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Zreika v R

Zreika v R

Case [2012] NSWCCA 44 28 March 2012

Sentencing

Plea of Guilty

Reckless Wounding

Intensive Correction Order

Error in Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zreika v R [2012] NSWCCA 44
Hearing dates: 9 February 2012
Decision date: 28 March 2012
Before: McClellan CJ at CL at [1]
Johnson J at [2]
Rothman J at [127]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed

Catchwords:
CRIMINAL LAW - sentence - plea of guilty - reckless wounding - standard non-parole period offence - whether error in approach after Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 - no error established

CRIMINAL LAW - sentence - Judge considered imposition of intensive correction order - after adjournment, declined to do so - sentence of imprisonment passed - whether error in Judge's description of consequences if ICO breached - erroneous description used - (by majority) error not material
CRIMINAL LAW - sentence - theoretical capacity for offence to be disposed of summarily in Local Court - point not taken in District Court - approach of Court of Criminal Appeal when issue raised for first time on appeal - need for submission to be made in District Court - confined nature of arguable ground - no merit in ground - in any event, sentence imposed was less than jurisdictional limit of Local Court
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010
Crimes (Administration of Sentences) Act 1999
Criminal Procedure (Indictable Offences) Act 1995
Director of Public Prosecutions Act 1986
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Cases Cited: Bayram v R [2012] VSCA 6
Keane v R [2011] VSCA 156
Khoury v R [2011] NSWCCA 118
Re Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196
R v Dodd (1991) 57 A Crim R 349
R v Douar [2005] NSWCCA 455; 159 A Crim R 154
R v Hamieh [2010] NSWCCA 189
R v Zamagias [2002] NSWCCA 17
Romero v R [2011] VSCA 45
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
Ayshow v R [2011] NSWCCA 240
MDZ v R [2011] NSWCCA 243
Madden v R [2011] NSWCCA 254
Sheen v R [2011] NSWCCA 259
Aoun v R [2011] NSWCCA 284
R v Koloamatangi [2011] NSWCCA 288
R v Biddle [2011] NSWSC 1262
R v Tran [2011] NSWSC 1480
R v Muldrock [2010] NSWCCA 106
R v Mai (1992) 26 NSWLR 371
Markarian v The Queen [2005] HCA 25; 228 CLR 357
House v The King (1936) HCA 40; 55 CLR 499
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
R v Jammeh [2004] NSWCCA 327
R v Pickett [2004] NSWCCA 389
R v Visconti [1982] 2 NSWLR 104
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Edwards…

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 [2012] NSWCCA 44
Case: [2012] NSWCCA 44
Decision Date: 28 March 2012

CaseChat Overview and Summary

Zreika has appealed against his conviction and sentence, which was handed down in the District Court of New South Wales. The appellant pled guilty to an offence of reckless wounding. The issues before the Court of Criminal Appeal were whether the District Court Judge had erred in his approach to the sentence, whether the Judge had erred in his description of the consequences of a breach of an intensive correction order, and whether the sentence should have been considered by the Local Court instead. The appeal was dismissed by the Court of Criminal Appeal. The Court found that there was no error in the District Court Judge's approach to the sentence and that any error in his description of the consequences of a breach of an intensive correction order was not material. The Court also found that the issue of whether the offence should have been dealt with summarily in the Local Court was not arguable because it was not raised in the District Court. The Court further found that the sentence imposed by the District Court was less than the jurisdictional limit of the Local Court.

Orders