Citation: Zahed, Abdul v R [2025] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 28 February 2025
Judge(s): Basten AJA (principal judgment); McNaughton J and Weinstein J (agreeing)
Background
The appellant pleaded guilty to being an accessory after the fact to murder following the death of a man in December 2014. The victim was driven to a street near a hospital in south-western Sydney and left there, already fatally wounded. The appellant was found at the scene, shirtless, having wrapped his shirt around the victim's leg. Emergency services responded but the victim was pronounced dead at hospital.
The agreed facts for sentencing established that the appellant was present in the general vicinity during the violent assault and shooting but was not part of any joint criminal enterprise. His offending as an accessory consisted of providing multiple false accounts to police, a parole officer, and emergency services, and conspiring with his older brother (a co-offender) to mislead investigators. Recorded phone calls captured the appellant expressing willingness to "do 20 years" to protect his brother.
The appellant was sentenced in the Common Law Division to 3 years 9 months with a non-parole period of 2 years 6 months, commencing 15 January 2023. He appealed on three grounds: that the sentencing judge gave insufficient weight to his "misguided sense of loyalty" to his brother; that the judge failed to find special circumstances warranted by the risk of institutionalisation; and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in declining to treat it as established that the appellant's brother was the shooter, given that a statement of agreed facts from the brother's own sentencing proceedings contained that assertion.
- Whether the sentencing judge erred in declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), given evidence of a risk that the appellant would become institutionalised.
- Whether the sentence of 3 years 9 months (NPP 2 years 6 months) was manifestly excessive for this offending.
Decision
Ground 1: Identity of the shooter and the agreed facts from co-offender proceedings
The appellant argued that the brother's statement of agreed facts, which was included in the tender bundle at the appellant's sentence hearing for the purpose of a parity comparison, contained an assertion that the brother had shot the victim. The appellant contended this should have been accepted as a fact in his own sentencing. The Court rejected this argument. The statement of agreed facts from the co-offender's proceedings constituted an agreement between that co-offender and the Crown in a separate case; it was not binding on, or admissible as proof of fact in, the appellant's proceedings. The appellant's own agreed facts described the perpetrators only as "persons known to the offender," without identifying the shooter. The sentencing judge committed no error in refusing to act on the co-offender's agreed facts as proof that the brother fired the shot.
The Court also addressed the evidentiary route the appellant proposed to reach that finding. Even if the Evidence Act 1995 (NSW) technically applied (which the Court doubted in this sentencing context), ss 60 and 136 did not provide a pathway to treat an admission made by a third party in separate proceedings as proof of the fact admitted. The rules of evidence do not apply to sentencing in any event.
Ground 2: Special circumstances and risk of institutionalisation
The sentencing judge acknowledged the risk of institutionalisation but concluded that no special circumstances existed warranting a departure from the statutory ratio between non-parole period and head sentence. The Court found no error in this approach. A risk of institutionalisation does not automatically mandate a finding of special circumstances; the sentencing judge gave reasons for the conclusion reached, and those reasons were not shown to be erroneous.
Ground 3: Manifest excess
The Court accepted that the objective gravity of the offending was at the lower end for this type of accessory offence: the appellant was not present during the murder itself, he took some steps to assist the victim at the scene, and his motive was misguided loyalty rather than personal gain. However, the sentencing judge had identified these factors and weighed them against a lengthy criminal history and the deliberate and sustained nature of the deception, which included multiple false accounts over several weeks and a recorded conspiracy with the brother. Taking the relevant range into account, the Court was not satisfied that the sentence was outside the range available to the sentencing judge. Ground 3 was rejected.
Orders Made
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- Agreed facts prepared for the sentencing of a co-offender in separate proceedings are not admissible as proof of the facts agreed in those proceedings when tendered in a different offender's sentence hearing, even where the co-offender material is admitted for the limited purpose of parity comparison.
- The rules of evidence do not apply to sentencing, and ss 60 and 136 of the Evidence Act 1995 (NSW) do not operate to transform a third party's admissions from another case into proof of fact in a later, unrelated sentencing hearing.
- A risk of institutionalisation is a factor relevant to special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but does not automatically compel a finding of special circumstances; the sentencing judge retains a discretion and must give reasons.
- In dismissing the manifest excess ground, the Court confirmed that low objective gravity alone does not establish manifest excess where the sentencing judge has weighed it against aggravating factors such as a lengthy criminal history and sustained, deliberate deception.
- Where an offender's motive is loyalty to a family member, that motive may reduce moral culpability to some degree, but its weight depends on whether the identity and role of that family member is actually established on the facts accepted at sentencing.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Evidence Act 1995 (NSW), ss 4, 60, 136
Cases
- Barrett v R [2011] NSWCCA 213
- Jackson v R [2010] NSWCCA 162
- Keen v R [2024] NSWCCA 157
- Likiardopolous v The Queen (2012) 247 CLR 265; [2012] HCA 37
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- McCosker v R [2022] NSWCCA 127
- R v Lemene [2001] NSWCCA 5; 118 A Crim R 131