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Zahorsky v The Queen

Zahorsky v The Queen

Case [2013] NSWCCA 268 12 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zahorsky v R [2013] NSWCCA 268
Hearing dates: 14 October 2013
Decision date: 12 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [66]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal -Applicant convicted after trial in February 2010 - offences of causing a person to take an intoxicating substance with intent to have sexual intercourse without consent (s.38(b) Crimes Act 1900), indecent assault (s.61L) and having sexual intercourse without consent (s.61I) - s.61I offence only subject to standard non-parole period - sole ground of appeal asserted Muldrock error - no appeal in relation to sentences for other offences - Muldrock error demonstrated -whether some lesser sentence warranted in law - where challenge is made to only one of several sentences imposed at the same time - held no lesser sentence warranted in law - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: Abdul v R [2013] NSWCCA 247
Ali v R [2010] NSWCCA 35
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Christie v R [2012] NSWCCA 228
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Essex v R [2013] NSWCCA 11
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v TA [2003] NSWCCA 191; 57 NSWLR 444
R v Thalari [2009] NSWCCA 170; 75 NSWLR 307
Shortland v R [2013] NSWCCA 4
Williams v R [2012] NSWCCA 172
Texts Cited: ---
Category: Principal judgment
Parties: Lubo Zahorsky (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr CJ Bruce SC (Applicant)
Ms TL Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/4674
Publication restriction: ---
Decision under appeal

Citation:

---

Before:

Knox SC DCJ

File Number(s):

2009/4674

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes.

JOHNSON J: This is an application by Lubo Zahorsky for an extension of time to seek leave to appeal against one of three sentences imposed in the District Court in 2010.

The Sentences

Following a trial that proceeded between 1 and 12 February 2010, the Applicant was convicted by a jury of the following offences (all committed on 23 December 2007):

(a) causing a person to take an intoxicating substance with intent to commit sexual intercourse without consent, contrary to s.38(b) Crimes Act 1900 - maximum penalty 25 years' imprisonment;

(b) indecent assault contrary to s.61L Crimes Act 1900 - maximum penalty five years' imprisonment;

(c) having sexual intercourse without consent contrary to s.61I Crimes Act 1900 - maximum penalty 14 years' imprisonment…

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 Zahorsky v The Queen

Details

AGLC: Zahorsky v The Queen [2013] NSWCCA 268
Case: [2013] NSWCCA 268
Decision Date: 12 November 2013

CaseChat Overview and Summary

The appeal in Zahorsky v The Queen involved the applicant, who was convicted in February 2010 of causing a person to take an intoxicating substance with intent to have sexual intercourse without consent, indecent assault, and having sexual intercourse without consent. The applicant sought an extension of time to appeal against his sentence, asserting a Muldrock error in the original sentencing. The sole ground of appeal was the assertion of a Muldrock error, and no appeal was made in relation to the sentences for the other offences. The applicant argued that due to the Muldrock error, a lesser sentence was warranted in law.

The legal issue before the court was whether a lesser sentence was warranted in law given the identified Muldrock error. The court considered the nature of the appeal, which challenged only one of several sentences imposed simultaneously. The court noted that the offence of having sexual intercourse without consent was the only one subject to a standard non-parole period. The court held that no lesser sentence was warranted in law, finding insufficient prospects of success on the appeal. Consequently, the application for an extension of time to appeal was refused.

The court's reasoning focused on the limited scope of the appeal and the absence of a lesser sentence warranted in law. Given that the appeal pertained to only one of the multiple sentences, the court determined that the prospects of success were insufficient. The Muldrock error was acknowledged, but it did not lead to a lesser sentence being justified. The application for an extension of time to appeal was denied as a result of these findings.

Orders