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Court of Criminal Appeal 7 December 2023

Zreika v R

[2023] NSWCCA 317

Fraud & dishonestyTraffic & driving
CRIMINAL LAW APPEAL SENTENCING

Citation: Zreika v R [2023] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 7 December 2023
Judge(s): Bell CJ; Price J; Hamill J

Background

The applicant was serving two separate sentences for unrelated offences. The first was a 5 year 6 month aggregate term (following a successful appeal reducing an original 6 year term) for dangerous driving causing death and grievous bodily harm. The second was a 27 month sentence for dishonestly damaging property by fire for gain.

When imposing the second sentence, the District Court judge deliberately structured its commencement date so that it would overlap with the final six months of the non-parole period of the first sentence. That design was intended to reflect both some degree of concurrency (acknowledging totality) and some degree of accumulation (recognising the distinct nature of the offending).

When the Court of Criminal Appeal later allowed the applicant's appeal against the first sentence and reduced the non-parole period by four months, the intended six-month overlap was inadvertently cut to approximately three months. No application was made under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) at the time of that appeal to adjust the commencement date of the second sentence. The applicant eventually brought a s 59 application in July 2023, roughly two years after the successful appeal.

  • Whether s 59 of the CSPA empowered the Court of Criminal Appeal to vary the commencement date of the damage to property sentence, given that the variation was sought approximately two years after the appeal that gave rise to the problem.
  • Whether the significant delay in bringing the s 59 application was a bar to relief.
  • What variation, if any, was appropriate in all the circumstances, having regard to the sentencing judge's clearly expressed intention regarding concurrency.

Decision

Bell CJ (with Price and Hamill JJ agreeing) confirmed that s 59 of the CSPA is ordinarily a "narrow and essentially mechanical" tool, as established in prior authority. However, his Honour acknowledged that cases of greater complexity can arise, and characterised this as one of them.

The Court accepted that the sentencing judge had clearly and expressly intended a six-month period of overlap between the non-parole periods of the two sentences, and that this intention was frustrated solely as a consequence of the CCA's later reduction of the first sentence on appeal. The Court noted, and the sentencing judge himself had acknowledged, that the appropriate course would have been to bring a s 59 application at the time of the successful appeal.

On the question of delay, the Court did not treat the two-year gap as an absolute bar to relief, though it plainly treated the delay as an important consideration. The Court looked to the principles discussed in Sahartor v R [2020] NSWCCA 36, where delay and intervening circumstances had been decisive against variation. Here, however, the Court found no equivalent intervening events that would make variation unjust or render earlier proceedings nugatory.

The Court determined that advancing the commencement date of the second sentence by three months, to 4 August 2022, would restore the six-month period of concurrency that the sentencing judge had found to be appropriate. In light of the proximity of the revised non-parole period expiry date, the Court also recommended that the State Parole Authority consider the applicant's release on parole as expeditiously as possible.

Orders Made

  • Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the commencement date of the applicant's 27-month sentence (originally commencing 4 November 2022) was varied to 4 August 2022.
  • The applicant's 18-month non-parole period was correspondingly adjusted to expire on 3 February 2024.
  • The Court recommended that the State Parole Authority consider the question of the applicant's release to parole with as much expedition as possible.

Key Takeaways

  • Section 59 of the CSPA empowers a court to vary the commencement date of a sentence when another sentence has been quashed or varied, and that power extends to cases where the variation is sought by application rather than on the court's own initiative.
  • While the power under s 59 is ordinarily described as "narrow and essentially mechanical" (per Makarov v R (No 4)), the Court of Criminal Appeal confirmed that cases of greater factual and structural complexity can arise where that characterisation does not fully capture what is required.
  • Delay in bringing a s 59 application is a significant factor weighing against relief, as illustrated by the contrasting outcome in Sahartor v R [2020] NSWCCA 36, where intervening circumstances made variation inappropriate. The absence of equivalent intervening events here was critical to the applicant obtaining relief despite a two-year delay.
  • A clearly expressed sentencing intention regarding the degree of concurrency between two sentences carries significant weight when a court considers how to exercise its discretion under s 59.
  • Under s 59(5), the term of a sentence or its non-parole period cannot itself be varied; only the commencement date is amenable to adjustment under this provision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 43, 59
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54(3)(a)
- Road Rules 2014 (NSW), r 292(a)

Cases:
- Allan v R (No 2) [2011] NSWCCA 27
- Makarov v R (No 4) [2008] NSWCCA 341
- R v Pham [2004] NSWCCA 263
- Sahartor v R [2020] NSWCCA 36
- Zreika v R [2021] NSWCCA 243