R v Zanze
[2000] NSWCCA 308
•31 July 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: Regina v Zanze [2000] NSWCCA 308
FILE NUMBER(S):
60582/99
HEARING DATE(S): 31 July 2000
JUDGMENT DATE: 31/07/2000
PARTIES:
Regina v Anthony Zanze
JUDGMENT OF: Newman J Sperling J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/11/0416
LOWER COURT JUDICIAL OFFICER: Job DCJ
COUNSEL:
R Burgess
(Applicant)
A M Blackmore
(Crown)
SOLICITORS:
D J Humphreys
(Applicant)
S E O'Connor
(Crown)
CATCHWORDS:
Criminal law - sentence appeal - no question of principle.
LEGISLATION CITED:
DECISION:
Leave to appeal granted - appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 60582/99
NEWMAN J
SPERLING JMonday, 31 July 2000
REGINA v Antony ZANZE
JUDGMENT
1 NEWMAN J: I will ask Sperling J to deliver the first judgment in this matter.
2 SPERLING J: The applicant pleaded guilty to four charges of receiving and asked that five matters of goods in custody be taken into account. The receiving offences were committed during a period from October 1998 to February 1999.
3 The goods the subject of the receiving charges included a watch, a mobile phone, some power tools, cameras and a radio cassette player. All had been stolen from property broken into.
4 On 10 September 1999 Job DCJ sentenced the applicant to two years and eight months penal servitude, including a minimum term of two years commencing on 29 March 1999.
5 At the time of sentencing the applicant was thirty-three years of age. He had a criminal record extending over a period of ten years or thereabouts, which included several convictions for property offences of a similar kind, the most recent of which resulted in a sentence of three years imprisonment with a minimum term of one year. The applicant had been released on parole in August 1998 on completion of the minimum term. The present offences were committed during the currency of the additional term. Parole was subsequently revoked due to further offences. The applicant returned to gaol in March 1999. It was during that period of approximately seven months out of prison on bail that the applicant committed the subject offences.
6 There are three grounds of appeal. Ground 1 is that his Honour erred in not taking into account in the exercise of his sentencing discretion the fact that the charges could have been dealt with in the Local Court. It is said that his Honour must have overlooked the consideration that these charges could have been dealt with summarily unless the prosecuting authority elected otherwise. The maximum penalty in relation to any one count would then have been twelve months.
7 This consideration could not feasibly have affected the result. The prosecuting authority had elected to proceed in the District Court in this case and properly so in my view.
8 Ground 2 is that the sentence imposed was manifestly excessive. In my view it was not, particularly when one has regard to the fact that part of the sentence was to be served concurrently with the balance of the additional term under the earlier sentence for which parole was revoked.
9 Ground 3 is that his Honour erred in failing to find special circumstances. It is suggested that because his Honour failed to mention special circumstances it could be inferred that he omitted to give consideration to this topic. Whether an inference of that kind is to be drawn varies from case to case. This is an appeal from a very experienced District Court judge. There is no prospect that he may have overlooked the topic and given no thought to whether special circumstances should be found. Nor is this a case in which a failure to find special circumstances was erroneous.
This is plainly a case in which the appeal should not succeed. I would propose the following orders:
1. Grant leave to appeal.
2. Appeal dismissed.
NEWMAN J: I agree with the reasons and the orders proposed by my brother Sperling J. The order of the Court will be as he proposes.
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LAST UPDATED: 17/08/2000
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