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 [email protected]
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

28 February 2002

Regina v Toufic Zreika

Judgment

O’KEEFE J:

Introduction

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 (to expire on 4 December 2006) and 6 years and 11 months (to expire on 4 November 2013) respectively. The fixed term of imprisonment for five years was ordered to be served concurrently with these sentences. The sentence the subject of the present appeal was thus due to commence on the expiration of the Applicant’s non parole period in respect of the offence for which he received a sentence of 10 years.

4 The Statement of Facts before the Judge revealed that on 30 July 1996 the Applicant had been involved in an incident arising out of a drug deal with a man named Bessounian. Bessounian gave the Applicant a large sum of money for the purchase of a quantity of drugs on the understanding that the Applicant would return with the drugs a short time after the money had been handed over. The Applicant did return, but instead of handing over the drugs, he shot Bessounian six times. Bessounian survived and identified the Applicant.

5 The Applicant, who had decamped to Melbourne, was extradited on 16 December 1996 and charged with the attempted murder of Bessounian. Some six days before his trial was due to commence, the Applicant approached Bessounian in the street and threatened him. The next day, namely 25 March 1998, the Applicant ambushed Bessounian and shot him a further five times. Bessounian survived this shooting as well, but was unable to identify the Applicant because his assailant wore a balaclava. The Applicant was charged with threatening Bessounian, and at a later date was charged with shooting with intent to murder Bessounian on 25 March 1998.

6 The charge in respect of the second shooting was laid because the Applicant had confided to his then girlfriend, Ms Melanie Cetinich, that he was the person who had shot Bessounian twice. The Applicant and Ms Cetinich had a falling out, and she threatened to go to the police. On 5 June 1999, Ms Cetinich had a number of shots fired at her at close range as she sat in her car on the driveway of her home. One of the shots caused a head injury, however she survived and gave a statement to the police inculpating the Applicant. He was arrested, charged and refused bail.

7 On 20 February 2000, whilst in custody at the Cessnock Correctional Centre awaiting trial for the charges referred to in paragraph 5 above, the Applicant handed a number of handwritten pages to a prison officer to give to his family. He explained to the officer that the papers were of a legal nature and related to his current court case. He said that it was important that his father and brother (who were then visiting the prison) should be given the papers.

8 The officer’s suspicions were aroused, and the pages were forwarded to the police involved in the prosecution of the Applicant. They were found to include a request to the Applicant’s brother to contact a female associate of the Applicant so that she would ensure that certain wording, as detailed by the Applicant, was included in her statement of evidence for his forthcoming trial. The object of the wording he proposed for her statement was to discredit the evidence of Ms Cetinich and exculpate the Applicant. One of the pages contained an instruction:

“Destroy this page after you have memorised all its contents, don’t forget every detail.”

9 It was the actions referred to in paragraphs 7 and 8 above that constituted the attempt to pervert the course of justice to which the Applicant pleaded guilty.

10 The Applicant was convicted of wounding with intent to murder, shoot with intent to murder and threaten witness on 7 July 2000 and was sentenced in the manner set out in paragraph 3 above. However, on 28 October 2002 the Court of Criminal Appeal quashed his convictions and ordered new trials. These are scheduled for May 2003. The Applicant then applied to the Judge to adjust the sentence, relying on s 43 of the Crimes (Sentencing Procedure) Act 1999. However on 6 December 2002, his Honour refused to do so on the basis that the power conferred by that section did not extend to the instant case and he was functus officio. On 20 December 2002 the Applicant was successful in having the Court of Criminal Appeal vary the sentence imposed in respect of the offence the subject of the present appeal by ordering that it commence on 5 June 1999 and expire on 4 June 2004, pursuant to the powers conferred by s 59 of the Crimes (Sentencing Procedure) Act 1999.

11 The power conferred on the Court of Criminal Appeal by s 59 of that Act is limited. Whilst the Court may vary the date of commencement of any consecutive sentence that had been imposed (s 59(1)), it has no power under the section to vary the term of a sentence, or the non parole period of a sentence (s 59(5)).

12 Shortly after the Court of Criminal Appeal had quashed Applicant’s convictions and ordered new trials, he gave notice of intention to appeal in respect of the sentence now under consideration.

