Zakkour v The Queen - [2020] VSCA 72

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2020 0027

MAROUN ZAKKOUR	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 72
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, 11 December 2019, Judge Smith)

---

CRIMINAL LAW — Appeal — Sentence — Summary charge of possessing a controlled weapon — Home-made laser pointer — Sentence of two months’ imprisonment to be served cumulatively on sentences for other offending — Sentence manifestly excessive — Appeal allowed — Appellant convicted and discharged.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Barker	Emma Turnbull Lawyers
For the Respondent	Mr N Hutton	Ms A Hutton, Solicitor for Public Prosecutions

PRIEST JA:

On 6 November 2019, the applicant pleaded guilty before a judge in the County Court to criminal damage[1] and attempting to pervert the course of justice.[2] He also pleaded guilty to two summary offences,[3] carrying a prohibited weapon without exemption or approval[4] (‘the weapon offence’) and contravening a family violence intervention order.[5]
[1]Crimes Act 1958, s 197. The maximum penalty is 10 years’ imprisonment.
[2]Common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.
[3]See Criminal Procedure Act 2009, s 145.
[4]Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or imprisonment for two years (or both).
[5]Family Violence Protection Act 2008, s 123(2). The maximum penalty is 240 penalty units or imprisonment for two years (or both).

This application for leave to appeal against sentence concerns only the sentence imposed on the weapon offence.

By virtue of s 3(1) of the Control of Weapons Act 1990 (‘the Act’), a prohibited weapon is ‘an imitation firearm or an article that is prescribed by the regulations to be a prohibited weapon’. Regulation 8 of the Control of Weapons Regulations 2011 (‘the Regulations’) provides that, for the purposes of the definition of prohibited weapon in s 3(1) of the Act, ‘an article listed or described in Schedule 3 is a prohibited weapon’. Item 33 of Schedule 3 lists as a prohibited weapon:

A hand-held battery-operated article commonly known as a ‘laser pointer’ designed or adapted to emit a laser beam with an accessible emission limit of greater than 1 mW.^[[6]]

The ‘laser pointer’ falls within a list of prohibited weapons which includes such things as Flick knife, Dagger, Knuckle knife, Butterfly knife, Throwing blade, Ballistic knife, Crossbow, Blow gun, Extendable baton, Knuckleduster, Throwing star, Sword, and a host of other weapons (such as a mace, a flail, a cat-o’-nine tails with knotted lashes, a scythe, ninja hand claws, nunchaku, sai, and so on).

[6]The mW, or milliwatt (one thousandth of a Watt), is used to rate the power output of different types of lasers.

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 Zakkour v The Queen

Details

AGLC: Maroun Zakkour v The Queen [2020] VSCA 72
Case: [2020] VSCA 72
Decision Date: 26 March 2020

CaseChat Overview and Summary

The appellant, Zakkour, appealed against his conviction and sentence for possessing a controlled weapon. The case was heard in the court of appeal, where Zakkour contended that the sentence imposed was manifestly excessive. The lower court had found him guilty of possessing a home-made laser pointer and sentenced him to two months' imprisonment, to be served cumulatively on sentences for other offences. Zakkour argued that the sentence was disproportionately harsh given the nature of the weapon and his overall criminal history.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the appellant should be discharged. The court considered the principles of sentencing for summary offences, the nature of the weapon in question, and the cumulative effect of the sentence on the appellant's overall punishment. It also examined whether the sentence was proportionate to the offence and whether the appellant's criminal history justified the severity of the penalty.

The court found that the sentence of two months’ imprisonment, to be served cumulatively on other sentences, was manifestly excessive. It determined that the nature of the weapon—a home-made laser pointer—did not warrant such a severe penalty, and that the cumulative effect of the sentence significantly exceeded what was appropriate for the offence. Consequently, the court allowed the appeal, discharged the appellant, and quashed the conviction.

No further orders were made as the appellant had already served the sentence imposed. The court’s decision highlighted the importance of proportionality in sentencing, particularly in cases involving summary offences and relatively minor weapons.

Orders