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Court of Criminal Appeal 8 June 2007

R v Mohamad Issam HAMIED

[2007] NSWCCA 151

Assault & violenceTheft & property
SENTENCE CROWN APPEAL HENRY GUIDELINE

Citation: R v Mohamad Issam Hamied [2007] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 8 June 2007
Judge(s): Tobias JA, Latham J, Fullerton J

Background

The respondent, a 48-year-old man with no prior relevant criminal history, pleaded guilty shortly before trial to assault with intent to rob whilst armed with a dangerous weapon under s 97(2) of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. His role was to drive four co-offenders to a hotel in Botany, wait while they conducted an armed robbery of the premises, and drive them away afterwards.

The robbery itself involved weapons including a replica pistol, a screwdriver, and a baseball bat. An 82-year-old patron was kicked to the ground during the incident. The respondent was arrested after police pursued the getaway vehicle and found clothing and other items linked to the offence inside.

The District Court sentenced the respondent to 18 months imprisonment (commencing from the date of arrest) with a further 18-month balance of term, expiring February 2009. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge failed to properly consider and apply the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346
  • Whether there was double counting in the finding of special circumstances
  • Whether the discount for the guilty plea was excessive
  • Whether excessive weight was given to the respondent's mental illness when setting the non-parole period
  • Whether the sentencing judge failed to give adequate consideration to the principles of specific and general deterrence
  • Whether the sentence, taken as a whole, was manifestly inadequate

Decision

The Court of Criminal Appeal dismissed each of the Crown's five grounds of error. On the Henry guideline, the Court acknowledged the sentence was at the lenient end but accepted the sentencing judge's approach was consistent with the guideline when the respondent's subjective circumstances were properly weighed. His age, lesser role as the getaway driver, absence of relevant criminal history, prospects of rehabilitation, family support, and longstanding depressive illness together justified the outcome.

On the discount for the guilty plea, the Court found no error. The plea, though entered late, came before the jury was empanelled, and the respondent had cooperated with police by making admissions in custody. A separately raised submission, that information given to a correctional officer about a co-offender constituted assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999, was rejected: the respondent had declined repeated opportunities to confirm the information to police, and it did not meet the statutory description of assistance.

The Court accepted that the non-parole period of 18 months was "the very least" that could be imposed for an offence of this objective gravity. However, in the context of a first custodial sentence and a genuine depressive illness, the sentencing judge was entitled to exercise her discretion in this way. The failure to explicitly mention general deterrence in the remarks on sentence did not establish error, given the overall reasoning demonstrated a principled approach to the exercise.

The sentence was described as lenient, but the Court applied the standard formulation that a Crown appeal succeeds only where the sentence is "definitely outside the range for the case in hand." That threshold was not met.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A lenient sentence is not automatically a manifestly inadequate one. The Court of Criminal Appeal confirmed that a Crown appeal will only succeed where the sentence is definitively outside the range appropriate for the case, not merely at the lower end of it.
  • In dismissing the appeal, the Court confirmed that a combination of subjective factors including advanced age for a first offender, a significant mental health condition, family support, and a lesser role in the offence can together justify a sentence near the bottom of the available range.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, information passed to a correctional officer does not constitute assistance to authorities where the offender subsequently declines repeated opportunities to confirm that information to police.
  • A sentencing judge's failure to expressly name the principle of general deterrence in remarks on sentence does not establish appellate error where the overall reasons demonstrate a reasoned and principled approach to the exercise.
  • The Court treated the respondent's one prior conviction (possession of a cattle prod, resulting in a fine) as carrying minimal relevance to the sentencing exercise for a serious armed robbery offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (the Henry guideline judgment)
- R v SDM [2001] NSWCCA 158
- R v Griggs [2000] NSWCCA 33
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525
- R v Wall [2002] NSWCCA 42