Regina v Zreika [2000] NSWCCA 75

New South Wales Court of Criminal Appeal

CITATION : Regina v Zreika [2000] NSWCCA 75 revised - 17/03/2000 FILE NUMBER(S) : CCA 60380/99 HEARING DATE(S) : 23/02/00 JUDGMENT DATE : 23 February 2000

PARTIES : Regina v Abdul Hakim Zreika JUDGMENT OF : Hidden J at 1,35; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0301; 97/21/0329 LOWER COURT JUDICIAL Grogan DCJ OFFICER :

COUNSEL : P Byrne SC (Appellant) D M L Woodburne (Crown/Respondent) SOLICITORS : Ross Hill & Associates (Appellant) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence - perverting the course of justice and similar offences - young offender. LEGISLATION CITED : Crimes Act, 1900. CASES CITED: Regina v Karageorge (1998) ACrimR 157; Regina v Pangello (1991) ACrimR 441; Regina v WHS (Unreported) NSWCCA 27 March 1995. DECISION : Application for leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL CCA60380/99

HIDDEN J CARRUTHERS AJ

Wednesday, 23 February 2000 REGINA v Abdul Hakim ZREIKA JUDGMENT

1 HIDDEN J: I will ask Acting Justice Carruthers to give the first judgment. 2 CARRUTHERS AJ: Abdul Hakim Zreika, the applicant, was arraigned before Judge Grogan and a jury of twelve at the District Court Parramatta on 9 February 1999. He pleaded not guilty to the four charges in the indictment which, briefly stated, were: 3 Count 1 charged that on or about 7 February 1996 at Lidcombe the applicant, knowing that a person, whose name remains unknown, committed the offence of robbery at Clancy's Supermarket, failed, without reasonable excuse, to bring information which might be of material assistance in securing the apprehension of that unnamed person to the attention of a member of the Police Force. This count is under s316 of the Crimes Act 1900, as amended, and is generally known as "concealing a serious offence". That offence imposes a maximum penalty of imprisonment for two years. 4 Count 2 charged that the applicant on 23 December 1996 at Lidcombe, did act, namely to request Monica Gruszka to conceal information from the police in relation to the aforesaid robbery, with intent thereby to pervert the course of justice. This is a count under s319 of the Act which is generally known as "perverting the course of justice" and carries a maximum sentence of fourteen years penal servitude. 5 Count 3 charged that between 25 May 1997 and 29 May 1997 at Lidcombe the applicant did threaten to cause a detriment, namely difficulties generally, including in regard to her education, to Elizabeth Passarelli, with intent to influence her, a person called in a judicial proceeding, namely proceedings against Abdul Hakim Zreika, for the offence of robbery in the Lidcombe Children's Court, and for public justice offences in the Burwood Local Court, to not attend as a witness. This is a count under s322(a) of the Act, which is generally known as "threatening a witness", and imposes a maximum penalty of ten years penal servitude. 6 Count 4 charged that on 4 June 1997 at Lidcombe, the applicant threatened to do injury to a police officer, with intent to influence him in his conduct as a public justice official in relation to the judicial proceedings referred to in the third count. This was a count under s322(d) of the Act. 7 On 24 February 1999 the jury found the applicant guilty of counts 1, 2 and 3 in the indictment and not guilty of count 4. On that day, the applicant was remanded in custody to appear for sentence. The sentence proceedings were, by consent, delayed until 2 July 1999 to permit the applicant to be represented by the particular counsel of his choice. 8 The very detailed remarks on sentence, running into some 49 pages, by Judge Grogan are available for public inspection and accordingly permit this Court to deal with the factual matters with brevity. Firstly, as to the sentences, his Honour sentenced the applicant as follows: 9 As to the first count, his Honour imposed a fixed term of three months imprisonment to commence on 24 February 1999 and to expire on 23 May 1999. 10 With regard to the third count, his Honour imposed a fixed term of twelve months imprisonment, to commence on 24 February 1999 and to expire on 23 February 2000. 11 With regard to the second count, which was obviously treated by his Honour as the most serious matter, his Honour imposed a minimum term of nine months, to commence on 24 February 2000 and to expire on 23 November 2000, with an additional term of 15 months to date from 24 November 2000. 