Zreika v The Queen

Case [2020] NSWCCA 345


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Zreika v R [2020] NSWCCA 345
Hearing dates: 6 November 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Payne JA at [1];
Bellew J at [2];
Wright J at [3]
Decision:

(1)   The applicant is granted leave to appeal in respect of ground 2 but otherwise leave to appeal is refused.

(2)   The appeal is allowed to the extent necessary to permit correction of the calculation error in the sentence imposed by the District Court at Lismore on 26 November 2019.

(3)   The sentence imposed by Hunt DCJ on 26 November 2019 is adjusted so that the applicant is sentenced to a term of imprisonment with a non-parole period of four years commencing on 7 May 2019 and expiring on 6 May 2023 with a balance of term of two years, expiring on 6 May 2025.

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge erred in failing to give effect to finding of special circumstances – Sentencing judge plainly considered the effect accumulation would have on the overall length of time spent in custody – No error established

CRIMINAL LAW – Sentence – Appeal against sentence – Where sentencing judge erred by one day in fixing commencement date for firearms offences – Minor error in calculation not a legal error requiring the exercise of sentencing discretion afresh – Application of Lehn v R (2016) 93 NSWLR 205 – Sentence adjusted by one calendar day

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Caristo v R [2011] NSWCCA 7

CC v R [2019] NSWCCA 229

GP v R [2017] NSWCCA 200

Elwood v R [2019] NSWCCA 315

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Lonsdale v R [2020] NSWCCA 267

Refaieh v R (2018) 272 A Crim R 248; [2018] NSWCCA 72

Rizk v R [2020] NSWCCA 291

Sabongi v R [2015] NSWCCA 25

Category:Principal judgment
Parties: Mohammed Zreika (Applicant)
Regina (Crown)
Representation:

Counsel:
S Hall (Applicant)
B Baker (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2018/300774
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
26 November 2019
Before:
Hunt DCJ
File Number(s):
2018/300774

Judgment

  1. PAYNE JA: I agree with Wright J.

  2. BELLEW J: I agree with Wright J.

  3. WRIGHT J: The applicant, Mr Mohammed Zreika, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Hunt DCJ in the District Court at Lismore on 26 November 2019.

Background

  1. On 19 March 2019, the applicant pleaded guilty in the Local Court at Lismore to two charges of robbery armed with an offensive weapon and one charge of attempted armed robbery.…

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AGLC
Zreika v The Queen [2020] NSWCCA 345
Case
[2020] NSWCCA 345
Decision Date

CaseChat Overview and Summary

The case of Zreika v The Queen involved an appeal against the sentence imposed on the appellant by the sentencing judge. The primary issue was whether the sentencing judge erred in failing to give effect to the finding of special circumstances, particularly the effect of accumulation on the overall length of time spent in custody. Additionally, the appellant contested the accuracy of the date from which the sentence for the firearms offences was calculated. The High Court of Australia was tasked with determining these legal issues.

The court examined the sentencing judge's consideration of the special circumstances and concluded that the judge had plainly considered the impact of accumulation. The court found no error in the sentencing judge's approach, as the judge had adequately considered the effect of accumulation. Regarding the calculation error, the court held that the minor error in fixing the commencement date for the firearms offences was not a legal error requiring the exercise of the sentencing discretion afresh. The court applied the principles from Lehn v R and adjusted the sentence by one calendar day.

The court dismissed the appeal, affirming the sentence imposed by the sentencing judge. The High Court held that the sentencing judge's approach to special circumstances and the minor calculation error did not constitute a legal error warranting a fresh exercise of sentencing discretion. The court's decision was grounded in the established principles of sentencing and the specific facts of the case. The final orders confirmed the dismissal of the appeal and maintained the original sentence with the adjusted date.

Orders

Orders of the court

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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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