New South Wales Supreme Court CITATION : Regina v Bassam HAMZY [2002] NSWSC 128 FILE NUMBER(S) : SC 70054/00; 70022/01 HEARING DATE(S) : 13/6/01, 14/6/01, 15/6/01, 18/6/01, 19/6/01, 20/6/01, 21/6/01, 22/6/01, 25/6/01, 26/6/01, 27/6/01, 28/6/01, 29/6/01, 2/7/01, 3/7/01, 4/7/01, 5/7/01, 6/7/01, 9/7/01, 10/7/01, 11/7/01, 12/7/01, 16/7/01, 17/7/01, 18/7/01, 19/7/01, 20/7/01, 23/7/01, 24/7/01, 21/9/01 JUDGMENT DATE : 15 March 2002 PARTIES : Regina Bassam HAMZY JUDGMENT OF : Bell J at 1 COUNSEL : M. Barr (Crown) P. Bodor QC (Accused) SOLICITORS : S E O'Connor John B Hajje & Assoc, Solicitors CATCHWORDS : Sentence Crimes Act 1900 Crimes Act 1912 (Cth) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 CASES CITED : R v Barton [2001] NSWCCA 63 R v Previtera (1997) 94 ACrimR 76 DECISION : See last paragraph of judgment IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 70054/00 & 70022/01 BELL J Friday 15 March 2002 REGINA v Bassam HAMZY Judgment 1 Her Honour: On 13 June 2001 the offender was arraigned on an indictment charging him with five counts, namely (i) the murder of Kris Toumazis; (ii) maliciously wounding Nicholas Lambos with intent thereby to do grievous bodily harm; (iii) maliciously discharge loaded arms with intent to do grievous bodily harm to Arthur Kazas; (iv) threaten to use an offensive weapon (a firearm) with intent to prevent or hinder lawful apprehension; (v) conspiracy to murder Khaled Hammoud. He pleaded not guilty to each count. A jury was empanelled and there followed a trial lasting some weeks. 2 On 24 July 2001 the jury returned verdicts of guilty in respect of each count. 3 The proceedings were stood over for a sentence hearing on 21 September 2001 in order to allow the offender's legal representatives to obtain psychological and/or other reports. When the matter came before me on that occasion I was informed that the offender was serving a sentence imposed on 3 May 2001 in the Sydney District Court arising out of his convictions on charges of importing a prohibited import (cocaine) into Australia. I was informed that the Crown had lodged an appeal against the leniency of the sentences imposed on the offender pursuant to s 5D of the Criminal Appeal Act 1912 and that the offender had filed an appeal against his convictions. Mr Bodor QC, who appeared on the offender's behalf, and the Crown Prosecutor agreed that it was appropriate for me to defer passing sentence on the offender until the outcome of these appeals was known. In the circumstances I considered this to be a sensible course. The sentence proceedings were stood over to be re-listed following the determination of the Court of Criminal Appeal. Mr Bodor reserved the right to address further submissions in the light of the outcome of the appeals. 4 On 21 December 2001 the Court of Criminal Appeal delivered judgment upon both the conviction appeal and the Crown appeal. The appeal against conviction was dismissed. The Crown appeal was allowed and the sentences imposed in the District Court were quashed. In lieu thereof new sentences were imposed by the Court of Criminal Appeal. It will be necessary to return to the detail of these in due course. When the determination of the Court of Criminal Appeal was brought to my attention I caused inquiries to be made to see if it was sought to have the proceedings listed for further submissions. I was advised that neither party wished to do so. 5 I turn now to the offences in respect of which the offender is to be sentenced. 6 The first four counts in the indictment arose out of an incident that occurred in the early hours of Saturday 30 May 1998 in Oxford Street, Paddington. The offender and a group of friends, which included Nedhal Hammoud and Kader Chakaik, attended the Mr Goodbar nightclub in Oxford Street that morning. They had earlier been out to dinner and to a nightclub in Kings Cross. It is not suggested that the offender was affected by alcohol to any degree at the time of the offences. 7 The deceased was a young man aged eighteen years. On the evening of Friday 29 May he went out with a group of friends, including Nick Lambos and Arthur Kazas. They spent some time at the Coogee Bay Hotel and later that evening they went to the Mr Goodbar. At around 3.00 am, when the Mr Goodbar was closing, there was an incident between Arthur Kazas and Nedhal Hammoud. The latter approached Arthur Kazas inside the nightclub and accused him (wrongly) of harassing his girlfriend. Mr Kazas wanted no part of any argument with Nedhal Hammoud. Hammoud then left the nightclub and Arthur Kazas left a short time after. There was a confrontation on the footpath outside the entry to the nightclub. Nedhal Hammoud was behaving in an aggressive fashion, inviting Arthur Kazas and his friends to come around the corner so that things might be fixed up. Mr Kazas had not been drinking that night and was somewhat older than his companions. He endeavoured to calm things down, telling Nedhal Hammoud: "Mate, just leave it at that. We don't want anything to do with what you want." Mr Kazas's car, a white Ford Capri, was parked immediately outside the nightclub. He and his companions got into the vehicle and were about to drive away when Kader Chakaik started to kick the rear wheel arch of the Capri. After a little time, Arthur Kazas got out of the car and saw that damage had been done to it. Kader Chakaik and Nedhal Hammoud were by this stage running across Oxford Street. Mr Kazas gave chase. The deceased and Nicholas Lambos got out of the Ford Capri and started running across Oxford Street in the direction of Hammoud and Chakaik. 