Zreika v R [2023] NSWCCA 317

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zreika v R [2023] NSWCCA 317 Hearing dates: 30 November 2023 Date of orders: 07 December 2023 Decision date: 07 December 2023 Before: Bell CJ at [1]; Price J at [29]; Hamill J at [30] Decision: Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), vary the orders made by Wilson SC DCJ on 12 May 2020 so that the commencement date of the Applicant's 27 month sentence is 4 August 2022. The Applicant's 18 month non-parole period will now expire on 3 February 2024. Catchwords: CRIMINAL LAW – appeal – sentencing – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 – whether commencement date of a sentence should be varied to preserve the sentencing judge's intention as to the period of concurrence between two sentences served by the Applicant for unrelated offences – where the Applicant brought a successful appeal against sentence in relation to the earlier of the two sentences – where considerable delay in bringing the application Legislation Cited: Crimes Act 1900 (NSW) ss 52A(1)(c), 52A(3)(c), 197(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 43, 59 Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(3) Criminal Procedure Act 1986 (NSW) s 166 Road Transport Act 2013 (NSW) s 54(3)(a) Road Rules 2014 (NSW) r 292(a) Cases Cited: Allan v R (No 2) [2011] NSWCCA 27 Makarov v R (No 4) [2008] NSWCCA 341 R v Pham [2004] NSWCCA 263 Sahartor v R [2020] NSWCCA 36 Zreika v R [2021] NSWCCA 243 Category: Principal judgment Parties: Moustaffa Zreika (Applicant) The Crown (Respondent) Representation: Counsel:

C O'Neill (Applicant) E Balodis, M Millward (Respondent)

Solicitors:

Macquarie Law Group (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/238552; 2019/138888 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 May 2020 Before: Wilson SC DCJ File Number(s): 2019/138888

