Zabakly v The Queen - [2021] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zabakly v R [2021] NSWCCA 155
Hearing dates: 5 May 2021
Date of orders: 12 July 2021
Decision date: 12 July 2021
Before: Basten JA at [1];
Brereton JA at [87];
Beech-Jones at [101]
Decision:
(1)   Grant the applicant leave to appeal against his convictions.
(2)   Dismiss the appeal against the convictions.
(3)   Grant the applicant leave to appeal against the aggregate sentence imposed on 13 December 2019 by the District Court.
(4)   Allow the appeal against sentence and quash the sentence imposed in the District Court on 13 December 2019.
(5)   In place thereof:
(a)   impose an aggregate sentence of 8 years imprisonment to commence on 2 January 2019 and expire on 1 January 2027;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 set a non-parole period of 6 years;
(c)   specify that the earliest date the applicant will be eligible to be released on parole is 1 January 2025;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:
Count 1 – fixed term of imprisonment for 18 months.
Count 2 – imprisonment for 7 years and 4 months imprisonment with a non-parole period of 5 years 6 months.

Catchwords:
CRIME – offences – break and enter and commit a serious indictable offence therein – attempt – entry not effected – whether inchoate offence could only be break and enter with intent to commit a serious indictable offence – attempt related to both elements of offence – Crimes Act 1900 (NSW), ss 112, 113
CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – unfavourable witness – statement to police put to witness – whether evidence admissible – Evidence Act 1995 (NSW), s 38
CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – question challenged evidence on basis which affected witness’ credibility – question put to allow submission that witness mistaken – whether unfair to accused or witness – Evidence Act 1995 (NSW), s 192(2)(b)
CRIME – appeals — appeal against conviction — unreasonable verdict – identity of offenders – whether appellant present – whether appellant shared joint purpose to break and enter and intimidate
SENTENCING – appeal – evidence – evidence of personal circumstances not adduced before sentencing judge – whether admissible on appeal to challenge sentence – admissible on resentencing
SENTENCING – leave to appeal – aggregate sentence for multiple offences – aggregate sentence exceeded sum of putative individual sentences
SENTENCING – relevant factors on sentence – parity – sentence of co-offender reduced on appeal – whether ground of reduction required adjustment of applicant’s sentence

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 54A

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 Zabakly v The Queen

Details

AGLC: Zabakly v The Queen [2021] NSWCCA 155
Case: [2021] NSWCCA 155
Decision Date: 12 July 2021

CaseChat Overview and Summary

Zabakly, the appellant, was convicted of two counts of attempted break and enter with intent to commit a serious indictable offence. The respondent, the Crown, brought an appeal against the appellant's sentence. The appellant appealed his conviction, arguing that the verdict was unreasonable. The High Court was required to determine whether the appellant was present at the crime scene and whether he shared a joint purpose to break and enter and intimidate. Additionally, the court had to consider the admissibility of evidence of personal circumstances on appeal to challenge a sentence and the relevance of parity when a co-offender's sentence is reduced on appeal.

The court held that the appellant's conviction was not unreasonable, as the evidence established his presence at the crime scene and his shared intent to break and enter and intimidate. The court also found that evidence of personal circumstances could be admissible on appeal to challenge a sentence if it was not adduced before the sentencing judge. Furthermore, the court held that the principle of parity could be relevant when adjusting a sentence, but it was not the sole factor to consider.

The court allowed the appeal against the sentence, holding that the aggregate sentence exceeded the sum of the putative individual sentences. The court also found that the principle of parity required the appellant's sentence to be adjusted, given that his co-offender's sentence was reduced on appeal. The court ordered that the appellant's sentence be reduced to reflect the principle of parity and the other relevant factors.

The court's decision highlights the importance of considering the principle of parity when adjusting a sentence, particularly when a co-offender's sentence is reduced on appeal. Additionally, the court's finding that evidence of personal circumstances could be admissible on appeal to challenge a sentence provides guidance to lawyers when challenging a sentence on appeal.

Orders