Background
Jamal Zahab pleaded guilty in the District Court to assault with intent to rob in company, under s 97(1) of the Crimes Act 1900 (NSW). He drove two co-offenders to and from a Bankstown hotel while they entered the premises, assaulted the licensee and attempted to obtain access to an office. One co-offender carried what appeared to be a firearm, but the Crown accepted it could not prove that Zahab knew of any weapon.
Zahab remained in the vehicle and had no direct contact with the victim. The District Court imposed a sentence of four years and three months, with a non-parole period of two years and 10 months. Zahab sought leave to appeal, alleging errors including reliance on the co-offender’s firearm, failure to distinguish his role from that of the principal offenders, insufficient treatment of his reduced moral culpability, and reliance on convictions absent from his criminal history.
The Court’s Holding
The Court granted leave, allowed the appeal, quashed the District Court sentence and resentenced Zahab to three years and three months’ imprisonment, with a non-parole period of two years and two months, both commencing on 29 January 2025.
The Court held that the firearm’s possession and use could not be taken into account adversely to Zahab because the Crown could not prove he knew of it. It also found that the sentencing judge blurred Zahab’s legal liability as a joint-enterprise participant with his distinct culpability as the driver, and incorrectly attributed prior firearm and armed-robbery convictions that were not on his record. Zahab’s deprived background and significant mental health conditions reduced his moral culpability and warranted reduced weight for general deterrence.
Key Takeaways
- A defendant cannot be sentenced adversely for a co-offender’s firearm use where the defendant’s knowledge of the weapon is not proved.
- Joint-enterprise liability does not eliminate the need to assess an offender’s individual role and moral culpability.
- Where reduced moral culpability is found, the sentencing court must consider its effect on deterrence and other sentencing purposes.
Why It Matters
The decision reinforces that sentence courts must keep separate an offender’s participation in a group crime from the conduct actually undertaken and foreseen by that offender. It also confirms that factual errors in an offender’s criminal history can materially affect sentence and require resentencing.
For offenders with serious mental health conditions and traumatic backgrounds, the case illustrates that a finding of reduced moral culpability must have practical consequences in fixing the weight given to deterrence.