New South Wales Court of Criminal Appeal CITATION : R v Zreika [2001] NSWCCA 106 FILE NUMBER(S) : CCA 60217/00 HEARING DATE(S) : Monday 19 February 2001 JUDGMENT DATE : 19 February 2001 PARTIES : Regina v Haysam Zreika JUDGMENT OF : Grove J at 1; Hulme J at 9 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0097 LOWER COURT JUDICIAL Blanch J OFFICER : COUNSEL : E. Wilkins (Crown) W.P. Brewer (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Law and Procedure - Sentence - Drug Trafficking - No Particular Point of Principle DECISION : Application for leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60217/00 GROVE J HULME J Monday 19 February 2001 REGINA v HAYSAM ZREIKA JUDGMENT 1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by the Chief Judge of the District Court. On 31 March 2000 the applicant appeared before his Honour and pleaded guilty to one count of supplying a prohibited drug contrary to ss25 and 29 of the Drug Misuse and Trafficking Act. Such an offence exposed him to a potential maximum penalty of fifteen years imprisonment together with a pecuniary penalty. His Honour sentenced the applicant to a total term of two years divided into minimum and additional terms of eighteen and six months respectively. 2 The applicant is a comparatively young man born on 30 January 1979. When he appeared for sentence before his Honour, however, he was not without significant prior record; significant in the sense there was on his record a conviction for armed robbery. This robbery took place five days before the applicant attained his eighteenth birthday. When dealt with he was sentenced to a period of two years penal servitude but was permitted to serve that by way of periodic detention. 3 For the purpose of this application there has been put before the Court a schedule of the attendances of the applicant in that periodic detention. It shows that he commenced serving detention on 5 September 1997 but that by 22 January 1999 there had been six unauthorised absences from attendance. The schedule also shows that subsequent to those six, which I have mentioned, there were two further absences unauthorised. The record also shows, however, that in the immediate weeks prior to his arrest and being placed in custody in respect of the current matter he had attended. 4 The facts of the current offence are relatively unremarkable. The applicant was seen in a motor vehicle, he was stopped by police, it is mentioned that the vehicle itself was given an infringement notice for defective tyres, but in the course of investigation the police sought to search the applicant and whilst removing his underpants a white sock fell on the floor, it was seen to contain a white power. There have been some disputes between the applicant and the police as to what he said on this occasion and that matter was canvassed by the learned sentencing Judge. It does not seem to me to be important to investigate, bearing in mind the plea of guilty entered by the applicant was specifically to supplying a prohibited drug, namely, cocaine. 5 Two matters have been canvassed specifically in support of the application. In the course of his remarks on sentence, his Honour made reference to the offence of armed robbery on the applicant's record to which I have made earlier reference, and he said this: "He was born in 1979 and the offences that he got the periodic detention for were offences of robbery which were committed by the look of it just after he had turned eighteen". As I have already mentioned, the offence in fact took place five days before the applicant turned eighteen. What his Honour said was, therefore, not precisely accurate but in so far as it amounts to an inaccuracy it is, in my view, entirely immaterial to the outcome of the sentencing proceedings. 6 The second matter which was canvassed on behalf of the applicant related to another part of his Honour's remarks on sentence, this time with reference to the attendances for periodic detention. What his Honour had said was: "It can be seen that at about the time of the commission of this offence he was not living up to the expectations the Court had placed upon him in respect to his periodic detention sentence and indeed he became involved in the commission of a very serious offence". It is argued that that statement is, to say the least, ambiguous in the sense that the record shows that at the actual time of this offence the applicant had attended at least on the last five occasions that he had been required to attend for periodic detention. I would not understand his Honour to be making precise reference to that circumstance. Indeed, as has been pointed out in submissions put before the Court by the Crown, the cancellation of the periodic detention order was not due to non-attendance immediately before his arrest but for the non-attendance on the accumulation of other occasions which I have already scheduled. 7 The issue before this Court is whether or not his Honour has made an error in law or whether or not there is some factual error which requires the exercise of jurisdiction by this Court. The sentence imposed upon the applicant, given the circumstances and his background, seems to me to be well within the range of his Honour's discretionary judgment. I am unpersuaded he has made any error. It needs to be remembered that the jurisdiction of this Court is to substitute another sentence which it thinks would be appropriate in all the circumstances - I refer to s6 of the Criminal Appeal Act. It seems to me in terms of that Act that no other sentence other than that imposed by his Honour was appropriate. 8 I would grant the application for leave to appeal but dismiss the appeal. 9 HULME J: I agree with the order proposed and with his Honour's reasons. 10 GROVE J: The order of the Court will be as I proposed. ********** 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.