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 1986Cases 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 172Texts 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…
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- AGLC
- Zahorsky v The Queen [2013] NSWCCA 268
- Case
- [2013] NSWCCA 268
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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