Zabakly v R [2021] NSWCCA 155

Zabakly v R [2021] NSWCCA 155

There was sufficient evidence for the jury to find the applicant guilty on both counts, given the joint criminal enterprise, presence at the scene, and knowledge of the shotgun. The trial judge did not err in permitting the Crown to cross-examine its own witnesses under s 38 of the Evidence Act. However, the aggregate sentence imposed was in error as the non-parole period exceeded the sum of individual indicative non-parole periods. Resentencing was required, resulting in an aggregate sentence of 8 years with a non-parole period of 6 years, with separate indicative sentences specified for each count.

Parties
Applicant: Theodore Zabakly; Respondent: Regina
Jurisdiction
Australia
Judgment Date
12 July 2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Leave to appeal against convictions granted; appeal against convictions dismissed. Leave to appeal against sentence granted; appeal against sentence allowed; sentence quashed and substituted with new aggregate sentence.
Legal Topics
Break and Enter, Intimidation, Joint Criminal Enterprise, Firearm Offences, Sentencing, Appeal Procedures, Cross Examination of Unfavourable Witnesses
Criminal Law Break and Enter Intimidation Joint Criminal Enterprise Firearm Offences Sentencing Appeal Procedures Cross Examination of Unfavourable Witnesses

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Theodore Zabakly

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the verdicts of guilty on both counts were unreasonable and not supported on the evidence
  2. 2 Whether the trial judge erred in granting the Crown leave to cross-examine the victim and an eyewitness under s 38 of the Evidence Act 1995 (NSW)
  3. 3 Whether the aggregate sentence imposed exceeded the sum of indicative sentences and involved error

Ratio Decidendi

There was sufficient evidence for the jury to find the applicant guilty on both counts, given the joint criminal enterprise, presence at the scene, and knowledge of the shotgun. The trial judge did not err in permitting the Crown to cross-examine its own witnesses under s 38 of the Evidence Act. However, the aggregate sentence imposed was in error as the non-parole period exceeded the sum of individual indicative non-parole periods. Resentencing was required, resulting in an aggregate sentence of 8 years with a non-parole period of 6 years, with separate indicative sentences specified for each count.

Court Disposition

Leave to appeal against convictions granted; appeal against convictions dismissed. Leave to appeal against sentence granted; appeal against sentence allowed; sentence quashed and substituted with new aggregate sentence.

Orders

  • Grant the applicant leave to appeal against his convictions.
  • Dismiss the appeal against the convictions.