13 The Applicant relies on two grounds of appeal:

(i) the Court should intervene and pass a sentence which includes a non parole period;

(ii) in the alternative, some other sentence less severe than that imposed is warranted in law and should be imposed.

14 The Crown does not oppose the application, provided that the non-parole period remains at five years.

Jurisdiction

15 After the Court had reserved its decision, the parties were asked to file additional written submissions addressing the jurisdiction of the Court to intervene in relation to the sentence imposed on the Applicant as it now stands. The sentence in the present appeal was imposed on 15 October 2001; its commencement date varied on 20 December 2002. The Notice of Appeal was filed on 1 November 2001. It is thus within time.

16 The appeal is brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 which provides as follows:

“A person convicted on indictment may appeal under this Act to the Court:
(c) with the leave of the Court against the sentence passed on the person’s conviction.”

The power of the Court to deal with such appeal is set out in s 6 of the Criminal Appeal Act 1912. Relevantly it provides:

“(3) On an appeal under section 5(1) against a sentence the Court, if it is of opinion that some other sentence whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case may dismiss the appeal.”

17 The exercise of the power conferred by s 6 does not involve the Court in merely substituting its own view for the view taken by a Trial Judge. The sentencing process involves an exercise of judicial discretion, and the Court will intervene only if error is demonstrated. Where it has, the Court may “pass some other sentence … warranted in law … in substitution” for the sentence imposed the Trial Judge. (s 6(3)) Such an approach to the exercise of the relevant power is consonant with the general approach taken by appellate courts to the interference with discretionary decisions of lower courts. The principles in this regard are set out in the much quoted case of House v The King (1936) 55 CLR 499, in which it was said:

“It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable and plainly unjust the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (supra at 505 per Dixon, Evatt and McTiernan JJ)

18 The manifest excessiveness of a sentence involves a question of law, even though specific error cannot be pointed to. It is within the third category of error referred to in House v The King (supra) (Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J).

19 The sentence imposed on 15 October 2001 was not attended by relevant error at the time of its imposition. What has happened is that the circumstances have changed since it was imposed. Had those changed circumstances been in force at the time of sentence, they may not have justified the imposition of a sentence of imprisonment for a fixed term of five years – ie, with no parole period being set. However a change of circumstances may not make that which was not erroneous at the time it was done erroneous retrospectively. It was because of concerns of such a kind that the Court sought further submissions from the parties.

20 In the further submissions filed on behalf of the Crown, no objection was taken to the Court admitting evidence of the changed circumstances and acting on such evidence if the interests of justice so indicated. It was conceded on behalf of the Crown that the evidence of changed circumstances “would lay sufficient foundation for (the) Court to intervene.”

21 The Court has intervened in other cases that have aspects similar to the present case. In Corbett ([2002] NSWCCA 137, 19 April 2002, unreported) this court exercised jurisdiction to determine an application for leave to appeal against a sentence that was unexceptional when it was imposed, but carried a different connotation after convictions for other matters for which sentences had been imposed at the time had been quashed. The Applicant had been convicted on one count of indecent assault, and two counts of carnal knowledge. He was sentenced to a fixed term of imprisonment for 18 months in respect of the first conviction, and to concurrent terms of four years in respect of the other convictions. Parole periods were set in respect of the two lastmentioned convictions, however because the sentence on the first conviction was for fixed term, no parole period was fixed. On appeal, the conviction in respect of the charge of indecent assault was quashed and the sentence set aside. The Court then considered the sentences which had been imposed in respect of the other two offences. Smart AJ (which whom Sully J agreed; Handley JA dissenting) said:

“In general, my mind baulks at a result whereby an offender receives the same effective sentence for two offences as he did for three where it is held that the conviction on the third offence was not reasonably supported by the evidence. This is despite the fact that the sentence for each offence must be looked at individually. I accept that there may be cases where there ought to be no adjustment of the sentences where a conviction on one offence is set aside but the convictions on other offences remain and all sentences are concurrent.” (at para 66)

In the result, the appeal against sentence was allowed in that case, and shorter sentences were substituted. There is no suggestion in the decision that the sentences imposed were excessive at the time they were imposed; rather they became excessive by virtue of matters arising subsequent to their imposition – ie, the quashing of one of the convictions had the effect of warranting in law a less severe sentence than that imposed (s 6(3)).

