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Court of Criminal Appeal 7 August 2026

Jamal Zahab v R

[2026] NSWCCA 118

Assault & violenceTheft & propertyFirearms & weapons

Citation: Jamal Zahab v R [2026] NSWCCA 118
Court: Court of Criminal Appeal
Date: 7 August 2026
Judge(s): Bell CJ, Dhanji J, Sweeney J

Background

The appellant was the getaway driver in a hotel robbery attempt at Bankstown in April 2023. Two co-offenders entered the hotel, threatened the licensee, and produced what appeared to be a firearm. The agreed facts recorded that the Crown could not prove beyond reasonable doubt that the appellant knew any weapon was present when the co-offenders left his vehicle.

The appellant pleaded guilty in the District Court to assault with intent to rob in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years imprisonment. He was sentenced to 4 years and 3 months with a non-parole period of 2 years and 10 months, incorporating a 5% guilty plea discount.

His co-offenders were convicted of the more serious armed variant under s 97(2), with maximum penalty of 25 years, and were each sentenced to longer terms reflecting their direct roles and prior criminal histories.

  • Whether the sentencing judge erred by treating a co-offender's possession and use of a firearm as a factor in assessing the appellant's objective seriousness, despite the Crown conceding it could not prove the appellant's knowledge of any weapon
  • Whether the sentencing judge failed to distinguish between the appellant's legal liability as a joint criminal enterprise participant and his actual moral culpability given his specific, limited role
  • Whether the sentencing judge, having accepted that the appellant's moral culpability was reduced by his background of childhood deprivation, failed to consider how that finding affected the weight to be given to the other purposes of sentencing
  • Whether the sentencing judge took into account prior convictions that did not appear in the appellant's criminal history

Decision

Ground 1: The sentencing judge expressly acknowledged the Crown's concession about the appellant's lack of knowledge of the firearm, but nonetheless treated its presence and use as a relevant factor in assessing objective seriousness. The Court of Criminal Appeal held this was an error: given the Crown's concession, the firearm could not be used adversely to the appellant in sentencing. Dhanji J noted that the principle more precisely engaged was that in Josefski v R rather than De Simoni, though the Court declined to resolve that question definitively as it had not been fully argued. The practical consequence was the same: the firearm was not available as a sentencing consideration against this appellant.

Ground 2: The Court accepted that the sentencing judge had not adequately distinguished between the appellant's liability for the joint criminal enterprise (which founded the conviction) and his personal moral culpability for the offending, given his role was confined to driving. His co-offenders planned and recruited him at the last minute; they carried out the assault and produced the weapon. This distinction in culpability was a matter the sentencing court was required to address.

Ground 3: The Court accepted the Crown's concession that the sentencing judge erred in failing to consider, having accepted that the appellant's moral culpability was reduced by childhood deprivation, how that reduction bore on the weight to be given to the various purposes of sentencing such as deterrence and protection. This is a recognised obligation following R v JW and related authorities.

Ground 5: The sentencing judge referred to prior convictions for firearms possession, assault with intent to rob, and armed robbery that did not appear in the appellant's criminal history. The Crown conceded this error and the Court accepted that concession.

The Court allowed the appeal on all four remaining grounds, quashed the original sentence, and resentenced the appellant. On resentencing, the Court took into account the appellant's lesser and limited role, his less serious criminal history compared to his co-offenders, and the personal matters bearing on his culpability. The Court also compared the sentences imposed on the co-offenders, noting they had pleaded guilty to a more serious offence with a higher maximum penalty and received larger plea discounts.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to imprisonment for 3 years and 3 months with a non-parole period of 2 years and 2 months, dating from 29 January 2025
  • Sentence to expire 28 April 2028; non-parole period to expire 28 March 2027

Key Takeaways

  • Where the Crown concedes it cannot prove an offender's knowledge of a co-offender's weapon beyond reasonable doubt, that weapon cannot be used adversely against that offender in sentencing, regardless of whether the applicable principle is characterised as De Simoni or Josefski.
  • Participation in a joint criminal enterprise establishes liability for an offence but does not, by itself, determine moral culpability for sentencing purposes: a sentencing court must separately assess the offender's specific role and conduct within that enterprise.
  • A sentencing court that accepts reduced moral culpability arising from an offender's background must go further and consider how that reduction affects the weight to be given to the statutory purposes of sentencing, such as general deterrence.
  • Reliance on prior convictions that do not appear in an offender's criminal history is a sentencing error, and the Court of Criminal Appeal confirmed this ground was made out by accepting the Crown's concession.
  • The resentence of 3 years and 3 months (down from 4 years and 3 months) reflects the cumulative weight of all four errors, with particular significance given to the appellant's limited role as driver, his lack of knowledge of the weapon, and the absence of prior similar offending in his actual criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1),(2)

Cases
- Josefski v R [2010] NSWCCA 41 ; (2010) 217 A Crim R 183
- Kentwell v The Queen (2014) 252 CLR 601 ; [2014] HCA 37.
- NK v R [2025] NSWCCA 73
- R v Henry (1999) 46 NSWLR 346 ; [1999] NSWCCA 111
- R v JW (2010) 77 NSWLR 7 ; [2010] NSWCCA 49
- The Queen v De Simoni (1981) 147 CLR 383 ; [1981] HCA 31
- York v R [2025] NSWCCA 81