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Zahab v R

Zahab v R

Case [2021] NSWCCA 7 5 February 2021

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zahab v R [2021] NSWCCA 7
Hearing dates: 22 July 2020
Decision date: 05 February 2021
Before: Bathurst CJ at [1]; Garling J at [55]; Wright J at [62];
Decision:
(1) Grant the applicant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – onerous conditions of custody – limited evidence as to conditions – High Risk Management Correctional Centre (HRMCC) – whether sentencing judge failed to take conditions of custody into account on sentence

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)

Cases Cited:
Alameddine v R [2020] NSWCCA 232
C v R [2013] NSWCCA 81; 229 A Crim R 233
Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73
Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470
R v Alameddine (No 3) [2018] NSWSC 681
R v Atai (No 2) [2018] NSWSC 1797
R v Atik [2007] VSC 299
R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299
R v Ferrer-Esis (1991) 55 A Crim R 231
R v HG [2018] NSWSC 1849
R v Khalid [2017] NSWSC 1365
R v Khan (No 11) [2019] NSWSC 594
R v Scott [2003] NSWCCA 28
R v Totten [2003] NSWCCA 207

Texts Cited:
Nil

Category: Principal judgment
Parties: Haisem Zahab (Applicant)
The Crown (Respondent)
Representation:
Counsel:
C Smith SC with R El-Choufani (Applicant)
P R McGuire SC with M Kalyk (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2017/63591
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 629

Date of Decision:

7 June 2019

Before:

Bellew J

File Number(s):

2017/63591

Judgment

BATHURST CJ: The applicant, Haisem Zahab (the applicant) pleaded guilty to two counts on an indictment presented on 27 May 2019.
The first count was that between about 1 December 2014 and about 28 February 2017 the applicant, contrary to s 102.7(1) of the Criminal Code (Cth), intentionally provided support or resources to a terrorist organisation, namely Islamic State, that would help the organisation engage directly or indirectly in preparing, planning, assisting in or fostering the doing of a terrorist act, knowing the organisation was a terrorist organisation. The support particularised was the research into and development of a laser warning receiver, and rockets and a rocket guidance method.
The second count on the indictment was that between about 28 February 2017 and about 1 March 2017 the applicant, contrary to s 3LA(5) of the Crimes Act 1914 (Cth) failed to comply with an order under s 3LA(2) of the Crimes Act. The offence involved refusing to provide passwords to police to allow them to unlock devices on which there was encrypted material.
The offence the subject of count 1 on the indictment carries a maximum penalty of 25 years imprisonment, whilst the offence the subject of count 2 carries a maximum penalty…

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 Zahab v R

Details

AGLC: Zahab v R [2021] NSWCCA 7
Case: [2021] NSWCCA 7
Decision Date: 05 February 2021

CaseChat Overview and Summary

In the case of Zahab v R, the appellant sought to appeal against the sentence imposed by the sentencing judge. The appellant was sentenced to a term of imprisonment, with specific conditions attached, and was to serve that term at the High Risk Management Correctional Centre. The appeal focused on the onerous conditions of custody and whether the sentencing judge had failed to take these conditions into account when determining the sentence.

The primary legal issue before the court was whether the sentencing judge had adequately considered the conditions of the appellant’s custody when imposing the sentence. This involved examining the evidence presented regarding the conditions at the HRMCC and determining whether there was sufficient evidence to conclude that the conditions were particularly onerous. The court also had to assess whether, in the absence of detailed evidence, the sentencing judge could still have appropriately factored in the conditions of custody when determining the sentence.

The court found that while the evidence regarding the conditions at the HRMCC was limited, it was not necessary for the sentencing judge to have detailed evidence in order to take the conditions into account. The court determined that the onerous nature of the conditions was a matter of common knowledge and understanding, which could be reasonably inferred by the sentencing judge. The court further found that the sentencing judge had indeed considered the conditions of custody, albeit not in explicit terms, and had appropriately balanced these conditions against the gravity of the offence when determining the sentence. Consequently, the appeal against sentence was dismissed.

No further orders were made by the court.

Orders