Zreika v The The King - [2022] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zreika v R [2022] NSWCCA 262
Hearing dates: 7 October 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Before: Mitchelmore JA at [1]
Davies at [2]
Hamill J at [95]
Decision:
1. Grant leave to appeal.
2. Uphold the appeal in respect of the aggregate sentence.
3. Quash the sentence imposed in the District Court on 8 June 2021. In lieu, sentence the appellant to an aggregate sentence of 3 years and 6 months’ imprisonment commencing 4 June 2020 and expiring 3 December 2023 with a non-parole period of 2 years and 3 months expiring 3 September 2022. The appellant is now eligible for parole.

Catchwords:
Crime – Appeals – Appeal against sentence – aggregate sentence for fraudulent conduct offences – dishonestly attempting to obtain a financial advantage by deception – dishonestly obtaining financial advantage by deception - dishonestly intending to obtain a gain from a Commonwealth entity – ss 134.2 and 135.1 of the Criminal Code 1995 (Cth) – manifest excess – where amounts involved were relatively small - where offending occurred over relatively short period of time and generally employed unsophisticated methods – where aggregate sentence manifestly excessive
Crime – Appeals – Appeal against sentence – whether sentencing judge’s intervention in course of evidence of applicant was excessive – where credibility of applicant was serious issue – where interventions appropriate – where no appearance of bias of pre-judgment

Legislation Cited:
Crimes Act 1900 (NSW) s 192E
Crimes Act 1914 (Cth) s 16BA
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Criminal Code (Cth) ss 134.2, 135.1, 145
Criminal Procedure Act 1986 s 166

Cases Cited:
Ellis v R [2015] NSWCCA 262
Finnigan v R [2022] NSWCCA 181
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Ryan [2002] NSWCCA 202; (2003) 141 A Crim R 403
Rami Mohamad v Regina [2005] NSWCCA 406
Zaky v R [2015] NSWCCA 161
Zaky v R (Cth) [2017] NSWCCA 141

Texts Cited:
Nil

Category: Principal judgment
Parties: Yousef Zreika (Applicant)
The King (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
A Chhabra & A Payten (Respondent)
Solicitors:
Millennium Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/129091; 2020/139511
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Zreika [2021] NSWDC 357

Date of Decision:

8 June 2021

Before:

Colefax SC DCJ

File Number(s):

2020/129091; 2020/139511

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to four offences of fraudulent conduct contrary to the Criminal Code 1995 (Cth) (the Code). The applicant was sentenced in relation to two counts of offending contrary to s 134.2(1) of the Code, involving dishonestly attempting to obtain, and dishonestly obtaining a financial advantage by deception, and for two counts of dishonestly intending to obtain a gain from a Commonwealth entity contrary to 135.1(1) of the Code. The applicant was…

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.

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Details

Case: [2022] NSWCCA 262
Decision Date: 09 December 2022

CaseChat Overview and Summary

In the case of Zreika v The King, the appellant, Zreika, appealed against his sentence for various fraudulent conduct offences. The charges included attempting to obtain a financial advantage by deception and obtaining a financial advantage by deception, as well as dishonestly intending to obtain a gain from a Commonwealth entity. The case was heard in the High Court of Australia, which had jurisdiction to review the sentence imposed by the lower court.

The primary legal issues the court was required to decide were whether the aggregate sentence imposed on Zreika was manifestly excessive, and whether the sentencing judge's interventions during the evidence were appropriate and did not display bias or pre-judgment. The court considered the nature and extent of Zreika's offending, including the relatively small amounts involved and the unsophisticated methods employed over a short period of time. The court also assessed the interventions made by the sentencing judge during the evidence, particularly in relation to Zreika's credibility, which was a serious issue in the case.

The High Court found that the aggregate sentence imposed on Zreika was manifestly excessive, taking into account the relatively small amounts involved in the offending and the unsophisticated methods used over a short period of time. The court also concluded that the sentencing judge's interventions during the evidence were appropriate, given the serious issue of Zreika's credibility. The court found no appearance of bias or pre-judgment on the part of the sentencing judge. Consequently, the court allowed the appeal and remitted the matter to the lower court for resentencing.

The final orders of the court included allowing the appeal and remitting the matter to the lower court for resentencing, taking into account the court's findings on the manifestly excessive nature of the aggregate sentence and the appropriate nature of the sentencing judge's interventions. The court did not interfere with the lower court's findings of fact, as it was satisfied that those findings were open on the evidence.

Orders