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Court of Criminal Appeal 29 November 2004

Regina v Hamze [2004] NSWCCA 423 revised - 23

[2004] NSWCCA 423

Assault & violencePublic order & justice offences
CRIMINAL LAW & PROCEDURE: CRIME ORGANISED FROM WITHIIN PRISON WHETHER SENTENCE MANIFESTLY INADEQUATE REMORSE DELAY PREVIOUS CONVICTIONS

Citation: Regina v Hamze [2004] NSWCCA 423
Court: NSW Court of Criminal Appeal
Date: 29 November 2004
Judge(s): Wood CJ at CL; McClellan AJA; Smart AJ

Background

The respondent was serving a six-year sentence for detaining a person for advantage when, from inside John Moroney Correctional Centre, he orchestrated a violent attack on a man involved in a dispute with his partner's family. Using recorded prison phone calls, he directed associates outside to "get some boys organised" and carry out the assault.

Within roughly two hours of those calls, a group of five or six men broke into the victim's home. They punched, kicked, and struck him with a baseball bat and iron bar, and stabbed him in the stomach with a large knife. The victim required hospitalisation and sustained numerous injuries.

The respondent pleaded guilty in the District Court to being an accessory before the fact to malicious wounding in company, an offence carrying a maximum of ten years' imprisonment. The sentencing judge imposed two and a half years with a non-parole period of only six months. The Crown appealed on the ground that sentence was manifestly inadequate.

  • Whether the sentence of two and a half years with a six-month non-parole period was manifestly inadequate for an offence of this seriousness
  • What weight should be given to the respondent's remorse, the delay in proceedings, and his previous convictions
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence
  • How to approach re-sentencing where the Crown is appealing for the second time the respondent faces jeopardy

Decision

The Court of Criminal Appeal found that the sentencing judge's discretion had miscarried and that both the head sentence and the non-parole period were manifestly inadequate. McClellan AJA, with whom Wood CJ at CL and Smart AJ agreed, held that the offence carried a high degree of criminality: it was planned and directed from inside a prison by someone already serving a sentence for a serious offence, it involved multiple perpetrators, and it caused significant physical harm.

The Court acknowledged mitigating factors, including the respondent's plea of guilty, expressed remorse, and the delay between the offence and sentencing. However, those factors did not justify a sentence as low as the one imposed. The Court also noted that prior convictions were relevant, not to increase the sentence beyond what the offence warranted, but to confirm that the respondent had repeatedly failed to conform to the law.

On re-sentencing, the Court was required to impose the least sentence available on a Crown appeal, given this was the second time the respondent's freedom was at risk. The Court also found special circumstances justifying an extended parole supervision period, given its view that the respondent would require lengthy supervision on release. The new sentence was set at three and a half years, with a non-parole period of one year and three months.

Orders Made

  • Crown appeal allowed
  • Sentence imposed below set aside
  • Respondent sentenced to imprisonment for three and a half years, commencing 30 October 2005 and expiring 30 April 2009
  • Non-parole period of one year and three months set, running from 30 October 2005 to 30 January 2007, representing the earliest parole release eligibility date

Key Takeaways

  • Organising a serious group assault from inside a prison, while already serving a custodial sentence, was treated as a significant aggravating feature warranting a substantially higher sentence than that originally imposed.
  • A manifestly inadequate sentence will prompt appellate intervention even where mitigating factors such as a guilty plea, remorse, and delay are present, if those factors do not justify the extent of the reduction applied.
  • Where a Crown appeal succeeds and it is the second time the respondent faces jeopardy, the Court of Criminal Appeal must impose the least sentence it considers appropriate, not simply the sentence it would have imposed at first instance.
  • Special circumstances under sentencing law can justify a non-parole period that is proportionally shorter than usual, allowing a longer period of supervised parole where the court considers extended supervision necessary.
  • Previous convictions are relevant at sentencing not as a basis for punishing past conduct again, but to contextualise the current offence and assess the offender's pattern of disregard for the law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 346, 86
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases:
- Dinsdale v The Queen (2000) 175 ALR 315
- Everett v The Queen (1994) 181 CLR 295
- R v Bavadra (2000) 115 A Crim R 152
- R v Bezan [2004] NSWCCA 342
- R v Blanco (1999) 106 A Crim R 303
- R v Shankley [2003] NSWCCA 253
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Wall [2002] NSWCCA 42
- Veen v R (No 2) (1998) 164 CLR 465