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Court of Criminal Appeal 30 September 2011

HAMED v REGINA

[2011] NSWCCA 219

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION ROBBERY IN COMPANY IDENTITY OF OTHER OFFENDERS UNKNOWN APPLICANT NOT IDENTIFIED DURING ROBBERY CIRCUMSTANTIAL EVIDENCE

Citation: Hamed v Regina [2011] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 30 September 2011
Judges: Johnson J, Hall J, Price J

Background

The appellant was convicted by a jury in the Parramatta District Court of robbery in company, contrary to s.97(1) of the Crimes Act 1900, following a robbery at a St Mary's post office on 13 February 2009. Two robbers, both concealing their identities, entered the premises and used a firearm and a knife to menace staff and customers before stealing cash. The Crown alleged the appellant was the second robber, who entered through a side door carrying a knife.

The appellant was never directly identified during or immediately after the robbery. The Crown's case rested entirely on circumstantial evidence, including personal property belonging to the appellant found in a nearby vehicle, CCTV footage placing him close to the scene, and DNA evidence linking him to items recovered after the robbery.

Following conviction, the appellant was sentenced to a non-parole period of five years commencing 11 May 2009, with a balance of term of three years. He appealed both the conviction and the sentence.

  • Whether the Crown had proved that the stolen money was the property of Australia Post as charged in the indictment, and whether the matter should have been withdrawn from the jury for failure to establish this element.
  • Whether the verdict was otherwise unreasonable, unsafe, unjust, or dangerous in light of the circumstantial and DNA evidence.
  • Whether the sentence was manifestly excessive.
  • Whether the sentencing judge contravened the De Simoni principle by taking into account the appellant's use of a knife as an aggravating factor.

Decision

Ground 1: Ownership of the stolen property

The appellant argued the Crown failed to prove the stolen cash belonged to Australia Post as described in the indictment. The Court rejected this argument. The licensee's evidence established that she received money on behalf of Australia Post, with takings collected daily by Armaguard and credited to an Australia Post account. The Court affirmed that robbery, as a species of larceny, is an offence against possession rather than ownership, and that the trial judge was correct to allow the matter to go to the jury.

Ground 2: Unreasonable verdict

The Court applied the test from SKA v The Queen (2011), asking whether the jury, acting reasonably, ought to have entertained a reasonable doubt. The circumstantial evidence, taken as a whole, included the appellant's personal property in the getaway vehicle, a knife recovered near that vehicle matching the weapon seen in CCTV footage, DNA linking the appellant to a glove and balaclava recovered from the first getaway vehicle, and his proximity to the scene on the day. The Court held the verdict was not unreasonable and that the jury was entitled to reach the conclusion it did.

Ground 3: Sentence and the De Simoni principle

The appellant contended the sentencing judge impermissibly relied on the use of a knife as an aggravating factor in circumstances where armed robbery had not been charged. The Court found that the sentencing judge had taken the knife into account only as part of an overall assessment of the objective seriousness of the offence, not as a separate circumstance of aggravation that would have constituted a more serious offence. This did not contravene the De Simoni principle. The Court also noted the appellant's significant criminal history, including prior convictions for armed robbery, robbery in company, and kidnapping, and the fact that he was on parole at the time of the offence. No error in the sentence was established.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Robbery is an offence against possession rather than ownership, meaning proof that a third party (rather than the immediate victim) legally owned the stolen property does not defeat the charge, provided possession is established.
  • A conviction based entirely on circumstantial evidence may stand where the jury, acting reasonably, could have been satisfied beyond reasonable doubt on the totality of that evidence.
  • Under the De Simoni principle, a sentencing court may not treat as an aggravating factor any circumstance that would have constituted a more serious chargeable offence; however, referencing a weapon as part of the general assessment of objective seriousness does not necessarily contravene this rule.
  • No lesser sentence was warranted in law where the appellant had a substantial criminal history, was on parole at the time of offending, and the sentencing judge had properly identified and weighed all relevant subjective and objective factors.
  • Competing DNA evidence does not automatically render a verdict unsafe where other circumstantial evidence, assessed as a whole, supports the jury's finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s.97(1) (robbery in company)
- Criminal Appeal Act 1912 (NSW), s.6

Cases
- SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
- R v De Simoni (1981) 147 CLR 383
- R v Dinsdale (2002) 202 CLR 321
- Ilich v The Queen (1986-1987) 162 CLR 110
- R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101
- CW v R [2011] NSWCCA 45
- Flack v R [2011] NSWCCA 167
- Rasic & Ors v R [2009] NSWCCA 202
- Raumakita v R [2011] NSWCCA 126
- R v Li (CCA unreported, 9 July 1997)