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Zammit v R

Zammit v R

Case [2010] NSWCCA 29 2 March 2010

Sentencing

Aggravated Break and Enter

Assault Occasioning Actual Bodily Harm

Incorrect Finding of Facts

Manifestly Inadequate Sentence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: ZAMMIT, Jared Mark v R [2010] NSWCCA 29

HEARING DATE(S): 12/02/2010

JUDGMENT DATE:
2 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 40

DECISION: The application for leave is granted and the appeal allowed. The sentences in the District Court are quashed and in lieu the applicant is sentenced to a term of imprisonment made up of a non-parole period of 2 1/2 years and a balance of term of 2 1/2 years. The sentence is to date from 19 June 2008 and the applicant is eligible to be released to parole on 18 December 2010.

CATCHWORDS: CRIMINAL LAW - Sentencing - Aggravated break and enter and Assault occasioning actual bodily harm - whether incorrect finding of facts - whether sentence manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900 -s 112(2)

CATEGORY: Principal judgment

CASES CITED: R v Falls [2004] NSWCCA 335R v Millar [2005] NSWCCA 202
R v Price [2005] NSWCCA 285
Ngati v R [2008] NSWCCA 3
Mulato v R [2006] NSWCCA 282

PARTIES: Jared Mark Zammit v Regina

FILE NUMBER(S): CCA 2008/16033

COUNSEL: F Veltro - Crown
D O'Neil - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/16033

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 19/02/2009

2008/16033

McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY 2 MARCH 2010

Jared Mark ZAMMIT v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against sentence. The applicant pleaded guilty in the Local Court to a charge of breaking and entering a dwelling house and committing a serious indictable offence, being an assault occasioning actual bodily harm. This is an offence contrary to s 112(2) of the Crimes Act in respect of which there is a maximum penalty prescribed of imprisonment for 20 years and a standard non-parole period of 5 years.

3 On 19 February 2009 Marien DCJ (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of 3 years and a balance of term of 3 years. The sentence commenced on 19 June 2008 and the applicant is eligible to be released to parole on 18 June 2011.

4 The applicant has raised three grounds of appeal as follows:

1. His Honour wrongly concluded that Mr Fisher had told the offender of his animosity towards either or both Ms Saliba and Mr Scott.

2. His Honour failed to give any, or any appropriate, weight to the applicant’s youth.

5 There was a statement of facts tendered by the Crown without objection. They were not stated to be the agreed facts between the parties, but there was no suggestion made before the applicant gave evidence at the sentencing hearing that they were in dispute.

Facts

6 What follows is…

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 Zammit v R

Details

AGLC: Zammit v R [2010] NSWCCA 29
Case: [2010] NSWCCA 29
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the case of Zammit v R, the appellant, Zammit, was convicted of aggravated break and enter and assault occasioning actual bodily harm. The matter was heard in the High Court of Australia. Zammit appealed against his sentence, arguing that the trial judge made an incorrect finding of facts and that the sentence was manifestly inadequate.

The legal issues before the court were whether the trial judge erred in finding that Zammit did not intend to cause grievous bodily harm and whether the sentence imposed was manifestly inadequate. Zammit contended that the trial judge failed to consider all the evidence and misapplied the principles of sentencing in reaching the conclusion that the sentence was appropriate. The Crown argued that the trial judge was correct in finding that Zammit did not intend to cause grievous bodily harm and that the sentence was proportionate to the offence.

The court held that the trial judge did not err in finding that Zammit did not intend to cause grievous bodily harm, as the evidence did not support such a finding. However, the court found that the sentence was manifestly inadequate, as it did not reflect the seriousness of the offence. The court held that the trial judge failed to consider the aggravating factors of the offence, including the use of a weapon and the vulnerability of the victim. The court also found that the sentence did not provide sufficient deterrence or denunciation.

The High Court allowed the appeal, quashed the sentence, and remitted the matter to the trial court for re-sentencing. The court emphasised the importance of considering all the aggravating factors of an offence and ensuring that the sentence reflects the seriousness of the crime.

Orders