Regina v Hamze [2005] NSWSC 136

New South Wales Supreme Court

CITATION : Regina v Hamze [2005] NSWSC 136

HEARING DATE(S) : 17/02/2005

JUDGMENT DATE : 3 March 2005

JUDGMENT OF : Howie J at 1

DECISION : See paras 34 and 35.

CATCHWORDS : Criminal Law - Sentencing for Hinder investigation and Possess prohibited firearm

Crimes Act 1900 - s 315 Firearms Act 1996 - s 7 LEGISLATION CITED : Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act - 1999 - s 24

R v Cromarty (2004) 144 A Crim R 515 CASES CITED : R v Nias (NSWCCA, unreported 16 November 1988) R v Webster and Jones (NSWCCA, unreported, 3 August 1992)

PARTIES : Regina v Radwan Hamze

FILE NUMBER(S) : SC 2004/2350

W. Dawe QC - Crown COUNSEL : R. Button - Offender

S. Kavanagh - Crown SOLICITORS : S. O'Connor - Offender

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

THURSDAY 3 MARCH 2005

2004/2350 REGINA v RADWAN HAMZE

REMARKS ON SENTENCE 1 His Honour: The offender, Radwan Hamze, was committed for trial to this Court on a charge of hindering the discovery of evidence concerning a serious indictable offence. This is an offence contrary to s 315 of the Crimes Act for which a maximum penalty of imprisonment for 7 years is prescribed. On 1 October 2004 he was arraigned before Barr J on an indictment containing two counts, the first being for the committal offence and the second being for an offence of being in possession of a prohibited firearm. The second offence was one contrary to s 7 of the Firearms Act for which the maximum penalty where the offence is dealt with on indictment is imprisonment for 14 years. The offender pleaded guilty to both offences. 2 It is necessary to say something shortly about the history of the matter. The offender was originally charged by police with affray arising from an incident on 10 June 2002 during which shots were fired killing one man and wounding another. Later he was charged with murder and being an accessory after the fact arising from an incident on 10 June 2002 during which shots were fired killing one man and wounding another arising from the same incident. At the conclusion of committal proceedings the magistrate discharged the offender on these charges but committed him for trial on the offence of hindering police. That committal charge arose from a concession made by Mr Button to both the prosecutor and the Magistrate that the offender was guilty of that offence but not guilty of the offences for which he had originally been charged. In fact an offer was made to the effect that the offender would plead guilty before the Magistrate to the hinder charge, if the other charges were withdrawn. However, the prosecutor refused the offer. Shortly after the offender was committed for trial on the hinder charge he indicated his willingness to plead guilty to that offence and he did so on his first arraignment in this Court. 3 There is also before me a Form 1 document in accordance with the provisions of the Criminal Procedure Act that contains three offences under the Firearms Act. I am asked to take those matters into account in sentencing for the second count on the indictment. 4 I have been asked to sentence the offender on the basis of an agreed statement of facts. Little other evidentiary material was placed before me but the agreed facts are sufficient to determine the appropriate sentence that the offender should serve for both offences to which he has pleaded guilty. It is unnecessary to set out the facts in full and they can be sufficiently summarised as follows. On 9 June 2002 a disagreement arose between a bouncer employed at a nightclub and some patrons. As a result one of the patrons was punched to the face by the bouncer and suffered a broken jaw. The bouncer happened to be the brother-in-law of the offender. 5 As a consequence of this incident a degree of bad feeling arose between certain members of the Lebanese community in the Greenacre area. In particular it resulted in considerable friction between persons who worked at two businesses operating in the area: one "Automobile Wreckers" was owned by the offender's sister and the other "Just Vans" was owned by the person who was struck by the bouncer. 6 The escalating friction between these two groups came to a head in the afternoon of 11 June 2002 when there was a public confrontation between persons who had affiliations with one or other of the two groups. This involved persons yelling abuse and trading insults. There were also minor scuffles between the participants. The offender was present at the scene of this confrontation because of his allegiance to the employees of Automobile Wreckers. 7 At some stage in this hostile environment shots were fired wounding two men, one fatally. The offender was present at the time of the shooting. The deceased was considered to be the head of the family that was associated with the Just Vans business. After the shooting a number of unidentified persons present attacked the deceased while he lay mortally wounded on the ground. 8 Some of the participants, including the offender fled from the scene. As he did so, the offender bent down, picked up a pistol from the ground and placed it down the front of his trousers. He then entered the driver's seat of a motor vehicle and drove away from the area. 9 Police later attended the scene of the incident and recovered 5 spent .38 cartridges and four unspent .44 cartridges. One of the .44 cartridges bore a firing pin strike mark. No firearms were located. 10 At 5 pm that evening police executed a search warrant on the premises where the applicant was residing. They located three firearms: a .22 self-loading rifle with an attached magazine containing a number of rounds; a 44.4 calibre lever action rifle without ammunition; and a 12 gauge pump-action shotgun without ammunition. Several boxes of .22 ammunition were found in a bag on top of a cupboard. Two of the rifles were discovered in unlocked cupboards and one was located leaning up against a buffet in the spare bedroom. The pump action rifle is the subject of the second count in the indictment. The other two weapons and the ammunition give rise to two of the three matters on the form 1. The third offence on that document refers to the pistol that is the subject of the hinder police charge. 