JUDGMENT 1. BELL CJ: These proceedings concern an application brought by the Applicant, Moustaffa Zreika, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) to vary the commencement date of a sentence. The sentence to which the application pertains was imposed following the Applicant's plea of guilty on 13 December 2019 to a charge of dishonestly damaging property by fire for gain on 2 November 2018, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act). The Applicant was arrested in relation to that charge on 3 May 2019 and remained in custody for a period of 1 year and 9 days before, on 12 May 2020, Wilson SC DCJ (Wilson DCJ) imposed a sentence of 27 months imprisonment commencing on 4 November 2022 with a non-parole period of 18 months expiring on 3 May 2024. 2. At the time of the Applicant's sentencing for the damage to property offence, he was already serving a term of imprisonment in respect of his conviction on 4 June 2019, following a jury trial in the District Court before Bourke SC DCJ, for one count of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act and one count of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act. The Applicant was also charged with a further two offences contained on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), namely one count of driving a motor vehicle with a suspended licence contrary to s 54(3)(a) of the Road Transport Act 2013 (NSW) and one count of driving a vehicle with an unsecured load contrary r 292(a) of the Road Rules 2014 (NSW) (the s 166 Certificate matters). All of those offences were committed on 22 July 2017. 3. On 28 August 2019, the Applicant was sentenced to an aggregate term of 6 years imprisonment commencing on 4 June 2019 with a non-parole period of 4 years expiring on 3 June 2023 in relation to the dangerous driving offences. An indicative sentence of a conviction with no other penalty pursuant to s 10A of the CSPA was nominated in respect of each of the s 166 Certificate matters. 4. The Applicant also committed further offences of assault and contravening an apprehended domestic violence order on 6 February 2019 for which he was sentenced in the Local Court to a period of imprisonment of 12 months commencing on 4 November 2019 with a non-parole period of 9 months expiring on 3 August 2020. That sentence was entirely concurrent with the sentence imposed with respect to the dangerous driving offences. 5. In his Remarks on Sentence (ROS) in respect of the damage to property offence, Wilson DCJ said the following (at ROS [101]-[103]) as to concurrence with the sentence imposed in relation to the dangerous driving offences: "The question which remains is the commencement date. Whilst I accept that there should be some degree of concurrency there must also be accumulation to represent the distinct and quite separate forms of offending. For this purpose, I have left to one side the period of imprisonment in respect of the assault occasioning actual bodily harm and contravening an apprehended domestic violence order, the non-parole period for which will expire on 3 August 2020. This leaves for consideration the larger sentence for dangerous driving offences, the non-parole period is four years and will expire 3 June 2023 at which point the offender will be eligible to be released on parole. In my opinion, in order not to offend the principle of totality, the sentence in respect of the present matter must commence prior to that date, at the same time, it must not commence so early that the offender receives a discount for multiple offences. I propose the present sentence commence six months prior to the date of expiration of the non-parole period in relation to the driving offences, that is on 4 December 2022. The offender spend one month in custody solely due to the subject offending, so the date of commencement is one month earlier, namely 4 November 2022." 1. On 11 October 2021, the Court of Criminal Appeal (CCA) allowed an appeal brought by the Applicant against his sentence for the dangerous driving offences. The Applicant was resentenced to an aggregate term of imprisonment of 5 years and 6 months commencing on 4 June 2019 with a non-parole period of 3 years and 8 months expiring on 3 February 2023. The orders made by the District Court in respect of the s 166 Certificate matters were confirmed: Zreika v R [2021] NSWCCA 243. 2. As a consequence of the Applicant's successful appeal against sentence in relation to the dangerous driving offences, the period of concurrency between the dangerous driving and damage to property sentences accounted for by Wilson DCJ when sentencing the Applicant for the damage to property offences was effectively reduced from six to three months. 3. No application was made pursuant to s 59 of the CSPA at the time of, or shortly after, the Applicant's appeal to this Court to vary the commencement date of the sentence imposed in relation to the damage to property offences in light of this Court's decision in relation to the sentence for the dangerous driving convictions. 4. On 16 May 2023, Wilson DCJ refused an application brought by the Applicant pursuant to s 43 of the CSPA to vary the commencement date of the sentence for the damage to property offence on the basis that the disparity between his findings concerning concurrency and the sentence ultimately imposed only arose upon this Court reducing the non-parole period in respect of the dangerous driving offences. Accordingly, his Honour held that there was no accidental mistake or omission which he was empowered by s 43 to correct. In so holding, the sentencing judge said the following: "Plainly, my intention was to afford a greater degree of concurrency between the two sentences. Regrettably, an application was not made in the Court of Criminal Appeal pursuant to s 59 to vary the commencement date of my sentence." 1. As such, on 31 July 2023, the Applicant lodged an application pursuant to s 59 of the CSPA to vary the commencement date of the Applicant's sentence for the damage to property offence to 3 July 2022 in order to preserve the intention of Wilson DCJ that there be a greater degree of concurrency between the Applicant's sentences for the dangerous driving and damage to property offences than the three months which was the consequence of this Court's earlier decision in relation to the dangerous driving offences.

