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District Court 13 August 2019

R v Hamouda

[2019] NSWDC 873

Theft & propertyPublic order & justice offences
CRIME SENTENCING AGGRAVATED BREAK AND ENTER LARCENY DRUG ADDICTION ICO APPROPRIATE

Citation: R v Hamouda [2019] NSWDC 873
Court: District Court of New South Wales
Date: 13 August 2019
Judge: Wilson SC DCJ

Background

The offender pleaded guilty to aggravated break and enter (committed whilst in company) under s 112(2) of the Crimes Act 1900 and larceny under s 117, along with a related offence of dealing with property suspected of being proceeds of crime under s 193C(1). The offending occurred across a series of incidents in May 2014, targeting commercial premises in an industrial complex in Lansvale, primarily involving the theft of CCTV cameras and equipment.

The offender was sentenced as a principal in the second degree. He was not physically present at the scenes but admitted involvement in planning the offences and receiving stolen goods. His co-offender, who was physically present and convicted after a full trial, was sentenced the previous day to six years imprisonment with a three-year non-parole period.

Considerable delay preceded sentencing. After arraignment in early 2016, multiple trial listings were adjourned for reasons unrelated to the offender, including Crown adjournments and co-offender ill-health. The offender eventually pleaded guilty in September 2018 and had served no time in custody in relation to these offences.

  • What was the appropriate sentence for the principal offences, taking into account the Form 1 matters and the related offence on the s 166 certificate?
  • How should the principles of totality apply when fixing an aggregate sentence across multiple charges?
  • Whether an Intensive Corrections Order (ICO) was appropriate given the offender's subjective circumstances, including drug addiction history, rehabilitation progress, and assessed risk of reoffending.
  • What weight should be given to the guilty plea, delay in proceedings, and the offender's role as a principal in the second degree?

Decision

Wilson SC DCJ fixed indicative sentences for each offence before applying the totality principle to arrive at an aggregate sentence. The indicative sentence for Count 1 (aggravated break and enter) was 20 months after a 10% guilty plea discount, for Count 2 (larceny) was 13 months after discount, and for the proceeds of crime offence was nine months after discount. The court then stepped back from those figures and assessed the overall criminality.

The court made favourable findings regarding the offender's rehabilitation and low risk of reoffending, noting these as significant subjective considerations. Drug addiction was identified as a central feature of the offending, and conditions directed at treatment and drug testing were incorporated into the sentence to address that underlying cause.

His Honour determined that an aggregate sentence of three years, to be served by way of an ICO rather than full-time custody, was appropriate. The court distinguished the offender's position from that of his co-offender, reflecting his lesser role as a non-present participant and the favourable subjective factors in his case.

Orders Made

  • The offender was convicted of aggravated break and enter (s 112(2) Crimes Act 1900), larceny (s 117), and dealing with property suspected of being proceeds of crime (s 193C(1)).
  • An aggregate sentence of three years was imposed, to be served by way of Intensive Corrections Order, commencing 13 August 2019 and expiring 12 August 2022.
  • Standard ICO conditions applied: no offences to be committed during the period; supervision by a Community Corrections officer; report to Fairfield Community Corrections within seven days.
  • Additional conditions: abstain from illicit drugs; participate in rehabilitation or treatment programs as directed; submit to random drug testing by Community Corrections or a general practitioner; complete 150 hours of community service work.

Key Takeaways

  • A lesser role as principal in the second degree, specifically planning and receiving stolen goods without physical presence at the scene, can substantially differentiate an offender's sentence from that of a physically present co-offender.
  • Favourable findings regarding rehabilitation and low risk of reoffending can support the imposition of an ICO even where the principal offence carries a maximum penalty of 20 years imprisonment.
  • Where drug addiction is a causative factor in offending, sentencing conditions directed at treatment and testing reflect the court's exercise of its purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • The totality principle requires the sentencing court to stand back from the sum of indicative sentences and impose an aggregate sentence that reflects overall criminality without producing a disproportionate result.
  • Delay in proceedings that is wholly attributable to factors outside the offender's control, such as Crown adjournments and co-offender ill-health, is a matter the court takes into account in the offender's favour at sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 117, 154A, 193C, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66

Cases
- Dunn v R [2018] NSWCCA 108
- Hyunwook v R [2010] NSWCCA 148
- R v Fangaloka [2019] NSWCCA 173
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327
- R v Todd [1982] 2 NSWLR 517