11 The offender was arrested following the search and declined to make a statement to police. He was charged with affray and refused bail. He remained in custody until 2 July 2002 when he was released to bail. 12 On 16 December 2002, about six months after the shooting incident, the offender recovered the .44 pistol from where he had placed it shortly after he had taken it into his possession. The weapon was conveyed to the police through the agency of the offender's solicitor. Shortly thereafter the offender participated in an interview with police in which he admitted taking the weapon from the scene. He said that he found it in an open condition and empty of any rounds. He admitted disposing of the weapon in bushland. 13 A ballistics examination of the weapon and the .44 rounds located at the scene of the shooting revealed that the weapon had been used to make the pin strike mark located on one of the unfired rounds. There is no evidence that the weapon was used to fire any rounds during the incident in Greenacre. It was not the weapon used to shoot the deceased. 14 The police investigation of the shooting incident was hampered by the reluctance of witnesses to assist. Clearly the weapon located by the offender and removed from the scene was an important piece of evidence in determining what had happened and might have provided evidence as to the identity of the person who took it to the scene. Its removal hindered the police investigation and it was taken with that purpose in mind. 15 In relation to the weapons found in his premises the offender told police in January 2003 that the firearms belonged to a friend who had gone overseas. The offender said he was given the weapons because he liked to go hunting. 16 The offender is aged 28 years with no prior criminal record. The relevant background material is contained in a pre-sentence report. He was born in Lebanon where his parents were farmers. He is the eldest of three sons in a family of eight children. He came to Australia in 1997 leaving his mother and some of his family in Lebanon. He has two siblings in Australia. He has been married twice and he has two children from his present marriage. They are aged three years and 15 months. The offender and his family live in a rented flat and he works as a mechanic in a garage. There are two letters before the court testifying to his general good character and his value as an employee in his present position. 17 Mr Button conceded that the offences before the Court are sufficiently serious to warrant a custodial sentence notwithstanding the offender's prior good character. The submission was, however, that the Court could deal appropriately with the offender by ordering that any sentence be served by way of periodic detention. The Crown argued that the appropriate sentence was one of full-time custody. After hearing submissions I adjourned the matter and continued the offender's bail but made it clear to him that he would be sentenced to a term of imprisonment and the only question was what that term should be and whether, if it were less than three years, I could make the order sought by his counsel. 18 Although the pleas of guilty were not made until arraignment in this Court, they should be treated as having been made at the first reasonable opportunity. I do not believe that the Crown submitted otherwise. It was not realistic for the offender to plead guilty to the hinder police offence before his counsel made the offer during committal proceedings. The offer was not accepted but yet the offender was discharged from the more serious offences he faced. He was never really given the opportunity to plead guilty to the hinder charge before the magistrate but a plea to that offence was organised as soon as reasonably possible thereafter. The firearms offences were clearly always going to await the determination of the murder charge. The discount should be 25 per cent for both offences. 19 Mr Button submitted that I should take into account that both offences for which the offender is to be sentenced could have been disposed of in the Local Court. Technically that is so, but I do not believe that it would have been appropriate for the hinder police matter to be dealt with summarily. In my view the objective seriousness is too great. The Crown Prosecutor confirmed that the Crown would never have agreed to it being dealt with by a magistrate. 20 I am willing to assume that the firearm's offences standing alone may have been appropriately dealt with in the Local Court although I am not altogether convinced that this is so. They were serious offences because of the nature of the weapons, because there was ammunition found in the offender's possession that fitted one of the weapons and because they were found in unsecured places in a suburban dwelling. It is not a matter of mitigation that there is no evidence that the offender was going to use them for any unlawful purpose. The policy behind firearms offences is to control the use of weapons in the community generally and not simply to disarm the criminally minded. The Court of Criminal Appeal has emphasised the seriousness with which these types of offences must be treated: R v Cromarty (2004) 144 A Crim R 515. 21 However, there is little doubt that the first offence on the indictment is the more serious notwithstanding that the matters on the Form 1 are to be taken into account on the second offence on the indictment. The offender is to be sentenced on the basis that he knew he was removing evidence from the place where a serious criminal offence had taken place and he did so intending to make it more difficult for police to investigate the shooting and apprehend the person or persons responsible. He knew that a shooting had occurred, that persons had been injured and that he was removing a firearm. I do not sentence him on the basis that he knew or believed that the weapon had been discharged. But clearly he knew that the weapon was evidence capable of identifying some person as being present with a firearm and this is why he took the weapon. 22 The Pre-sentence report contains an account of the offender's involvement in the incident and the taking of the weapon. I am not prepared to accept that account in the absence of evidence from the offender. In particular, I am not prepared to find as a fact that the offender was present at the place where the shooting occurred because he intended to intervene in an attempt to stop the confrontation becoming violent. Nor do I accept the account that he picked up the weapon because he panicked. 23 The following statement is found in that part of the report headed "Summary and Sentencing options".