Zreika v The Queen - [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

PAYNE JA: I agree with Wright J.
BELLEW J: I agree with Wright J.
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

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.…

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 Queen

Details

AGLC: Zreika v The Queen [2020] NSWCCA 345
Case: [2020] NSWCCA 345
Decision Date: 17 December 2020

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