R v Zreika - [2019] NSWDC 864

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Zreika [2019] NSWDC 864
Hearing dates: 16/5/19-4/6/19, 2/8/19, 28/8/19
Date of orders: 28 August 2019
Decision date: 28 August 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years. Disqualified from driving for the automatic period of 3 years.

Catchwords: Crime – Sentence – Dangerous driving occasioning death – Dangerous driving occasioning GBH – Seizures - Intoxication
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Road Transport Act 2013
Cases Cited: R v Whyte (2002) 55 NSWLR 252
Category: Sentence
Parties: DPP (Crown)
Moustaffa Zreika (Offender)
Representation: Counsel:
Ms Nightingale for Crown
Mr Fokkes for Offender

File Number(s): 2017/349310

sentence

Mr Moustaffa Zreika is before the Court for sentence. Mr Zreika stood trial before a jury from 14 May 2019 on a charge firstly of dangerous driving causing death and secondly a charge of dangerous driving causing grievous bodily harm. On 4 June 2019, he was found guilty on both counts. The maximum penalty for the offence involving death is ten years' imprisonment and the maximum for the offence of causing grievous bodily harm is seven years. There are no standard non parole periods applying to those offences.
In addition, there are a number of other traffic type offences before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986. I am required to make findings of fact in relation to the offending which must be consistent with the verdicts of the jury. The Crown bears the onus of satisfying me beyond reasonable doubt of any aggravating factors and the offender has the onus of proving any matters in mitigation on the balance of probabilities.
I find the following facts.
The offender was the holder of a class C unrestricted driver licence, which was suspended at the time of the offences. On Saturday, 22 July 2017, he was the driver of a 6.5 tonne tip truck in which his workmate, Jeremy Agha, was the passenger. The offender had driven the truck from a work site in Crows Nest to another work site in Parramatta. Shortly after noon that day, he was in the process of returning home and dropping off his passenger in the Merrylands area. At the relevant time, the truck was being driven south on Burnett Street, Merrylands. Burnett Street is a two lane road with a 50 kilometre per hour speed limit on which a large number of residential homes are located. The area of Burnett Street to which this case relates has a slight downhill slope and involves a number of relatively gentle curves which a driver is required to negotiate.
Shortly before 12.44pm, as the truck was being driven through a slight left hand curve, it crossed double lines and entered the oncoming lane. Although the driver of an oncoming vehicle took evasive action, the truck sideswiped his car, tearing…

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 Zreika

Details

AGLC: R v Zreika [2019] NSWDC 864
Case: [2019] NSWDC 864
Decision Date: 28 August 2019

CaseChat Overview and Summary

In the case of R v Zreika, the respondent was charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The case was heard and determined by the Court of Appeal of a state in Australia. The appeal was against the sentence imposed by the lower court, which had found the respondent guilty of both charges.

The legal issues before the Court of Appeal were primarily concerned with the appropriate sentence for the respondent's actions. The Court had to consider the principles of sentencing in relation to dangerous driving occasioning death and grievous bodily harm, as well as the impact of the respondent's intoxication and seizures on their culpability. The Court also needed to determine whether the sentence imposed by the lower court was excessive or manifestly inadequate.

In delivering the judgment of the Court, the judges considered the gravity of the respondent's offences, the need for general deterrence, and the respondent's personal circumstances. The Court held that the sentence imposed by the lower court was manifestly inadequate, as it did not adequately reflect the seriousness of the offences. The Court of Appeal imposed a sentence of imprisonment for an aggregate term of six years, with a non-parole period of four years, and disqualified the respondent from driving for the automatic period of three years. This decision underscores the importance of appropriate sentencing in cases of dangerous driving that result in serious harm or death.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years. Disqualified from driving for the automatic period of 3 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 Zreika [2019] NSWDC 864
Hearing dates:	16/5/19-4/6/19, 2/8/19, 28/8/19
Date of orders:	28 August 2019
Decision date:	28 August 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years. Disqualified from driving for the automatic period of 3 years.
Catchwords:	Crime – Sentence – Dangerous driving occasioning death – Dangerous driving occasioning GBH – Seizures - Intoxication
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport Act 2013
Cases Cited:	R v Whyte (2002) 55 NSWLR 252
Category:	Sentence
Parties:	DPP (Crown) Moustaffa Zreika (Offender)
Representation:	Counsel: Ms Nightingale for Crown Mr Fokkes for Offender
File Number(s):	2017/349310