Hamzy v R [2018] NSWCCA 53

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hamzy v R [2018] NSWCCA 53 Hearing dates: 21 February 2018 Date of orders: 28 March 2018 Decision date: 28 March 2018 Before: Hoeben CJ at CL at [1]; Simpson JA at [181]; McCallum J at [200] Decision: (1) Leave to appeal against conviction granted. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence dismissed. Catchwords: CRIMINAL LAW – conviction and sentence appeal – manslaughter and wounding with intent – self-defence – excessive force inflicting death – Crimes Act 1900, s 421 – whether open to jury to find conduct not a reasonable response in circumstances as perceived by the offender – whether victim was armed with a pistol – whether victim was about to shoot offender – whether jury's verdict consistent with finding that offender believed that conduct was necessary to defend himself – whether that response reasonably open to jury – conviction appeal dismissed – SENTENCE APPEAL – whether findings by a sentencing judge consistent with jury verdict – whether sentence manifestly unjust – limitations inherent in reliance upon other manslaughter cases – sentence appeal dismissed. Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) – ss 18, 24, 33(1)(a), 418, 419, 421 Criminal Procedure Act 1986 (NSW) – s 132(5) Evidence Act 1995 (NSW) – s 38 Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CR v R [2017] NSWCCA 29 De Wet v R [2015] NSWCCA 23 Diab v Regina [2009] NSWCCA 58 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Grant v R [2014] NSWCCA 67 Hawi v R [2014] NSWCCA 83 M v The Queen [1994] HCA 63; 181 CLR 487 Pitt v R [2014] NSWCCA 70 R v Hamzy [2016] NSWSC 1512 R v Hamzy (No 2) [2016] NSWSC 1514 Regina v Diab [2007] NSWSC 577 SKA v The Queen [2011] HCA 13; 243 CLR 400 Smith v R [2015] NSWCCA 193 Vaiusu v R [2017] NSWCCA 71 Vuni v R [2006] NSWCCA 171 Category: Principal judgment Parties: Mohammed Hamzy – Applicant Regina – Respondent Crown Representation: Counsel: H Dhanji SC/G Lewer – Applicant T Smith – Respondent Crown