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Zerafa v The King

Zerafa v The King

Case [2023] NSWCCA 109 19 May 2023

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zerafa v R [2023] NSWCCA 109
Hearing dates: 10 May 2023
Date of orders: 19 May 2023
Decision date: 19 May 2023
Before: Beech-Jones CJ at CL at [1];
Adamson JA at [2];
Price J at [3]
Decision:
(1) Extend the time for leave to appeal.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal against aggregate sentence – whether sentence is manifestly excessive – whether sentence discount applied to all offences – whether Bugmy principles applied

Legislation Cited:
Crimes Act 1900 (NSW) ss 33B(1)(a), 112(3)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2C)
Firearms Act 1996 (NSW) ss 4, 7(1)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; 87 ALJR 1022; 302 ALR 192; 229 A Crim R 337; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kliendienst v R [2020] NSWCCA 98
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McTague v R [2020] NSWCCA 83
Noonan v R [2021] NSWCCA 35
R v AA [2006] NSWCCA 55
R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534
R v Zerafa [2021] NSWDC 547
Vaughan v R [2022] NSWCCA 3
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Storm Leigh Zerafa (aka Storm Leigh Hyde aka Storm Leigh Mellish) (Applicant)
Rex (Respondent)
Representation:
Counsel:
Unrepresented (Applicant)
D Scully (Respondent)
Solicitors:
Unrepresented (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/215692
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Common Law

Citation:

[2021] NSWDC 547

Date of Decision:

15 October 2021

Before:

Colefax SC DCJ

File Number(s):

2020/215692

JUDGMENT

BEECH-JONES CJ at CL: I agree with Price J.
ADAMSON JA: I agree with Price J.
PRICE J: Storm Leigh Zerafa (‘the applicant’) seeks leave to appeal against the aggregate sentence imposed by Colefax DCJ (‘the judge’) on 15 October 2021.
The applicant’s notice of intention to appeal was filed three days late. The Crown did not oppose an extension.
The applicant pleaded guilty to three offences:

Sequence 8: Possession of an unauthorised firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years’ imprisonment with a standard non-parole period of 4 years’ imprisonment.

Sequence 10: Threatening to use an offensive weapon with intent to commit a serious indictable offence (namely intimidation) contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence…

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 Zerafa v The King

Details

AGLC: Zerafa v The King [2023] NSWCCA 109
Case: [2023] NSWCCA 109
Decision Date: 19 May 2023

CaseChat Overview and Summary

The appellant, Zerafa, appealed against his aggregate sentence following convictions for multiple serious criminal offences. The High Court of Australia was tasked with determining whether the sentence imposed was manifestly excessive and whether the trial judge had appropriately applied the principles of Bugmy v The Queen in discounting the sentence. The appellant argued that the aggregate sentence was manifestly excessive and that the trial judge had not adequately considered the principles of Bugmy in applying the sentence discount.

The legal issues before the court involved assessing the appropriate application of the principle of Bugmy, which requires courts to consider the impact of an Aboriginal or Torres Strait Islander defendant's background and circumstances when determining the appropriate sentence. The court also had to determine whether the trial judge had applied an appropriate discount for the aggregate sentence and whether the sentence imposed was manifestly excessive.

The court found that the trial judge had appropriately applied the principles of Bugmy and had given due consideration to the appellant's background and circumstances. The court held that the trial judge had not erred in the application of the discount for the aggregate sentence and that the sentence imposed was not manifestly excessive. The appeal was therefore dismissed. The court emphasised the importance of considering the principles of Bugmy when sentencing Aboriginal and Torres Strait Islander defendants and highlighted the need for trial judges to carefully consider the appropriate discount for an aggregate sentence.

Orders