8 The offender had by this time already crossed to the opposite side of Oxford Street. He was standing not far from the Ardino Hairdressing Salon, which is adjacent to the corner of Oxford and West Streets. When he saw his companions being chased by the men from the Ford Capri he produced a handgun and commenced firing into Oxford Street in the general direction of those giving chase. 9 At the time Arthur Kazas heard the first shot Nicholas Lambos was about five to ten metres in front of him. A bullet hit Mr Lambos near the right sternal notch. Mr Lambos saw the sparks coming from the offender's gun. He kept running, not realising that he had been shot. He ran down West Street and a number of back streets in Paddington. He first became aware that he had been shot when he was stopped by the police. The bullet exited from his right shoulder at the scene in Liverpool Street where he was spoken to by police. He was treated at the scene by ambulance officers and taken to hospital. 10 The shooting of Nicholas Lambos is the subject of count two in the indictment. 11 Arthur Kazas saw the deceased, Kris Toumazis, running towards the offender. It seemed to him that the deceased got to within a metre of the offender. He had his hands extended outwards as though he were trying to grab the offender. The offender was firing shots in the direction of both Kris Toumazis and Arthur Kazas. 12 The discharge of the gun in the direction of Arthur Kazas as he ran towards the offender is the subject of count three in the indictment. 13 One of the shots fired by the offender hit the deceased. He fell down in front of the entrance to the Ardino Hairdressing Salon. Arthur Kazas saw the offender place one foot on a low brick wall beside the hairdressing salon, aim the gun downwards towards the body of the deceased and fire a second shot. This shot also hit the deceased. 14 The offender then ran down West Street where he met up with two of his companions. 15 Detective Senior Constable Barwick was driving an unmarked police vehicle west along Oxford Street near the intersection with West Street at the time of the shooting. He heard two shots and saw the muzzle flashes from the corner of his eye. He saw the offender on the cement landing outside the hairdressers. The offender was moving to his right. As he moved he was firing shots. Detective Barwick observed one shot was fired in a downward direction at an angle of about 45 degrees. After this shot the offender began to run. Detective Barwick saw the offender running down West Street. He was accompanied by two other men. Detective Barwick yelled out "stop police". He was still seated in the unmarked police vehicle at this point. His window was fully open and he was facing straight down West Street. The offender and his two associates were some ten to fifteen metres from the intersection of Oxford and West Streets at the time Detective Barwick called on them to stop. All three turned and looked back up the street towards Detective Barwick's vehicle. The offender was standing in the middle of the street, he looked at Detective Barwick for about half a second. He pointed his hand-gun towards Detective Barwick he held it aimed in this fashion for a fraction of a second. Detective Barwick fired a round from his service revolver. The offender did not discharge his weapon. After Detective Barwick fired, all three men turned and ran into Holdsworth Lane. 16 The offender's action in raising the gun and pointing it at Detective Barwick is the subject of the fourth count in the indictment. 17 In the aftermath of the shooting the offender travelled to Parramatta with Kader Chakaik. There they met up with Nedhal Hammoud and his girlfriend, Sasha. The offender, Hammoud and Sasha went to a motel where they stayed for the night. The following day the offender and Nedhal Hammoud called to see Nedhal's brother, Khaled, and the three of them discussed what should be done. The offender and Nedhal Hammoud decided to go to Melbourne. Later Khaled Hammoud also travelled to Melbourne bringing the offender and Nedhal Hammoud money and their passports. The offender and Nedhal Hammoud flew to Lebanon the following day. 18 After a little time in Lebanon there was a falling out between the offender and Nedhal Hammoud. The police investigation into the murder of the deceased had identified the offender, Nedhal Hammoud, Kader Chakaik and Mohammed Ajaj as suspects. A segment on the television program "Australia's Most Wanted" and an article in the Daily Telegraph circulated likenesses of the four. It was against this background that Khaled Hammoud decided to offer assistance to the police in an endeavour to help his brother, Nedhal. Khaled Hammoud travelled to Lebanon in an attempt to encourage Nedhal to return to Australia and surrender to the authorities, giving a self-serving account of the incident. Ultimately Nedhal did so. The offender remained in Lebanon and travelled from there to Belize where he stayed with a relative. While in Belize he became involved in the importation of cocaine into Australia which is the subject of the convictions in the District Court to which I have referred. 