12 The following skeletal outline of the facts will suffice: 13 The applicant and Miss Gruszka were both present at Clancy's Supermarket at Lidcombe on 7 February 1996 when the applicant informed her that "He and his mates were going to rob the store and that he was going to get half the money and buy a rotary engine for his car". 14 The unnamed offender, as so referred in count 1, in fact assaulted the store manager and stole $15,000 from him. When the police arrived, however, because of intimidation by the applicant, Ms Gruszka declined to inform the police officers what she knew of the robbery. The applicant, likewise, did not give the police any information. 15 The applicant drove Ms Gruszka home, telling her not to say anything. These facts constituted the first count. However, Ms Gruszka, who was then a 16 year old schoolgirl, on 26 December 1996, in fact assisted the police with their enquiries, and such assistance came to the knowledge of the applicant. On 23 December 1996, the applicant had threatened her "that he and his friends would get her if she signed anything and that she would not be having a Christmas". 16 Ms Gruszka was extremely shaken and upset, to the extent that she was sent home from her work. Indeed, she was so frightened that she made a statement to the police about the matter, as I have indicated. The applicant was then charged with aiding and abetting the robbery and perverting the course of justice. Those facts constituted the second count in the indictment. 17 Ms Passarelli, who was also a 16 year old schoolgirl was, in 1997, in her final Higher School Certificate year, as indeed, as I understand it, was Ms Gruszka. She was also aware of the applicant's involvement in the robbery. She had apparently a relationship with the applicant. 18 Between 25 May 1997 and 29 May 1997, the applicant seriously threatened her on a number of occasions. This was in the context that the applicant was on conditional bail in relation to the count of aiding and abetting the robbery, and a bail condition was that he was not to approach or communicate with Ms Passarelli. 19 Included in the breaches of the bail conditions is the fact that between 23 May and 4 June 1997 the applicant telephoned Ms Passarelli 60 times. The evidence does not indicate how many times he telephoned her home between 25 May 1997 and 29 May 1997. I shall not relate the nature of the threatening calls which he made to Ms Passarelli, but they were serious indeed. 20 On 12 August 1997, Ms Passarelli, as a crucial Crown witness, attended the committal proceedings at Burwood Local Court in relation to the aiding and abetting the robbery charge against the applicant. However, because she was in such fear of the applicant and of the repercussions which she felt would eventuate, she said in answer to all material questions by the Prosecutor that she could not remember. Following the committal hearing, the applicant was discharged in respect of the robbery matter. Thus, because of the fear engendered by the applicant's threats to Ms Passarelli, there could well have been a gross miscarriage of justice. These facts constitute the third count in the indictment. 21 It was contended on behalf of the applicant that the sentences imposed were excessive, particularly having regard to the youth of the applicant at the time the offences were committed. He was born on 12 July 1978, thus at the time of the first offence he was aged 17 years nine months, at the time of the second offence, 18 years and seven months, and at the time of the third offence, 19 years and thirteen days. The point was made that he was not in a position of authority when he committed the subject offences and, therefore, his conduct did not represent a breach of trust, which is so frequently associated with offences in the nature of interfering with the administration of justice. 22 In his written and oral submissions to this Court, senior counsel for the applicant has referred to relevant statistics prepared by the Judicial Commission of New South Wales, and again stressed the young age and immaturity of the applicant. Senior counsel frankly conceded that the offences committed by the applicant merited significant punishment, but submitted that Judge Grogan had not given sufficient weight to the true measure of objective criminality disclosed in the applicant's conduct, as well as the subjective matters to which I have referred. 23 We were referred to well-known authority: R v Karageorge (1998) 103 ACrimR 157. and R v Pangello (1991) 56 ACrimR 441 at 443.. This Court was there concerned with two members of the legal profession who had committed serious offences against the administration of justice. However, it must be borne in mind, when comparing their sentences as persons in positions of trust and responsibility, that they would inevitably have suffered the ignominy and financial detriment of having been struck off the role of solicitors. 