Statutory power to amend the commencement date of a sentence 1. Section 59 of the CSPA provides the following: "59 Court may vary commencement of sentence on quashing or varying other sentence (1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court. (2) If a person is subject to two or more sentences, this section applies to each of them. (3) A court may vary a sentence under this section on its own initiative or on the application of a party to the proceedings on the quashing or variation of the other sentence. (4) An appeal does not lie merely because the date of commencement of a sentence is varied under this section. (5) The term of a sentence, or the non-parole period of a sentence, cannot be varied under this section." (Emphasis added.) 1. Spigelman CJ in R v Pham [2004] NSWCCA 263 at [9] emphasised that s 59 is designed to serve "pragmatic purposes: to ensure the efficiency and expedition of the administration of criminal justice." His Honour added at [17] that the order which the Court made pursuant to s 59 in that case was of a "mechanical nature." Earlier, at [15], he had said that this would be so "in the normal course". In Makarov v R (No 4) [2008] NSWCCA 341 at [9], Johnson J, with whom Bell JA and McCallum J agreed, held that the Court will not deal with applications made under s 59 as applications for leave to appeal against sentence under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912 (NSW) and that rather, the task is a "narrow and essentially mechanical" one. Notwithstanding these statements, cases of greater complexity may arise such that the superficial simplicity connoted by the word "mechanical" may not always prevail. This is such a case. 2. In Allan v R (No 2) [2011] NSWCCA 27, the Applicant was serving two partially concurrent terms of imprisonment and brought a successful CCA appeal which resulted in a reduction of the first of those terms of imprisonment. At [21], Price J, with whom Simpson and Hoeben JJ agreed, held that the commencement date of the Applicant's second term of imprisonment should be brought forward by six months to "preserve the extent of the partial accumulation that [the sentencing judge] found to be appropriate." 3. In Sahartor v R [2020] NSWCCA 36 (Sahartor), the Applicant was serving a term of imprisonment for a first offence during which time a sentence was imposed for a further offence of causing grievous bodily harm. The latter sentence was ordered to commence part way through the first sentence. After the sentence for the first offence had expired and the Applicant had been released on parole in respect of the later grievous bodily harm offence, the CCA allowed an appeal against conviction in relation to the first offence which resulted in the setting aside of the corresponding sentence. Following his release and while still on parole in respect of the grievous bodily harm offence, the Applicant committed a series of minor offences which resulted in the imposition of a further aggregate term of imprisonment and the revocation of the Applicant's parole. His application to vary the commencement date of the sentence imposed in respect of the grievous bodily harm offence was made whilst the Applicant was still in custody serving the further aggregate sentence. 4. Hamill J, with whom Meagher JA and Johnson J agreed, held that, if a s 59 application had been made in respect of the commencement date of the later sentence at the time of the successful CCA appeal in respect of the first offence, some variation to the commencement date of the Applicant's sentence for the later offence would have likely been made: at [13]. However, no such application was made. 5. In holding that the commencement date of the Applicant's grievous bodily harm sentence should not be varied pursuant to s 59 on the basis that doing so would render nugatory the decision of the State Parole Authority to revoke the Applicant's parole, Hamill J (at [35]) said the following with respect to the delays associated with bringing an application under s 59 of the CSPA: "While I accept that the delay in bringing the application was not the fault of the applicant, and I have considerable sympathy for his situation, I am satisfied that the application to vary the commencement date of the sentence should be refused in the exercise of the Court's discretion. While this case is to be determined on its own particular and somewhat unusual facts, it should serve as a reminder to practitioners that where a sentence is quashed and where there may be some impact on the commencement date of an unrelated sentence, an application pursuant to s 59 should be brought expeditiously. That is so whether the applicant is in custody or serving the balance of the sentence on parole. As the facts of this case demonstrate, the fact that a person has been released to parole does not mean that their sentence has expired. In Pham, Spigelman CJ suggested at [14] that "in the normal course" the Prosecutor should raise the issue "with the bench that is quashing or varying the sentence." This is not to say that delay in bringing the application will normally be fatal or justify refusal of the application in the exercise of discretion. However, significant problems arise where events have intervened and circumstances have changed during the period of the delay."