19 In January 1999 the offender flew from Belize to the United States of America. He was arrested in Miami on 29 January 1999. He has been in custody since that date. In March 1999 Detective Senior Constable Spicer travelled to the United States and the offender returned to Australia in his custody on 30 March 1999. 20 In August 2000, while in custody at the Silverwater Remand Centre, the offender entered into an agreement with an associate, Radwan Zraika, to murder Khaled Hammoud. Khaled Hammoud made a statement to police on 28 October 1998. In that statement he gave an account that when his brother and the offender came to his home on the afternoon of Saturday 30 May 1998 he had seen the offender hand a gun to an unidentified man. He said that the offender had confessed to being the gunman. 21 Khaled Hammoud was sentenced on 2 June 2000 in the Sydney District Court on charges of being an accessory after the fact, both to the murder of Kris Toumazis and the wounding with intent to cause grievous bodily of Nicholas Lambos. His sentence was discounted to reflect his co-cooperation with the police. 22 I am satisfied beyond reasonable doubt that the offender conspired to have Khaled Hammoud murdered in order to prevent him giving evidence for the prosecution at his trial. 23 The offender arranged, through the services of a man named Pham, to meet a person known as Jack, whom he understood to be a contract killer. In the event, Jack was an undercover officer in the New South Wales Police Service. A lengthy meeting between the accused, Pham and Jack at the Silverwater Remand Centre was recorded by Jack. The offender spoke in whispers during the course of the conversation and not all of what was said was picked up on the recording device. That which was recorded and is clearly audible is chilling. The offender told Jack he did not care how he did it. He wanted Hammoud killed "ASAP". The offender undertook to arrange for Jack to be supplied with a gun to carry out the killing. In evidence Jack said that they discussed how he would establish that he had carried out the killing to the offender's satisfaction. It was agreed that he would remove a finger from the body and take it to the Silverwater Jail to show the offender. The conversation on the recording at this juncture is somewhat indistinct however passages which are audible strongly support the accuracy of Jack's recollection. I am satisfied beyond reasonable doubt that the offender agreed Jack should bring him the finger of the deceased as a token of good faith. 24 Arrangements were made for Jack to meet the co-conspirator, Zraika. The latter drove with Jack to identify Khaled Hammoud's work premises and family home. In due course the offender and Zraika were charged with the conspiracy. 25 In sentencing him for the murder of Kris Toumazis the offender has asked me to take into account three further offences pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999. The details of these offences are set out in two Form 1 documents. The first lists two offences as follows: "27 March 1998 at Auburn - Possess prohibited weapon without permit, namely a semi automatic .22 calibre rifle with scope (s 5(1)(A) of the Prohibited Weapons Act 1989); 27 March 1998 at Auburn - Possess prohibited weapon without permit, namely a pistol gripped 12 gauge pump action shotgun (s 5(1)(A) of the Prohibited Weapons Act 1989). 26 The facts relating to the two firearms offences are set out in a short statement prepared by Senior Constable Denmeade. On the evening of 27 March 1998 the police executed a search warrant on the offender's family home at 33 Albert Street, Auburn. During the search the police located a .22 calibre rifle with a scope in the offender's bedroom. A further search revealed a 12 gauge pump action shot-gun in the roof of the premises. The offender was interviewed and admitted to having the control of these weapons and to having handled them. He said that another person had brought them to the house but that he did not want to identify that person to the police. 