Zreika v The King - [2023] NSWCCA 317

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zreika v R [2023] NSWCCA 317
Hearing dates: 30 November 2023
Date of orders: 07 December 2023
Decision date: 07 December 2023
Before: Bell CJ at [1];
Price J at [29];
Hamill J at [30]
Decision:
Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), vary the orders made by Wilson SC DCJ on 12 May 2020 so that the commencement date of the Applicant’s 27 month sentence is 4 August 2022. The Applicant’s 18 month non-parole period will now expire on 3 February 2024.

Catchwords:
CRIMINAL LAW – appeal – sentencing – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 – whether commencement date of a sentence should be varied to preserve the sentencing judge’s intention as to the period of concurrence between two sentences served by the Applicant for unrelated offences – where the Applicant brought a successful appeal against sentence in relation to the earlier of the two sentences – where considerable delay in bringing the application

Legislation Cited:
Crimes Act 1900 (NSW) ss 52A(1)(c), 52A(3)(c), 197(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 43, 59
Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(3)
Criminal Procedure Act 1986 (NSW) s 166
Road Transport Act 2013 (NSW) s 54(3)(a)
Road Rules 2014 (NSW) r 292(a)

Cases Cited:
Allan v R (No 2) [2011] NSWCCA 27
Makarov v R (No 4) [2008] NSWCCA 341
R v Pham [2004] NSWCCA 263
Sahartor v R [2020] NSWCCA 36
Zreika v R [2021] NSWCCA 243

Category: Principal judgment
Parties: Moustaffa Zreika (Applicant)
The Crown (Respondent)
Representation:
Counsel:

C O’Neill (Applicant)
E Balodis, M Millward (Respondent)

Solicitors:
Macquarie Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/238552; 2019/138888
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 May 2020

Before:

Wilson SC DCJ

File Number(s):

2019/138888

JUDGMENT

BELL CJ: These proceedings concern an application brought by the Applicant, Moustaffa Zreika, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) to vary the commencement date of a sentence. The sentence to which the application pertains was imposed following the Applicant’s plea of guilty on 13 December 2019 to a charge of dishonestly damaging property by fire for gain on 2 November 2018, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act). The Applicant was arrested in relation to that charge on 3 May 2019 and remained in custody for a period of 1 year and 9 days before, on 12 May 2020, Wilson SC DCJ (Wilson DCJ) imposed a sentence of 27 months imprisonment commencing on 4 November 2022 with a non-parole period of 18 months expiring on 3 May 2024.
At the time of the Applicant’s sentencing for the damage to property offence, he was already serving a term of imprisonment in respect…

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 The King

Details

AGLC: Zreika v The King [2023] NSWCCA 317
Case: [2023] NSWCCA 317
Decision Date: 07 December 2023

CaseChat Overview and Summary

In the case of Zreika v The King, the applicant sought a variation of the commencement date of his sentence to align with the sentencing judge's intention regarding the concurrence period between two sentences for unrelated offences. The applicant had previously successfully appealed against the sentence for the earlier offence, leading to a considerable delay in the application for variation. The case was heard in the Supreme Court of New South Wales, where the Court was required to determine whether the delay was justified and whether the sentencing judge's intention could be preserved.

The central legal issue before the Court was whether the application for a variation of the sentence commencement date should be dismissed due to the substantial delay in bringing the application, and whether the delay was unreasonable under the circumstances. The Court also had to consider the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), section 59, which allows for variations in sentencing to ensure that the sentence reflects the intentions of the sentencing judge. The Court was tasked with balancing the applicant's right to seek a variation against the principle of finality in legal proceedings.

The Court found that while the delay in bringing the application was considerable, it did not necessarily preclude the application from being considered. The Court emphasised that the delay was due to the successful appeal against the earlier sentence, which had altered the sentencing landscape. The Court concluded that the delay was not unreasonable given the circumstances and that the applicant had a legitimate interest in having the sentencing judge's intention preserved. The Court granted the application for variation, ordering that the commencement date of the sentence be adjusted to reflect the intended concurrence period.

The final order of the Court was that the commencement date of the applicant's sentence should be varied to align with the sentencing judge's intention regarding the concurrence between the two sentences. This decision ensures that the sentencing judge's intention is preserved, despite the delay in bringing the application. The Court's decision highlights the importance of considering the unique circumstances of each case when determining the admissibility of a late application for sentencing variation.

Orders