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
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
R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525; [2001] NSWCCA 534
Category: Principal judgment Parties: Storm Leigh Zerafa (aka Storm Leigh Hyde aka Storm Leigh Mellish) (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
Unrepresented (Applicant)
D Scully (Respondent)
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:
- 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…
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- AGLC
- Zerafa v The King [2023] NSWCCA 109
- Case
- [2023] NSWCCA 109
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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