REGINA v Khaled Zakaria - [2002] NSWCCA 450

CITATION: REGINA v Khaled ZAKARIA [2002] NSWCCA 450

FILE NUMBER(S): CCA 60304/02

HEARING DATE(S): 13/11/02

JUDGMENT DATE:
13 November 2002

PARTIES :

REGINA
Khaled ZAKARIA (Applicant)

JUDGMENT OF: Wood CJ at CL at 27; Dowd J at 28; Bell J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/1251

LOWER COURT JUDICIAL
OFFICER : Luland DCJ

COUNSEL : PJP Power SC (Crown)
A Francis (Applicant)

SOLICITORS: SE O'Connor
DJ Humphreys (Applicant)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED:
R v Bimahendali (1999) 109 A Crim R 355
R v Ellis (1986) 6 NSWLR 603
R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383

DECISION: Leave to appeal granted; Appeal dismissed

60304/02

WOOD CJ at CL
DOWD J
BELL J
13 November 2002

REGINA v Khaled ZAKARIA

Judgment

1 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 3 May 2002. The applicant pleaded guilty on indictment to two charges; (i) that on 28 August 2001 at Kings Cross in the state of New South Wales on three separate occasions during a period of thirty consecutive days he did supply a prohibited drug, namely cocaine, for financial reward. This offence is provided by s 25A of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). It carries a maximum penalty of twenty years imprisonment and/or 3500 penalty units; (ii) that between 29 June 2000 and 29 June 2001 at Sydney in the state of New South Wales he did supply a prohibited drug, namely cannabis. This offence is provided by s 25(1) of the DMT Act and carries a maximum penalty of ten years imprisonment and/or 2000 penalty units.

2 The applicant asked the sentencing judge to take into account a further eight offences pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. Those offences were said to have been committed between the 26 and 29 June 2001. The offences committed on 29 June involved three counts of the supply of prohibited drugs; cannabis leaf (40 grams) amphetamines (2 grams) and Ecstasy (2.9 grams). Additionally on that date the applicant was charged with an offence of goods in custody relating to his possession of the sum of $50. The offences said to have occurred on 26 June also involved three counts of the supply of a prohibited drug, namely cannabis leaf (29.66 grams) amphetamines (2.12 grams) and Ecstasy (2.3 grams). There was a further charge of goods in custody relating to the possession of the sum of $250 at the time of his arrest on 26 June.

3 The sentencing judge was invited to take these eight offences into account in sentencing the offender for Count 2 (the supply of cannabis). It might have been thought more appropriate for the Form 1 offences to be taken into account in dealing…

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.

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Details

Case: [2002] NSWCCA 450
Decision Date: 13 November 2002

CaseChat Overview and Summary

The applicant, Khaled Zakaria, sought leave to appeal against the severity of sentences imposed on him by the District Court. Zakaria had pleaded guilty to two charges under the Drug Misuse and Trafficking Act 1985, namely the supply of cocaine and cannabis. The applicant also sought to have eight further offences taken into account for the purposes of sentencing. The District Court imposed a sentence of three years and six months imprisonment for the supply of cannabis, with a non-parole period of two years and six months. For the supply of cocaine, the Court imposed a sentence of two years imprisonment, with a non-parole period of twelve months. The applicant's counsel submitted that the District Court erred in failing to allow a discount in conformity with the principles set out in R v Ellis, and in failing to take into account the plea of guilty on Count 1. Counsel also submitted that the sentence was manifestly excessive. The Court found that the applicant was entitled to some leniency for his admissions to police, which provided significant assistance to the Crown. However, the Court found that the failure to quantify the discount in relation to Count 1 did not disclose error. The Court also found that the sentences were not manifestly excessive, taking into account the seriousness of the offences and the applicant's history of drug abuse and criminal behaviour. Leave to appeal was granted, but the appeal was dismissed.

The Court of Criminal Appeal considered an application for leave to appeal against the severity of sentences imposed on Khaled Zakaria by the District Court. Zakaria had pleaded guilty to two charges of drug supply and sought to have eight further offences taken into account for sentencing. The District Court imposed sentences of three years and six months imprisonment for the supply of cannabis, and two years imprisonment for the supply of cocaine. The applicant's counsel submitted that the District Court erred in failing to allow a discount for the plea of guilty and in failing to take into account the applicant's admissions to police. Counsel also submitted that the sentences were manifestly excessive. The Court of Criminal Appeal found that while the applicant was entitled to some leniency for his admissions to police, the failure to quantify the discount in relation to Count 1 did not disclose error. The Court also found that the sentences were not manifestly excessive, taking into account the seriousness of the offences and the applicant's history of drug abuse and criminal behaviour. Leave to appeal was granted, but the appeal was dismissed.

Orders