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Zaim v The Queen

Zaim v The Queen

Case [2011] VSCA 80 30 March 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0949

EYYUB BAYRAM ZAIM	Applicant
	V
THE QUEEN	Respondent

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JUDGES	ASHLEY, BONGIORNO and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 March 2011
DATE OF JUDGMENT	30 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 80
JUDGMENT APPEALED FROM	DPP (Vic) v Zaim [2008] VSC 543

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CRIMINAL LAW – Conviction – Applicant convicted of murder pursuant to s 3A of the Crimes Act 1958 – Whether conviction was unsafe and unsatisfactory – Evidence of important witness inconsistent with other evidence adduced at trial – Whether trial judge erred in his directions to the jury on the issue of causation – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Applicant sentenced to total effective sentence of 17½ years’ imprisonment with non-parole period of 14½ years – Sentencing judge intended to fix ‘relatively short’ non-parole period – Whether he did so – Whether sentence manifestly excessive – Whether sentencing judge erred in sentencing the applicant on the basis of reckless indifference to human life – Application for leave to appeal against sentence granted – Appeal allowed – Sentences imposed below and order for cumulation confirmed – Non-parole period reduced to 13½ years.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant:	Mr M D Stanton	Robert Stary Lawyers
For the Crown:	Mr J McArdle QC with Mr C Carr	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have read the reasons for judgment of Bongiorno JA, and respectfully agree with them. I add, simply to underline what should otherwise be obvious, that the non-parole period which Bongiorno JA proposes is not premised upon the non‑parole period fixed by the learned sentencing judge being manifestly excessive, but rather upon there being a disconformity between what his Honour said that he would do and what he in fact did. There is a relevant similarity between this case and Diver v The Queen,[1] where I attempted to make it clear – perhaps I did not do it well enough – that the challenge to the non-parole period was being upheld on the basis of specific error.
[1][2010] VSCA 254, particularly [30], [31], [33] and [36].

BONGIORNO JA:

In 1981, the Victorian Parliament passed the Crimes (Classification of Offences) Act 1981 which abolished the legal distinction between felony and misdemeanour – the historical common law classification of indictable offences. Consequent upon that abolition, the same statute provided for a statutory form of constructive murder to deal with those cases previously rendered criminal by what was known as the ‘felony‑murder’ rule. Hence, s 3 of that Act inserted s 3A into the Crimes Act 1958. In its current form, that provision is as follows:

3AUnintentional killing in the course or furtherance of a crime of violence
(1)A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include…

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 Zaim v The Queen

Details

AGLC: Zaim v The Queen [2011] VSCA 80
Case: [2011] VSCA 80
Decision Date: 30 March 2011

CaseChat Overview and Summary

In the case of Zaim v The Queen, the applicant appealed against both his conviction and sentence. The applicant was convicted of murder under section 3A of the Crimes Act 1958 and sentenced to a total effective term of 17½ years’ imprisonment with a non-parole period of 14½ years. The central legal issues were whether the conviction was unsafe and unsatisfactory due to inconsistencies in the evidence, and whether the sentence was manifestly excessive or based on an erroneous legal principle.

The court found that the conviction was safe and satisfactory, despite the inconsistencies in the evidence. The trial judge's directions to the jury regarding causation were deemed appropriate. The court concluded that the jury was properly directed to consider the applicant’s state of mind, specifically his reckless indifference to human life, which was supported by the evidence. Regarding the sentence, the court found that the non-parole period was relatively short, and the sentencing judge had not erred in his consideration of the applicant’s state of mind. However, the court determined that the sentence was manifestly excessive and allowed the appeal on the basis of the sentence. The non-parole period was reduced to 13½ years, and the sentences imposed below and the order for cumulation were confirmed.

The final orders of the court were to confirm the sentences imposed below and the order for cumulation, with the non-parole period reduced to 13½ years. The appeal against the conviction was dismissed, while the appeal against the sentence was allowed, resulting in the reduction of the non-parole period.

Orders