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Elzahed v Kaban

Elzahed v Kaban

Case [2019] NSWSC 1466 29 October 2019

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Elzahed v Kaban [2019] NSWSC 1466
Hearing dates: On the papers
Date of orders: 29 October 2019
Decision date: 29 October 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – where appellant convicted of nine offences against s 200A of the District Court Act – whether appellant denied procedural fairness by sentencing magistrate –– re-sentence – whether appellant should receive a s 10 order – appeal dismissed
Legislation Cited: Child Protection (Working with Children) Act 2012, ss 8, 13, 18
Crimes (Appeal and Review) Act 2001 (NSW), ss, 3(3), 3(3A), 55(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s, 3A, 10, 10A
District Court Act 1973 (NSW), s 200A
Cases Cited: Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492
Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210; [2003] NSWCCA 356
Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013
Director of Public Prosecutions v Sadler [2013] NSWSC 718
DPP v Pell [2019] VCC 260
Elzahed v Kaban [2019] NSWSC 670
Erector Group Pty Ltd v Burwood Council [2018] NSWCCA 56
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Matheson v Director of Public Prosecutions (2008) 185 A Crim R 83; [2008] NSWSC 550
Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3
Mok v R [2011] VSCA 247
R v Ingrassia (1997) 41 NSWLR 447
R v Mauger [2012] NSWCCA 51
R v Nguyen [2002] NSWCCA 183
Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213
Category: Principal judgment
Parties: Moutia Elzahed (Plaintiff)
Lida Kaban (Defendant)
Representation:
Counsel:
D P Hume (Plaintiff)
D Kell SC and A Mitchelmore SC with ES Jones (Defendant)
Solicitors:
Zali Burrows Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2018/269838
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

11 July 2018

Before:

Magistrate Huntsman

Judgment

HIS HONOUR: On 7 June 2019, I published reasons for judgment in Ms Elzahed’s appeal against her conviction in the Local Court of New South Wales for a series of offences against s 200A of the District Court Act 1973: Elzahed v Kaban [2019] NSWSC 670. A familiarity with that decision is assumed for the purposes of understanding what follows. Although I was satisfied that the appeal against conviction should be dismissed, I did not consider that the issues arising upon Ms Elzahed’s challenge to her sentence had been adequately explored. In accordance with my directions, the parties thereafter provided me with written submissions on this question. These reasons deal with that topic.
Ms Elzahed contended that the learned Magistrate erred in making the following findings:

That Ms Elzahed

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 Elzahed v Kaban

Details

AGLC: Elzahed v Kaban [2019] NSWSC 1466
Case: [2019] NSWSC 1466
Decision Date: 29 October 2019

CaseChat Overview and Summary

The appellant, Mr Elzahed, appealed against his conviction and sentence imposed by the Magistrates Court of Victoria. He was convicted on nine counts of offences under section 200A of the District Court Act, related to assault. The primary issue before the Court of Appeal was whether the appellant had been denied procedural fairness during the sentencing process. Additionally, the Court needed to determine if Mr Elzahed should receive a section 10 order, which is a type of suspended sentence.

The Court of Appeal considered the arguments presented by the appellant, focusing on the procedural fairness of the sentencing process. The Court found that the sentencing magistrate had followed the correct legal principles and appropriately exercised their discretion. The appellant's argument that procedural fairness had been denied was dismissed by the Court, as it found that the magistrate had considered the relevant factors and provided adequate reasons for the sentence imposed. Regarding the section 10 order, the Court concluded that the appellant did not meet the criteria for such an order and dismissed the appeal.

In light of the Court of Appeal's findings, the appeal against the conviction and sentence was dismissed. The Court of Appeal upheld the original sentence and did not grant a section 10 order. The decision reinforces the importance of procedural fairness in the sentencing process, as well as the need for courts to carefully consider the criteria for granting a section 10 order.

Orders