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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 6 years and 8 months imprisonment, with a non-parole period of 4 years and 6 months, following guilty pleas to three offences: firing a firearm at a dwelling, firing a firearm in a public place, and assault occasioning actual bodily harm in company. The offending occurred in February 2019 in Young, NSW, when the applicant shot at a known acquaintance multiple times, grazing his elbow, and had earlier that same day fired into the man's home.

After his arrest, the applicant did not disclose the location of the firearm used. Approximately one year after the offending, his solicitor contacted police and provided the exact location of the weapon, which was found secreted inside an old washing machine on or near the applicant's property, its magazine fully loaded.

More than two years after sentence was imposed, the applicant sought an extension of time and leave to appeal against sentence. He argued that his trial counsel's failure to invoke s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides for a sentencing discount where an offender has assisted law enforcement authorities, constituted a miscarriage of justice through incompetence, carelessness or oversight.

  • Whether the applicant's counsel failed to raise a potentially available discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) through incompetence, carelessness or oversight
  • Whether any such failure gave rise to a miscarriage of justice, warranting a grant of leave and an extension of time to appeal
  • Whether the sentencing judge's treatment of the firearm's recovery as evidence of remorse precluded or was inconsistent with a separate s 23 discount

Decision

The Court unanimously dismissed the application. Both Wilson J and Dhanji J concluded, by different paths, that no miscarriage of justice had been established. Price J agreed with both judges that the failure to invoke s 23 did not constitute a miscarriage, while noting he did not need to resolve a secondary disagreement between Wilson J and Dhanji J on the question of "double counting."

Wilson J identified a cogent forensic rationale for counsel's approach. When the recovery of the firearm was first raised at the aborted April 2020 hearing, counsel had specifically flagged the possibility of a s 23 argument. By the time of the May 2020 sentencing hearing, counsel chose to rely on the firearm's surrender solely as evidence of remorse. The sentencing judge accepted this and made a positive finding of remorse, which in turn supported a finding of good prospects of rehabilitation. Wilson J reasoned that raising s 23 would have provided an alternative, arguably more pragmatic, explanation for the surrender, and that this risked undermining the finding of remorse entirely. The applicant had not given evidence and had never explained his motivation for the offending, making the remorse finding far from guaranteed.

Wilson J concluded that it was entirely rational, viewed objectively, for counsel to judge that the limited assistance was more valuable as evidence of remorse than as the foundation for a s 23 discount, and that the two purposes were in tension. In those circumstances, no incompetence, carelessness or oversight was made out. Because the proposed ground lacked merit, the extension of time was also refused.

Dhanji J agreed in the result but expressed a different view on the "double counting" question, finding that evidence of assistance could, in principle, support both a finding of remorse and a discount under s 23 without necessarily amounting to impermissible double counting. However, that disagreement did not affect the outcome.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A failure by counsel to raise a specific sentencing provision does not automatically constitute incompetence, carelessness or oversight; the court examines whether there was a rational forensic basis for the choice made.
  • Where raising a statutory discount argument (here, under s 23 of the Crimes (Sentencing Procedure) Act 1999) risked undermining a separate and valuable mitigatory finding (remorse), the Court of Criminal Appeal accepted that foregoing the argument was a defensible tactical decision.
  • In dismissing the application, the Court confirmed that an extension of time to appeal will generally turn on the merits of the proposed ground, and weak merits will weigh against the grant of additional time.
  • No miscarriage of justice arises simply because an alternative sentencing argument was available; the applicant must establish that the omission was not a rational strategic choice.
  • Wilson J and Dhanji J expressed differing views on whether the same piece of evidence can simultaneously support both a remorse finding and a s 23 discount without double counting, though the Court did not need to resolve that question to dispose of the application.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 93G(1)(b), 93GA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases
- Cameron v The Queen (2002) 209 CLR 339
- Droudis v R [2020] NSWCCA 322
- Ehrlich v R (2012) 219 A Crim R 415
- Grant v R [2014] NSWCCA 67
- Hamzy v R [2014] NSWCCA 223
- KWJ v The Queen (2002) 212 CLR 124
- Lehn v R [2016] NSWCCA 255
- Markarian v The Queen (2005) 228 CLR 357
- 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
- Raymond John Munro v R [2006] NSWCCA 350
- TKWJ v The Queen (2002) 212 CLR 124
- Tsiakas v R [2015] NSWCCA 187
- Zreika v R [2012] NSWCCA 44