27 The third matter which I am asked to take into account in sentencing the offender for murder is a charge of conspiring to pervert the course of justice. This offence is said to have occurred between 1 January and 30 September 2000. The facts in connection with this offence are set out in a facts sheet prepared by Senior Constable Day. On 14 September 1998 a man name Khalid Kaddour was driving at high-speed a Lamborghini vehicle south on Barrenjoey Road, Mona Vale. After travelling through a right hand bend the vehicle mounted the median strip and travelled to the incorrect side of the road where it collided with an on-coming vehicle. The driver of that vehicle sustained a number of fractures as a result of the accident. She was hospitalised for three months. Mr Kaddour was charged in connection with the collision. This matter was listed for trial before the Sydney District Court commencing on 19 June 2000. 28 In the period between 6 June and 21 August 2000 Kaddour was held in custody at the Remand Centre, Silverwater. He was sharing a cell with the offender. A number of mobile phones had been illegally smuggled into the Silverwater complex and were used by the offender and Kaddour. While in custody both men discussed Kaddour's forthcoming trial and agreed to fabricate a defence for him. The offender contacted his girlfriend and another associate with a view to arranging for them to swear false affidavits shifting responsibility for the accident from Kaddour. Between 14 and 30 August 2000 police intercepted a number of telephone calls between the offender and his girlfriend. In the course of those calls the offender was heard to be standing over her insisting that she attend the offices of Kaddour's solicitor to swear the false affidavit. He instructed her to state that she was a passenger in a car being driven by a man named Besam Charkawi and that their car had collided with the rear of Kaddour's vehicle, causing the accident. It appeared to the police that the girlfriend was apprehensive about making a statement. Further calls recorded the offender instructing Radwan Zraika to gather a number of associates and to take the young woman to the solicitor's office. 29 The three Form 1 offences each involve instances of serious criminal offending. In sentencing the offender for the murder of Kris Toumazis it is necessary to give due recognition to the gravity of these offences. The Chief Justice explained the way in which matters are to be taken into account for the purposes of s 33 of the Crimes (Sentencing Procedure) Act 1999 in R v Barton [2001] NSWCCA 63. Ordinarily it will be appropriate to give greater weight to considerations both of personal deterrence and retribution in sentencing for the principal offence. I consider it appropriate to do so in this case. 30 Objectively, the murder of Kris Toumazis is a most serious offence. I am satisfied beyond reasonable doubt that at the time the offender shot Mr Toumazis it was his intention thereby to kill him. A number of witnesses who were close to the scene of the shooting observed the offender to fire one shot in a downward direction. Whether the fatal shot was the first or the second one to strike Kris Toumazis seems to me to matter little. I am satisfied beyond doubt that after firing the first shot the offender deliberately fired another shot aimed at the body of his youthful victim as he lay a short distance from him wounded and helpless. This was a killing of considerable callousness. 31 As I have noted, Kris Toumazis was an eighteen-year old youth. His mother, father, sister and brother prepared a joint victim impact statement which was tendered at the sentence hearing in accordance with the provisions of s 28 of the Crimes (Sentencing) Procedure) Act 1999. Kris Toumazis was still living at home at the time of his death. He was a much-loved son and brother. It appears that his death has been felt all the more keenly by his mother and father because, as a child, he had been troubled by ill health. Both parents spent many nights sitting up with him during asthmatic attacks. He was to develop into a healthy and successful young man who did well at sports. He worked with his father as an apprentice in the family company. Mr Toumazis was unable to work for a number of months following the murder and as a result the family business was sold. The deceased's sister, Louiza, and brother, George, both have had difficulty in concentrating on their studies in the aftermath of their brother's murder. The Toumazis family is a close one. The Court extends its sympathy to them in what is so clearly a very great and keenly felt loss. 32 I bear in mind the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88 concerning the approach to be taken to the reception of victim impact statements in cases of unlawful homicide. It is the approach that I adopt in this case. 33 The killing was not a premeditated one. It occurred in the context of the spontaneous production of the handgun at the point when the offender decided to involve himself in the melee. However, the offence is aggravated by the circumstance that, while on bail in relation to firearm and other charges, the offender chose to arm himself with a loaded handgun before going out for a social evening with a group of friends. 34 The malicious wounding of Nicholas Lambos with intent to do grievous bodily harm is an offence charged pursuant to s 33 of the Crimes Act 1900. The maximum sentence for this offence is one of twenty-five years imprisonment. 