AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 3 July 2020

R v Zraika

[2020] NSWDC 357

Assault & violenceTheft & property
CRIMINAL LAW JOINT CRIMINAL ENTERPRISE OFFENDER WAS NOT THE PRINCIPAL OFFENDER GUILTY VERDICT BY JURY SENTENCING PLEA OF NOT GUILTY OF PRIOR GOOD CHARACTER

Citation: R v Zraika [2020] NSWDC 357
Court: District Court of New South Wales
Date: 3 July 2020
Judge: Hatzistergos DCJ

Background

The offender was convicted by jury of aggravated break and enter and commit a serious indictable offence (assault occasioning actual bodily harm) in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment, with a standard non-parole period of five years. The offence occurred late at night on 10 November 2017 at a residential address in Miller, NSW.

The background involved a dispute between close friends. The offender had contacted one of her co-offenders, Ms Al-Hazzouri, to inform her that the victim had been intimate with Al-Hazzouri's ex-husband. Al-Hazzouri asked the offender to drive her to the victim's home to collect belongings. The group of four women arrived at around 11.45pm. When the victim closed a door on them after Al-Hazzouri took belongings outside, the offender forced the door open, damaging the frame and wall. Al-Hazzouri then attacked the victim, punching and kicking her, striking her on the head with a metal lamp and causing her to lose consciousness. The victim's phone and wallet were missing when she came to.

The offender had pleaded not guilty throughout. Her co-offenders, Ms Al-Hazzouri and Ms Tevelein, had pleaded guilty. The key sentencing question was how to treat an offender who was not the principal perpetrator of the violence, had no prior criminal history, and maintained her innocence through trial.

  • What facts could properly be found on sentence, given the offender had contested guilt and been convicted by jury, and the defence at sentence advanced a version inconsistent with the Crown case accepted by the jury?
  • What was the offender's precise role in the joint criminal enterprise, particularly regarding the breaking of the door and the level of foresight she had of the assault?
  • What was the appropriate objective seriousness of the offending in light of the offender's role as a non-principal?
  • How should parity principles operate where co-offenders pleaded guilty but were on conditional liberty at the time of offending, while this offender had more favourable subjective circumstances?
  • Whether the sentence should be served by way of Intensive Correction Order (ICO) rather than full-time custody.

Decision

Fact-finding at sentence: The court rejected the defence's attempt to recast the offender's role at the sentencing stage. Hatzistergos DCJ held that findings of fact on sentence must be consistent with the case advanced by the Crown and accepted by the jury. The defence had sought to limit the offender's criminality to driving Al-Hazzouri away after the assault, but this was incompatible with the jury's verdict. The court was satisfied beyond reasonable doubt that the offender broke the front door open and that her involvement preceded and facilitated the assault.

Role in the offence: The court found that, while the offender's contact with Al-Hazzouri precipitated the journey to the victim's home, no intent to commit the offence was formed until the door was closed against them. The offender was not found to have participated directly in the physical assault. Her criminality arose through the joint criminal enterprise and the circumstances of aggravation, specifically that the offence was committed in company. This placed her towards the bottom of the lower range of objective seriousness for this type of offence.

Subjective circumstances and parity: The offender had no prior criminal record, good character references, stable employment, and reasonable prospects of rehabilitation. The court acknowledged the absence of remorse but noted this was consistent with a person who maintained their innocence after a contested trial. Applying the parity principle from Green v The Queen, the court compared the offender's circumstances with those of the co-offenders, who had pleaded guilty and been on conditional liberty at the time. The court found the offender's subjective circumstances were more favourable overall, justifying a different sentencing outcome despite the lack of a discount for a guilty plea.

Mode of serving the sentence: Having arrived at a sentence of 24 months imprisonment (reduced to 1 year, 10 months and 24 days to account for pre-sentence custody), the court determined that an ICO was more appropriate than full-time imprisonment. Under s 69 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the paramount consideration is community safety. The court was satisfied that serving the sentence in the community under intensive correction was more likely to address the risk of reoffending than full-time custody.

Orders Made

  • The offender was convicted of the offence.
  • The offender was sentenced to 1 year, 10 months and 24 days imprisonment, to be served by way of Intensive Correction Order (ICO) in the community pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 3 July 2020 and concluding 27 May 2022.
  • Conditions of the ICO included:
  • No further offending.
  • Supervision by Community Corrective Services (Liverpool) for the duration of the order, with compliance with all reasonable directions.
  • Reporting to Community Corrections Liverpool within seven days.
  • Unlimited non-association condition prohibiting any contact or communication with co-offenders Zena Al-Hazzouri and Janene Tevelein.
  • No approach to or communication with the victim.

Key Takeaways

  • Fact-finding on sentence must accord with the case accepted by the jury at trial. Where a defence at sentence advances a version inconsistent with the Crown case on which the jury convicted, a sentencing court is not bound to accept it and may reject it.
  • A conviction for aggravated break and enter in company can attach to a non-principal offender through joint criminal enterprise and complicity principles, even where that offender did not personally carry out the assault on the victim.
  • The parity principle requires comparison not only of sentences but also of the full range of subjective circumstances. Where a co-offender was on conditional liberty at the time of offending, that factor can justify a more favourable outcome for an offender who was not, even if the latter received no guilty plea discount.
  • Absence of remorse on sentence does not automatically undermine rehabilitation prospects where the offender maintained a not-guilty plea throughout a contested trial; the two are treated as consistent positions in that context.
  • Under s 69 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when deciding the mode of serving a sentence, and an ICO may be preferred over full-time imprisonment where it is assessed as better addressing reoffending risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 105A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7, 21A, 69

Cases:
- Alseedi v R [2009] NSWCCA 185
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Maxwell v R [2007] NSWCCA 304; (2007) 177 A Crim R 498
- R v Huynh [2005] NSWCCA 220
- R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167
- Sahyoun v R (No 2) [2020] NSWCCA 95