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Court of Criminal Appeal 18 September 2024

Zahed v R

[2024] NSWCCA 171

Public order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY OFFENDERS OFFENDER

Citation: Zahed v R [2024] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 18 September 2024
Judges: Fagan J; N Adams J; Faulkner J

Background

The appellant pleaded guilty to hindering a police investigation into the unlawful killing of Youssef Assoum, an offence under s 315(1) of the Crimes Act 1900 (NSW). On 12 December 2014, two days after the victim was violently assaulted, shot, and placed unconscious near Bankstown Hospital (where he later died), the appellant took steps designed to assist those responsible to evade detection. He was not arrested until August 2022, and Button J sentenced him on 12 March 2024 to 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months.

Two other individuals were sentenced in connection with overlapping conduct. The appellant's younger brother, Abdul Zahed, was separately sentenced by Button J on 7 June 2024 to 3 years and 9 months (non-parole period 2 years and 6 months) after pleading guilty to being an accessory after the fact to the murder. A third man, Triantefilos Vlangos, was sentenced in the Local Court to an 18-month Community Corrections Order after pleading guilty to intentionally attempting to destroy the victim's vehicle by fire.

The appellant sought leave to appeal on the sole ground that his sentence was unjust when compared with those imposed on Vlangos and Abdul Zahed, invoking the parity principle.

  • Whether the parity principle was engaged by comparison with Vlangos's Community Corrections Order, given the differences in their offending.
  • Whether Vlangos could properly be characterised as a co-offender for parity purposes.
  • Whether the modest difference between the appellant's sentence and his brother Abdul's sentence gave rise to a justifiable sense of grievance.
  • Whether Button J's exercise of sentencing discretion was open on the comparative objective and subjective facts.

Decision

The Court dismissed the appeal on both aspects of the parity ground. On the comparison with Vlangos, the Court found there were real, practical and substantive differences between the two men's offending. Vlangos was sentenced for a property offence, and it was not alleged that he knew of Assoum's death or of any connection between the vehicle and a police investigation. The Court went further, noting that although the Crown had not argued the point at first instance or on appeal, Vlangos could not properly be characterised as a co-offender with respect to whom the appellant could legitimately expect parity of sentence.

On the comparison with Abdul Zahed, the Court acknowledged that the appellant's sentence was only slightly shorter than his brother's, despite Abdul being convicted of the more serious offence of accessory after the fact to murder (maximum 25 years, compared with 7 years for the hindering offence). The Court examined the full range of objective and subjective factors applicable to each. Abdul's overall culpability was assessed as slightly greater; both brothers had comparable criminal records and similar subjective circumstances; Abdul received some mitigation for the adverse influence of his early home life; and the appellant received mitigation for physical injuries, post-traumatic stress disorder, and highly restrictive remand conditions.

Applying the approach affirmed in Lloyd v R and subsequent decisions, the Court framed the question as whether the differentiation made by Button J was open to him in the exercise of his sentencing discretion, not whether the appellate court would have reached a different result. The Court held that fixing the sentences at those relative levels was open to the sentencing judge. The modest difference between the sentences did not produce a justifiable sense of grievance in the appellant.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle is not engaged simply because multiple persons are sentenced in connection with events arising from the same incident: the question is whether the persons can properly be characterised as co-offenders with respect to one another.
  • Where an alleged comparator was sentenced for a categorically different offence (here, a property crime with no proven knowledge of a death or a police investigation), the sentencing courts are not required to achieve consistency with that person's penalty.
  • A comparatively small difference between sentences for two offenders can be appropriate where the sentencing judge has weighed distinct objective gravities and subjective circumstances, even when the offenders are related and their records are similar.
  • In dismissing the appeal, the Court reiterated the appellate principle drawn from Lloyd v R: the question is not what the appellate court would have done, but whether the differentiation was open to the sentencing judge in the exercise of discretion.
  • Subjective factors such as post-traumatic stress disorder, physical injury, and restrictive remand conditions can legitimately influence sentence and contribute to a justifiable difference between co-offenders' penalties.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 195(1)(b), 315(1), 344A, 349

Cases
- Keen v R [2024] NSWCCA 157
- Kiraz v R [2023] NSWCCA 177
- Lloyd v R [2017] NSWCCA 303
- Vujinovic v R [2024] NSWCCA 10
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Chamon v R [2020] NSWCCA 112
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Tatana v R [2006] NSWCCA 398