Citation: R v Hamide [2018] NSWDC 172
Court: District Court of New South Wales
Date: 16 February 2018
Judge: Berman SC DCJ
Background
In November 2013, the offender attended a meeting with a man who had come to de-escalate a dispute between associates of the two men. During that meeting, the offender produced a knife and stabbed the victim in the back, inflicting a serious wound. The victim was briefly chased, sustaining additional minor lacerations. A jury acquitted the offender of wounding with intent to murder but convicted him of the lesser charge of wounding with intent to cause grievous bodily harm.
The victim's brother-in-law, having been told the truth about what happened, made an anonymous report to Crimestoppers identifying the offender. The offender became concerned that the victim would identify him to police. After a series of meetings, the offender offered the brother-in-law $50,000 to murder the victim. The jury convicted the offender of soliciting that murder.
The sentencing proceedings addressed the objective gravity of both offences, the offender's personal circumstances, and the appropriate aggregate sentence.
Legal Issues
- What was the objective seriousness of the wounding with intent to cause grievous bodily harm?
- What was the objective seriousness of the solicitation to murder?
- How should the standard non-parole periods and maximum penalties inform the sentences?
- Whether special circumstances existed justifying a departure from the standard statutory ratio between the non-parole period and head sentence
- What aggregate sentence was appropriate given the totality of the offending?
Decision
On the wounding count, the District Court assessed the offence as slightly below mid-range in objective gravity. That finding rested primarily on the nature of the injury: a single stab wound requiring three days' hospitalisation but leaving no lasting physical effects. Although the offender had armed himself with a knife before the meeting, the court was unable to find that he had formed the intention to stab the victim when the meeting was arranged; the evidence suggested the intention formed as events unfolded.
On the solicitation to murder count, the court assessed the offence as mid-range in objective gravity. The court observed that solicitation to murder is almost invariably premeditated and necessarily involves an intention to kill. Here, the solicitation arose from the offender's calculated concern about being identified for the earlier stabbing, was preceded by multiple meetings, and reflected no impulse immediately regretted. The offender was the principal, made no attempt to withdraw the offer, and stood to benefit directly by eliminating the risk of detection.
Regarding personal circumstances, the offender had no prior violent offending and had not previously been imprisoned. He had a strong work history, family support, and a diagnosis of anxiety disorder, though other psychiatric diagnoses advanced on his behalf were regarded as more speculative. The court accepted that the offender suffered from anxiety but declined to find special circumstances based on the combination of first imprisonment, anxiety, and the hardship his incarceration would cause his wife and young children.
Both offences carry a maximum penalty of 25 years' imprisonment. The wounding offence carries a standard non-parole period of 7 years and the solicitation offence carries a standard non-parole period of 10 years. The court took both figures into account when determining the aggregate sentence and set out its reasons for departing from those benchmarks within the remarks on sentence.
Orders Made
- For wounding with intent to cause grievous bodily harm (indicative): non-parole period of 4 years, head sentence of 6 years
- For soliciting murder (indicative): non-parole period of 7 years, head sentence of 10 years
- Aggregate sentence imposed: head sentence of 13 years, non-parole period of 9 years and 6 months
- Sentences dated from 2 November 2017; the offender is eligible for release to parole on 1 May 2027
Key Takeaways
- An offence of wounding with intent to cause grievous bodily harm may be assessed as slightly below mid-range where injury was serious but not lasting, and where intent formed during events rather than in advance.
- Soliciting murder is assessed as inherently premeditated: the District Court confirmed that an intention to kill is a necessary element, and that the surrounding circumstances, including the absence of any withdrawal and the calculated motivation to avoid detection for prior offending, place such conduct at mid-range or above.
- A first term of imprisonment, an anxiety diagnosis, and hardship to dependants did not, individually or together, constitute special circumstances sufficient to justify a reduction of the statutory non-parole period ratio in this case.
- When imposing an aggregate sentence, the court identified what individual sentences would have been, providing transparency about how the aggregate figure was reached.
- Victim impact evidence confirming ongoing psychological harm, including anxiety and fear, was treated as a foreseeable consequence of the offending, consistent with established sentencing principles.
Legislation and Cases Referenced
Legislation
- No specific legislation cited in the judgment text (both offences carry maximum penalties of 25 years' imprisonment; standard non-parole periods of 7 years and 10 years respectively are referenced but the enabling statute is not named in the provided text)
Cases
- No cases cited by name in the provided judgment text