Zaky v R [2015] NSWCCA 161

Zaky v R [2015] NSWCCA 161

Although the sentencing judge's comments during submissions about suspended sentences and Victoria were erroneous, they were made two weeks before reserved sentencing reasons and were not shown to have informed the final decision. The later reasons stated that alternatives to full-time imprisonment were considered and rejected because of the seriousness, duration, extensive nature and complexity of the fraud. It was open to impose full-time custody, so the grounds were not upheld.

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['social Security Fraud' 'commonwealth Offences' 'suspended Sentences' 'recognizance Release Orders' 'sentencing Discretion' 'comments During Submissions']
['criminal Law' 'sentencing'] ['social Security Fraud' 'commonwealth Offences' 'suspended Sentences' 'recognizance Release Orders' 'sentencing Discretion' 'comments During Submissions']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating a suspended sentence as "hardly a penalty" or "not a penalty".' 'Whether the sentencing judge took into account an irrelevant consideration by referring to the abolition of suspended sentences in Victoria.' 'Whether erroneous comments made during submissions informed the sentencing outcome where judgment was reserved and reasons were later delivered.']

Ratio Decidendi

Although the sentencing judge's comments during submissions about suspended sentences and Victoria were erroneous, they were made two weeks before reserved sentencing reasons and were not shown to have informed the final decision. The later reasons stated that alternatives to full-time imprisonment were considered and rejected because of the seriousness, duration, extensive nature and complexity of the fraud. It was open to impose full-time custody, so the grounds were not upheld.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']