Personal Factors Cannot Affect the Objective Seriousness of an Offence

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By Paul Gregoire and Ugur Nedim

Moustaffa Zreika was driving a 6.5 tonne Hino Tipper truck down Burnett Street in Sydney’s Merrylands on 22 July 2017, when the vehicle crossed the double lines down the centre of the road, whilst attempting a slight left-hand bend.

The truck sideswiped an oncoming car and then continued down the wrong side of the residential street, as it’s believed Zreika – who’d taken “at least twice” the prescribed amount of the painkiller tramadol – had experienced one of his blackout seizures.

Zreika had been suffering blackouts since 2014. Two years after his first seizure, he’d been warned by a doctor that the condition could prove dangerous in terms of driving. Although there was contention as to whether Zreika remembered this warning, as it was given soon after an episode.

And as Zreika’s truck continued to careen along the wrong side of the road, it mounted the footpath and ploughed into two elderly men who were gardening.

The injuries suffered by Tannous Daher were so horrific he died at the scene. Whilst his companion, Milad Moujalli, suffered a long list of injuries.

At the time of the incident, Zreika’s class C unrestricted driver licence was suspended, due to demerit points, which had accrued in relation to eight driving offences.

The suspension period would have just ceased to have applied if the truck driver had retaken the driver knowledge test as required to reobtain his licence.

The initial sentence

At trial, Zreika faced two main charges. The first related to one count of dangerous driving occasioning death, contrary to section 52A(1)(c) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment.

The second charge was one count of dangerous driving occasioning grievous bodily harm, contrary to section 52A(3)(c) of the Crimes Act. The maximum penalty that applies to this crime is 7 years on the inside.

The pre-trial magistrate placed two backup offences on a certificate under the provisions of section 166 of the Criminal Procedure Act 1986 (NSW).

This allowed these additional and lesser charges – driving while disqualified and driving with an unsecured load – to be acknowledged during the trial, although they resulted in neither convictions or penalties.

District Court Judge Ian Bourke found the two offences being tried “fell within the middle range of objective seriousness, and toward the higher end” of that range.

In doing so, he noted the driver’s history of blackouts, adding Zreika could not think it was safe to drive, and that it was clear he’d suffered a seizure at the time of the accident.

His Honour couldn’t determine the exact amount of tramadol pills Zreika took before the incident, but he found that the narcotic analgesic wasn’t a direct cause of the seizure that led to the crime’s commission, but the overuse of the drug had increased the risk that he could suffer such a blackout.

After Zreika pleaded not guilty to the two main charges, a jury saw him convicted on both counts. And on 28 August 2019, the trial judge sentenced the offender to 6 years imprisonment, with a non-parole period of 4 years.

The first ground of appeal

Zreika appealed the length of his sentence to the NSW Court of Criminal Appeal (NSWCCA) in July this year. He did so on two grounds.

The first was that the sentencing judge did not specifically consider Moujalli’s injuries when gauging the objective seriousness of the grievous bodily harm offence.

In relation to the Moujalli injuries, the defendant’s lawyer accepted the assessment of grievous bodily harm. And the statement of a junior medical officer and the victim impact statement – both before the court – listed a sizable number of injuries the 74-year-old had suffered.

The argument on appeal was there had been no standalone assessment of the Moujalli injuries. However, NSWCCA Justice Andrew Bell pointed out that the trial judge in assessing the seriousness of the crime, referred to these injuries as “very serious” and “grievous”.

Given the use of these terms to describe these injuries, his Honour refused the first ground of appeal.

However Justice Peter Hamill disagreed with this finding, as he asserted there should have been a more direct assessment of the injuries, not simply passing remarks.

Second ground upheld

The second ground of appeal was that the sentencing judge made an error when considering the objective seriousness of the offence, as he’d taken into account personal matters relating to the defendant in making his assessment.

The remarks in question related to Zreika’s age, the limited remorse he’d displayed and his driving record.

What had especially drawn consternation in this regard was the mentioning of the defendant’s suspended licence and that it had not been renewed at the time of the incident.

Justice Bell found that although the suspended licence held some bearing on the sentencing process, it should have had no real impact on the objective seriousness of the crime.

And it’s citing at least served to see the suspended licence breach double counted as it was already being taken into account on the section 166 certificate.

So, this ground was unanimously upheld by the NSWCCA three judge bench.

Orders of the day

On 11 October this year, Justice Bell ordered that the 2019 District Court sentence be quashed, and Zreika be resentenced to a term of 5 years and 6 months prison time, with non-parole set at 3 years and 8 months.

His Honour took a number of aggravating factors into consideration when resentencing, which included ignoring medical advice that he shouldn’t drive and his overuse of tramadol whilst driving. The judge also found that Zreika’s moral culpability was high.

“There is also the need for specific and general deterrence”, Justice Bell continued, as he outlined that the sentence should serve to prevent others from taking such risks – that’s whether they be borne out of “arrogance or denial or a combination of both”.

NSWCCA Justice Derek Price agreed with his colleague’s orders. However, Justice Hamill again dissented on the resentencing, as he’d upheld both grounds of appeal and due to this, he considered an even greater reduction in sentence would have been appropriate.

According to the dissenting judge, a term of 4 years and 9 months, with a non-parole period of 3 years and 3 months would have better suited the circumstances.

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