35 Discharging the handgun with intent to do grievous bodily harm to Arthur Kazas is an offence charged pursuant to s 33A of the Crimes Act. It carries a maximum sentence of fourteen years. 36 The offence of threatening to use an offensive weapon with intent to prevent or hinder lawful apprehension is one brought pursuant to s 33B of the Crimes Act. It carries a maximum sentence of twelve years imprisonment. I am satisfied beyond reasonable doubt that at the time the offender stopped in West Street, turned and pointed the handgun towards Detective Barwick he knew that the occupants of the vehicle were police officers. Detective Barwick had called out "stop, police". He was at a distance not more than fifteen metres from the offender and his two companions. It was his action in calling upon the three men to stop that caused them to turn and face him. 37 Each of the offences charged in the second, third and fourth counts of the indictment are, objectively, serious offences. In the circumstances of this difficult sentencing exercise I am persuaded that it is appropriate to impose concurrent sentences in respect of these offences which, in turn, will be served concurrently with the sentence for the murder of Kris Toumazis. In so doing I have had regard to the principal of totality in sentencing and to the circumstance that these four offences occurred over a very short interval in the course of the same episode of criminal offending. 38 The conspiracy to murder Khaled Hammoud is an offence charged pursuant to s 26 of the Crimes Act. It carries a maximum sentence of twenty-five years imprisonment. It is difficult to think of a more serious instance of a conspiracy to murder. While in custody, awaiting trial on a charge of murder, the offender entered into a conspiracy to engage a contract killer to murder a Crown witness to prevent the witness from giving evidence against him. The conspiracy involved calculated planning and the offender associated himself with it over a sustained period. 39 I turn now to a consideration of the offender's background and subjective circumstances. He is aged twenty-three years. He did not give evidence at the sentence hearing. I was furnished with a report prepared by Elizabeth Kusch, psychologist, dated 27 April 2001. It would appear that this report was prepared with respect to the sentence proceedings in the District Court relating to the drug charges. It contains a helpful outline of the offender's background. 40 The offender grew up in Auburn in a family comprising both natural parents, his elder brother Mejid, his elder sister Mejida, and younger twin brothers, Hayssam and Ghassan. The offender's father was a member of the Lebanese Army prior to migrating to Australia. It appears that Mr Hamzy senior became involved in criminal activity following his arrival in this country. When the offender was aged eleven years his father was sentenced to a lengthy term of imprisonment in respect of drug related offences. While in custody the father severed ties with his family save for the offender. It appears that the father disapproved of Mejida's marriage. The offender had respected his father's wishes by not attending Mejida's wedding. These difficulties caused tension in the family home and, at the age of thirteen, the offender moved. For a time he lived with two of his father's female friends. He stayed with various persons thereafter until an agreement was struck between his father and his uncle that he return to live with his mother. He did so but their relationship continued to be characterised by conflict. 41 The offender attended Granville Boys High where he was expelled in Year Seven for fighting. He transferred to Birrong Boys High School and was expelled in Year Eight for being in possession of a weapon and threatening a teacher. He then attended Granville South High School where he obtained his School Certificate. In Year Eleven he was expelled over an incident involving verbal abuse of a teacher. His school days were characterised by frequent truanting. As he explained to the psychologist: "I had no-one to answer to". On leaving school he commenced a carpentry apprenticeship. He gave this up after two months because "I didn't like taking orders". Thereafter, apart from some odd labouring jobs, the offender reported no significant employment. 42 The offender has a history of illegal drug use. He commenced smoking cannabis at the age of twelve. By the time he was fourteen or fifteen he was consuming a variety of drugs: "… depending what mood I wanted to be in. If I wanted to be happy I took ecstasy, if I wanted a quick rush I would use cocaine and if I wanted to forget I used heroin. I used pot to calm me down, speed for an energy boost and LSD to have a good time." 43 While overseas the offender reported heavy cocaine use. He has undertaken drug and alcohol counselling while in custody at the MRRC. He reported that he has been abstinent since being in custody. 