22 In Regina v Grant (2002) 55 NSWLR 80, this Court considered a case in which the Appellant had been convicted on a count of murder and a count of shooting with intent to murder, and had been sentenced to 18 years imprisonment in respect of the first charge (with a non-parole period fixed) and a fixed term of 5 years in respect of the second charge. On appeal, the conviction in respect of the first charge was allowed and the conviction and sentence were quashed. The appeal on the second charge was dismissed, however in those circumstances the Court found it necessary to consider the fixed term sentence that had been imposed. Wood CJ and CL (with whom Spigelman CJ and David Kirby J agreed) said:

“Since I am of the view that the appeal should be upheld in relation to Count 1, but dismissed in relation to Count 2, it is necessary to consider the sentence imposed for that count. That arises by reason of the circumstance that the Appellant was sentenced … to a fixed term, no doubt in recognition of the fact that it would be wholly absorbed in the sentence imposed for Count 1, which was partially cumulative on it. His Honour, it may be assumed … fixed a sentence which he otherwise considered appropriate for Count 2. … If the Court were now to set a non-parole period in respect of this Count, it would result in a sentence that was manifestly lenient for a serious offence of shooting with intent to murder. In these circumstances, and taking into consideration s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act 1999, I would accordingly decline now to vary the sentence imposed by fixing a non-parole period.” (supra at 108)

23 The above passage accepts that the Court had jurisdiction to entertain an appeal against a sentence, although it was not manifestly excessive or subject to other error of law at the time it was imposed, where such sentence did not have a non-parole period set because the sentence was subsumed in another sentence that was later quashed on appeal. Whilst the Court in that case did not vary the sentence, it did not do so for discretionary reasons, not for jurisdictional reasons.

24 Section 52 of the Crimes (Sentencing Procedure) Act 1999 empowers the Court in an appeal against sentence to set a non-parole period, even though a non-parole period has not been set by the sentencing Court.

25 In my opinion, the Court has jurisdiction to review the sentence in circumstances such as those involved in the present case, and should do so if it would be in the interests of justice. In my opinion, it is in the interests of justice for the Court to exercise such jurisdiction in relation to the present appeal.

As to (i)

26 It was contended on behalf of the Applicant that the Judge imposed a fixed sentence because of the provisions of s 45(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (the Act), which provides:

“(1) Where sentencing an offender to imprisonment for an offence … a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so:
…
(b) because of any other penalty previously imposed on the offender.”

27 This contention is supported by the words in the Remarks on Sentence:

“I convict the prisoner. I sentence him to a sentence of five years imprisonment by way of a fixed term commencing on 5 December 2006 and to be concurrent with the sentence imposed from that day. It is to be a fixed term because it is to be served totally concurrently with that sentence . ” (italics added)

28 Not only did the Judge describe the sentence as a fixed term, but he also stated his reason for imposing it, as required by s 45(2). The effect of the words of sentence referred to above, in my opinion, clearly involved an exercise of the power conferred by s 45(1)(b) of the Act.

29 This conclusion does not of itself, however, establish the second proposition that was advanced; namely that the Court should proceed on the basis that five years imprisonment was the maximum sentence that his Honour would have imposed had the sentence in question been the only sentence under consideration.

30 The Crown argues that his Honour’s Remarks on Sentence, including the actual words used when imposing the sentence, support the conclusion that the term of five years was not intended to be the total sentence, but was intended to be the minimum term. It should be noted, however, that his Honour has not expressly stated that the fixed term is intended to be the equivalent of a minimum term.

31 In Thomas (1993) 65 A Crim R 269, Hunt CJ at CL (with whom Grove and James JJ agreed), said that:

“When a sentencing Judge is dealing with concurrent sentences of unequal length, or cumulative sentences, so that any additional terms upon the shorter or earlier sentences would be of no utility (because the prisoner will still be in custody) it is appropriate … for the Judge to set a fixed term for the length of what would otherwise have been the appropriate minimum term. … The Judge should, however, when giving the reasons … for setting the fixed term, state expressly that the fixed term is intended to be the equivalent of such a minimum term. It would not be appropriate in such circumstances to impose a fixed term for what would otherwise have been the total sentence of the Court.” (at 275-276)

This decision militates against the submission by the Crown that his Honour intended the five year fixed term to be the minimum term, and that this Court should treat it as such.

