R v Hamouda [2019] NSWDC 873

District Court New South Wales

Medium Neutral Citation: R v Hamouda [2019] NSWDC 873 Hearing dates: 13 August 2019 Date of orders: 13 August 2019 Decision date: 13 August 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [60] – [63] Catchwords: CRIME – sentencing – aggravated break and enter – larceny – drug addiction – favourable findings regarding rehabilitation and risk of reoffending – ICO appropriate Legislation Cited: Crimes Act 1900 ss 112; 117; 154A; 193C; 195 Crimes (Sentencing Procedure) Act 1999 ss 3A; 66 Cases Cited: Dunn v R [2018] NSWCCA 108 Hyunwook v R [2010] NSWCCA 148 R v Fangaloka [2019] NSWCCA 173 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 327 R v Todd [1982] 2 NSWLR 517 Texts Cited: None Category: Sentence Parties: Regina (Crown) Nasim Hamouda (Offender) Representation: Counsel: S Gul (Crown) A Karim (Offender)

Solicitors: ODPP (Crown) Abbas & Co Lawyers (Offender) File Number(s): 2014/00160755 Publication restriction: None

Judgment 1. The Offender appears before the Court today for sentence after having pleaded guilty to a number of charges, stemming from events which occurred back in 2014. 2. The matters for sentence are set out in the Crown Sentence Summary (Exhibit A). The following charges appear on an Indictment: 1. Count 1: an offence of aggravated break and enter in breach of s112(2) of the Crimes Act 1900 NSW. That offence carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of five years. The aggravation which is an element of that offence is that the offending occurred whilst in company; and 2. Count 2: an offence of larceny in breach of s117 of the Crimes Act, which carries a maximum penalty of 5 years imprisonment. 1. In this matter, there are two Form 1 documents which have been signed by the parties and by me, certifying that in sentencing the Offender in relation to the principal charges to which they attach, I have taken into account the matters on the Form 1 documents. The charges on the Form 1 documents are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, and the second is the community's entitlement to extract retribution for serious offending. 2. The charges on the Form 1 to which the Offender has admitted guilt attaching to Count 1 are sequence 7, being a charge of destroy or damage property less or equal to $2,000 in breach of s195(1A) of the Crimes Act. The maximum applicable penalty is five years imprisonment. The second count attaching to the same charge on the same Form 1 document is an ex-officio count of take and drive a conveyance without consent of the owner in breach of s154A(1)(a) of the Crimes Act. That carries a maximum penalty of five years imprisonment. 3. The charges on the second Form 1 for which the Offender has admitted guilt and which attach to Count 2, that is the larceny charge, are the following: 1. an ex-officio count of take and drive conveyance without the consent of the owner, pursuant to the section previously mentioned; and 2. three ex-officio counts of larceny in breach of the aforementioned section of the Crimes Act. 1. Additionally, sequence 3 appears as a related offence on a s166 certificate. The Offender has admitted guilt and asks the Court to convict and sentence him for same. That offence is deal with property suspected of being proceeds of crime, in breach of s193C(1) of the Crimes Act. That offence carries a maximum penalty of 2 years imprisonment and/or a fine of 50 penalty units. 2. The offending occurred between 7 and 26 May 2014. The Offender was committed for trial on 30 October 2015 and arraigned on 25 February 2016. After this time, various trial listings were vacated for a variety of reasons, which are referred to in the Crown's submissions on sentence (MFI 1). After his arraignment in November 2015, the first trial listing in October 2016 was adjourned by application of the Crown. The next trial listing was not reached. A subsequent trial listing was adjourned by reason of ill-health on behalf of the co-Offender. There was then a further occasion upon which the matter was not reached by the Court. So, generally, the delay in determination and finalisation of these matters concerning this Offender had nothing to do with any delinquency or delay on the part of the Offender. 3. The Offender pleaded guilty before the Court on 19 September 2018. He has spent no time in custody with regards to these offences. 4. The co-Offender in this matter, Marco Pehar, pleaded not guilty at trial to an indictment containing ten counts. He was found guilty of all ten counts on the indictment and yesterday sentenced to a term of imprisonment with a head sentence of six years and a non-parole period of three years. 5. The facts upon which the Offender is to be sentenced are as follows. He pleaded guilty to the offences in question, including the Form 1 matters, on the basis that he was a principal in the second degree. The Offender admitted that he was involved in the planning of the offences, was aware of their commission and that he was in receipt of stolen goods. His plea was accepted by the Crown on the basis that he was not physically present for the commission of the offences and he is to be sentenced on that basis. 6. The Offender pleaded guilty to the offences in question (including the Form 1 offences) on the basis that he was a principal in the second degree. The Offender admitted that he was involved in the planning of the offences, was aware of their commission and that he was in receipt of stolen goods. His plea was accepted by the Crown on the basis that he was not physically present for the commission of the offences and he is to be sentenced on that basis. 7. At about 11:40am on 6 May 2014, three males entered the High Tech Digital CCTV store located in Lansvale. Two of the males asked an employee about camera products for sale, whilst the other looked at two boxes that were adjacent to the front counter containing CCTV cameras and equipment. The employee felt that the third male was acting suspiciously, so she captured CCTV images of the three males. Those three males were Raed Hanna, the co-Offender and the Offender.