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District Court 10 June 2010

R v ZAOUI

[2010] NSWDC 179

DrugsFraud & dishonesty
CRIMINAL LAW JUDGMENT SEVERITY APPEAL OBTAIN MONEY BY DECEPTION

Citation: R v Zaoui [2010] NSWDC 179
Court: District Court of New South Wales
Date: 10 June 2010
Judge(s): Berman SC DCJ

Background

The offender was convicted of more than fifty offences of obtaining money by deception. His method was consistent: he would enter small businesses, typically pizza shops, and claim his car had broken down and that the NRMA required payment for a replacement battery. The scheme was sufficiently persuasive that employees sometimes contributed their own funds, and on one occasion accompanied him to two separate ATMs before handing over $400.

The offender had a long history of drug use, and the money obtained through these deceptions appeared to have been spent on drugs. He had been provisionally accepted into Odyssey House, a residential drug rehabilitation program.

The matter came before the District Court as a severity appeal against sentences imposed in the Local Court. The Magistrate had imposed an effective sentence of two years' imprisonment with a non-parole period of eighteen months, without making a finding of special circumstances.

  • Whether a finding of special circumstances was warranted, justifying a departure from the standard ratio between the non-parole period and the head sentence
  • Whether parole conditions requiring entry into residential drug rehabilitation should be imposed
  • Whether the appeal against the sentences to commence on 24 March 2011 should be allowed

Decision

The offender's legal representative (from Legal Aid) applied for a finding of special circumstances. The practical consequence of such a finding in this context was that the non-parole period would be reduced and the eligible parole period extended, but parole would be conditional on the offender entering a residential rehabilitation program. The court noted that this arrangement could result in the offender spending more time in custody than under the original sentence if no suitable program was available upon his release.

The court accepted the application, noting benefits to both the offender and the broader community, particularly the small businesses that had been targeted. The offender had been informed of the potential consequences and confirmed his willingness to accept a reduced non-parole period tied to the rehabilitation condition.

The appeals against sentences commencing on 24 March 2010 were dismissed. The appeals against sentences commencing on 24 March 2011 were allowed, with the court resentencing the offender to imprisonment with a four-month non-parole period and a twelve-month head sentence for that tranche of offences.

Orders Made

  • Appeals against sentences commencing 24 March 2010: dismissed
  • Appeals against sentences commencing 24 March 2011: allowed
  • Offender resentenced for those offences to imprisonment with a non-parole period of four months from 24 March 2011 (expiring 23 July 2011) and a head sentence of twelve months
  • Parole conditions to include a requirement that the offender enter and remain in a residential drug rehabilitation program upon release, with the duration of rehabilitation to be determined by the Probation and Parole authority in consultation with the program provider
  • Prison authorities directed to assist the offender in identifying an appropriate rehabilitation program and completing the necessary application while in custody

Key Takeaways

  • A finding of special circumstances can be used to extend the parole eligibility period beyond the standard ratio, but doing so may in practice result in a longer period of custody if parole conditions are not met at the point of eligibility.
  • The District Court accepted that an offender's informed consent to a potentially longer period in custody, in exchange for a rehabilitation-linked parole condition, was a relevant consideration in structuring the sentence.
  • Residential drug rehabilitation as a condition of parole is available as a sentencing tool where the offending is drug-motivated and there is evidence of genuine acceptance into a program.
  • Where a severity appeal involves multiple tranches of sentences with different commencement dates, each tranche may be treated separately, with some appeals dismissed and others allowed.
  • Prison authorities were expressly directed to facilitate the offender's access to rehabilitation program information and applications while in custody, reflecting the rehabilitative purpose underpinning the sentencing approach.

Legislation and Cases Referenced

Legislation: No specific legislation cited in the judgment text.

Cases: No cases cited in the judgment text.