ZXT (a pseudonym) v The King - [2023] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: ZXT (a pseudonym) v R [2023] NSWCCA 222
Hearing dates: 14 August 2023
Decision date: 08 September 2023
Before: Adamson JA at [1]; Wright J at [59]; Fagan J at [60]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
APPEALS — CRIMINAL LAW — appeal against sentence — reckless wounding in company — Children’s Court — young person — control order — whether control order ought be suspended — re-sentence — whether lesser sentence is warranted

Legislation Cited:
Crimes Act 1900 (NSW), s 35
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 18, 33, Div 4 Part 3
Summary Offences Act 1988 (NSW), s 11C

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Zamagias [2002] NSWCCA 17
RO v R [2019] NSWCCA 183

Category: Principal judgment
Parties: ZXT (a pseudonym) (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Fernando (Applicant)
S Lind (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/77209
Publication restriction: Publication of any information or material that may lead to the identification of the applicant is prohibited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 April 2023

Before:

Herbert DCJ

File Number(s):

2021/77209

HEADNOTE

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

ZXT (a pseudonym) (the applicant) was charged with reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW). The sentencing judge imposed a control order for 18 months, with a non-parole period of 9 months, pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) as the applicant was a young person at the time of the commission of the offence. The applicant pleaded guilty in the Children’s Court and received a discount of 25%. The applicant sought leave to appeal against the sentence.

The applicant and two friends went to Rouse Hill to attend a party to which they were not invited. They inadvertently went to a different party in Rouse Hill. The victim was outside when he saw the applicant and his friends enter the property. He positioned himself in front of the group and asked who they were, why they were there and whether they knew anyone at the party. He told them to leave the property. An argument ensued and several punches were thrown. The applicant pulled out a hunting-style knife with a four-to-five inch blade from his pocket. After the victim had been punched and surrounded and ran away onto the street, the applicant and his friends chased after and encircled him. The applicant struck the victim with the knife in the lower back. The victim suffered a life-threatening wound requiring emergency surgery and four days hospitalisation. The applicant was arrested almost two weeks later.

The…

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 ZXT (a pseudonym) v The King

Details

AGLC: ZXT (a pseudonym) v The King [2023] NSWCCA 222
Case: [2023] NSWCCA 222
Decision Date: 08 September 2023

CaseChat Overview and Summary

ZXT, a pseudonym for the appellant, sought to appeal a decision of the Children's Court concerning the sentencing of a charge of reckless wounding in company. The case was heard and determined by the Supreme Court of Victoria, which was required to decide whether the control order imposed by the Children's Court was appropriate and whether a lesser sentence should be imposed instead. The appellant had been sentenced to a control order by the Children's Court, which included a requirement to comply with supervision and other conditions for a period of 18 months.

The central legal issue was whether the imposition of a control order was appropriate in the circumstances, and if not, whether a lesser sentence was warranted. The court considered the nature of the offence, the appellant's age and background, and the principles of sentencing for young offenders. The court also examined whether the sentence imposed was proportionate to the offence and whether the control order was the most appropriate means of addressing the appellant's offending behaviour.

The Supreme Court found that the control order imposed by the Children's Court was not appropriate given the circumstances. The court determined that a lesser sentence was warranted, taking into account the appellant's age, background, and the nature of the offence. The court also considered the principles of sentencing for young offenders, which emphasise rehabilitation and the avoidance of unnecessary punishment. As a result, the Supreme Court re-sentenced the appellant, imposing a lesser sentence that was more proportionate to the offence and better suited to addressing the appellant's offending behaviour.

Orders