New South Wales Court of Criminal Appeal CITATION : R v Zibelnik [2002] NSWCCA 317 FILE NUMBER(S) : CCA 60628/01 HEARING DATE(S) : 1 August 2002 JUDGMENT DATE : 1 August 2002 PARTIES : Regina Frank Zibelnik JUDGMENT OF : Sperling J at 1; Greg James J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0095 LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : Ms D Woodburne for the Crown Applicant in person SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Applicant in person CATCHWORDS : Application for leave to appeal against sentence - no question of principle DECISION : 1. Leave to appeal granted; 2. Appeal dismissed. - 2 -IN THE COURT OF CRIMINAL APPEAL 60628/01 Sperling J Greg James J Thursday, 1 August 2002 R v Frank Zibelnik Judgment 1 Sperling J: The applicant seeks leave to appeal against the sentence imposed by Morgan DCJ sitting in the District Court at Queanbeyan on 30 August 2000. The applicant had pleaded guilty to the offence of aggravated break, enter and commit serious indictable offence, being malicious damage whilst armed with an offensive weapon, for which the maximum penalty is 20 years imprisonment. Two offences of assault, committed at the time on the two male occupants of the house, were taken into account by her Honour at the applicant's request. 2 The two offenders were sentenced at the same time. Her Honour sentenced the applicant to five years imprisonment with a non-parole period of three years and eight months. Her Honour sentenced the applicant's brother to five years imprisonment with a non-parole period of two years and six months. 3 The applicant is unrepresented. His written submissions should be construed as raising three matters as the grounds of appeal: that the sentence is manifestly excessive; that insufficient weight was given to the fact that he had not previously been sentenced to a term of imprisonment; and that his co-offender received a lesser sentence, contrary to the principle of parity. 4 The offences were committed at 1.30am on 30 January 2001. The applicant and his co-offender - his brother Danny Zibelnik - broke into the house and at the time there were two adult males and one adult female in the house as well as two very young children. Armed with a baton and an axe, they broke through the locked front door, damaged property extensively, assaulted and terrorised the occupants. The motive for the attack was to scare the male occupants of the house because of a grievance to do with the sale of drugs by the occupants to the offenders. 5 Neither offender had a serious criminal record. Neither had previously served a term of imprisonment. 6 The applicant was 33 years of age at the time of the offence. His brother was 35 years of age. Both offenders pleaded guilty at the earliest opportunity, for which her Honour allowed a 25 per cent discount. 7 After he was charged, Danny Zibelnik had approached the Probation Office requesting assistance in relation to his alcohol and drug addiction. He was referred to the Community Health Service and following assessment had attended in excess of 12 sessions of counselling. He had also completed a three week rehabilitation program. The Salvation Army had indicated he was accepted to undergo further rehabilitation treatment. 8 In his account of the offence to the Probation Officer, Danny Zibelnik said that the "raid on the house" was his brother's idea. Her Honour found that he may have been negatively influenced by his brother in that regard. 9 The applicant had expressed regret about his involvement. The Probation Officer reported that the applicant had reluctantly acknowledged that he had a problem with binge drinking. Her Honour observed that the applicant had somewhat reluctantly come to the realisation that he needed treatment. She found that the applicant now intended while in custody to seek counselling for that problem. 10 Her Honour found that both offenders had exhibited remorse and contrition. Her Honour found that a custodial sentence was necessary in both cases. She found that there were special circumstances in the case of Danny Zibelnik warranting a variation of the statutory formula for the non-parole period. She held that there were no special circumstances warranting such an approach in the case of the applicant. It was for that reason that the different non-parole periods were set. 11 In view of the objective seriousness of the crime, the ground of appeal that the applicant's sentence was manifestly excessive must be rejected. So too, the ground of appeal that insufficient weight was given to the fact that the applicant had not previously served a term of imprisonment. As for parity, there was a distinct difference in the attitude and conduct of the two offenders which justified a finding by her Honour that an extended period of supervision on parole following release from prison was warranted in the case of the applicant's brother but not in the case of the applicant. In the circumstances, the applicant does not have a legitimate grievance in relation to the difference between the two sentences. The ground of appeal relating to parity of sentence must, therefore, also fail. 12 In the circumstances I would grant leave to appeal but I would dismiss the appeal. 13 Greg James J: I agree. 14 Sperling J: The orders of the Court will be as I propose. Leave to appeal is granted. The appeal is dismissed. –oOo- 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.