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Zaky v R (Cth)

Zaky v R (Cth)

Case [2017] NSWCCA 141 23 June 2017

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zaky v R (Cth) [2017] NSWCCA 141
Hearing dates: 2 June 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Before: Hoeben CJ at CL at [1]
Garling J at [66]
Bellew J at [67]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – six offences of defraud Commonwealth and obtain a financial advantage by deception – single ground of appeal – incorrect statement of maximum penalty – clear indications that sentencing judge aware of correct maximum sentence – no error established – application for leave to appeal dismissed.
Legislation Cited: Crimes Act 1914 (Cth) – s 29D
Criminal Appeal Act 1912 (NSW) – s 6(3)
Criminal Code 1995 (Cth) – s 134.2(1)
Cases Cited: Stephen Leslie Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
Bidgood v R [2016] NSWCCA 138
Donaghey v R [2015] NSWCCA 119
Hurst v R [2017] NSWCCA 114
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Stephen Leslie Newton v R [2009] NSWCCA 128
Zaky v R [2015] NSWCCA 161
Category: Principal judgment
Parties: Ezzat Zaky – Applicant
Regina (Cth) – Respondent Crown
Representation:
Counsel:
Mr C Taylor – Applicant
Ms J Single – Respondent Crown
Solicitors:
CBD Criminal Defence Lawyers – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2013/265515;2013/265499
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 September 2015

Before:

Syme DCJ

File Number(s):

2013/265515;
2013/265499

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was convicted after pleading guilty to one offence, pursuant to s 29D of the Crimes Act 1914 (Cth) (Crimes Act) (defraud the Commonwealth) and six offences pursuant to s 134.2(1) of the Criminal Code 1995 (Cth) (Code) (obtain a financial advantage by deception). He was sentenced by Syme DCJ in the District Court of NSW on 23 September 2015.

The maximum penalty for the offence under s 29D of the Crimes Act was imprisonment for 10 years and/or a pecuniary penalty of $110,000. The maximum penalty for each of the offences under s 134.2(1) of the Code was imprisonment for 10 years.
Her Honour sentenced the applicant to a term of imprisonment of 5 years to be released on a recognisance release order after 2½ years on entering into a bond to be of good behaviour for a period of 3 years in the sum of $5,000 self-surety. The applicant is eligible for release on 22 March 2018.
The following individual sentences were imposed:

Sequence 1 – s 29D Crimes Act – parenting payment of $14,679.55 – imprisonment for 2 years commencing 23 May 2016.

Sequence 2 – s 134.2(1) Code – 24 May 2001 to 31 May 2005 – parenting payment of $33,582.55 – imprisonment for 4 years commencing 23 September 2016.

Sequence 3 – s 134.2(1) Code – 8 October 2005…

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 (Cth)

Details

AGLC: Zaky v R (Cth) [2017] NSWCCA 141
Case: [2017] NSWCCA 141
Decision Date: 23 June 2017

CaseChat Overview and Summary

The applicant, Zaky, sought leave to appeal against his sentence for six counts of defrauding the Commonwealth and obtaining a financial advantage by deception. The sentencing judge had imposed a total sentence of five years imprisonment, and the appeal was based on the contention that the sentencing judge had incorrectly stated the maximum penalty for the offences. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge had erred in stating the maximum penalty for the offences. Zaky argued that the sentencing judge had incorrectly stated the maximum penalty, which led to an improper calculation of the sentence. The Crown, however, contended that the sentencing judge had clearly indicated awareness of the correct maximum penalty and that no error had been established.

The court considered whether the sentencing judge had erred in the statement of the maximum penalty for the offences. It noted that, while the judge had initially provided an incorrect maximum penalty, there were clear indications throughout the sentencing remarks that the judge was aware of the correct maximum penalty. The court concluded that the sentencing judge had not erred in the imposition of the sentence and that the applicant had not established any ground for leave to appeal. Consequently, the application for leave to appeal was dismissed.

The court found no merit in the applicant's argument and dismissed the application for leave to appeal against his sentence.

Orders