Citation: State of New South Wales v Hamze (Final) [2025] NSWSC 6
Court: Supreme Court of New South Wales
Date: 20 January 2025
Judge: Yehia J
Background
The State applied under the Crimes (High Risk Offenders) Act 2006 (NSW) for an Extended Supervision Order (ESO) against the defendant, who had been sentenced in 2015 to nine years' imprisonment for offences arising from a violent confrontation in which a victim was shot in the thigh, abducted and robbed. The index offence was discharging a firearm with intent to cause grievous bodily harm, contrary to section 33A of the Crimes Act 1900 (NSW).
At a preliminary hearing in October 2024, the defendant was unrepresented and did not contest the threshold question of whether the index offence qualified as a "serious violence offence" under the Act. An interim supervision order was imposed. At the final hearing in December 2024, the defendant, now represented, mounted a substantive challenge to that threshold question.
The court had before it risk assessment reports from two court-appointed experts, Dr Carollyne Youssef and Ms Ahu Kocak, as well as affidavit evidence going to the defendant's personal circumstances, including the stability of his marriage and his financial position.
Legal Issues
- Whether the index offence (discharging a firearm with intent to cause grievous bodily harm under section 33A of the Crimes Act) constitutes a "serious violence offence" within the meaning of section 5A of the Crimes (High Risk Offenders) Act 2006 (NSW)
- Specifically, whether the words "of a kind" in section 5A(1)(b) broaden the category of serious violence offences beyond the offences expressly listed in section 5A(1)(a)
- Whether the elements of the index offence necessarily comprehend the elements of the offence of attempting to cause grievous bodily harm with intent, contrary to section 33(1)(b) of the Crimes Act
- Whether the defendant posed an unacceptable risk of committing a further serious violence offence (not reached, given the threshold finding)
Decision
Issue 1: Meaning of "of a kind" in section 5A(1)(b)
Section 5A(1)(b) extends the definition of "serious violence offence" to attempting to commit, or conspiring with or inciting another person to commit, "an offence of a kind referred to in paragraph (a) or (a1)." The State argued that these words do independent work by capturing offences of a similar type to those listed, not merely the listed offences themselves. Yehia J rejected that interpretation (at [99]-[101]). The phrase "of a kind" simply refers back to the specific offences enumerated in the preceding subsections. To treat those words as importing a broader, undefined category of offences would be vague and contrary to the principle that a statute should be given a construction in which no word is superfluous. The court noted that where Parliament has intended to extend the definition, it has done so through specific, limited amendments, not through loose language (at [91]-[100]).
Issue 2: Whether the index offence elements necessarily comprehend section 33(1)(b)
The State's primary argument, described at the hearing as the "simple case," was that the elements of an offence under section 33A necessarily comprehend all elements of an attempt to cause grievous bodily harm with intent under section 33(1)(b), relying on the Court of Appeal's reasoning in Lynn v State of New South Wales [2019] NSWCA 300. In Lynn, a guilty plea to manslaughter by excessive self-defence was held to necessarily comprehend all elements of murder, because excessive self-defence operates to reduce what is otherwise murder to manslaughter. Yehia J held that Lynn is distinguishable on its facts and reasoning (at [110]).
The elements of the index offence are: (a) discharging or attempting to discharge a firearm, and (b) doing so with an intention to cause grievous bodily harm. The offence does not include, as an element, an attempt to cause grievous bodily harm (at [110]). While the act of firing a gun with that intent might permit an inference that there was an attempt to cause grievous bodily harm, drawing that inference requires looking at the conduct and circumstances of the offending rather than the elements of the offence itself. That approach is inconsistent with the accepted principle, confirmed in Lynn and in State of New South Wales v Dennis [2024] NSWSC 388, that the analysis must be confined to the elements of the offence (at [111]).
Issue 3: Overall conclusion on jurisdiction
Because the index offence is not a "serious violence offence," the court's jurisdiction under the Act is not enlivened (at [113]). The questions of unacceptable risk and appropriate conditions for any ESO therefore did not arise for determination. The court acknowledged this was a narrow interpretation but considered it compelled by the legislative history, Parliament's specific and incremental approach to expanding the definition, and the significant impact that an ESO or continuing detention order has on individual liberty and privacy (at [112]).
Orders Made
- The plaintiff's amended summons filed on 29 August 2024 is dismissed.
- The plaintiff is to pay the defendant's costs.
Key Takeaways
- The phrase "of a kind" in section 5A(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) refers only to the specific offences listed in section 5A(1)(a) and (a1); it does not create a broader, open-ended category of serious violence offences (at [99]-[101]).
- Determining whether an offence qualifies as a "serious violence offence" requires analysis of the legal elements of the offence itself, not the conduct, facts, or circumstances of the particular offending (at [111]).
- Discharging a firearm with intent to cause grievous bodily harm (section 33A, Crimes Act) does not, by reason of its elements alone, necessarily comprehend the offence of attempting to cause grievous bodily harm with intent (section 33(1)(b), Crimes Act); the two offences have distinct elements (at [110]).
- The Supreme Court drew a clear distinction from Lynn: that principle applies where the offence of conviction structurally requires establishment of all elements of a more serious offence (as with manslaughter by excessive self-defence and murder), not merely where similar mental or physical elements are shared (at [108]-[110]).
- Where the Act's jurisdiction would substantially infringe individual liberty, the Supreme Court applied a strict, text-focused construction of the threshold definition, and confirmed that any intended extension of the category of qualifying offences must be expressed by Parliament in unambiguous terms (at [100], [112]).
Legislation and Cases Referenced
Legislation
- Community Protection Act 1994 (NSW)
- Crimes Act 1900 ( NSW), ss 29, 33A, 33(1)(b), 86 ( 3), 98, 421
- Crimes ( High Risk Offenders) Act 2006 ( NSW), ss 4A, 5A, 5B, 5I, 9, 11, 18CA, 22, 24AB
- Crimes ( High Risk Offenders) Amendment Act 2014 (NSW)
- Crimes ( High Risk Offenders) Amendment Act 2016 (NSW)
- Crimes ( High Risk Offenders) Amendment Act 2017 (NSW)
- Crimes (Serious Sex Offenders) Act 2006 ( NSW)
- Crimes ( Serious Sex Offenders) Amendment Act 2013 (NSW)
- Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
- Habitual Criminals Act 1905 (NSW)
- Habitual Criminals Act 1957 ( NSW)
Cases
- Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
- Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46
- Grant v R [2014] NSWCCA 67
- Kable v DPP (NSW) (1996) 189 CLR 51; [1996] HCA 24
- Lane v R [2013] NSWCCA 317; 241 A Crim R 321
- Lynn v State of New South Wales [2019] NSWCA 300
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- R v Berchet (1688) 1 Show KB 106; 89 ER 480
- State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311
- State of New South Wales v Dennis (2024) 114 NSWLR 215; [2024] NSWSC 388
- State of New South Wales v Windle (No 6) (Final) [2020] NSWSC 753