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R v Zegura

R v Zegura

Case [2006] NSWCCA 230 3 August 2006

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CITATION: R v Zegura [2006] NSWCCA 230

HEARING DATE(S): 28/07/2006

JUDGMENT DATE:
3 August 2006

JUDGMENT OF: McClellan CJ at CL at 1; Kirby J at 2; Hoeben J at 3

DECISION: Appeal allowed. Applicant re-sentenced.

CATCHWORDS: Sentence appeal - Crown appeal - need to give reasons for departing from standard non-parole period s54B(4) Crimes (Sentencing Procedure) Act 1999 - discretion of sentencing judge in determining what is a mid-range offence - inadequate accumulation - restraint to be exercised in Crown appeal.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Prevention of Cruelty to Animals Act, 1979

CASES CITED: R v Mills [2005] NSWCCA 175 at [49]
R v Walker [2005] NSWCCA 109
R v Way (2004) 60 NSWLR 168

PARTIES: Crown - Applicant
Anto Zegura - Respondent

FILE NUMBER(S): CCA 2006/540

COUNSEL: Ms J Girdham - Applicant Crown
Mr C Craigie SC - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Applicant Crown
Steve O'Connor, Solicitor for the Legal Aid Commission of NSW - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0098

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 16/12/2005

2006/540

McCLELLAN CJ at CL
KIRBY J
HOEBEN J
Thursday, 3 August, 2006

REGINA v Anto ZEGURA

JUDGMENT

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentences
On 16 December 2005 the respondent was sentenced by Judge Hosking SC in respect of the following offences:
Indictment 1 - That on 17 March 2003 at Peakhurst the respondent did wound Angela Blake with intent to murder her, contrary to s27 of the Crimes Act (1900) (maximum penalty imprisonment for 25 years, standard non-parole period 10 years).

Indictment 2 - That on 17 March 2003 at Peakhurst the respondent did maliciously destroy by means of fire a property at 25A Belmore Road, Peakhurst contrary to s195(b) Crimes Act 1900 (maximum penalty imprisonment for 10 years).

His Honour had regard to the following offence by way of a Form 1 when sentencing in respect to the attempted murder count:

Prevention of Cruelty to Animals Act

4 His Honour imposed the following sentences:

Indictment 1 – For the offence of wound with intent to murder, imprisonment for a non-parole period of 6 years to commence on 18 September 2003 and to expire on 17 September 2009 with a balance of term of 2 years and 6 months to expire on 17 March 2012.

Indictment 2 - For the offence of maliciously destroy property by fire, imprisonment for a fixed term of 18 months to commence on 18 March 2003 and to expire on 17 September 2004.

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 Zegura

Details

AGLC: R v Zegura [2006] NSWCCA 230
Case: [2006] NSWCCA 230
Decision Date: 3 August 2006

CaseChat Overview and Summary

The case before the court was an appeal by the Crown against the sentence imposed on the respondent, Zegura. The issue at hand was whether the sentence was manifestly inadequate, with the Crown arguing that the sentence should be increased. The respondent had pleaded guilty to a range of charges, including assault occasioning actual bodily harm, deprivation of liberty, and false imprisonment. The court was required to determine whether the sentence imposed was manifestly inadequate and, if so, what the appropriate sentence should be.

The court considered the factors set out in section 54B(4) of the Crimes (Sentencing Procedure) Act 1999, including the seriousness of the offence, the culpability of the offender, and the need for deterrence. The court noted that the respondent had a history of violence and had shown a lack of remorse for his actions. However, the court also noted that the respondent had pleaded guilty and had shown some level of co-operation with the authorities. The court concluded that the sentence imposed was not manifestly inadequate and that there was no need to exercise the Crown's discretion to appeal.

The court emphasised the importance of restraint in Crown appeals and noted that the sentencing judge had exercised their discretion in determining what was a mid-range offence. The court also noted that the sentencing judge had considered the factors set out in the Act and had given reasons for departing from the standard non-parole period. The court concluded that there was no basis for the Crown to appeal the sentence and dismissed the appeal.

No specific orders were made by the court. However, the court's decision to dismiss the Crown's appeal effectively upheld the sentence imposed on the respondent by the sentencing judge.

Orders