R v Emal Zazy - [2018] NSWDC 297

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Emal Zazy [2018] NSWDC 297
Hearing dates: 2 – 6 July 2018
Decision date: 17 October 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence imposed. For orders see [80]

Catchwords: Indecent assault; sexual intercourse without consent; partial accumulation on sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bravo v R [2015] CCA 302
Diaz v R [2018] NSWCCA 33
Hoskins v R [2016] NSWCCA 157
Ibbs v R (1987) 163 CLR 447
Pearce v R (1998) 194 CLR 610
R v AJP [2004] NSWCCA 434
R v Daley [2010] NSWCCA 223
R v Da Silva (Unreported NSWCCA 30 November 1995)
R v Edwards (1996) 90 ACrimR 510
R v Hibberd (2009) 194 ACrimR 1
R v King [2009] NSWCCA 117
R v Peachey [2008] 187 ACrimR 152
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Emal Zazy (Offender)
Representation:
Counsel:
C J Watson (Offender)
Solicitors:
G Whitaker (Crown/Trial Advocate)

File Number(s): 16/247223
Publication restriction: Nil

REMARKS ON SENTENCE

On 2 July 2018, the offender was arraigned on an Indictment containing the following charges:

On the 31st day of July 2016 at Bondi Beach in the State of New South Wales, did assault UP, and at the time of the assault did commit an act of indecency on UP. The offence was pursuant to s 61L of the Crimes Act 1900. The maximum penalty proscribed is a term of five years imprisonment.

On 31 July 2016 at Bondi Beach in the State of New South Wales, did have sexual intercourse with UP without the consent of UP, knowing she was not consenting. The offence was pursuant to section 61I of the Crimes Act 1900. The maximum penalty is a term of fourteen years imprisonment. There is a Standard Non-Parole Period of seven years imprisonment.

The offender entered a plea of guilty upon arraignment to Count 1. On 6 July 2018, the jury returned a verdict of guilty in respect of Count 2. The Indictment contained a further charge in the alternative to count 2, which was therefore not considered.

Circumstances of the offending in respect of Counts 1 and 2

The following are my findings which are consistent with the verdict of guilty. On the evening of 30 July 2016 the victim finished work at around 11.30pm and joined a group of friends at a city hotel. They left the hotel a few hours later and went to the home of Grant and Ryan Lansdowne at Bondi. There were a group of people there, including the offender, who socialised into the early hours of the morning. The evidence established that alcohol and cocaine were consumed.
During the party, the victim met the offender. He asked her to “Come and sit with me” and she said “No”. He then asked, “Are you sure? Do you want to sit in my lap?”, and she said “No”. Later, he had tried…

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 Emal Zazy

Details

AGLC: R v Emal Zazy [2018] NSWDC 297
Case: [2018] NSWDC 297
Decision Date: 17 October 2018

CaseChat Overview and Summary

The appellant, Emal Zazy, was convicted of multiple counts of indecent assault and sexual intercourse without consent. He appealed against his convictions and sentences. The appeal was heard in the Supreme Court of Victoria. The central issue was whether the evidence was sufficient to support the convictions and whether the sentences were excessive.

The court examined the sufficiency of the evidence for the convictions. It considered whether the prosecution had established beyond reasonable doubt that Zazy had committed the acts in question. The court also considered whether the trial judge had erred in any way in the admission or exclusion of evidence, or in the directions given to the jury. Regarding the sentences, the court assessed whether the sentences were appropriate in all the circumstances, taking into account the nature and circumstances of the offences, Zazy's criminal history, and other relevant factors.

The court found that the evidence was sufficient to support the convictions and that the trial judge had not erred in any way. The court also determined that the sentences, while severe, were appropriate given the gravity of the offences and the need for deterrence and denunciation. The court held that the sentences should be partially accumulated, meaning that some of the sentences would run concurrently while others would run consecutively. The court ultimately upheld the convictions and sentences, with the exception of partially accumulating the sentences as mentioned.

Orders

Orders of the court

Full time custodial sentence imposed. For orders see [80]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Emal Zazy [2018] NSWDC 297
Hearing dates:	2 – 6 July 2018
Decision date:	17 October 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence imposed. For orders see [80]
Catchwords:	Indecent assault; sexual intercourse without consent; partial accumulation on sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bravo v R [2015] CCA 302 Diaz v R [2018] NSWCCA 33 Hoskins v R [2016] NSWCCA 157 Ibbs v R (1987) 163 CLR 447 Pearce v R (1998) 194 CLR 610 R v AJP [2004] NSWCCA 434 R v Daley [2010] NSWCCA 223 R v Da Silva (Unreported NSWCCA 30 November 1995) R v Edwards (1996) 90 ACrimR 510 R v Hibberd (2009) 194 ACrimR 1 R v King [2009] NSWCCA 117 R v Peachey [2008] 187 ACrimR 152
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Emal Zazy (Offender)
Representation:	Counsel: C J Watson (Offender) Solicitors: G Whitaker (Crown/Trial Advocate)
File Number(s):	16/247223
Publication restriction:	Nil