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Zakhour v The Queen

Zakhour v The Queen

Case [2022] VSCA 63 12 April 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0216

JOCELYN ZAKHOUR

THE QUEEN

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JUDGES:	McLEISH and MACAULAY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 February 2022
DATE OF JUDGMENT:	12 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 63
JUDGMENT APPEALED FROM:	[2020] VCC 1509 (Judge Lyon)

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CRIMINAL LAW – Appeal – Sentence – Where compensation orders and pecuniary penalty order made for same amount of money constituting loss and benefit – Appeal against pecuniary penalty order ‘in the same manner as if it were, or were part of, the sentence’ – Error in making pecuniary penalty order by failing to consider relevant matter – Whether error in making pecuniary penalty order reopens sentencing discretion – Despite error, no reasonable prospect Court would reduce total effective sentence – Criminal Procedure Act 2009, ss 3, 278, 280(1)(b) and 280(3)(a) – Sentencing Act 1991, ss 3 and 5(2A) – Confiscation Act 1997, ss 31, 58, 59 and 142 – R v McLeod (2007) 16 VR 682, R v El Cheikh [2004] VSCA 146, Ludeman v The Queen (2010) 31 VR 606, DPP v Anderson [2020] VCC 1627 considered – Leave to appeal refused – Sentence amended by discharge of pecuniary penalty order.

CRIMINAL LAW – Appeal – Sentence – Obtaining financial advantage by deception – Blackmail – Extortion – Applicant derived money from offending after forming intimate relationships with victims met on Tinder – Whether finding made about use of Tinder as ‘hunting ground’ open to be made – Whether finding denied applicant natural justice – Whether sentence manifestly excessive – Clarkson v The Queen (2011) 32 VR 361 applied – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
MACAULAY JA:

Jocelyn Zakhour, the applicant, pleaded guilty in the County Court to six charges of obtaining financial advantage by deception,[1] three charges of blackmail[2] and two charges of extortion (with threat to inflict injury).[3] She was sentenced on 22 September 2020 by Judge Lyon[4] after plea hearings on 30 July and 18 September 2020. The judge imposed a total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and eight months. The applicant has sought leave to appeal her sentence.
[1]Crimes Act 1958 (‘Crimes Act’), s 82.
[2]Crimes Act, s 87.
[3]Crimes Act, s 27.
[4]R v Zakhour [2020] VCC 1509 (the ‘Reasons’).

In brief, the applicant was (at the time of offending) a 39-year-old woman who resided at Crown casino. On two occasions, in February 2018 and in June 2018, she ‘matched’ with two men via the online dating application Tinder (first Mr Vince Panagiotidis and then Mr Mark McCraith), formed relationships with them and obtained money from them by making up stories about needing funds to establish…

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 Zakhour v The Queen

Details

AGLC: Zakhour v The Queen [2022] VSCA 63
Case: [2022] VSCA 63
Decision Date: 12 April 2022

CaseChat Overview and Summary

Zakhour appealed against his conviction and sentence for obtaining financial advantage by deception, blackmail, and extortion, where he formed intimate relationships with victims met on Tinder, leading to financial gain. The Court of Appeal considered the arguments regarding the pecuniary penalty order, the use of Tinder as a ‘hunting ground,’ and the overall sentence’s excessiveness. The court found that although there was an error in the making of the pecuniary penalty order, the error did not reopen the sentencing discretion as there was no reasonable prospect the Court would reduce the total effective sentence. The Court also determined that the finding about the use of Tinder was open to be made and did not deny the applicant natural justice. Finally, the Court concluded that the sentence was not manifestly excessive. Consequently, the leave to appeal was refused, and the sentence was amended by discharging the pecuniary penalty order.

The primary legal issues revolved around the error in the pecuniary penalty order, the admissibility of the Tinder finding, and the overall proportionality of the sentence. The court examined whether the error in the penalty order warranted reopening the sentencing discretion and whether the Tinder finding was lawful and fair. Additionally, the court assessed if the sentence was excessively harsh given the circumstances. The Court of Appeal relied on several statutory provisions and precedents, including the Criminal Procedure Act 2009, the Sentencing Act 1991, and the Confiscation Act 1997. The Court also referenced cases such as R v McLeod, R v El Cheikh, Ludeman v The Queen, and DPP v Anderson to guide its reasoning.

The Court of Appeal held that despite the error in the pecuniary penalty order, the sentencing discretion was not reopened because there was no reasonable prospect the Court would reduce the total effective sentence. The court found that the error did not impact the overall sentence significantly enough to warrant a reduction. Regarding the Tinder finding, the Court concluded that it was open to be made and did not deny the applicant natural justice. The Court found that the sentence, although severe, was not manifestly excessive considering the nature and impact of the offences. Consequently, the leave to appeal was refused, and the sentence was amended by discharging the pecuniary penalty order to correct the error without altering the overall sentence.

Orders