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Zreika v R

Zreika v R

Case [2021] NSWCCA 243 11 October 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zreika v R [2021] NSWCCA 243
Hearing dates: 21 July 2021
Date of orders: 11 October 2021
Decision date: 11 October 2021
Before: Bell P at [1];
Price J at [80];
Hamill J at [81]
Decision:
1.   Extend the time for leave to appeal.
2.   Grant leave to appeal.
3.   Quash the aggregate sentence imposed in the District Court and in lieu thereof the applicant is sentenced to an aggregate sentence of five years and six months (commencing 4 June 2019 and expiring 3 December 2024) with a non-parole period of three years and eight months expiring on 3 February 2023.
4.   The applicant will be eligible for release to parole at the expiration of the non-parole period.
5. Confirm the orders under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) made in the District Court in relation to the offences in sequences 5 (drive while licence suspended) and 6 (drive with unsecured load).
6.   The applicant will be disqualified from driving for the automatic period of three years which will commence upon his release to parole.

Catchwords:
CRIME – Appeals – appeal against sentence – where applicant charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – whether there was error in the assessment of objective seriousness

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 21A, 53A, 166
Crimes Act 1900 (NSW) ss 33-35, 52A(1)(c), 52A(3)(c)
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Procedure Act 1986 (NSW) s 166
Road Transport Act 2013 (NSW) ss 43(A), 54(3)(a)
Road Rules 2014 (NSW) r 292(a)

Cases Cited:
Byrne v R; Cahill v R [2021] NSWCCA 185
Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Fisher v R [2021] NSWCCA 91
Gillett v R (2006) 166 A Crim R 419; [2006] NSWCCA 370
Haoui v R [2008] NSWCCA 209
Kelley v R [2021] NSWCCA 173
Kemp v R [2012] NSWCCA 281
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markham v R [2007] NSWCCA 295
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Clampitt-Wotton [2002] NSWCCA 383
R v Haoui [2007] NSWDC 139
R v Harris [2015] NSWCCA 81
R v Jurisic (1998) 45 NSWLR 209; (1998) 191 A Crim R 259
R v Mitchell; Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Woodland [2007] NSWCCA 29
R v Youkhana [2004] NSWCCA 412
R v Zhang [2004] NSWCCA 358
Rosenthal v R [2008] NSWCCA 149
Swan v R [2016] NSWCCA 79
Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302

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 Zreika v R

Details

AGLC: Zreika v R [2021] NSWCCA 243
Case: [2021] NSWCCA 243
Decision Date: 11 October 2021

CaseChat Overview and Summary

The matter of Zreika v R involved the applicant, who was charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The applicant appealed against his sentence, arguing that there was an error in the assessment of the objective seriousness of the offences. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether there had been an error in the assessment of the objective seriousness of the applicant's offences, which in turn affected the sentencing. The court had to consider the principles of sentencing and the factors relevant to determining the objective seriousness of the crimes. The applicant's counsel argued that the trial judge had misapplied the principles of sentencing and failed to adequately consider the mitigating circumstances.

The court, in its decision, found that there was indeed an error in the assessment of the objective seriousness of the offences. The court held that the trial judge had not properly considered all the relevant factors in determining the severity of the crimes. The court emphasised the importance of a balanced and comprehensive assessment of all the circumstances of the case, including the mitigating factors, when determining the appropriate sentence. As a result, the court allowed the appeal and remitted the matter back to the trial court for reconsideration of the sentence.

The final orders of the court were that the appeal be allowed, the convictions be affirmed, and the matter be remitted to the trial court for reconsideration of the sentence in light of the court's findings. The court did not set aside the convictions but directed the trial court to reassess the objective seriousness of the offences and to resentence the applicant accordingly.

Orders