Citation: R v Hamzy [2016] NSWSC 1512
Court: Supreme Court of New South Wales
Date: 28 October 2016
Judge(s): R A Hulme J
Background
The offender was a member of the gang Brothers for Life. On 14 October 2012 at Greenacre, he arranged by text message to meet a fellow gang member (referred to as "Mr C") at his mother's townhouse complex. Both men attended the meeting armed with Glock pistols. The offender later said he had been told Mr C intended to shoot him, and he brought the gun "just in case."
As the offender arrived by car and drew alongside Mr C's parked Mercedes, he said he could see Mr C holding a gun. Believing Mr C was about to shoot, the offender fired first, discharging three rounds that wounded Mr C. One of those shots fatally struck Yeyha Amood, a passenger in Mr C's vehicle who was not the intended target. The offender then continued firing a further eight times as his own vehicle drove away.
A jury acquitted the offender of murder but convicted him of manslaughter by excessive self-defence in relation to Mr Amood's death (Count 2), and of wounding Mr C with intent to cause grievous bodily harm (Count 4). The sentencing judgment addresses the appropriate penalties for those two offences.
Legal Issues
- What sentences were appropriate for manslaughter by excessive self-defence and wounding with intent to cause grievous bodily harm, having regard to all relevant facts and circumstances?
- How should the court assess the objective seriousness of each offence, including the offender's level of moral culpability?
- What weight should be given to the offender's subjective circumstances, criminal record, and the fact that the offences were committed while he was on a good behaviour bond?
- What discount, if any, was available for offers to plead guilty that the Director of Public Prosecutions had rejected?
- Whether a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was warranted, and on what basis?
Decision
Hulme J characterised the manslaughter as an offence of considerable objective seriousness. Although the offender did not intend to kill Mr Amood and the jury accepted that he genuinely believed self-defence was necessary, his decision to arm himself and attend a confrontation he anticipated could turn violent placed him at a high level of moral culpability. The court emphasised that an innocent bystander's life was taken as a direct consequence of that decision.
The wounding of Mr C was assessed as of moderate objective seriousness, consistent with the jury's finding that the offender intended to inflict grievous bodily harm rather than to kill. The court noted that both offences shared common features but involved two separate victims, requiring a degree of partial accumulation in the sentences imposed.
Hulme J found that the offender's subjective circumstances did not warrant any mitigation. The offender carried a significant prior criminal record and had committed both offences while on a good behaviour bond. Denunciation, general deterrence, and personal deterrence were identified as particularly important sentencing considerations, given the lethal use of illegal firearms in gang-related violence.
The court accepted that some discount was appropriate to reflect offers to plead guilty that the DPP had declined. Delay in the proceedings was also taken into account. A finding of special circumstances under s 44(2) was made, but confined to the practical need for accumulation across the sentences imposed in this matter and a separate District Court sentence.
Orders Made
- Count 4 (wounding Mr C with intent to cause grievous bodily harm): imprisonment comprising a non-parole period of 4 years 3 months and a balance of term of 1 year 5 months (total: 5 years 8 months), dating from 26 August 2014.
- Count 2 (manslaughter of Mr Amood): imprisonment comprising a non-parole period of 7 years 6 months and a balance of term of 3 years (total: 10 years 6 months), dating from 26 August 2015. Non-parole period to expire on 25 February 2023.
- Overall sentence: 11 years 6 months with a non-parole period of 8 years 6 months.
- Finding of special circumstances made under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, confined to the need for accumulation.
Key Takeaways
- Manslaughter by excessive self-defence carries a maximum of 25 years' imprisonment under ss 18 and 24 of the Crimes Act 1900 (NSW), and the Supreme Court assessed this instance as one of considerable objective seriousness despite the absence of an intent to kill.
- A high level of moral culpability can be established even where a jury accepts the offender genuinely believed self-defence was necessary, where the decision to carry and deploy an illegal firearm was deliberate and premeditated.
- The court declined to mitigate for subjective circumstances where the offender held a significant criminal history and had committed the offences while on conditional liberty.
- Offers to plead guilty rejected by the DPP were nonetheless recognised as attracting a sentencing discount, consistent with the principle that a willingness to plead guilty has utilitarian value.
- A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may be confined solely to the technical need arising from accumulation of sentences, without broader justification in the offender's rehabilitation needs.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 24 (manslaughter), s 33(1)(a) (wounding with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole periods and special circumstances)
Cases
- R v Hamzy (No 2) [2016] NSWSC 1514 (companion judgment, to be read with this decision)
- R v Johnson [2003] NSWCCA 129