Submissions of the parties and determination 1. The Applicant submitted that it is consistent with Wilson DCJ's intention, as expressed at ROS [101]-[103] and reinforced by his Honour's reasons for rejecting the s 43 application (see [9] above), that there be a considerable period of concurrence between the sentences for the dangerous driving and damage to property offences such that this Court should exercise its discretion pursuant to s 59 of the CSPA to give effect to that intention. 2. It was argued by the Applicant that the effective overall sentence imposed on the Applicant prior to the CCA appeal involved a non-parole period constituting 81.9% of his total period of imprisonment and that, if the Applicant's application to vary the commencement date of the sentence in respect of the damage to property offence were not allowed, this would result in the Applicant being subjected to a non-parole period of over 86% of his total term of imprisonment. 3. Moreover, it was put that, if the commencement date of the sentence imposed in relation to the damage to property offence were not altered, the opportunity for supervision of the Applicant in the community would be limited to nine months following a period of imprisonment of 4 years and 6 months. If the s 59 application were allowed, it was argued that this would facilitate a longer parole period which, although more generous than that originally sought, would preserve the original intention of Wilson DCJ whilst still reflecting the total criminality of the Applicant's offending. 4. In reply submissions, the Applicant sought to have the damage to property sentence commencement date advanced by a further month in addition to the four month variation that had originally been sought to preserve the non-parole period proportion reflected in Wilson DCJ's earlier sentence. 5. While the Applicant acknowledged that there was a delay in bringing the s 59 application, it was submitted that this failure could not be attributed to the Applicant and that it was not an issue that either party was aware of at the time of the successful CCA appeal in respect of the dangerous driving offences. 6. The Respondent submitted that the six months of concurrency imposed by Wilson DCJ took into account that the Applicant had been sentenced to 6 years imprisonment with a non-parole period of 4 years in respect of the dangerous driving offences. As the sentence imposed is now less severe as a consequence of the successful CCA appeal, it was argued that there should be a greater degree of accumulation, despite the sentencing judge's express intention that there be a considerable period of concurrency between the two sentences. 7. The Respondent further relied on the delay in the making of the s 59 application. Unchallenged evidence led on the application demonstrated that this was not the fault of the Applicant and no circumstances of the kind that intervened in Sahartor were pointed to so as to warrant no variation being made. 8. It was also put by the Respondent that the commencement date of the sentence imposed in respect of the damage to property offences did not take the Applicant's offences of assault and breach of an apprehended domestic violence order into account such that, following the reduction of the sentence for the dangerous driving offences, the current degree of concurrency between the sentences imposed is a just and appropriate reflection of the total criminality involved in the offending. In relation to this argument, the sentence for the offences for which the Applicant was convicted in the Local Court has been fully served and was wholly concurrent with the dangerous driving offences, and that position was unaffected by the successful appeal on sentence to this Court. I do not consider it relevant to the exercise of our discretion under s 59 of the CSPA. 9. I consider that it is appropriate to vary the commencement date of the sentence imposed by Wilson DCJ in the District Court in view of his clearly manifested intention that there be a greater degree of concurrency than results from the decreased sentence in respect of the dangerous driving convictions as a result of this Court's decision on the Applicant's appeal in that matter. The key question is what should that variation be. 10. Any variation must take into account considerations such as totality, recognition of the separate nature of the offences and the different victims involved, implications of any variation of non-parole period ratios and other considerations such as those noted in Sahartor. The modified submission advanced on the Applicant's behalf in reply reflects that there is no one approach to be taken that is necessarily preferable or correct. 11. I would advance the starting date of the sentence imposed by Wilson DCJ by three months to restore the six month period of concurrency his Honour originally thought was appropriate. Accordingly, I would make the following order: Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), vary the orders made by Wilson SC DCJ on 12 May 2020 so that the commencement date of the Applicant's 27 month sentence is 4 August 2022. The Applicant's 18 month non-parole period will now expire on 3 February 2024. 1. Noting the proximity of the new expiry date of the non-parole period, the Court recommends that the State Parole Authority considers the question of the Applicant's release to parole with as much expedition as possible. 2. PRICE J: I agree with Bell CJ. 3. HAMILL J: I agree with the order proposed by the Chief Justice and with his Honour's reasons.

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Amendments 13 December 2023 - Changes made to coversheet as follows:

1. Replaced name of one of the respondent's counsel from B Hatfield SC to E Balodis. 2. Additional file number added, being 2018/238552. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2023