R v Zerafa - [2021] NSWDC 547

District Court

New South Wales

Medium Neutral Citation: R v Zerafa [2021] NSWDC 547
Hearing dates: 7 October 2021
Decision date: 15 October 2021
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 7 years with a non parole period of 4 years.

Catchwords:
CRIME - SENTENCE - possess unauthorised pistol - threatening to use an offensive weapon with intent to commit a serious indictable offence - specially aggravated break and enter and commit serious indictable offence - Covid-19 - extremely concerning conditions of offender's detention.

Legislation Cited:
Crimes Act 1900 (NSW): ss 33B(1)(a) and 112(3); Firearms Act 1996 (NSW) s7(1).

Category: Sentence
Parties:
Regina (Crown)
Storm Leigh Zerafa (aka Storm Leigh Hyde and Storm Leigh Mellish) (Offender)
Representation:
Mr Wilcox - Watson (ODPP Solicitor)
Mr Leaver (Counsel for the offender)

File Number(s): 2020/00215692
Publication restriction: Nil

judgment

Storm Leigh Zerafa (otherwise known as Storm Leigh Hyde and Storm Leigh Mellish), you appear for sentence today in relation to three offences.
First, possessing an unauthorised pistol (sequence 8). This involves a contravention of s7(1) of the Firearms Act. The maximum penalty for that offence is imprisonment for 14 years. There is a standard non-parole period of 4 years imprisonment.
Secondly, threatening to use an offensive weapon with intent to commit a serious indictable offence (the serious indictable offence being intimidation) (sequence 10). This involves a contravention of s33B(1)(a) of the Crimes Act. The maximum penalty for that offence is imprisonment for 12 years. There is no standard non-parole period.
Thirdly, specially aggravated break and enter and commit serious indictable offence (sequence 1). This involves a contravention of s112(3) of the Crimes Act. The maximum penalty for that offence is imprisonment for 25 years. There is a standard non-parole period of 7 years imprisonment.
The facts surrounding your offending conduct are, to a significant extent, contained in an agreed statement of facts which forms part of Exhibit A.
The “facts” in that document were added to by your evidence (both in an affidavit made by you on 6 October 2021 and in your oral evidence on 7 October 2021): some of which is accepted by the Crown; and some of which is not.
I shall deal with the areas of dispute during the course of these remarks.
In resolving the factual disputes, I cannot make a finding adverse to your interests unless the relevant fact is proved beyond reasonable doubt. On the other hand, I can only make a finding favourable to you if it is established on the balance of probabilities.
By having regard to the agreed facts and those two different onuses of proof, I am satisfied of the following facts.
As at July 2020, you were 26 years old.
As at that time, and in circumstances to which I shall return, you had been a regular abuser of illegal drugs, particularly ice, since you were 14 years of age; and, unsurprisingly, with this history of poly-substance abuse you had suffered (amongst other…

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 Zerafa

Details

AGLC: R v Zerafa [2021] NSWDC 547
Case: [2021] NSWDC 547
Decision Date: 15 October 2021

CaseChat Overview and Summary

In the case of R v Zerafa, the defendant was found guilty of possessing an unauthorised pistol, threatening to use an offensive weapon with intent to commit a serious indictable offence, and committing specially aggravated break and enter with intent to commit a serious indictable offence. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the appropriate sentence for these serious criminal offences, taking into consideration the extremely concerning conditions of the offender's detention during the COVID-19 pandemic.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant's crimes. The court needed to balance the gravity of the offences with the conditions of the defendant's detention. The court also had to consider the principles of sentencing, including general and specific deterrence, denunciation, and the rehabilitation of the offender. The court was required to weigh these factors in light of the defendant's criminal history, the circumstances of the offences, and the impact of the COVID-19 pandemic on the defendant's detention.

The court found that the offences were serious and warranted a significant term of imprisonment. However, the court took into account the extremely concerning conditions of the defendant's detention during the COVID-19 pandemic, which included social isolation, limited access to legal resources, and the risk of infection. The court determined that these conditions warranted a reduction in the overall sentence. After considering all relevant factors, the court imposed an aggregate term of imprisonment of 7 years with a non-parole period of 4 years.

The court ordered that the defendant be detained in custody and serve the sentence as determined. The court recognised the seriousness of the offences but also acknowledged the unique circumstances of the defendant's detention during the pandemic. The court's decision reflects a balanced approach to sentencing in light of both the gravity of the crimes and the conditions of the offender's detention.

Orders

Orders of the court

Aggregate term of imprisonment of 7 years with a non parole period of 4 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Zerafa [2021] NSWDC 547
Hearing dates:	7 October 2021
Decision date:	15 October 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non parole period of 4 years.
Catchwords:	CRIME - SENTENCE - possess unauthorised pistol - threatening to use an offensive weapon with intent to commit a serious indictable offence - specially aggravated break and enter and commit serious indictable offence - Covid-19 - extremely concerning conditions of offender's detention.
Legislation Cited:	Crimes Act 1900 (NSW): ss 33B(1)(a) and 112(3); Firearms Act 1996 (NSW) s7(1).
Category:	Sentence
Parties:	Regina (Crown) Storm Leigh Zerafa (aka Storm Leigh Hyde and Storm Leigh Mellish) (Offender)
Representation:	Mr Wilcox - Watson (ODPP Solicitor) Mr Leaver (Counsel for the offender)
File Number(s):	2020/00215692
Publication restriction:	Nil