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Zahed v The King

Zahed v The King

Case [2024] NSWCCA 171 18 September 2024

Appeal

Criminal Liability

Sentencing

Comparative Culpability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zahed v R [2024] NSWCCA 171
Hearing dates: 28 August 2024
Date of orders: 18 September 2024
Decision date: 18 September 2024
Before: Fagan J; N Adams J; Faulkner J
Decision:
(1) Grant leave to the applicant to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – appeal against sentence – parity – hindering a police investigation of an unlawful killing – assessment of comparative culpability and subjective circumstances of co-offenders – where appellant’s sentence incomparable with one asserted co-offender – whether one of the persons sentenced was properly to be considered a co-offender – where second co-offender’s objective and subjective factors comparable – modest difference between sentences justified – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Keen v R [2024] NSWCCA 157
Kiraz v R [2023] NSWCCA 177
Lloyd v R [2017] NSWCCA 303
Vujinovic v R [2024] NSWCCA 10

Category: Principal judgment
Parties: Rex (Crown)
Tarek Zahed (Applicant)
Representation:
Counsel:
P Hogan (Crown
S Howell (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Australian Criminal and Family Lawyers (Applicant)

File Number(s): 2022/55623
Publication restriction: No
Decision under appeal

Court or tribunal:

Supreme Court NSW

Jurisdiction:

Criminal

Citation:

[2024] NSWSC 231

Date of Decision:

12 March 2024

Before:

Button J

File Number(s):

2022/255623

HEADNOTE

[This headnote is not to be read as part of the judgment]

Tarek Zahed appealed against a sentence imposed for hindering a police investigation into the unlawful killing of Youssef Assoum, contrary to s 315(1) of the Crimes Act 1900 (NSW). Following a late plea of guilty, the applicant was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months.

On 10 December 2014 Mr Assoum was detained in a Volkswagen Touareg, violently assaulted and shot in the right thigh at close range. Abdul Zahed, the applicant’s brother, was in the vicinity when this assault occurred and was at the scene when Mr Assoum was removed from the vehicle and placed unconscious near Bankstown Hospital. Mr Assoum was pronounced dead in the early hours of 11 December 2014. In the following months Abdul gave several false and misleading statements to investigating officials with the object of assisting those involved to evade detection and punishment. He entered a late plea of guilty to a charge of being accessory after the fact to the murder and was sentenced on 7 June 2024 to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 6 months.

After the events of 10 December 2014, Triantefilos Vlangos was requested by another male, neither the applicant nor his brother, to destroy the Volkswagen Touareg in which Mr Assoum had been assaulted and shot. Vlangos was charged with intentionally attempting to destroy property by fire, contrary to s 195(1)(b) of the Crimes Act. Considering time already served (including a restrictive period of home detention), as well as his plea of guilty,…

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 v The King

Details

AGLC: Zahed v The King [2024] NSWCCA 171
Case: [2024] NSWCCA 171
Decision Date: 18 September 2024

CaseChat Overview and Summary

The appellant was convicted for hindering a police investigation into an unlawful killing, and he appealed the sentence imposed. The appeal focused on the disparity between his sentence and that of a co-offender, asserting that the sentences were not commensurate with their respective roles and culpability in the crime. The court was required to determine whether the sentences were indeed disproportionate and, if so, whether this justified an appeal against the sentence.

The central legal issues the court had to resolve were whether the appellant's sentence was disproportionate when compared to the sentence of a co-offender and whether the second co-offender could be considered a true co-offender for the purposes of assessing the appellant's sentence. The court considered the objective and subjective factors of each offender's involvement in the crime and the relevance of the comparative culpability. It was also necessary to examine the evidence regarding the roles and actions of each defendant in the crime to ascertain whether the disparity in sentences was justified.

In its reasoning, the court found that the appellant's sentence was not disproportionate to that of the co-offender with whom it was compared, as the second co-offender's objective and subjective circumstances were comparable. The court held that the modest difference between the sentences was justified by the factual circumstances and the roles of each offender in the crime. The court concluded that the appellant's appeal against his sentence was without merit and dismissed the appeal. The court found that the sentences were proportionate and reflected the respective roles and culpability of the offenders.

Orders