Zeiser v R - [2020] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zeiser v R [2020] NSWCCA 154
Hearing dates: 3 July 2020
Date of orders: 3 July 2020
Decision date: 10 July 2020
Before: Payne JA; Fagan J; Cavanagh J
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed in respect of the sentence fixed by Acting Judge Latham on 29 March 2019, for the single count of robbery in company on 31 July 2017 and the sentence is quashed.
(3) In lieu thereof the applicant is sentenced for that offence to imprisonment for 2 years and 6 months commencing on 2 August 2019 and expiring on 1 February 2022 with a non-parole period of 1 year and 10 months to expire on 1 June 2021.

Catchwords:
CRIME – appeals – sentence appeal – several counts of robbery in company – whether sentencing judge failed to consider utilitarian value of plea of guilty – error in calculation established – appeal granted – sentence adjusted

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Category: Principal judgment
Parties: Michael Zeiser (applicant)
Regina (respondent)
Representation:
Counsel:
A Evers (applicant)
M Millward (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Director of Public Prosecutions (respondent)

File Number(s): 2017/235720
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court Wollongong

Jurisdiction:

Criminal

Date of Decision:

29 March 2019

Before:

Latham ADCJ

File Number(s):

2017/235720

Judgment

THE COURT: The applicant seeks leave to appeal against sentences imposed by Acting District Court Judge Latham at Wollongong, as follows:

For one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW), committed against a single victim on 31 July 2007: 3 years imprisonment with a non-parole period of 2 years.

For each of three counts of robbery in company committed against a further three victims on 1 August 2017: three wholly concurrent sentences of 5 years, each with a non-parole period of 3 years and 9 months.

The three longer sentences for the August robberies were fixed to commence on 2 August 2017, the day the applicant was taken into custody. Those sentences will expire on 1 August 2022. The shorter sentence for the July robbery was fixed to commence two years later, on 2 August 2019, so that it will also expire on 1 August 2022. So far as concerns the total length of time to be served by the applicant, the only effect of the later commencement of the sentence for the July offence is a slight accumulation of the non-parole periods that her Honour specified. The non-parole period of 3 years and 9 months fixed in relation to the three longer sentences ends on 1 May 2021. The non-parole period of two years fixed for the shorter sentence, in respect of the July robbery, will expire on 1 August 2021, an…

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 Zeiser v R

Details

AGLC: Zeiser v The Queen [2020] NSWCCA 154
Case: [2020] NSWCCA 154
Decision Date: 10 July 2020

CaseChat Overview and Summary

In the case of Zeiser v R, the appellant, Mr Zeiser, was convicted of multiple counts of robbery committed in company. The matter was appealed to the court concerning the sentence imposed. The appeal primarily focused on whether the sentencing judge had failed to appropriately consider the utilitarian value of Mr Zeiser's plea of guilty and whether there was an error in the calculation of his sentence. The court was tasked with determining if these issues warranted an adjustment to the sentence imposed.

The legal issues before the court centred on the sentencing judge's consideration of the appellant's guilty plea and the accuracy of the sentence calculation. It was argued that the judge did not adequately account for the utilitarian benefits of the plea, such as saving the state resources and expediting the judicial process. Additionally, it was contended that an arithmetic error had been made in the calculation of the non-parole period, leading to an overestimation of the sentence. The court was required to assess the validity of these claims and decide whether they constituted grounds for altering the sentence.

The court found that the sentencing judge had indeed failed to properly consider the utilitarian value of the appellant's guilty plea, which was a significant factor in mitigating the sentence. Furthermore, the court identified an error in the calculation of the non-parole period, which led to an overestimation of the sentence. As a result, the appeal was granted, and the sentence was adjusted accordingly. The court emphasised the importance of correctly accounting for all relevant factors in sentencing and the necessity of accurate calculations to ensure just outcomes.

Consequently, the court varied the sentence imposed on Mr Zeiser. The new sentence reflected the appropriate consideration of the utilitarian value of the guilty plea and corrected the calculation error identified. The final orders of the court included the adjustment of the non-parole period to accurately reflect the appropriate sentence for the offences committed.

Orders