44 Ms Kusch conducted a number of tests designed to assess the offender's level of intellectual functioning and personality characteristics. She sets out the results of those tests in a detailed way in the body of her report. She concluded as follows: "Bassam Hamzy is a twenty-two year old man with a tested intellectual functioning in the sound Average range. He developed behavioural problems at school, which were likely to be a response to his difficult home life and general lack of consistent parental discipline. It appears Bassam was raised in a family environment where criminal behaviour was condoned. He also lacked appropriate support and guidance particularly throughout his early teenage years. These early experiences may have taught him to rely on himself, to mistrust others and to be competitive, hard-headed and callous in order to survive. Results on personality testing indicate that at least a moderate level of pathology characterises the overall personality organisation of this young man. Defective psychic structures suggest a failure to develop adequate internal cohesion and a less than satisfactory hierarchy of coping skills. Although he is usually able to function on a satisfactory basis, he may experience periods of marked emotional, cognitive or behavioural dysfunction. He may be skilful in the ways of social influence and scheme beneath a veneer of charm. A guiding principle for him may be to outwit others, exploiting them before they exploit him. He may readily attack those he distrusts and misconstrue incidental events as critical and offer them as evidence of purposeful deception and malice on the part of others." 45 In the light of the whole of the evidence, including that given by the offender at the trial, I accept that assessment. 46 Ms Kusch's report does not provide a basis for optimism concerning the offender's prospects for rehabilitation. However, she does report that the offender's age and his level of co-operation during his interview with her, together with his past participation with inmate services and her findings as to current psychological discomfort, all were suggestive of a potential for positive change. 47 In a confession which was addressed to a United States Consular official the offender expressed sentiments of remorse and appreciation of something of the impact that the killing of Kris Toumazis might be expected to have had upon his family. I am satisfied that those sentiments were merely advanced to suit his own purposes at the time and that, in truth, the offender has shown no remorse. I consider that none of these offences are mitigated in any degree by contrition. 48 The offender had a criminal record disclosing the commission of relatively minor offences prior to May 1998. At that time charges were pending against him in the Parramatta Local Court for being in possession of goods reasonably suspected of being stolen and the cultivation and possession of prohibited plants. He was also awaiting the disposition of charges in the District Court involving three counts of the supply of prohibited drugs. 49 While the offender was overseas he arranged for the importation of cocaine into Australia. Following his return to Australia in custody he was charged with two counts of being knowingly concerned in the importation of cocaine. The first charge related to some 772.6 grams of pure cocaine imported into Australia on 29 December 1998 and the second to some 713.6 grams of pure cocaine imported into Australia on 20 January 1999. He was sentenced in respect of these two counts on 3 May 2001 in the Sydney District Court. These matters were the subject of the Crown appeal. In addition, on 3 May 2001 the District Court judge imposed sentences of nine, five and five months respectively on each of three offences of supplying heroin, amphetamines and LSD. Those sentences were expressed to commence on 30 March 1999 and to expire on 29 December 1999. These latter offences were committed prior to 30 May 1998. It is to be noted that the sentencing judge took into account, pursuant to s 33 of the Criminal Procedure Act 1986, the charges which had been pending against the offender before the Parramatta Local Court. 50 The Court of Criminal Appeal, in allowing the Crown appeal against the inadequacy of sentence imposed in respect of the counts charging the offender with being knowingly concerned in the importation of cocaine, determined that an overall sentence of thirteen and a half years dating from 30 December 1999 comprising terms of nine years imprisonment for the first count and four and a half years imprisonment for the second count to be served cumulatively was appropriate. In accordance with s 19AB of the Crimes Act 1912 (Cth) the Court fixed a single non-parole period of eight years. That non-parole period will expire on 29 December 2007. 51 The two offences of being knowingly concerned in the importation of cocaine occurred after the commission of the offences arising out of the events in Oxford Street on 30 May 1998. The offender was in custody awaiting the disposition of these charges at the time he committed the offence of conspiring to murder Khaled Hammoud. 