Regina v Zreika - [2003] NSWCCA 47

Reported Decision:
138 A Crim R 95

New South Wales

Court of Criminal Appeal

CITATION: Regina v Zreika [2003] NSWCCA 47

HEARING DATE(S): 26/02/03

JUDGMENT DATE:
28 February 2003

JUDGMENT OF: O'Keefe J at 1; Bell J at 41

DECISION: (i) Leave to appeal granted. (ii) Sentence for a fixed term of imprisonment of five years quashed.(iii) In lieu thereof, the Applicant is sentenced to imprisonment for 5 years, to commence on 5 June 1999 and expire on 4 June 2004, with a non-parole period set to commence on 5 June 1999 and to expire on 4 March 2003, on which date the Applicant will become eligible for release on parole.

CATCHWORDS: Criminal law - Appeal - Severity - Fixed term - Concurrent sentence - Convictions for other offences quashed - District Court Judge functus officio - Adjustment of commencement of sentence by Court of Criminal Appeal - No error at time of initial sentencing - Statistics - Changed circumstances - Jurisdiction of Court of Criminal Appeal - Powers of Court of Criminal Appeal to adjust form of sentencejhin8096@mail.usyd.edu.au

LEGISLATION CITED: Crimes Act 1900; ss 319
Crimes (Sentencing Procedure) Act 1999; ss 43, 44(1), 45(1), 45(2), 52, 59
Criminal Appeal Act 1912; ss 5(1)(c), 6, 6(3)

CASES CITED: Corbett ([2002] NSWCCA 137, 19 April 2002, unreported)
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Regina v Grant (2002) 55 NSWLR 80
Thomas (1993) 65 A Crim R 269

PARTIES :
Regina
Toufic Zreika

FILE NUMBER(S): CCA 60756/01

COUNSEL: Mr A Cook - for Applicant
Mr R A Hulme SC - for Crown

SOLICITORS: Mr D J Humphreys - Applicant
Ms S E O'Connor - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0316

LOWER COURT
JUDICIAL OFFICER : Chief Judge Blanch

- 13 -

60756/01

O’Keefe J
Bell J

Regina v Toufic Zreika

Judgment

O’KEEFE J:

1 This is an application for leave to appeal against a sentence of imprisonment for a fixed term of five years.

2 On 15 October 2001, Toufic Zreika (the Applicant) who is 26 years of age, pleaded guilty in the District Court to a charge of supplying a letter with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900. He was sentenced by Chief Judge Blanch (the Judge) to a fixed term of imprisonment to commence on 5 December 2006 and expire on 4 December 2011. The offence carries a maximum penalty of imprisonment for 14 years.

3 The circumstance which caused the sentence to be fixed to commence so far in advance of the date of its imposition was that at the time the Applicant was serving sentences of imprisonment for 10 years, 12 years and a fixed term of five years. Taken as a whole, these sentences commenced on 5 June 1999 and were to expire on 3 November 2013, with non parole periods of 7 years and 6 months…

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 Regina v Zreika

Details

AGLC: Regina v Zreika [2003] NSWCCA 47
Case: [2003] NSWCCA 47
Decision Date: 28 February 2003

CaseChat Overview and Summary

In Regina v Zreika, the appellant, Zreika, was convicted of serious criminal offences in the District Court of New South Wales. The appeal to the Court of Criminal Appeal concerned the severity of the sentence imposed and the form of the sentence, particularly the imposition of a fixed term with a concurrent sentence. The appellant was also seeking the quashing of convictions for other related offences. The District Court had sentenced Zreika to imprisonment for a fixed term with a concurrent sentence for additional charges. The appeal before the Court of Criminal Appeal was focused on the severity and form of the sentence, as well as the legality of the convictions for the other offences.

The legal issues before the Court of Criminal Appeal included whether the District Court Judge was functus officio in adjusting the form of the sentence, the jurisdiction of the Court of Criminal Appeal to alter the sentence, and the appropriate use of statistics in sentencing. The appellant argued that the sentence was excessively severe and that the convictions for the other offences should be quashed due to procedural errors. The Court had to consider whether there was any error in the initial sentencing and whether changed circumstances justified an adjustment of the sentence by the Court of Criminal Appeal.

The Court of Criminal Appeal found that there was no error in the initial sentencing and that the District Court Judge was not functus officio when the Court of Criminal Appeal adjusted the form of the sentence. The Court determined that it had the jurisdiction to alter the form of the sentence to ensure it was appropriate and not excessively severe. Additionally, the Court quashed the convictions for the other offences due to procedural errors. The appeal was ultimately dismissed, and the Court upheld the original sentence with adjustments to its form.

Orders