Zaky v R

Case [2015] NSWCCA 161 25 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zaky v R [2015] NSWCCA 161
Hearing dates: 15 June 2015
Date of orders: 25 June 2015
Decision date: 25 June 2015
Before: Johnson J at [1]
Davies J at [6]
Hamill J at [7]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: SENTENCING – social security fraud – suspended sentences – appropriateness of sentencing option – effectiveness in reducing recidivism rates – erroneous comments in the course of submissions – whether such comments guided sentencing outcome – general rule that comments in argument cannot ground appeal – where judgment reserved – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Regulations 1990 (Cth)
Criminal Code (Cth)
Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
R v Egan [2013] NSWCCA 196
R v Nahlous [2013] NSWCCA 90
Geddes v R [2012] NSWCCA 94
R v Purden (CCA (NSW), 27 March 1997, unrep)
RCW v R (No 2) [2014] NSWCCA 190
R v Van Tang Luu (CCA (NSW), 7 December 1994, unrep)
R v Zamagias [2002] NSWCCA 17
Texts Cited: Australian Law Reform Commission, Same Crime, Same Time - Sentencing of Federal Offenders, Report No 103 (2006)
Lulham, Weatherburn and Bartels, “The recidivism of offenders given suspended sentences: A comparison with full-time imprisonment” Crime and Justice Bulletin: Contemporary Issues In Crime And Justice, vol 136
New South Wales Law Reform Commission, Sentencing, Report No 139 (2009)
Category: Principal judgment
Parties: Manerva Zaky (applicant)
Crown (respondent)
Representation:
Counsel:
A Francis (applicant)
A Williams (respondent)
Solicitors:
LY Lawyers (applicant)
Commonwealth Director of Public Prosecutions (respondent)

File Number(s): 2013/00233336001
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 November 2014

Before:

King SC DCJ

File Number(s):

2013/00233336001

Judgment

JOHNSON J: I have had the advantage of reading the judgment of Hamill J. I agree with his Honour's reasons and proposed orders. I wish to make some brief observations concerning the use of a suspended sentence as a sentencing alternative, a matter touched upon at [29] - [35] of his Honour's judgment.
The Australian Law Reform Commission has observed, in the context of recognizance release orders under s 20(1)(b) Crimes Act 1914 (Cth) (“the Crimes Act”), that the "legitimacy of suspended sentences has historically been a matter of controversy": Report 103, Same Crime, Same Time - Sentencing of Federal Offenders (April 2006), para 7.51. The Commission proceeded to consider the utility of a suspended sentence, recommending that it should remain as a sentencing option, although it was proposed that an express power to suspend a sentence should be enacted: Recommendation 7-7.
In New South Wales, the utility of suspended sentences under s 12 Crimes (Sentencing Procedure) Act 1999 (NSW), (“the Sentencing Act”) was considered by the New South Wales Law Reform Commission in Chapter 10 of Report 139, Sentencing, (July 2013). It was noted that "suspended sentences have…

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 Zaky v R

Details

AGLC: Zaky v The Queen [2015] NSWCCA 161
Case: [2015] NSWCCA 161
Decision Date: 25 June 2015

CaseChat Overview and Summary

The appeal before the court involved Zaky, who was convicted of offences related to social security fraud. Zaky sought to appeal against the sentencing order that was imposed by the primary judge, contending that the sentence was inappropriate and that the court had been influenced by erroneous comments made during the submissions. The appeal was heard in the court of appeal. The primary issues before the court were whether the sentence was appropriate, particularly in light of the sentencing options available, and whether any comments made during the course of the proceedings had improperly influenced the sentencing decision. The court needed to determine whether the sentence was just and whether the comments had any bearing on the outcome, despite the general rule that arguments presented during submissions cannot form the basis of an appeal.

The court considered the nature of the offences and the sentencing options available, including the possibility of a suspended sentence. It examined the effectiveness of different sentencing options in reducing recidivism. The court also scrutinised the submissions made during the proceedings to determine if any erroneous comments had influenced the sentencing decision. It was noted that while comments made in argument generally cannot ground an appeal, the situation might differ when the judgment is reserved. The court concluded that the sentence was appropriate and that there was no evidence that the comments had influenced the outcome. The court held that the general rule applied, and the appeal was dismissed.

Orders