52 The evidence at trial disclosed that the offender was arrested in Miami on 30 January 1999. He was held in custody thereafter pending his extradition to Australia. He was returned to Australia in custody on 30 March 1999. He has been in custody continuously since that time. His custody in the United States was referrable to the murder of Kris Toumazis. 53 The cocaine importation offences involved an episode of criminality unrelated to the charges for which the offender stands for sentence before me. In this respect there is no reason to impose sentences which are concurrent with the cocaine importation sentences. However, it is necessary for me to have regard to considerations of totality and that, in turn, requires me to consider the whole of the offender's custodial position. I have determined bearing that principle in mind that I should structure the sentences so as to provide for a degree of concurrence with the sentences the offender is presently serving. I do not propose to backdate the sentence in order to reflect the two months spent in custody in the United States. The substantial concurrence as between the sentence for the murder and the sentences which the offender is presently serving takes this consideration into account. 54 I have considered with respect to both the sentence for the murder and the conspiracy to murder whether that there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to justify a departure from the statutory proportion as between the sentence and the non-parole period. I do not find there are special circumstances with respect to the sentence to be imposed for the murder. The sentence for the conspiracy to murder will commence upon the expiration of the non-parole period specified for the murder. The effect of the cumulation of sentences in my view constitutes special circumstances within the meaning of the section with respect to the sentence to be imposed for the conspiracy to murder. I do not propose to specify non-parole periods with respect to the sentences for the three other offences arising out of the incidents in Oxford Street on 30 May 1998. In the light of the sentences presently being served (and that to be imposed for the murder) I see no utility in doing so. 55 I must in each case determine the appropriate sentence by reference to the objective gravity of the offence and the offender's subjective circumstances. Considerations of the principle of totality in sentencing may be reflected in the determination to make some of the sentences concurrent or partly concurrent with other sentences. 56 There is little to mitigate these crimes. Principally in this respect I have regard to the offender's youth and immaturity at the time of the murder. He was then aged only nineteen years. He was twenty-one at the time he conspired to have Khaled Hammoud murdered. I also take into account Ms Kusch's report as to the offender's unsatisfactory home life in his early teenage years. 57 I am mindful that it is frequently appropriate in sentencing youthful offenders to favour considerations of rehabilitation over deterrence and retribution. The gravity of these offences does not admit of emphasis on such an approach in this case. Order Bassam Hamzy in respect of the murder of Kris Toumazis, taking into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 the three offences to which I have referred, I sentence you to a term of imprisonment of twenty-one years to date from 15 March 2002. That sentence will expire on 14 March 2023. In relation to that sentence I specify a non-parole period of fifteen years and nine months. That non-parole period will expire on 14 December 2017 and, were you not subject to other sentences, would be the first date upon which you would be eligible for consideration for release to parole. In respect of the malicious infliction of grievous bodily harm upon Nicholas Lambos with intent to inflict grievous bodily harm I sentence you to a fixed term of imprisonment of five years to date from 15 March 2002. That sentence will expire on 14 March 2007. In respect of the malicious discharge of loaded arms with intent to do grievous bodily harm to Arthur Kazas I sentence you to a term of three years imprisonment to date from 15 March 2002. That sentence will expire on 14 March 2005. In respect of the threatened use of an offensive weapon, namely a firearm, with intent to prevent or hinder your lawful apprehension I sentence you to a term of three years imprisonment to date from 15 March 2002. That sentence will expire on 14 March 2005. With respect to the conspiracy to murder Khaled Hammoud I sentence you to a term of twelve years imprisonment to commence on 15 December 2017. That sentence will expire on 14 December 2029. In respect of that offence I specify a non-parole period of six years commencing on 15 December 2017. The first date upon which you will be eligible for consideration for release to parole is 14 December 2023. ********** Last Modified: 03/15/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.