ZORBAS -v- THE QUEEN [2004] WASCA 27

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 27
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:48/2003	Heard:	2 DECEMBER 2003
Coram:	WHEELER J MCLURE J WALLWORK AJ	Delivered:	5/03/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal granted, Appeal allowed
Category:	B
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Parties:	PETER STEVEN ZORBAS THE QUEEN
Catchwords:	Sentencing Remorse Armed robbery Turns on own facts
Legislation:	Nil
Case References:	Paparone v The Queen [2000] WASCA 127 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ZORBAS -v- THE QUEEN [2004] WASCA 27 CORAM : WHEELER J

MCLURE J

WALLWORK AJ

HEARD : 2 DECEMBER 2003 DELIVERED : 5 MARCH 2004 FILE NO/S : CCA 48 of 2003 BETWEEN : PETER STEVEN ZORBAS

Applicant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : EM HEENAN J

File Number : INS 116 of 2002

Catchwords:

Sentencing - Remorse - Armed robbery - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Leave to appeal granted

Appeal allowed

Category: B

Representation:

Counsel:

Applicant : Mr D P A Moen

Respondent : Mr K P Bates & Ms K E Ellson

Solicitors:

Applicant : David Manera

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Paparone v The Queen [2000] WASCA 127

Case(s) also cited:

Nil

(Page 3)

1 WHEELER J: The applicant applies for leave to appeal against sentence in respect of two matters. In February last year he stood trial on an indictment alleging one count of attempted armed robbery in company and one of armed robbery in company. In respect of the attempted armed robbery in company, he entered a plea of not guilty, but was convicted by the jury of attempted armed robbery with the aggravating circumstance of being armed with an offensive weapon. By its verdict, the jury acquitted him of being in company on that occasion. In respect of the second count, he entered a plea of guilty to armed robbery and to the aggravating circumstance of being armed with an offensive weapon (namely a knife), but denied the aggravating circumstance of being in company. By its verdict, the jury found that he had committed that offence and had on that occasion been in company. He received a sentence of 5 years imprisonment in respect of the first count and 8 years in respect of the second, to be served concurrently with eligibility for parole.

2 Circumstances of the offences were briefly as follows. On the evening of 5 October 2001 the applicant and his co-offender had been with three other friends to a house in Swanbourne where three further friends were living. It was initially a social call. There was evidence of the consumption of alcohol and marijuana, although precisely how much of each substance was consumed and by whom, was not entirely clear. During the course of…

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 Zorbas v The Queen

Details

AGLC: Zorbas v The Queen [2004] WASCA 27
Case: [2004] WASCA 27
Decision Date: 5 MARCH 2004

CaseChat Overview and Summary

In the case of Zorbas v The Queen, the defendant, Zorbas, was convicted of armed robbery and was sentenced to a term of imprisonment. The appeal against the severity of the sentence was heard by the court, which was tasked with determining whether the original sentencing was appropriate given the circumstances of the case and the defendant's level of remorse. The central issue for the court was whether the trial judge had adequately considered the defendant's expressions of remorse in determining the sentence. The court also needed to assess whether the sentence imposed was excessive or disproportionate to the crime committed.

The court examined the sentencing principles applicable to armed robbery and the role of remorse in mitigating the sentence. It was held that the trial judge had failed to give sufficient weight to the defendant's remorse, which was genuine and evident. The court found that the trial judge's assessment of the defendant's culpability and the seriousness of the crime did not adequately reflect the mitigating effect of the remorse shown. The court concluded that the sentence imposed was too severe, given the mitigating factor of remorse, and ordered a reduction in the sentence. Consequently, the appeal was allowed and the original sentence was set aside.

Orders

Orders of the court

Leave to appeal granted, Appeal allowed

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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