Zorkau v The Queen - [2021] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0258

STEPHEN ZORKAU	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2021
DATE OF JUDGMENT:	24 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 184
JUDGMENT APPEALED FROM:	[2020] VCC 1363 (Judge Mullaly)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Two charges of theft, one charge of burglary, one charge of attempted burglary – Aggregate sentence 2 years and 8 months’ imprisonment – Non‑parole period 1 year and 10 months – Whether judge mischaracterised gravity and moral culpability – Whether judge took into account material relating to non‑charged criminal activity – Whether sentence manifestly excessive – Whether judge breached parity principle – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Nathwani	Criminal Lawyers Geelong
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA:

Introduction and summary

On 18 August 2020, the applicant pleaded guilty to two charges of theft,[1] one charge of burglary[2] and one charge of attempted burglary.[3] On 1 September 2020, Judge Mullaly of the County Court imposed an aggregate sentence of 2 years and 8 months’ imprisonment with a non-parole period of 1 year and 10 months.[4]
[1]Crimes Act 1958 s 74(1). The maximum penalty is 10 years’ imprisonment.
[2]Crimes Act s 76. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act ss 76, 321M and 321P(1)(a). The maximum penalty is 5 years’ imprisonment.
[4]DPP v Zorkau [2020] VCC 1363 (‘Sentencing remarks’).

The applicant seeks leave to appeal from his sentence on the following grounds:[5]

1The Learned Judge fell into specific error in finding that the offences were of a high gravity with [a] high moral culpability for the Applicant.
2The Learned Judge fell into error in considering material relevant to offences the Applicant was not charged with.
3In all the circumstances, the sentence imposed was manifestly excessive.
4In all the circumstances, the sentence imposed upon the Applicant as compared to the sentences imposed on his co-accused, Humm and Tsatsaronis, gives rise to a justifiable sense of grievance.[6]

[5]All references to grounds of appeal in these reasons are to proposed grounds of appeal.

[6]The fourth ground was added by leave granted on 12 May 2021. At the hearing of the application for leave to appeal, the applicant abandoned reliance on the sentence imposed upon Tsatsaronis in relation to ground 4.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

The offending occurred between 8 and 13 December 2019. The applicant was a party to a criminal enterprise with three co-accused, Humm, Tsatsaronis and Vautier. The co-accused are alleged to have offended over a lengthier period. In the case of Humm, that period was from 6 October until…

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 Zorkau v The Queen

Details

AGLC: Zorkau v The Queen [2021] VSCA 184
Case: [2021] VSCA 184
Decision Date: 24 June 2021

CaseChat Overview and Summary

Zorkau v The Queen involved the defendant appealing against a sentence imposed following convictions for two charges of theft, one charge of burglary, and one charge of attempted burglary. The High Court of Australia considered the appeal against sentence, which was an aggregate of 2 years and 8 months’ imprisonment with a non-parole period of 1 year and 10 months. The defendant contended that the trial judge mischaracterised the gravity and moral culpability of the offences, improperly considered material relating to non-charged criminal activity, and that the sentence was manifestly excessive and breached the parity principle.

The legal issues before the court were whether the trial judge had mischaracterised the gravity and moral culpability of the offences, whether the judge had taken into account material relating to non-charged criminal activity, whether the sentence was manifestly excessive, and whether the sentence breached the parity principle. The defendant argued that the trial judge did not adequately consider the mitigating factors and that the sentence imposed was disproportionate to the crimes committed.

The court, in rejecting the appeal, found that the trial judge did not mischaracterise the gravity and moral culpability of the offences. The judge had considered all relevant factors, including the mitigating aspects presented by the defendant. The court also found that the trial judge did not improperly consider material relating to non-charged criminal activity. The sentence imposed was deemed proportionate to the seriousness of the crimes, taking into account the need for deterrence and rehabilitation. Consequently, the appeal was dismissed, and the application for leave to appeal was refused.

Orders