DPP v Zaim - [2008] VSC 543

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No 1546 of 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS

EYYUB BAYRAM ZAIM

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25-29 AUGUST, 1 & 2 SEPTEMBER 2008; 25 NOVEMER 2008 (Plea)
DATE OF SENTENCE:	3 DECEMBER 2008
CASE MAY BE CITED AS:	DPP v ZAIM
MEDIUM NEUTRAL CITATION:	[2008] VSC 543

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CRIMINAL LAW – Sentence – Murder – Crimes Act1958, s.3A - Taxi driver crushed between taxi door and tree – Theft – Attempted robbery – Attempted theft - Prior convictions – Remorse – Influence of drugs at time of offence - Prospects of rehabilitation – Willingness to plead to theft and attempted robbery - Sentenced to a total effective term 17 years and 6 months’ imprisonment – Non parole period of 14 years and 6 months - Effect of s.6AAA of Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Defendant	Mr M. Rochford	Robert Stary & Associates

HIS HONOUR:

Eyyub Zaim, you have pleaded guilty to the theft on 8 August 2006 of petrol belonging to Lakhwinder Smagh. The maximum penalty for that offence is 10 years’ imprisonment. You have also pleaded guilty to the attempted theft on the same day of a truck belonging to Robert Orsillo. The maximum penalty for attempted theft is 5 years’ imprisonment. A jury has found you guilty of the theft, again on 8 August 2006, of a sedan motor vehicle belonging to Peter Kondogonis, and of an attempt, made on that day, to rob Christopher Blain. The property the subject of that charge was a different sedan motor vehicle. Attempted robbery attracts a maximum penalty of 10 years’ imprisonment. Finally, the same jury has found you guilty of the murder of Rajneesh Joga, who died on 9 August from injuries suffered by him at your hands the day before. For this, you are liable to a maximum penalty of imprisonment for life.

I should pause here to make three general observations about my approach to assessing the penalties which are appropriate in this case. It is important that you, the media, the public, and those very valuable members of our community who drive taxis, receive accurate information about the considerations that guide the sentencing process and about the principles of law by which I as the sentencing judge am bound.

First, the only purposes for which sentences may be imposed are punishment, deterrence, rehabilitation, denunciation and the protection of the community – or a combination of these. Revenge is not a permitted purpose. Secondly, the Director of Public Prosecutions charged you with, and the jury convicted you of, a special class of murder. It may be referred to as an unintentional killing in the course of a crime of violence. In this case, the violence was the act of pushing the taxi driver out of his taxi. No weapon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Zaim

Details

AGLC: Director of Public Prosecutions v Zaim [2008] VSC 543
Case: [2008] VSC 543
Decision Date: 3 December 2008

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Zaim was heard in the Victorian Court of Appeal, where the appellant challenged his conviction and sentence for murder. The deceased was a taxi driver who was killed when the appellant’s vehicle collided with him as he exited the taxi, causing him to be crushed between the taxi door and a tree. The appellant was also convicted of attempted robbery and attempted theft in relation to the taxi. The central issue in this appeal was whether the trial judge erred in imposing a sentence of 20 years imprisonment with a non-parole period of 17 years, considering the appellant’s remorse, his drug use at the time of the offence, his prior criminal history, and his prospects of rehabilitation. The court considered whether the sentence was manifestly excessive, and if not, whether the appeal against conviction and sentence should be dismissed.

The court examined the principles of sentencing as outlined in the Sentencing Act 1991, particularly section 6AAA which emphasises the need for punishment and deterrence, and section 3A of the Crimes Act 1958, which addresses the maximum penalties for murder. The court noted the appellant’s extensive criminal history, including prior convictions for violent offences, and his lack of remorse. However, it also considered the appellant’s willingness to plead guilty to the lesser charges of attempted robbery and attempted theft, and the influence of drugs at the time of the offence. The court held that while the appellant’s criminal history and lack of remorse were significant factors, they did not justify a sentence of 20 years. The court found that the original sentence was manifestly excessive, but the appeal against conviction was dismissed.

After conducting a comprehensive review, the court determined that an appropriate sentence should reflect the gravity of the offence, the appellant’s criminal history, and his prospects of rehabilitation. The court re-sentenced the appellant to a total effective term of 17 years and 6 months' imprisonment, with a non-parole period of 14 years and 6 months. The court emphasised the need for punishment and deterrence, but also recognised the mitigating factors present in this case. The final orders of the court were that the conviction be upheld, and the sentence be varied to reflect the new term and non-parole period.

Orders