Zahed, Abdul v The King - [2025] NSWCCA 24

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Zahed, Abdul v R [2025] NSWCCA 24
Hearing dates: 12 February 2025
Date of orders: 28 February 2025
Decision date: 28 February 2025
Before: Basten AJA at [1];
McNaughton J at [58];
Weinstein J at [59]
Decision:
(1) Grant the applicant leave to appeal against the sentence imposed on him for being an accessory after the fact to murder.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeal against sentence – conviction for being accessory after the fact to murder – offender said to have acted out of “misguided sense of loyalty” to brother – lengthy criminal history – risk of institutionalisation – low objective gravity – manifest excess
EVIDENCE – sentencing on basis of agreed facts – agreed facts in relation to sentencing of co-offender tendered on issue of parity – agreement in that case that brother shot victim not accepted as a fact – rules of evidence not applicable – no error in refusing to rely on facts agreed in other case except on parity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Evidence Act 1995 (NSW), ss 4, 60, 136

Cases Cited:
Barrett v R [2011] NSWCCA 213
Jackson v R [2010] NSWCCA 162
Keen v R [2024] NSWCCA 157
Likiardopolous v The Queen (2012) 247 CLR 265; [2012] HCA 37
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
McCosker v R [2022] NSWCCA 127
R v Lemene [2001] NSWCCA 5; 118 A Crim R 131

Category: Principal judgment
Parties: Abdul Kadir Zahed (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
M Thangaraj SC / J Petry (Applicant)
M Millward (Respondent)

Solicitors:
Zahr Partners (Applicant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00265635
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

[2024] NSWSC 695

Date of Decision:

07 June 2024

Before:

Button J

File Number(s):

2022/00265635

JUDGMENT

BASTEN AJA: On 7 June 2024 the applicant, Abdul Kadir Zahed, was sentenced by Button J in the Common Law Division for a single offence of being an accessory after the fact to a murder, on a plea of guilty.^[1] The sentence was 3 years 9 months, with a non-parole period of 2 years 6 months. The non-parole period was fixed to commence on 15 January 2023 and all but six months has now been served.
1. R v Abdul Zahed [2024] NSWSC 695 (“Sentencing judgment”).
The grounds of appeal were as follows:

His Honour erred in giving less weight to the applicant’s having acted out of a misguided sense of loyalty vis-à-vis his brother on the grounds that there was no evidence that the applicant’s brother had committed to the principal offence.

His Honour erred in failing to find special circumstances, notwithstanding the risk of the applicant becoming institutionalised.

The sentence imposed was manifestly excessive.

The murder in question occurred on the night of 10-11 December…

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 Zahed, Abdul v The King

Details

AGLC: Zahed, Abdul v The King [2025] NSWCCA 24
Case: [2025] NSWCCA 24
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the matter of Abdul Zahed, the appellant, against the respondent, the King, the High Court of Australia was tasked with reviewing the sentence imposed on Zahed for his involvement as an accessory after the fact to a murder. The central issue revolved around whether the sentence imposed was manifestly excessive given the circumstances of the case and Zahed's background. Zahed, who had a lengthy criminal history, claimed that his actions were driven by a misguided sense of loyalty to his brother, who was the principal perpetrator of the crime. Zahed argued that the objective gravity of his offence was low, and there was a risk of institutionalisation if he were to receive a lengthy prison term.

The court was required to determine whether the sentencing judge erred in considering the agreed facts from a co-offender's sentencing hearing. The court had to assess if there was any procedural unfairness or error in the sentencing process, particularly in light of the appellant's arguments regarding the low objective gravity of his crime and his personal circumstances. The court also had to consider whether the sentence was proportionate to the crime and whether it represented a manifest excess.

The High Court found that there was no error in the trial judge's refusal to rely on the agreed facts from the co-offender's case, except on the issue of parity. The court held that the rules of evidence did not strictly apply in sentencing matters, and it was within the trial judge's discretion to consider the agreed facts on the issue of parity. The court further found that the sentence imposed was not manifestly excessive, taking into account the appellant's criminal history, the nature of his involvement in the crime, and the principle of parity with co-offenders. The appeal was dismissed, and the original sentence was upheld.

Orders