AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 12 April 2023

Hamdan v R

[2023] NSWCCA 80

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME SENTENCE

Citation: Hamdan v R [2023] NSWCCA 80
Court: Court of Criminal Appeal
Date: 12 April 2023
Judge(s): Price J, Wilson J, Dhanji J

Background

The applicant was sentenced in the District Court at Wagga Wagga in May 2020 to an aggregate term of six years and eight months imprisonment, with a non-parole period of four years and six months. The sentence arose from three offences committed on the same day in Young: firing a firearm at a dwelling, firing a firearm in a public place, and assault occasioning actual bodily harm in company. The applicant had discharged a loaded pistol multiple times at the victim's home and then at the victim personally while he sat in his parked car, grazing his elbow with one of six shots.

Before the sentencing hearing, the applicant's solicitor contacted police and disclosed the location of the firearm used in the offences. Police recovered a loaded black pistol secreted inside an old washing machine on or near the applicant's property. The sentencing judge received this evidence and found it significant as a sign of remorse, which informed a finding of good prospects of rehabilitation and an amelioration of the sentence imposed.

The applicant subsequently sought leave to appeal out of time, arguing that his counsel's failure to explicitly invoke section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in submissions amounted to incompetence or oversight that occasioned a miscarriage of justice. Section 23 permits a court to impose a lesser penalty in recognition of an offender's assistance to law enforcement authorities.

Legal Issues

  • Whether the failure of the applicant's counsel to make a submission expressly referring to section 23 of the Crimes (Sentencing Procedure) Act 1999 constituted incompetence, carelessness or oversight amounting to a miscarriage of justice
  • Whether the absence of a discrete section 23 discount submission caused the applicant to receive a less favourable sentence than he would otherwise have received
  • Whether the use of the firearm surrender as evidence of remorse precluded a further discrete reduction under section 23 (the "double counting" concern)
  • Whether an extension of time to bring the application for leave to appeal should be granted

Decision

The Miscarriage of Justice Ground

The Court unanimously held that no miscarriage of justice was established (at [1]). The threshold for appellate intervention on the basis of counsel's conduct is high: there must be some deficiency so significant as to have caused a miscarriage, described in the authorities as "egregious," "extreme," or "flagrant incompetence" (at [43]). The applicant bore the burden of establishing both a material irregularity in the sentencing proceedings and a significant possibility that the irregularity affected the outcome adversely (at [40]).

Counsel's Conduct Was Not Incompetent

Wilson J found that counsel was plainly aware of section 23, having raised it expressly when seeking the adjournment on 6 April 2020 to obtain the firearm evidence (at [45]). Counsel tendered the relevant evidence and addressed the court on its significance, framing the surrender of the firearm as evidence of contrition, remorse and a desire to make amends. The Court held that this approach was well open and not inappropriate or wrong (at [51]). Not expressly citing section 23 was not, of itself, indicative of incompetence (at [46]).

The Forensic Rationale for Not Invoking Section 23

Dhanji J identified a sound forensic explanation for the omission. Relying on the surrender for a section 23 purpose would have provided an alternative, pragmatic explanation for the applicant's conduct that could have jeopardised the finding of remorse (at [76]). Given that the surrender occurred approximately a year after the offences and the applicant had not given evidence or explained his conduct, a finding of remorse was far from guaranteed (at [77]). It was entirely rational for counsel to conclude that the evidence was more valuable in establishing remorse, with its consequential benefit to rehabilitation findings, than as the foundation for a section 23 discount (at [77]).

No Disadvantage Resulted; Double Counting Considered

The sentencing judge did take the firearm surrender into account and was principally persuaded by it to conclude the applicant was remorseful (at [53]). Wilson J held that, having relied upon that disclosure to find remorse and ameliorate the sentence, it was not open to the sentencing judge to allow a further reduction under section 23, given the risk of double counting identified in prior authority (at [57]). Dhanji J reached a different conclusion on the double counting question in principle, expressing the view that evidence of assistance can serve both a remorse purpose and a section 23 purpose without constituting double counting (at [72]), though his Honour nonetheless agreed no miscarriage was established. Price J noted the disagreement but found it unnecessary to resolve it (at [2]). Additionally, the assistance itself was of limited value: it involved only the surrender of the weapon used in the applicant's own offences and could not lead to the detection of other crimes or the prosecution of other offenders (at [50]).

Extension of Time

The application was filed over two years out of time. The Court declined to grant an extension, having concluded that the application for leave to appeal could not succeed (at [65]).

Orders Made

  • An extension of time in which to bring an application for leave to appeal is refused.

Key Takeaways

  • Establishing a miscarriage of justice based on counsel's conduct at sentencing requires more than showing the case could have been better put; the omission must have caused a material irregularity with a significant possibility of an adverse outcome, a burden the applicant could not meet here (at [40], [62]).

  • Where counsel was demonstrably aware of a statutory provision (here, section 23 of the Crimes (Sentencing Procedure) Act 1999) but chose not to invoke it expressly, that choice may be explicable as a rational forensic decision rather than oversight, particularly where the alternative framing produced a more valuable mitigatory finding (at [73], [77]).

  • Surrendering a firearm used in the offender's own crimes, with no capacity to assist in detecting other offences or prosecuting other offenders, is capable of qualifying as assistance under section 23, but is likely to attract only a limited discount given the criteria in section 23(2) (at [49]-[50]).

  • The Court of Criminal Appeal left unresolved whether using evidence of assistance as proof of remorse and also as the basis for a discrete section 23 discount constitutes impermissible double counting, with Wilson J and Dhanji J expressing different views on the question (at [2], [57], [72]).

  • Refusing an extension of time to appeal will ordinarily follow where the application for leave to appeal is found to lack merit, even where a partial explanation for delay is offered (at [65]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Droudis v R [2020] NSWCCA 322
- Ehrlich v R (2012) 219 A Crim R 415; [2012] NSWCCA 38
- Grant v R [2014] NSWCCA 67
- Hamzy v R [2014] NSWCCA 223
- KWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Lehn v R [2016] NSWCCA 255
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Puan v R [2009] NSWCCA 194
- R v Birks (1990) 19 NSWLR 677
- R v Gallagher (1991) 23 NSWLR 220
- R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
- Raymond John Munro v R [2006] NSWCCA 350
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tsiakas v R [2015] NSWCCA 187
- Zreika v R [2012] NSWCCA 44