Zabakly v R [2021] NSWCCA 155

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zabakly v R [2021] NSWCCA 155 Hearing dates: 5 May 2021 Date of orders: 12 July 2021 Decision date: 12 July 2021 Before: Basten JA at [1]; Brereton JA at [87]; Beech-Jones at [101] Decision: (1) Grant the applicant leave to appeal against his convictions. (2) Dismiss the appeal against the convictions. (3) Grant the applicant leave to appeal against the aggregate sentence imposed on 13 December 2019 by the District Court. (4) Allow the appeal against sentence and quash the sentence imposed in the District Court on 13 December 2019. (5) In place thereof: (a) impose an aggregate sentence of 8 years imprisonment to commence on 2 January 2019 and expire on 1 January 2027; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 6 years; (c) specify that the earliest date the applicant will be eligible to be released on parole is 1 January 2025; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: Count 1 – fixed term of imprisonment for 18 months. Count 2 – imprisonment for 7 years and 4 months imprisonment with a non-parole period of 5 years 6 months. Catchwords: CRIME – offences – break and enter and commit a serious indictable offence therein – attempt – entry not effected – whether inchoate offence could only be break and enter with intent to commit a serious indictable offence – attempt related to both elements of offence – Crimes Act 1900 (NSW), ss 112, 113 CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – unfavourable witness – statement to police put to witness – whether evidence admissible – Evidence Act 1995 (NSW), s 38 CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – question challenged evidence on basis which affected witness' credibility – question put to allow submission that witness mistaken – whether unfair to accused or witness – Evidence Act 1995 (NSW), s 192(2)(b) CRIME – appeals — appeal against conviction — unreasonable verdict – identity of offenders – whether appellant present – whether appellant shared joint purpose to break and enter and intimidate SENTENCING – appeal – evidence – evidence of personal circumstances not adduced before sentencing judge – whether admissible on appeal to challenge sentence – admissible on resentencing SENTENCING – leave to appeal – aggregate sentence for multiple offences – aggregate sentence exceeded sum of putative individual sentences SENTENCING – relevant factors on sentence – parity – sentence of co-offender reduced on appeal – whether ground of reduction required adjustment of applicant's sentence Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 54A Crimes Act 1900 (NSW), ss 112, 113 Criminal Appeal Act 1912 (NSW), s 5 Evidence Act 1995 (NSW), ss 38, 76, 78, 192 Cases Cited: Betts v The Queen [2016] HCA 25; 258 CLR 420 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dixon v R [2020] NSWCCA 123 Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 Category: Principal judgment Parties: Theodore Zabakly (Applicant) Regina (Respondent) Representation: Counsel: A Francis (Applicant) K Jeffreys (Respondent)