24 It must also be borne in mind when considering the statistics, as counsel have fairly conceded, that there is a relatively small sample. 25 The present applicant suffers the disadvantage of having been convicted by a jury of three offences extending over a period from 7 February 1996 to 29 May 1997. There is a further difficulty which confronts the applicant, namely offences which he committed between the offence constituted by count 2, and the offence constituted by count 3. 26 Thus, on 29 July 1997, the applicant was convicted of the offences of exceeding the speed limit, being a cancelled driver, driving while cancelled and driving in a manner dangerous. These offences were committed on 21 January 1997. 27 On 31 October 1997, the applicant was dealt with at Redfern Local Court in respect of 15 charges of obtaining money and other property by deception, three charges of obtaining money by deception, and one of making a false statement to obtain money. In relation to these matters, the applicant had the benefit of a four year good behaviour bond, and in respect of one charge he was ordered on appeal to perform 100 hours of community service and to pay certain compensation. These offences were committed between 20 January 1997 and 1 February 1997. 28 On 24 February 1998, the applicant was convicted of driving while disqualified. Initially, a sentence of four months periodic detention was imposed, but on appeal a community service order of forty hours was made. That offence was committed on 23 November 1997. 29 Despite the criminal convictions of the applicant to which I have referred, he was, at the time that he came before Judge Grogan for sentence, employed permanently as a flagman by the State Rail Authority and, apparently, he was highly regarded by his employer. 30 Subjective considerations are that the applicant does not have the benefit of a plea of guilty. He clearly stood to gain and may well have gained by the threats which he made to potential witnesses. There was the concatenation of offences to which I have referred. There was the aggravating circumstance that the third offence was committed whilst he was on bail caused for the first two offences, and also whilst on bail for the deception charges. Such an abuse of bail attracts a severe punishment, for which the case of R v WHS, Unreported, NSWCCA, 27 March 1995, is a well-known authority. 31 I might add that a Victim Impact Statement by Ms Gruszka contained disturbing material in relation to the serious emotional consequence the intimidation which she suffered at the hands of the applicant caused her. His Honour did, however, expressly state that he was not imposing a heavier sentence than otherwise he would have imposed, by reason of the contents of that statement. 32 As one might well have expected, Ms Gruszka achieved a much lower overall result in her Higher School Certificate examinations in 1997 than she would otherwise have expected, due, she clearly believed, to the emotional trauma that she suffered at the hands of the applicant, trauma that required psychiatric treatment. The lower than anticipated result in her Higher School Certificate deprived her, so she believed, of the opportunity of entering into the university faculty which she had in mind. 33 It is troubling that offences against the administration of justice in this State are not as infrequent as one would have hoped. The reference to earlier authorities demonstrates this fact. It must never be forgotten that the proper administration of justice is a fundamental element in our democratic system of government. Prospective witnesses should be able to present themselves at Court and give their evidence truthfully without fear of prior intimidation and/or subsequent retaliation. It goes without saying that intimidation of witnesses, such as occurred in this case, was an intolerable abuse of the administration of justice and called upon his Honour to impose condign punishment. 34 To my mind, balancing the subjective and the objective circumstances, I am quite unable to conclude that the sentences imposed were in any way outside the sentencing discretion available to his Honour. His Honour allowed for an extended period of rehabilitation, having found that special circumstances existed. Bearing in mind the youth of the applicant, I would grant leave to appeal but dismiss the appeal. 35 HIDDEN J: I agree. The orders of the Court will be as proposed by Acting Justice Carruthers.