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Court of Criminal Appeal 2 September 2009

Zaro v Regina

[2009] NSWCCA 219

Homicide
CRIMINAL LAW NO ERROR IN SENTENCING

Citation: Zaro v Regina [2009] NSWCCA 219
Court: New South Wales Court of Criminal Appeal
Date: 2 September 2009
Judge(s): Macfarlan JA; Grove J; Hoeben J

Background

The appellant was an 18-year-old who stabbed his friend, also aged 18, multiple times during the early hours of 17 April 2004, following an escalating and prolonged physical assault that same night. The violence appears to have been triggered by a telephone conversation in which the appellant learned his relationship with his girlfriend was unlikely to be accepted by her family. The deceased died from seven stab wounds.

The appellant was convicted of murder by a jury in the Supreme Court on 24 May 2007. He did not dispute that he stabbed the deceased or that the stabbing caused death, but contested the murder charge on three bases: intoxication preventing formation of the requisite intent, mental illness, and the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900.

At sentencing, Howie J imposed 22 years' imprisonment with a non-parole period of 16 and a half years, commencing 18 April 2004. The appellant then brought twelve grounds of appeal against conviction and four grounds seeking leave to appeal against sentence.

  • Whether an expert witness's reference to material not formally in evidence caused a miscarriage of justice
  • Whether the trial judge's directions to the jury on the partial defence of substantial impairment by abnormality of mind were adequate and correct
  • Whether other jury directions were flawed, giving rise to error
  • Whether the sentencing judge made errors in assessing the objective seriousness of the offence and the appellant's mental state at the time
  • Whether the sentence of 22 years with a non-parole period of 16 and a half years was manifestly excessive

Decision

On the expert evidence ground, the Court considered complaints that a psychiatric expert had referred to material not formally placed in evidence. The Court concluded that this did not cause a miscarriage of justice. The reference to the extraneous material did not render the trial unfair in the circumstances.

On the jury direction grounds, the Court found that the trial judge's directions on substantial impairment by abnormality of mind were not attended by error. The appellant's complaints about the directions were not justified, and the Court rejected each of these grounds in turn.

On the sentencing grounds, the Court examined whether the sentencing judge had erred in his findings about the appellant's mental state at the time of the offence and in his assessment of the objective gravity of the killing. The Court found no error in either respect. The sentencing judge had properly taken into account significant subjective factors, including the appellant's youth (he had turned 18 only two weeks before the offence), his relative immaturity, prior good character, traumatic refugee background, and possible below-average intelligence.

On manifest excess, the Court held that the sentence was not manifestly excessive. The sentencing judge had weighed the mitigating factors appropriately, and the outcome was within the range open to him. The Court also declined to treat a lower sentence imposed in a different case as a meaningful comparator, noting that the circumstances were materially different.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeals as to conviction and sentence are dismissed.

Key Takeaways

  • In dismissing all twelve conviction grounds, the Court of Criminal Appeal confirmed that an expert witness's reference to material not formally in evidence does not automatically produce a miscarriage of justice: the question is whether the reference rendered the trial unfair in all the circumstances.
  • Complaints about jury directions on the partial defence of substantial impairment by abnormality of mind (s 23A, Crimes Act 1900) will not succeed where the directions given were substantively correct and adequate.
  • Significant subjective mitigating factors, including youth, immaturity, prior good character, and a traumatic refugee background, do not inevitably reduce a sentence for a premeditated and brutal murder to below the range otherwise appropriate.
  • A below-average level of intelligence is not necessarily a significant mitigating factor where the offender clearly intended to kill the victim: the sentencing court found no error in treating the appellant's intellectual capacity as carrying little weight in that context.
  • Sentence comparisons with other decided cases carry limited weight where the factual circumstances differ materially; the Court declined to treat a lower sentence in a comparable case as a guide to manifest excess here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Camm v R [2009] NSWCCA 141
- Doggett v R [2001] HCA 46; (2001) 208 CLR 343
- Mulato v R [2006] NSWCCA 282
- R v A B [2005] NSWCCA 360
- R v Baker [2000] NSWCCA 85
- R v De Souza (1997) 41 NSWLR 656
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Jones (1986) 22 A Crim R 42
- R v Ryan (1995) 90 A Crim R 191
- R v Smyth (1956) 73 WN (NSW) 539
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168