Citation: Regina v Zreika [2000] NSWCCA 75
Court: Court of Criminal Appeal, New South Wales
Date: 23 February 2000
Judge(s): Hidden J; Carruthers AJ
Background
The appellant was convicted by a jury in the District Court at Parramatta on three charges arising from his conduct connected to a supermarket robbery in Lidcombe in February 1996. The charges covered concealing a serious offence, perverting the course of justice, and threatening a witness. He was acquitted of a fourth charge involving threats to a police officer.
The facts were serious. The appellant had foreknowledge of the robbery, intimidated a witness at the scene, and later threatened two young female witnesses, both 16-year-old schoolgirls in their HSC year, to prevent them from cooperating with police and attending court proceedings. One witness was so frightened that she gave a statement to police only after being threatened; the other effectively gave no evidence at committal, causing the appellant to be discharged on the robbery charge.
Judge Grogan sentenced the appellant in the District Court to a fixed term of three months on count one, a fixed term of twelve months on count three, and a minimum term of nine months plus an additional term of fifteen months on count two, with the sentences structured to run consecutively. The appellant sought leave to appeal, arguing the sentences were excessive given his youth at the time of the offending.
Legal Issues
- Whether the sentences imposed by the District Court were excessive, having regard to the appellant's age at the time of the offences (between 17 years nine months and 19 years of age)
- Whether the sentencing judge gave sufficient weight to the appellant's youth and immaturity as mitigating factors
- Whether the objective seriousness of the offending warranted the sentences imposed, notwithstanding those subjective circumstances
Decision
The Court of Criminal Appeal granted leave to appeal, given the appellant's youth, but ultimately dismissed the appeal. Carruthers AJ, with Hidden J agreeing, found that the sentences were not outside the sentencing discretion available to the trial judge.
The Court identified several aggravating features that supported the sentences. These included the serious and sustained nature of the threats made to vulnerable young witnesses, the concatenation of three separate offences, and the fact that the third offence was committed while the appellant was on bail in relation to the first two. Offending while on conditional bail was treated as a significant aggravating factor warranting severe punishment.
The Court accepted that the appellant's youth and immaturity were relevant subjective factors, and noted that the sentencing judge had allowed for an extended additional term to facilitate rehabilitation after finding special circumstances. However, the Court held that the objective gravity of the conduct could not be outweighed by those considerations. The proper administration of justice, including the right of witnesses to give evidence without fear of intimidation, was described as a fundamental element of the democratic system, and the conduct was characterised as an intolerable abuse of that system.
The Court also noted the significant collateral harm caused to one of the witnesses. She suffered serious emotional trauma requiring psychiatric treatment, and her HSC results were adversely affected, affecting her university prospects. The sentencing judge had noted the victim impact statement but expressly declined to impose a heavier sentence on account of its contents.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Offending while on conditional bail is a well-established aggravating factor in sentencing, warranting significantly increased punishment.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the proper administration of justice is a fundamental democratic value, and that witness intimidation represents an intolerable interference with it requiring condign punishment.
- Youth and immaturity remain relevant mitigating factors in sentencing, but they do not automatically override the objective gravity of serious offences against the administration of justice.
- A sentencing court may structure an extended additional term to accommodate rehabilitation where special circumstances are found, and doing so is consistent with appropriate weight being given to a young offender's prospects.
- Where a victim impact statement is before a sentencing court, it is permissible for the court to expressly decline to impose a heavier sentence on account of that material while still acknowledging the harm caused.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 316, 319, 322(a), 322(d)
Cases:
- Regina v Karageorge (1998) ACrimR 157
- Regina v Pangello (1991) ACrimR 441
- Regina v WHS (Unreported, NSWCCA, 27 March 1995)