v Street [2005] NSWCCA 139
- R v Suaali [2005] NSWCA 206
- R v Tadrosse [2005] NSWCCA 145
- R v Way [2004] NSWLR 168
- R v Wickham [2004] NSWCCA 193