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Court of Criminal Appeal 12 July 2021

Zabakly v R

[2021] NSWCCA 155

Assault & violenceTheft & propertyFirearms & weapons
CRIME OFFENCES ATTEMPT ENTRY NOT EFFECTED APPLICATION BY PROSECUTOR TO CROSS EXAMINE OWN WITNESS

Citation: Zabakly v R [2021] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 12 July 2021
Judges: Basten JA, Brereton JA, Beech-Jones J

Background

On the evening of 24 April 2017, the appellant and two other men attended a ground-floor unit in Miller, Sydney, where the elderly occupant refused them entry. A loud kick followed, partially forcing the front door open before the occupant pushed it shut. Approximately 20 seconds later, a shotgun was discharged through a rear window of the unit, sending glass fragments into the occupant's face.

The appellant was convicted by a jury in the District Court on two counts: attempting to break and enter a dwelling house to commit a serious indictable offence (intimidation) in circumstances of special aggravation, and firing a firearm at a dwelling house with reckless disregard for safety. The trial judge imposed an aggregate sentence of 11 years' imprisonment with a non-parole period of 8 years.

The appellant applied to the Court of Criminal Appeal challenging both convictions and the sentence on multiple grounds.

  • Whether the two verdicts were unreasonable and unsupported by the evidence, including whether the appellant's identity as a participant was established
  • Whether an attempt to break and enter (where no entry was ultimately effected) could only be charged under s 113 of the Crimes Act 1900 (NSW), rather than as an attempt under s 112
  • Whether the trial judge erred in granting the prosecution leave to cross-examine the victim as an unfavourable witness under s 38 of the Evidence Act 1995 (NSW), including where the questioning went to an inadmissible opinion
  • Whether the trial judge erred in permitting cross-examination of a second prosecution witness without properly considering the mandatory factors under ss 38(6) and 192 of the Evidence Act
  • Whether the aggregate non-parole period was erroneous because it exceeded the sum of the indicative individual non-parole periods
  • Whether the reduction of a co-offender's sentence on a separate appeal required a corresponding reduction of the appellant's sentence (the parity ground)
  • Whether the sentence was manifestly excessive

Decision

Convictions upheld. The Court rejected the argument that the attempt charge could only be brought under s 113 (break and enter with intent, where no entry is effected) rather than as an attempt under s 112 (break and enter and commit a serious indictable offence). The Court held that an attempt relates to both elements of the s 112 offence, so charging the appellant under s 112 as an attempt was correct in law. The verdicts were not unreasonable: evidence from the occupant and two neighbouring witnesses, together with the occupant's identification of the appellant, supported the jury's findings.

Evidentiary grounds dismissed. On ground 3, the Court found no appellable error in the trial judge granting the prosecution leave to cross-examine the occupant about inconsistencies between his trial evidence and his prior police statement. Even if the statement contained what might be characterised as an inadmissible opinion, the cross-examination fell within permissible limits and caused no relevant unfairness. On ground 4, concerning cross-examination of the second prosecution witness, the Court acknowledged that the trial judge did not expressly address the s 192(2)(b) fairness factor, but concluded that no substantial miscarriage of justice resulted.

Sentence reduced. The Court accepted two sentencing grounds. First, the aggregate non-parole period of 8 years exceeded the sum of the indicative individual non-parole periods (which together totalled 7 years and 6 months), constituting a legal error. Second, the parity ground arising from the co-offender's sentence being reduced on appeal in Dixon v R [2020] NSWCCA 123 warranted reconsideration. The Court resentenced the appellant to an aggregate term of 8 years (down from 11 years) with a non-parole period of 6 years. The manifest excess ground was not independently determinative given the resentencing.

Orders Made

  • Conviction appeals dismissed
  • Leave to appeal against sentence granted
  • Original sentence quashed
  • Aggregate sentence of 8 years' imprisonment imposed, commencing 2 January 2019 and expiring 1 January 2027
  • Non-parole period of 6 years set; earliest parole eligibility date of 1 January 2025
  • Indicative individual sentences recorded:
  • Count 1 (attempted break and enter): fixed term of 18 months
  • Count 2 (firing firearm at dwelling): 7 years and 4 months with a non-parole period of 5 years and 6 months

Key Takeaways

  • An attempt to commit the offence of breaking and entering and committing a serious indictable offence under s 112 of the Crimes Act 1900 (NSW) can be charged as such even where no entry is effected; the inchoate offence attaches to both elements of the s 112 offence and does not automatically reduce to a charge under s 113.
  • Under the Evidence Act 1995 (NSW), when granting leave to cross-examine a prosecution witness as unfavourable under s 38, a trial judge must consider the mandatory factors in ss 38(6) and 192, including whether the questioning would be unfair to the accused; failure to expressly address those factors may constitute error, though it will not automatically result in a conviction being set aside.
  • Where a co-offender's sentence is reduced on a subsequent appeal, parity principles may require a fresh consideration of the remaining offender's sentence, even where the grounds for the co-offender's reduction do not directly apply to the remaining offender.
  • An aggregate non-parole period that exceeds the arithmetical sum of the indicative individual non-parole periods is a legal error requiring resentencing.
  • New evidence of personal circumstances not placed before the sentencing judge is not admissible to challenge a sentence on appeal, but may be received on a resentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 113
- Evidence Act 1995 (NSW), ss 38, 76, 78, 192
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 54A
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13

Cases:
- Dixon v R [2020] NSWCCA 123
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen [2016] HCA 25; 258 CLR 420
- Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279