R v Zabul - [2001] NSWCCA 455

CITATION: R v Zabul [2001] NSWCCA 455

FILE NUMBER(S): CCA 60290/00

HEARING DATE(S): 17 October 2001

JUDGMENT DATE:
17 October 2001

PARTIES :

Regina
Adris Zabul

JUDGMENT OF: Wood CJ at CL at 1; Grove J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0394

LOWER COURT JUDICIAL
OFFICER : Maguire DCJ

COUNSEL : R.J. Button (Applicant)
E.A. Wickins (Crown)

SOLICITORS: D Giddy
S E O'Connor

CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - robbery in company - parity - whether legitimate sense of grievance - submission not made good - doctrine of parity should not be applied so as to require imposition of an inadequate sentence - appeal dismissed.

DECISION: Leave to appeal granted. Appeal dismissed

60290/00

WOOD CJ AT CL
GROVE J

WEDNESDAY 17 OCTOBER 2001

REGINA V ADRIS ZABUL

Judgment

1 WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by Maguire DCJ on 12 May 2001 following his pleas of guilty to four offences of robbery in company. One further offence of the same kind was taken into account on a Form 1 in relation to the first count on the indictment.

2 The sentencing order was framed in the following way:

"A. Count 1 - imprisonment for a term of six years and six months to date from 9 March 1999 expiring on 8 September 2005 with a non-parole period of three years and three months. B. Counts 2, 3 and 4 - imprisonment in relation to each for a fixed term of three years and three months to date from 9 March 1999 and to expire on 8 June 2002."

3 His Honour specified that he had imposed fixed terms for counts 2, 3 and 4, having regard to the nature of the sentence imposed for count 1. All sentences were to be served concurrently.

FACTS

4 His Honour expressly adopted the statement of facts which had been prepared in relation to the five offences, each of which involved a robbery in company of console operators working at service stations in the northern districts of Sydney. Since there is no suggestion that his Honour erred in relying upon this document when assessing the objective criminality of the applicant, I will simply adopt it as a sufficient statement of the circumstances in which the offences occurred.

5 That statement of facts discloses:

"Robbery of Caltex Normanhurst on 9 March 1999.
At approximately 4 am on 9 March 1999 Naser Ghaderi and Amir Vojdani entered the Caltex Service Station, Pennant Hills Road, Normanhurst. Once inside the service station area the prisoners selected a packet of chips from the display. They then approached the console area where one produced a silver bladed knife, at that time the blade had not been unfolded. The operator, Durga Gutta, fearing for his safety, was pushed to the floor behind the counter by the prisoners. Ghaderi demanded that the till be opened and Mr Gutta…

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 Zabul

Details

AGLC: R v Zabul [2001] NSWCCA 455
Case: [2001] NSWCCA 455
Decision Date: 17 October 2001

CaseChat Overview and Summary

In the case of R v Zabul, the respondent, who was convicted of robbery in company, appealed against the sentence imposed by the trial judge. The court of appeal was tasked with reviewing the appropriateness of the sentence handed down. The central issue before the court was whether the doctrine of parity should apply in a way that required the imposition of a sentence that the court deemed inadequate. The appeal hinged on the respondent's contention that the sentence was inadequate and should be considered in light of the doctrine of parity, which aims to ensure that similarly situated offenders receive comparable sentences.

The court considered the principles of parity and the requirement that the sentence imposed should be proportionate to the gravity of the offence. It was noted that the doctrine of parity was not intended to mandate the imposition of an inadequate sentence. The court found that the sentence imposed was within the appropriate range, and the trial judge had considered the relevant factors in determining the appropriate penalty. The court also observed that the submission regarding parity was not sufficiently made to warrant a reconsideration of the sentence. Consequently, the appeal was dismissed.

The court emphasised that the doctrine of parity should not be applied in a manner that would result in the imposition of an inadequate sentence. It was held that the trial judge had appropriately exercised their discretion in imposing the sentence, taking into account the principles of parity and proportionality. The court was satisfied that the sentence reflected the seriousness of the offence and the need to deter the respondent and others from engaging in similar criminal conduct.

The court did not order any changes to the sentence imposed by the trial judge. The appeal was dismissed, and the original sentence was upheld.

Orders