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10
Court of Criminal Appeal 25 August 2010

Regina v Hamieh

[2010] NSWCCA 189

Fraud & dishonestyTheft & property
CRIMINAL LAW CAR REBIRTHING CRIMES ACT 1900, S 154G CRIMINAL LAW SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE

Citation: Regina v Hamieh [2010] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 25 August 2010
Judge(s): Beazley JA, Kirby J, Johnson J

Background

The respondent pleaded guilty to knowingly facilitating organised car rebirthing between February and July 2007, contrary to s 154G of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years. The conduct involved purchasing two write-off Honda vehicles and rebuilding them with parts taken from three stolen Honda vehicles, with the intention of selling the finished cars at a profit.

The District Court sentenced the respondent to 24 months imprisonment with a non-parole period of 12 months, to be served by way of periodic detention (a form of part-time custody). The sentence reflected a 20 per cent discount for the utilitarian value of the guilty plea. The Crown appealed on the ground that the sentence was manifestly inadequate.

The respondent had a prior criminal record that included a suspended sentence for being an accessory after the fact to the supply of a commercial quantity of methylamphetamine, as well as driving offences and minor offences of dishonesty and property damage. He was 29 at sentencing, married with two young children, employed, and suffered from a managed congenital heart condition.

  • Whether the original sentence was manifestly inadequate given the objective seriousness of the offence
  • Whether the sentencing judge properly identified where the offence sat on the scale of objective seriousness
  • Whether the sentencing judge complied with the Regina v Way requirement to state reasons for departing from the standard non-parole period
  • Whether periodic detention was an appropriate order having regard to the purposes of punishment, including general and personal deterrence

Decision

The Court of Criminal Appeal found that the sentence imposed by the District Court was manifestly inadequate. The offence involved considerable planning, enterprise, and deliberate financial motivation. The Court held that the sentencing judge had not adequately placed the offending on the scale of objective seriousness, as required by established sentencing principles.

The Court also found that the sentencing judge failed to comply with the common law obligation, confirmed in Regina v Way, to give reasons for departing from the standard non-parole period of 4 years. That obligation applies both where a court goes below and where it goes above the standard non-parole period, and the failure to engage with it was itself a sentencing error.

On the question of periodic detention, the Court rejected the submission that the sentence should continue to be served in that form. The legislature had specifically targeted organised car rebirthing as an offence requiring general deterrence. The respondent's criminal history also indicated a need for personal deterrence. A period of periodic detention was held to be incapable of fulfilling those sentencing purposes for an offence of this character and seriousness.

The Court acknowledged the respondent's subjective circumstances, including his young family, a prior psychiatric condition, and his heart condition (controlled by medication). However, it found those factors were not sufficiently compelling to justify periodic detention in place of full-time custody.

Orders Made

  • Appeal allowed
  • The sentence imposed by the sentencing judge was quashed
  • In substitution, the respondent was sentenced to a term of imprisonment comprising a non-parole period of 2 years commencing 14 May 2010 and concluding 13 May 2012, with a balance of term of 12 months commencing 14 May 2012 and concluding 13 May 2013

Key Takeaways

  • Sentencing courts must identify where on the scale of objective seriousness an offence falls; failure to do so constitutes a sentencing error that may warrant appellate intervention.
  • Under the Regina v Way principle, a sentencing court is required to give reasons whenever it departs from a standard non-parole period, whether the departure is upward or downward.
  • Where an offence has been specifically targeted by the legislature for general deterrence, periodic detention may be incapable of satisfying that sentencing purpose.
  • The Court of Criminal Appeal confirmed that a combination of general deterrence, personal deterrence, and significant objective seriousness can outweigh subjective mitigating factors such as family circumstances and a managed medical condition when determining the mode of custody.
  • In increasing the sentence from periodic detention to full-time custody, the Court applied a total term of 3 years with a 2-year non-parole period, reflecting the discounted effect of the guilty plea while giving proper weight to the seriousness of the rebirthing conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 154G
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes Amendment (Organised Car and Boat Theft) Act 2006 (NSW)
- Firearms Act 1996 (NSW)

Key Cases:
- Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Dodd (1991) 57 A Crim R 349
- R v Zamagias [2002] NSWCCA 17
- Douar v Regina [2005] NSWCCA 455; 159 A Crim R 154
- Sullivan v R; Skillin v R [2008] NSWCCA 269; 51 MVR 572