32 The Applicant submits that an examination of the statistics produced by the Judicial Commission tends to support the conclusion that the intent of the Judge was that the fixed term of five years was to be the maximum sentence.

33 Caution should be exercised in relation to the use that is made of such statistics. It should be remembered that the factual circumstances in the individual cases included in the statistics are not known. Furthermore, in some instances the number of cases involved is small, in which event absence of knowledge of the factual circumstances, particularly where outliers are concerned, may render the statistics of limited, if any, value. Notwithstanding this caveat, it is appropriate to examine the statistics in relation to the subject offence and cognate offences.

34 In the period from July 1995 to June 2002, the number of cases included in the statistics relating to conspiracy to pervert the course of justice was only four. Two of these (50%) resulted in terms of imprisonment being imposed. Those terms were: in one case, 6 months; in the other, 2 ½ years. The non-parole, or fixed or minimum terms, were 6 months in one case, and 18 months in the other. This indicates that in the first-mentioned case, the sentence imposed was a fixed term.

35 In the period from July 1995 to June 2000, the number of cases included in the statistics relating to attempts to pervert the course of justice was 97. In 28 cases (29%), terms of imprisonment were imposed. No head sentence exceeded 5 years. A term of imprisonment of 5 years was imposed in only one case. Whilst it was argued that the case in which such term was imposed was the present case, there is no actual evidence that identifies the case referred to in the statistics as the present case. However, the argument does appear to receive some support from the accompanying statistics relating to Non-Parole Periods, Minimum Terms and Fixed Terms, since there is only one such case, and it constitutes 4% of the total of 27 cases dealt with in that part of the statistics.

36 When regard is had to the statistics, imprisonment for five years is seen to be the heaviest penalty imposed in the 28 cases covered by that part of the statistics that deals with Head Sentences / Full Terms. This period coincides with the longest Non-Parole Period / Minimum Term / Fixed Term in the 27 cases dealt with in the part of the statistics that deals with such matters. Since there is no head sentence in the statistics that would support a non-parole period of 5 years, the conclusion flows that the 5 year period referred to in the second part of the statistics is or is at least likely to be in the category of Fixed Term rather than in the categories of Non-Parole Period or Minimum Term.

37 The Crown argues that since his Honour stated that the five year fixed term was imposed because it was to be served concurrently, and said:

“I must confess that had it not been for the late charging of this matter, I would have been inclined to fix a sentence which did extend the non-parole period by a short term such as three months or six months.
However, because of the late charging in my view that should not happen at this stage.”

the inference should be drawn that the term of 5 years was intended to be the non-parole period. I do not think that this inference is justified, particularly when regard is had to the statistics of which his Honour was no doubt aware.

38 In my opinion, the fixed sentence of five years imprisonment should be treated as the maximum sentence intended by the Judge.

39 It is reasonably clear that the Judge imposed a fixed term of imprisonment as the appropriate sentence because of the other sentences with which it was to be concurrent. The quashing of the convictions and sentences in respect of those other offences creates an entirely new factual matrix or changed circumstances in which the sentence to be imposed on the Applicant is to be seen. No question of concurrence arises. In the changed circumstances, the provisions of ss 44(1) apply and a non-parole period should be set, unless there is a reason for not doing so which falls within the provisions of s 45 of the Act. The only provision of s 45(1) which could have possible application in the present case would be that in s 45(1)(c), namely that it appears to the Court that it is appropriate to decline to set a non-parole period for any reason other than those specified in s 45(1)(a) and (b). In my opinion this is not such a case. If the Applicant had not been the subject of other sentences on 15 October 2001, he would have been sentenced in the ordinary way under the regime then in force, namely to have the term of his sentence set and then have a non-parole period determined. In the changed circumstances there is not, in my opinion, any reason to depart from the provisions of s 44 of the Act, that is, and decline to set a non-parole period.

40 For the foregoing reasons I propose that a non-parole period should be set and, there being no special circumstances, such non-parole period should be 3 years nine months. It should commence on the date on which the sentence of 5 years has now been fixed to commence, namely 5 June 1999, and expire on 4 March 200, on which date the Applicant will be eligible for release on parole.

41 BELL J: I agree.

Formal orders

(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.
**********

Last Modified: 03/04/2003