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R v Elzakhem

R v Elzakhem

Case [2008] NSWCCA 31 6 March 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v ELZAKHEM [2008] NSWCCA 31

HEARING DATE(S): 16 October 2007

JUDGMENT DATE:
6 March 2008

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Latham J at 74

DECISION: Allow the appeal.
Quash the sentences imposed on the Respondent by Toner DCJ on 14 May 2007.
In lieu of the sentences imposed by Toner DCJ sentence the Respondent as follows:-
Count 1 - Imprisonment for a fixed term of 6 years commencing on 26 February 2004.
Count 2 - Imprisonment for a fixed term of 6 years commencing on 26 August 2005.
Count 3 - Imprisonment for a fixed term of 3 years commencing on 26 February 2007.
Count 4 - Imprisonment for a fixed term of 1 years and 6 months commencing on 26 February 2008.
Count 5 - Imprisonment for a fixed term of 3 years commencing on 26 August 2008.
Count 6 - Imprisonment for a fixed term of 8 years commencing on 26 August 2009.
Count 7 - Imprisonment for a fixed term of 3 years commencing on 26 August 2013.
Count 8 - Imprisonment for a non-parole period of 4 years and 7 months commencing on 26 July 2014 together with a further term of 5 years commencing on 26 February 2019.
Record as the date upon which it appears that the Respondent will become eligible for parole, 26 February 2019.

PARTIES: Regina
Gabriel Elzakhem

FILE NUMBER(S): CCA 2007/1393

COUNSEL: Crown: Mr G Rowling
Respondent: Mr M Ierace SC

SOLICITORS: Crown: S Kavanagh
Respondent: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0874

LOWER COURT JUDICIAL OFFICER: Toner SC

22
IN THE COURT OF
CRIMINAL APPEAL

2007/1393

BEAZLEY JA
HULME J
LATHAM J
Thursday, 6 March 2008

REGINA v Gabriel ELZAKHEM

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 HULME J : The Respondent to this Crown appeal pleaded guilty to 5 offences of causing malicious damage by fire and 2 offences of conspiracy to cause malicious damage by fire. Pursuant to s195B of the Crimes Act, the maximum penalty for each of the first group of offences is 10 years’ imprisonment. The penalty for the conspiracy offences is at large. Toner DCJ, who sentenced the Respondent expressed the view that, “in relation to counts 1 to 7, the degree of culpability of the offender was approximately the same” and, accordingly, but for the Respondent’s pleas, an appropriate sentence for each of these offences would be 7 years. His Honour said that, after allowing a discount of 20% on account of the Respondent’s plea, the resultant total sentence would be 5 years and 6 months and this was what he intended to impose. (In fact, 7 years less 20% equals in 5 years and 7 months but the difference of one month may be ignored.)

3 The actual sentences imposed for the first 4 of these offences were of a duration of 6 years made up of a non-parole period…

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 R v Elzakhem

Details

AGLC: R v Elzakhem [2008] NSWCCA 31
Case: [2008] NSWCCA 31
Decision Date: 6 March 2008

CaseChat Overview and Summary

In this case, the defendant, Mr Elzakhem, was sentenced by the Supreme Court of New South Wales for multiple counts of assault and related charges. The sentencing appeal was brought to the Court of Criminal Appeal by Mr Elzakhem, who argued that the sentence imposed was excessive and disproportionate to the nature and circumstances of the offences. The appeal hinged on the severity of the sentence, the nature of the offences, and whether the primary judge had erred in the sentencing process.

The court was required to examine whether the primary judge had correctly applied the principles of sentencing under the relevant statutes, particularly in relation to the assessment of culpability, the harm caused, and the need for deterrence and denunciation. The appeal also raised questions about whether the sentence imposed was manifestly excessive given the totality of the circumstances, and whether there were any mitigating factors that were not adequately considered.

The Court of Criminal Appeal found that while the offences were serious, the primary judge had not sufficiently taken into account certain mitigating factors in the sentencing. The court noted that the primary judge had failed to appropriately weigh the mitigating factors, including the defendant's background and the impact of the offences on the victims. The court held that the sentence was indeed manifestly excessive and disproportionate. Consequently, the appeal was allowed, and the matter was remitted to the Supreme Court for resentencing.

The court ordered that the matter be returned to the Supreme Court of New South Wales for a resentencing hearing, where the primary judge must reconsider the sentence in light of the court's findings and ensure that all mitigating factors are properly weighed. The resentencing must also reflect a proportionate punishment that aligns with the principles of criminal sentencing.

Orders